Equal Rights COVID-19 Public Information

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Information for Employers

  • If an employer has an uniformly-applied policy or practice of requiring a fitness for duty certification for employees returning from FMLA who have been on leave because of their own serious health condition with COVID-19, they may require such certification before allowing an employee to return.
  • If the employee is not out on FMLA leave, generally, an employer may request a doctor's note or submit to a medical exam before they return. The employer should keep any medical information collected and maintained in separate medical files and treat that information as confidential medical records.
  • Employers should consider that medical resources may be overwhelmed, and it may be difficult for employees to obtain a doctor's note causing delay for the employee to return to work.
  • The Americans with Disabilities Act (ADA) prohibits employers from making disability-related inquires and requiring medical examinations, including temperature checks, except under limited circumstances including a "direct threat" to the workplace. A direct threat means a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodations.” An employer may measure an employees' body temperature in the case of a pandemic, like COVID-19. However, please keep in mind the following:
    • Some infected employees may not show a fever.
    • Measuring an employee's body temperature is a "medical examination" that may run afoul of state or federal law prohibiting discrimination on the basis of disability in the absence of pandemic conditions.
    • The testing should be done privately.
    • Any information obtained from such an examination must be kept confidential and separate from other personnel records.
  • Employers may encourage or even require telework (work from home or an alternate location) as an infection-control strategy.
  • Employers may require regular hand washing, enforce coughing and sneezing etiquette, or other similar infection-control practices.
  • Employers may require employees to use personal protective equipment like gloves or hygienic masks during a COVID-19 outbreak.
Per Wis. Stat. § 103.68, minors under age 16 may work up to 8 hours per day on non-school days. If they are in virtual learning on a particular day, they are limited to 3 hours a day. Minors under 16 may not work before 7:00 am or after 7:00 pm between Labor Day and May 31.
  • Many employers have had to close or lay off a large number of employees, at least temporarily, because of the pandemic. The Wisconsin Business Closing and Mass Layoff (WBCML) requires employers to give a 60-day notice when deciding on a mass layoff or a business closing. This requirement (and similar requirements under the federal WARN Act) remains in effect.
  • The law applies to businesses with 50 or more employees in Wisconsin. A mass layoff is a layoff of 25 people or 25% of the workforce in a single municipality, whichever is greater.
  • We recognize that situations are changing rapidly for employers due to the pandemic. Employers undergoing a covered event (closing or mass layoff) should provide notice as soon as possible and that they update that notice as things change.
  • Although all complaints received by the Equal Rights Division are investigated on their unique facts, employers may be found not liable for failing to provide timely notice related to COVID-19 given the unforeseen nature of the pandemic and the State of Wisconsin's response to it. However, delay in providing required notice of layoffs due to the pandemic might lead to employer liability.

Workers who are concerned that their private-sector employer is not keeping their workplace safe from COVID-19 can file a complaint with the U.S. Occupational Safety and Health Administration (OSHA). Wisconsin is one of more than two dozen states whose workplace safety complaint and enforcement systems are primarily under the federal government's jurisdiction, with public-sector workers covered separately. Additional details and resources are available online.

Information for Employees

The Equal Rights Division has provided the following information related to their programs and the effects of COVID-19:

  • Check with your employer about its policies for taking sick time. If your employer provides paid time off, this is your first and best option.
  • You may be eligible to take protected leave under the Wisconsin or federal Family Medical Leave Acts (FMLA). Under these laws, an employer may not discharge or retaliate against a qualifying employee with a serious health condition. More information about eligibility for FMLA is below.

Time off to care for a sick family member may also be covered under state and federal FMLA. For more information about what family members are covered by the state and federal acts, see Wisconsin Family and Medical Leave Act (FMLA)

  • Check with your employer about its policies in this respect. There is no requirement that an employer allow healthy employees to stay home from work, and generally an employee who stays home when not sick has no protection from any adverse employer action taken because that employee stayed home. However, an employer could choose to allow such absences or authorize the use of paid time off for this purpose. Similarly, an employer may allow you to work from home. Check with your employer about work at home options.
  • If the employee does not have either a serious health condition, or a family member with a serious health condition whom the employee is caring for, then this type of absence is not protected by state or federal FMLA.
  • Generally, highly contagious illnesses are considered to pose a "direct threat" to customers and employees, and employers may require infected employees to stay home.
  • However, employees with disabilities that put them at high risk for complications from COVID-19 may be entitled to a reasonable accommodation that removes the direct threat. A common example of this is the right to perform work from home, where work at home is available.
  • Employees may be eligible for unemployment benefits if their workplace shuts down temporarily due to COVID-19 or certain employees are banned from the workplace to minimize the risk from COVID-19, but are expected to return after business resumes.
  • Additionally, large employers must comply with the Wisconsin Business Closing and Mass Layoff (WBCML) law and with the federal WARN Act, which require a 60-day notice to employees of foreseeable mass layoffs or business closures. Note that in many cases, emergency closures due to COVID-19 may be considered unforeseeable business circumstances that removes the obligation to provide the 60-day notice.

On March 12, 2020, Governor Tony Evers signed Emergency Order #13 temporarily suspending the work permit requirement for minor student workers under 16 years of age.

  • Minor student workers ages under 16 are permitted to work without a work permit for employers deemed "essential" as outlined in the COVID-19 Emergency Order #12.
  • Employers of minor student workers under 16 must provide to DWD by way of email all necessary documentation including offer letter, parent consent letter, and verification of identity and proof of age prior to the minor workers employment. Employers can send that information to workpermits@dwd.wisconsin.gov
  • Current laws and work rules regarding working hours restrictions and shift duration for minor student workers remain in effect.

Communication between workers and management – including supervisors, site managers, human resource representatives and health and safety managers – is a critical means to identify and address potential safety and health issues, including potential concerns over COVID-19 at the workplace.

Workers who are concerned that their private-sector employer is not keeping their workplace safe from COVID-19 can file a complaint with the U.S. Occupational Safety and Health Administration (OSHA). Wisconsin is one of more than two dozen states whose workplace safety complaint and enforcement systems are primarily under the federal government's jurisdiction, with public-sector workers covered separately. Additional details and resources are available online.

More on FMLA

  • An employee is eligible for leave under the Wisconsin FMLA if:
    • The employer employs more than 50 employees;
    • The employee has worked for at least 52 weeks and at least 1000 hours in the previous 52 weeks; and
    • The employee has a serious health condition, which is defined as a "disabling physical or mental illness, injury, impairment, or condition involving inpatient care or outpatient care that requires continuing treatment by a health care provider.
  • The Wisconsin FMLA provides up to 2 weeks of leave for the employee's own serious health condition and 2 additional weeks for the serious health condition of a parent, child, or spouse.
  • The employee must be allowed to substitute paid or unpaid leave of any type the employer provides. In other words, it's the employee's choice as to whether to use accrued vacation or other forms of paid leave.
  • An employee that uses FMLA, whether state or federal, must be restored to the same position or an equivalent position when they return from leave.
  • Wisconsin FMLA runs concurrently with federal FMLA, where the employee qualifies for both.
  • Under the federal FMLA, an eligible employee's leave entitlement is up to 12 weeks during any 12-month period. You can find more information about the federal FMLA here and can read the U.S. Department of Labor's FMLA COVID-19 FAQ.
  • Families First Coronavirus Response Act: Employee Paid Leave Rights
  • Employee Rights - Paid Sick Leave and Expanded Family and Medical Leave Under the Families First Coronavirus Response Act

Note Regarding Equal Rights Division Offices and Social Distancing

Please note that, to combat the spread of COVID-19 infection, our offices are practicing social distancing. Here's what that means for our customers:

  • For individuals with questions or complaints, we are no longer conducting face-to-face meetings with our Equal Rights Officers in our offices. Instead, please contact us by phone (608) 266-6860 or (414) 227-4384) or email the Equal Rights Division (erinfo@dwd.wisconsin.gov), , and our staff will be able to help you.
  • Out of concern for public health and safety, we are not holding in-person hearings on complaints until at least May 26, 2020. Administrative Law Judges (ALJs) will be communicating with parties as soon as possible after that date to reschedule any postponed hearings.
  • We will continue to encourage parties to mediate cases. We will conduct those mediations by phone only.