A Timeline on Coronavirus Legislation through March 22, 2020: What Wisconsin Employers Need to Know

As the situation relating to COVID-19 continues to rapidly evolve, it is important that employers be aware of legislation that will likely affect your business and have an impact on your employees, such as relief for families with children. Murphy Desmond also advises our business clients to review all contracts you are engaged in to determine if you have a force majeure clause.

Some of these changes have not yet been adopted, may not be adopted, or may be enacted in a revised fashion. We will update information as more becomes available.

Safety first

As a reference for safety practices in your place of business, please see the following websites.

Most Recent Changes to Laws and Proposals

March 18, 2020

On the evening of Wednesday, March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act. After changes to the bill were made on March 16, 2020, by the House of Representatives, the Senate quickly passed the bill, which was signed by President Trump.

The provisions of this law that pertain to expanded family and medical leave and paid sick leave can be seen below, under” March 16” (H.R. 6201, Families First Coronavirus Response Act).

The law does not affect tax season filing deadlines. Payment deadlines have been extended 90 days, but the deadline for filing your individual federal income tax return remains April 15, 2020. For more on the April 15 deadline, check under “March 17” below.

Following President Trump’s declaration of a national emergency, the US Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued a National Interest Exemption memorandum to facilitate response efforts for COVID-19.

  • In view of the special circumstances in the national interest presented by COVID-19, OFCCP will grant a limited, three-month exemption and waiver from some of the requirements of the laws administered by the agency.
  • The regulations authorize the OFCCP Director to exempt contracts from requiring the inclusion of any part of the equal opportunity clause in any specific contract when special circumstances in the national interest so require.
  • This exemption and waiver extends to all affirmative action obligations of supply and service and construction contracts, and other obligations under Executive Order 11246 from the administration of President Lyndon B. Johnson that bars federal contractors from discriminating based on race, color, religion, sex, sexual orientation, gender identity, disability, veteran status or national origin; Section 503 of the Rehabilitation Act of 1973, which bars discrimination against workers with disabilities; and the Vietnam Era Veterans' Readjustment Assistance Act, which bars discrimination against veterans.
  • The exemption and waiver do not apply to the processing of complaints of discrimination under 41 CFR 60-1.21-1.24, 41 CFR 60-300.61, and 41 CFR 60-741.61. The exemption and waiver also do not exempt a covered contractor from their obligation to comply with other federal, state, and local civil rights laws.
  • For more information, call OFCCP’s toll-free helpline at 800-397-6251 or click here.

In Wisconsin, on March 18, 2020, Governor Evers issued an order to waive work search requirements and modify the availability requirements for unemployment insurance (UI) benefits for workers impacted by COVID-19. (Also see below “March 17” actions.)

  • Under this order, the Department of Workforce Development (DWD) shall consider a claimant to be available for suitable work during a public health emergency if the claimant is perceived by an employer as exhibiting COVID 19 symptoms preventing a return to work, or the claimant is quarantined by a medical professional or under local, state, or federal government direction or guidance, and one of the following apply:
    • the employer has instructed the claimant to return to work after the employee no longer exhibits symptoms, after a set amount of time to see if the disease is present, or after the quarantine is over.
    • The employer has not provided clear instruction for the claimant to return to work.
    • The claimant would be available for other work with another employer but for the perceived COVID-19 symptoms preventing a return to work.
  • For the purpose of Wis. Stat. 108.04(1)(a) to (bm), during a week in which there is a public health emergency, all of the following apply:
    • No work is actually available within such a week.
    • An employee is not considered absent from work if the employee is perceived by an employer as exhibiting COVID-19 symptoms preventing a return to work or the employee is quarantined by a medical professional or under local, state, or federal direction or guidance.
  • A public health emergency constitutes four work search actions for each claimant who files a claim for each week during which the public health emergency is declared. (This section is retroactively effective to March 12, 2020.)
  • For the full order, click here.

Gov. Evers has directed the state of Wisconsin to restrict the size of all childcare settings in Wisconsin.

  • The order says that centers may not operate with more than 10 staff present at any given time, and cannot operate with more than 50 children present at any one time.
  • This new rule’s effective date and time is 8:00 a.m. on Thursday, March 19, 2020.
  • For the full order, click here.

Wisconsin Economic Development Corporation (WEDC) Announces Targeted Grants to Small Businesses.

  • WEDC is creating a program to provide grants to targeted businesses throughout Wisconsin, WEDC Secretary and CEO Missy Hughes announced on March 18, 2020.
  • Hughes said, “This is a program targeted at some of the ‘smallest of the small’ businesses that are vital to their communities.”
  • The grants will be deployed by partnering with state’s 23 community development financial institutions (CDFIs).  CDFIs will be able to provide the grants quickly and directly to their clients.
  • CDFIs are specialized community-based financial institutions with a primary mission to promote economic development by providing financial products and services to people and communities underserved by traditional financial institutions (particularly in low-income communities). They include community development banks and credit unions.
  • More information about the program is available here.

The White House has suggested that all businesses and municipalities track any spending related to COVID-19 for possible reimbursement. This includes personnel and additional supplies.

March 17, 2020

Effective 5:00 p.m. on Tuesday, March 17, 2020, Gov. Evers issued a second ban on “mass gatherings.” The ban limits any gathering to no more than 10 people in a single confined or enclosed space at the same time.

  • Included in the order was that all bars and restaurants shall close in the State of Wisconsin. Restaurants may remain open for takeout, but no seating may be provided.
  • Additionally, Gov. Evers ordered all public and private schools and institutions of higher education in the State of Wisconsin to close for instructional and extracurricular activities. Such institutions shall remain closed for the duration of the public health emergency or until a subsequent order lifts this specific restriction.
  • Exempted from this order includes: Transportation, childcare, hotels, government facilities, relief facilities, residential buildings, retail, healthcare, facilities for voting, and commercial entities.
  • The complete order can be found here.

 Small Business Administration (SBA) Disaster Relief Financing Assistance

  • New SBA loans are becoming available due to economic impacts from the COVID-19 pandemic.
  • Loans up to $2 million including 3.75% fixed interest rates on loans to for-profit companies and 2.75% fixed interest rates to non-profit organizations.  
  • This National Disaster Relief Program is active, however not all states have implemented, including Wisconsin. Update:  On Wednesday, March 18, 2020, Gov. Evers submitted a request to the U.S. Small Business Administration for Economic Injury Disaster Loan assistance.
  • More states are becoming added often, so please continue to check this list again.
  • If Wisconsin becomes included in this list, apply at the sba.org website.

Gov. Evers announced that he will issue an emergency order on Wednesday, March 18, 2020, to waive work search requirements and modify the availability requirements for unemployment insurance(UI) benefits for workers impacted by COVID-19.

  • Gov. Evers announced that this order will waive the requirement that UI claimants conduct at least four weekly work search actions during the COVID-19 emergency.
  • His order will also ensure that claimants who are otherwise eligible but out of work due to COVID-19 are considered available for work and therefore eligible for benefits.
  • Evers said in a statement, “I am urging the Wisconsin State Legislature to quickly act and repeal the one week waiting period for UI benefits, so UI funds can quickly get to affected workers to support those households and our communities.”

On March 17, 2020, the Trump administration said that individuals and businesses will be allowed to delay paying their 2019 tax bills for 90 days past the usual April 15 deadline.       

  • Individuals will be able to delay paying up to $1 million in payments.
  • Corporations will be given the same amount of time to pay amounts due up to $10 million.
  • Treasury Secretary Steven Mnuchin said, “We encourage those Americans who can file their taxes to continue to file their taxes on or before April 15, because for many Americans, you will get tax refunds.”

March 16, 2020

H.R. 6201, Families First Coronavirus Response Act

Earlier this week, the U.S. House of Representatives passed the Families First Coronavirus Response Act (H.R. 6201). This bill has a wide range of provisions, including some addressing insurance coverage and reimbursement of diagnostic testing costs and others expanding safeguards for economically disadvantaged individuals. This bill is currently being reviewed by the Senate. This update breaks down the bill into two parts: Expanded Family and Medical Leave and Paid Sick Leave.

  • Expanded Family and Medical Leave
    • H.R. 6201 amends the Family and Medical Leave Act for employees who 1) work for employers with fewer than 500 employees, and 2) have been on the job at least 30 days.
    • Employees will have the right to take up to 10 weeks of job-protected leave only to care for children if their school has been closed or if the childcare provider is unavailable.
    • The first 10 days are unpaid (employees can use accrued leave or the emergency leave below, if they choose, for these first 10 days).
    • Although the FMLA generally requires only job-protected leave, H.R. 6201 mandates paid leave after 10 days at two-thirds of the employee’s usual rate, capped at $200 per day and $10,000 in the aggregate.
    • This bill gives the U.S. Secretary of Labor the power to issue regulations that exempt business with fewer than 50 employees from this expansion if it would jeopardize the viability of the business.
    • H.R. 6201 will help employers by allowing them to take a tax credit against their share of Social Security taxes for 100% of the qualified family leave wages they pay each quarter.
  • Paid Sick Leave
    • H.R. 6201 mandates employers with fewer than 500 employees to provide 80 hours of paid sick leave for full-time employees, and equal to the hours each part-time employee works in the average two-week period.
      • These payments would be capped at $511 per day for an employee’s own leave and at $200 or 2/3 of an employee’s income for an employee who must miss work to assist a family member who has or may have coronavirus or their need to attend to childcare needs caused by school closures or unavailability of child care due to coronavirus.
    • As of now, the only portion of H.R. 6201 which indicates how employees must advise employers of their need for emergency paid sick leave, or what employers may require of employees who do so, is a provision which states “after the first workday (or portion thereof) an employee receives paid sick time under the Act, an employer may require the employee to follow reasonable notice procedures in order to continue receiving such paid sick time.”
  • Beyond this, employers should understand the following if H.R. 6201 becomes law in its present form:
    • Employees are entitled to use the full amount of their emergency paid sick time, regardless of the duration of their employment.
    • Emergency paid sick time is in addition to any paid sick time or other paid leave that the employer otherwise provides to employees.
    • Employers are entitled to use emergency paid sick time before using any other leave for which the employee is eligible.
    • Employers are prohibited from:
      • Requiring any employee to use paid leave provided by employer before using emergency paid sick leave; or
      • Changing any of their paid leave policies to avoid the cost of emergency paid sick leave.
    • Employers may not require an employee to search for or find a replacement to cover the employee’s hours.
    • Employers must post a notice of the requirements of the Emergency Paid Sick Time Act (to be prepared by the Department of Labor) in conspicuous places where notices to employees are typically posted.
    • Under certain circumstances, an employer who is a party to a multi-employer collective bargaining agreement may fulfill its obligations to provide paid sick time by making an equivalent contribution to the plan fund.
    • Employers may not retaliate or discriminate against any employee who uses emergency paid sick time or has filed a complaint or testified in a proceeding relating to the Emergency Paid Sick Time Act.
  • The legislation also specifies that employers could exclude healthcare workers and emergency responders from either paid leave provision, amid fears of staffing shortages among medical providers.

The Following Are Adopted Federal Legislation and Actions Prior to March 16, 2020.

Declaration of National Emergency – Friday, March 13, 2020

  • Grants the Secretary of HHS the authority to waive or modify certain requirements of the Medicare, Medicaid, and State Children’s Health Insurance programs and of the Health Insurance Portability and Accountability Act Privacy Rule throughout the duration of the public health emergency due to COVID‑19.

Entry to the U.S. by most foreign nationals tightly controlled

  • American citizens, legal permanent residents, and their immediate families who are arriving from impacted areas must travel through one of 13 airports where DHS has established enhanced entry screening capabilities.
  • All American citizens, legal permanent residents, and their immediate families who are returning from the impacted areas must self-quarantine for 14 days after their arrival.
    • Impacted areas presently include China, Iran, and much of Europe, including the United Kingdom.
    • A complete list can be located here.

Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020 (H.R. 6074)

  • Provides $8.3 billion in emergency funding for federal agencies to respond to the coronavirus outbreak.
  • Most is earmarked for manufacturing and humanitarian assistance, but included are loans for affected small businesses.

CDC has implemented recommendations to limit public gatherings of 50 or more for the next eight weeks.

  • It recommends that if the event is likely to have 10 or more people who are of a high-risk, that the event should be canceled.
  • It is recommended that employers take steps to ensure that employees have a reasonable safety zone.

The Following Are State Adopted Legislation and Actions in Wisconsin Prior to March 16.

On Thursday, March 12, 2020, Gov. Evers declared a public health emergency in response to new cases of COVID-19.

  • The declaration opens the Department of Health Services to “use all the resources necessary to respond to and contain the outbreak.”

On Friday, March 13, 2020, Gov. Evers mandated an order that all K-12 schools would close at 5 p.m. on Wednesday, March 18, 2020, for at least two weeks.

Gov. Evers issued a ban on “mass gatherings of 50 or more people” on Monday, March 16, 2020. (See Gov. Evers most recent Order banning gatherings above)

  • This order includes, but is not limited to mass gatherings at: public or private schools, auditoriums, theaters, movie theaters, museums, stadiums, arenas, conference rooms, meeting halls, exhibition centers, taverns, health and fitness centers, recreation centers, licensed pools, places of worship and religious gatherings.
  • The following are exempt from this order: Airports, childcare locations, residential care centers, group homes, hotels, motels, military facilities, jails, correctional facilities, residential buildings, shopping malls, retail establishments where people are generally not within arm’s length of one another for more than 10 minutes, hospitals, pharmacies, medical facilities, libraries, grocery stores, convenient stores, farmer’s markets, and public transportation.
  • Restaurants and bars must operate at 50% of seating capacity or 50 total people, whichever is less, and there must be at least six feet between tables, booths, bar stools, and ordering counters.
  • The entire order can be found here.

At the direction of Gov. Evers, the Wisconsin Department of Transportation (DOT) may issue permits for transportation of inventory to supply grocery retailers that are impacted by the COVID-19 pandemic.

  • The COVID-19 Relief Effort Supply Permits allow for additional supplies to be efficiently transported over Wisconsin interstates and most highways and local roadways by increasing weight limits and waiving truck driver hours of service limitations.
  • The permits do not apply to class II highways, posted bridges, and local highways with special and seasonal weight limit postings. Class II highways are judged to have unstable conditions of the roadway subgrade and constitute only 12% of state highways. Additional information can be found at the Motor Carrier Weight restriction programs page.

Proposed Wisconsin State Legislation Actions Prior to March 16, 2020

Wisconsin Family Medical Leave Insurance Act

  • Allows for workers to buy-in to a state-run insurance program if they choose.
  • Workers would be able to receive paid leave under certain circumstances.
  • Premiums would be taken from employees’ paychecks and be at no cost to their employers.

Local Rules in Madison and Dane County, and the Recommendations of Murphy Desmond

On March 15, 2020, the Public Health Officer of Madison and Dane County limited “Mass Gatherings.” (See Gov. Evers most recent Order banning gatherings above)

  • “Mass Gathering” is any event or convening, subject to the exceptions listed below, that brings together or is likely to bring together 50 or more people in a single room or single confined or enclosed space at the same time.
  • Excluded from this order was Dane County Airport, childcare facilities, hospitals, and pharmacies, long-term care facilities, libraries, public transportation, grocery stores, and restaurants as long as the restaurant operates at 50% capacity and keeps 6 feet between tables, booths and bar stools.

Consider adopting clear policies for dealing with not only COVID-19, but other health issues.

  • The ADA forbids employers from requiring medical exams in general, but there are exceptions for employers who pose a “direct threat to the health or safety” of others. Policies can help guide such decisions.

Be mindful of privacy concerns. Human Resources officials should not single out individuals based on speculation. A well-drafted policy can be applied uniformly. Remember that employers should never get involved in treatment decisions and should minimize access to employee health information.

If you are unable to fulfill a contract or an order, be sure to examine your contract to determine if it has a force majeure clause.

Review your business insurance policies for business continuity coverage and make any claims as appropriate.

The employment lawyers at Murphy Desmond S.C. are staying on top of the how these changes affect you. Contact us at email@murphydesmond.com or call us at 608.257.7181.

Published March 19, 2020