Wisconsin Legal Update – Safer at Home Order and Implications

On March 24, 2020, Wisconsin Governor Tony Evers issued Emergency Order #12 (the “Safer at Home Order”) in response to the escalating crisis resulting from the COVID-19 pandemic.

Specifically, Governor Evers cited that as of March 23, 2020, COVID-19 cases had risen in Wisconsin from 206 to 416 (a 102% increase). Five Wisconsinites had passed away as a result of COVID-19, and public health officials estimated that the actual number of Wisconsinites infected with COVID-19 is significantly higher, likely present in every county in the state, and exceed the amount of available healthcare resources. As a result, Governor Evers issued the Safer at Home Order, asserting:

All individuals present within the State of Wisconsin are ordered to stay at home or at their place of residence, with exceptions outlined below. To the extent individuals are using shared or outdoor spaces other than their home or residence, they must at all times as reasonably possible maintain social distancing of at least six (6) feet from any other person consistent with Social Distancing Requirements as defined below, except that they do not need to maintain social distancing between family members in a single living unit or household members.

A full copy of the Safer At Home Order can be obtained here.

When Do These Orders Take Effect and How Long Do They Last?

The Safer at Home Order took effect at 8:00 a.m. on March 25, 2020, and remains in effect until 8:00 a.m. on April 24, 2020. However it allows the Governor to extend the order with a superseding order.

How Will The Safer At Home Order Be Enforced?

The Safer at Home Order is enforceable by any local law enforcement agency and county sheriffs. Violations are subject to a $250 citation for the first offense, and can escalate for repeated offenses, or up to 30 days imprisonment.

What Activities Prohibited?

The Safer at Home Order prohibits all public and private gatherings of people that are not part of a single household, except for limited circumstances. The Safer at Home order also explicitly disallows landlords and property management companies from entering residential homes except for maintenance.

The Safer at Home Order also closes all public and private K-12 schools, salons, spas, public amusement places, and prohibits travel, except for limited “Essential Travel.”

Finally, the Safer at Home Order requires closure of offices and to the public of all profit and non-profit businesses, except for “Essential Business and Operations.” Non-Essential Businesses and Operations are permitted to continue functioning with employees and contractors working from home, and are required to use technology to avoid in person meetings.

What is Essential Travel?

The Safer at Home Order identifies several categories that classify Essential Travel, including for the following: (i) health and safety, including medical attention, supplies and pharmacies; (ii) for necessary supplies and services, including groceries and household cleaning products; (iii) outdoor activity, so long as the individual observes social distancing requirements of six (6) feet or more from any other person; (iv) for work at an Essential Business; (v) to take care of others, such as a family member, friend, or pet in another household; or (vi) to perform essential government functions, including first responders, building inspectors, emergency management, and other government functions.

What is Essential Business and Operations?

The Safer at Home Order identifies several Essential Businesses and Operations that they are strongly encouraging to remain open for business during the order, including:

1. Grocery stores and pharmacies – though all seating intended for consuming food and self-service operations must be closed, and social distancing requirements must be enforced.
2. Food and beverage production, transport and distribution – this includes farming, fishing, baking, production, processing, wine, beer, and liquor suppliers and wholesalers, and trucking that transports food and beverage products;
3. Restaurants, bars, and taverns are permitted to be open only food take-out and delivery service, and on-premise establishments may sell alcohol beverages for carryout in sealed containers;
4. Child-care settings, which should be prioritize for health care employees and those working in Essential Businesses;
5. Charitable and social services businesses that provide food and shelter;
6. Weddings and funerals, though the gatherings are limited to 10 people in a room or confined space at a time with six (6) feet distancing;
7. Gas stations and businesses needed for transportation;
8. Hardware and supplies stores;
9. Banks;
10. Media;
11. Laundry services;
12. Mail, post, shipping, and logistics companies;
13. Transportation providers for Essential Travel;
14. Home based care and services for seniors, people with disabilities, substance abuse disorders, etc;
15. Professional services, though they must use technology to avoid meeting in person to the greatest extent possible and utilize work from home arrangements;
16. Higher education – but must utilize distance learning, or for critical research;
17. Hotels and motels, though safeguards must be in place to comply with social distancing requirements and must close all common areas including swimming pools, hot tubs, salons, spas, and exercise facilities.

What Should Businesses Do?

First, businesses should determine whether any of their offices or facilities in the State of Wisconsin are subject to the Safer at Home Order and, if so, plan accordingly. The Governor has indicated that will deploy local law enforcement to determine compliance with the Stay-at-Home Order, including to businesses. Businesses should provide their employees with correspondence on Company letterhead indicating that the employees are employees of an “Essential Business.” Additionally, we advise businesses that are subject to the Safer at Home Order to keep in mind the Federal WARN Act, state and federal wage and hour laws (which remain applicable even during an employee’s remote work), state and federal discrimination and equal employment opportunity laws, the Families First Coronavirus Response Act (a more comprehensive analysis of which can be found here), and any other applicable employment laws when making decisions related to compliance with the Safer at Home Order. Please contact us with questions related to changes in workforce prior to April 1, 2020.

New Federal Sick Leave Law

The Families First Coronavirus Response Act ("FFCRA") becomes effective April 1, 2020.

• Employers of up to 500 employees (see below for calculation method) must provide 80 hours of paid sick leave for full time employees (average hours worked over two weeks for part time) if there is work for the employee available and the employee is unable to work (or telework) because:

1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19. (This includes any government order directing people to remain at home unless they work for an essential business);
2. The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
4. The employee is caring for an individual who is subject to an order as described in subparagraph 1 above or has been advised as described in paragraph 2 above; or
5. The employee is caring for a child of such employee if the school or place of care for the child has been closed, or the childcare provider for the child is unavailable, due to COVID-19 precautions.

• If your business closed before or after April 1 due to lack of business, or if required to close pursuant to Federal, State or local directive, sick leave is not due.
• Intermittent sick leave is permitted with the consent of the employer (it is not required).
• If business closes while an employee is on FFCRA sick leave, they must be paid for leave through the date of closure.
• Businesses with less than 50 employees are potentially exempt from providing sick leave pursuant to reasons four and five above (as amended by the CARES Act) and should document any hardship presented by providing this leave (after considering the impact of potential tax credits) and wait for further guidance from the DOL.
• Employees may use FFCRA paid sick leave before using state or local paid sick leave, or accrued PTO.
• Paid leave provided prior to April 1, 2020, does not count to fulfill obligations under the FFCRA.
• Employers must require documentation in support of the reason for leave and include:
  • Employee’s name, qualifying reason for requesting leave, statement that the employee is unable to work, including telework, for that reason, and the date(s) for which leave is requested; and
  • Documentation including a copy of the Federal, State or local quarantine or isolation order related to COVID-19 applicable to the employee (reason 1 above) or written documentation by a health care provider advising the employee to self-quarantine due to concerns related to COVID-19 (reasons 2 to 4 above) or notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider (reason 5 above).
• If you intend to claim a tax credit under the FFCRA for payment of sick leave wages, you should retain the FFCRA documentation in your records.

How Much to Pay

Employees must be paid based on their required compensation as follows:

• Regular rate of pay subject to a limit of: $511 per day and $5,110 in the aggregate for a use described in paragraph (1), (2), or (3) above; or
• Two-thirds of the regular rate of pay subject to a limit of: $200 per day and $2,000 in the aggregate for a use described in paragraph (4), (5), or (6) above.

Emergency Federal Medical Leave Expansion Act

The Emergency Federal Medical Leave Expansion Act ("EFMLE") becomes effective April 1, 2020.

• The EFMLE applies under the following circumstances:

1. The EFMLE applies to employers with fewer than 500 employees (see below);
2. Employees must be employed at least 30 calendar days at the time leave is requested;
3. The need for leave must be a Qualified Need Related to A Public Health Emergency (“PHE”);
4. A PHE exists when declared by a Federal, State or local authority due to COVID-19; and
5. The employee must be restored to their position upon return from leave.

• An employee can request this leave for a very narrow reason: if there is work for the employee and they are unable to work (or telework) due to the need to care for their child under 18 years of age if the child’s elementary or secondary school or place of care is closed, or the care provider of such child is unavailable, due to a PHE.
• Intermittent expanded medical leave is permitted with the consent of the employer (it is not required).
• If your business closed before or after April 1 due to lack of business or if required to close pursuant to Federal, State or local directive, expanded medical leave is not due.
• If your business closes while an employee is on expanded medical leave, employees must be paid for leave through the date of closure.
• Businesses with less than 50 employees are potentially exempt from providing sick leave pursuant to reasons four and five above (as amended by the CARES Act) and should document any hardship presented by providing this leave (after considering the impact of potential tax credits) and wait for further guidance from the DOL.

The factors are not evaluated as stand-alone. The entire relationship is to be reviewed in its totality.

Visit our COVID-19 Hub for Ongoing Updates.

[1] Mayor Tom Barret issued the Stay at Home order for the City of Milwaukee pursuant to the authority granted by State Statute 252, which contained the same orders for individuals and employers as that took effect March 24, 2020.

More information about our State of Wisconsin Team can be found here.