New Wisconsin COVID-19 law includes critical employment provisions

On April 15, 2020, the Wisconsin Senate convened for its first-ever virtual session to pass a COVID-19 relief package. Governor Tony Evers signed the bill moments later. The law does not include many of the employment-related provisions members of both political parties recently proposed, but the legislature could quickly reconvene and revisit those proposals. As Wisconsin employers know, the legislative and regulatory environment remains very dynamic. Below we summarize how 2019 Wisconsin Act 185 (Act 185) changes five key employment matters.

1. Suspension of one-week waiting period for UI benefits

Wisconsin was one of the very last states to repeal or suspend its one-week waiting period for unemployment insurance (UI) benefits in the aftermath of COVID-19. The new law suspends the one-week waiting period for UI benefit years that begin after March 12, 2020 and before Feb. 7, 2021. Pursuant to the Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020, the federal government will provide the funding for these benefits.

2. Noncharging of employer accounts for UI benefits paid related to COVID-19 public health emergency

On March 12, 2020, Gov. Evers declared a public health emergency via executive order. Under the new law, any UI claims paid for weeks occurring after March 12, 2020 and before Dec. 31, 2020 will not be charged to an employer’s UI account as normally provided, but instead charged to the state’s balancing account if the state determines the claim is related to COVID-19. These noncharging provisions would not apply, however, if an employer fails to timely and adequately provide claims-related information required by the Department of Workforce Development (DWD). For Wisconsin employers interested in managing their Wisconsin UI tax rate, it will be important to stay on top of DWD claims-related communications.

3. Dramatic expansion of the work share program through Dec. 31, 2020

Like most states, Wisconsin maintains a short-term compensation program intended to help employers minimize layoffs by implementing uniform work hour reductions across defined employee groups and permitting those participants to receive partial UI benefits while their hours and wages are reduced. Participants in an approved Work Share plan do not have to engage in weekly job search efforts to continue to receive their partial UI benefits. Due to a variety of restrictions and limitations, the Work Share program has not historically drawn much employer interest.

With Act 185’s changes to the program, however, Work Share should be carefully considered by any Wisconsin employer contemplating combined pay and hours reductions in the coming weeks and months. Under Act 185, and through the end of 2020, new Work Share plans will: (a) not be limited to a particular work unit and can instead cover any employees; (b) only need to cover at least two positions instead of the current rule of: the greater of 20 positions or 10 percent of employees in a work unit; (c) be permitted to reduce working hours up to 60 percent of the normal hours per week instead of the current maximum of 50 percent; and (d) need not have the reduction in work hours be apportioned equally among the employees in the plan.

Unlike regular partial UI benefits in Wisconsin, participants in an approved Work Share plan will be eligible for partial UI benefits even if their gross weekly pay exceeds $500. As a result, salaried exempt employees could potentially participate in a Work Share plan. In addition, as Littler has previously explained, any applicant receiving state UI benefits, including through short-term compensation programs like Work Share, will also be eligible to receive an additional $600 per week in federally funded UI benefits through July 31, 2020 under the CARES Act.

The law requires DWD to create and allow for online Work Share plan applications, and for DWD-approved Work Share plans to become effective within approximately one week of approval (as opposed to roughly twice as long currently). We expect it will take DWD at least a few days to prepare amended Work Share plan applications from enactment of Act 185.

4. Suspension of employer duty to provide personnel records during COVID-19 public health emergency

Wisconsin law has long entitled employees and former employees the right to receive a copy of their personnel records or inspect them within seven working days of a request. Act 185 has suspended any employer obligation to permit such review or provide such copies so long as the public health emergency declared by Gov. Evers remains in place.

5. “First responders” who contract COVID-19 during public health emergency presumed to have contracted it at work for workers’ compensation purposes

Under Act 185, first responders — law enforcement, fire fighters, medical professionals, and others — who contract COVID-19 while the public health emergency remains in place will be presumed to have become infected while at work for purposes of workers’ compensation.

Wisconsin employers should stay tuned for further developments as the COVID-19 pandemic continues to unfold. We fully expect additional changes that will affect all Wisconsin employers.

Michael Gotzler is an attorney with Littler in Madison.

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