An Employer’s Return-to-Work Reference Guide: A Quick Question and Answer Guide Regarding Eight of the Most Pressing Return-to-Work Questions Facing Wisconsin Employers during the COVID-19 Pandemic

Apr 5, 2021 | John C. Gardner

As the State of Wisconsin, and the country as a whole, gets further into the distribution of COVID-19 vaccines, more and more employers have returned employees to the workplace, are in the process of returning employees to the workplace, or, at a minimum, are contemplating their return. For a number of months, and especially the last few weeks, I have had an increasing number of conversations with employers regarding various concerns relating to the return of employees, including the potential to incentivize vaccines and/or request proof of vaccination, time off for vaccination, and workplace safety precautions. As an effort to further assist employers through these issues, I have put together the following Q and A.

Question No. 1: Can a Wisconsin employer encourage or incentivize employees to get vaccinated?

Answer: Yes.

Employers clearly have the ability to encourage their employees to get one of the COVID-19 vaccinations, and can incentivize employees to get vaccinated through any number of ways, including by offering additional paid time off, some amount of a cash bonus, or other workplace perks. Nevertheless, employers should remain cognizant of any employees who are unable to be vaccinated because of a disability or religious belief, and must be careful to take those issues into account when implementing any incentive-based system to avoid any claims of illegal discrimination. For further information on this topic, please see the excellent article drafted by my colleague, Jordan Rohlfing, regarding relevant EEOC guidance, available here.

Question No. 2: Can a Wisconsin employer require employees to obtain a COVID-19 vaccination?

Answer: Tentatively, yes.

In late March 2021, the Wisconsin Legislature passed a bill that, among other things, would have prohibited employers from mandating that their employees be vaccinated for COVID-19. Governor Evers vetoed that bill. As a result, as of the date this article is posted, there is no state or federal law that prohibits employers from requiring their Wisconsin employees to obtain a COVID-19 vaccination. However, because the law in this area is in a state of flux, I highly recommend that employers wishing to institute some type of a mandate should check with their legal counsel before moving forward with any such program. In addition, any employer that wishes to pursue a mandate should carve out exceptions for employees who are unable to get a vaccine for religious and/or medical reasons.  

Question No. 3: Can an employer ask employees about their COVID-19 vaccination status?

Answer: Almost certainly yes, but employers should tread carefully. 

Because we are still in the pandemic, and because the presence of COVID-19 in the workplace could pose a direct threat to the health of individuals who are in the workplace, it appears clear that employers can ask their employees whether or not they have been vaccinated without running afoul of employee-privacy protections or discrimination laws. Nevertheless, employers should be careful not to probe any particular employee too deeply regarding why he or she may not have been vaccinated yet because doing so could turn the conversation into a “disability-related inquiry” subject to disability law restrictions. The EEOC has issued legal guidance on this topic available here.   

Question No. 4: Can an employer request its employees to provide proof of COVID-19 vaccination?

Answer: Almost certainly yes, but employers should tread carefully.

Again, it appears pretty clear that employers can request and require proof of vaccination. Like the previous issue, however, employers should be careful to limit their request to vaccination status itself and/or take other steps to avoid engaging in a disability-related inquiry or eliciting unnecessary information regarding an employee’s medical background.   

Question No. 5: Do employers have to provide paid leave to their employees to obtain and/or recover from vaccines during work time?

Answer: Possibly.

As a rule, employers need to comply with their existing paid leave policies. So, if an existing leave policy is written in a way that permits employees to take leave to obtain or recover from a vaccine, the employer should allow its employees to use the leave in that manner. Alternatively, if an employer’s existing paid time off policies are not broad enough to cover vaccination/vaccination recovery, or if the employer does not have any existing paid time off policies, it likely does not need to provide any employee with paid time off for these purposes.

Without regard to existing (or non-existent) leave policies, however, smaller employers (those with less than five hundred employees) have the option through September 30, 2021, of providing eligible employees with paid leave that would have qualified under the Families First Coronavirus Response Act and receiving federal tax credits relating thereto for the full amount of the compensation provided (up to the compensation limits set by the law). Effective April 1, 2021, leave taken to obtain and/or recover from a COVID-19 vaccine qualifies under this voluntary system. For further information, please go here.

Question No. 6: Should employers with office-based Wisconsin workplaces require their employees to wear face coverings while in the office?

Answer: Likely, yes.

On March 31, 2021, the Wisconsin Supreme Court struck down Governor Ever’s most recent statewide mask mandate. However, several local health department mask orders (such as Dane County’s) remain in place, and there has been some speculation that other locations may institute their own orders now that the statewide mandate has been invalidated. Perhaps even more significantly, the Occupational Safety and Health Administration (“OSHA”) promises to become much more active under the Biden Administration than it was under the Trump administration. As a result, employers should keep the OSHA general duty clause – to keep the work environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm” – at the top of their minds when implementing return-to-work plans. In this context, I would highly recommend that employers continue to require employees to wear masks in the workplace, especially in common areas.

Question No. 7: Should employers take any other steps to mitigate the risks of COVID-19 in the workplace?

Answer: Yes.

Again, because I believe that OSHA will take a much more active role under the Biden Administration than it did in 2020, I strongly recommend that employers closely follow available governmental health and safety guidelines, including those published by the Wisconsin Department of Health Services, local health departments, and the CDC. Generally speaking, those entities recommend that employers take a number of different COVID-19-related precautions, often depending on the type of workplace at issue. These precautions can include social distancing, improving building ventilation (where possible), and increased disinfection of work spaces, among many other safety-related steps. 

Question No. 8: Can employers require employees to return to the workplace?

Answer: Likely, yes.

Employers need to remain cognizant of employees who may be in certain protected leave situations, such as an employee taking FMLA or WFMLA leave, or an employee with a disability who asserts that he/she needs to continue teleworking as a reasonable accommodation. However, outside of those and similar situations, Wisconsin employers have the ability to require employees to return to the workplace, and can require them to return on a full-time basis. Whether or not a forced return to full-time work would be good for workplace moral is a separate issue, but, legally speaking, an employer can take such a step in the vast majority of circumstances.

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Regardless of the answers noted above, any employer faced with one or more of the foregoing questions should consider consulting with legal counsel before moving forward. Please contact John Gardner or any other member of DeWitt’s Employment Relations practice group if you need any guidance relating to any of the issues addressed in this article, or other issues relating to return-to-work concerns.