Equal Rights COVID-19 Public Information

A: Many schools have gone virtual this year due to COVID-19, and while students may have more time on their hands with a virtual schedule, they can't use that time to work. Minors of any age are not permitted to work during school hours. Even though many students are in virtual learning environments, it is not permitted for them to work at any time that they are required to be online- no matter the format of their virtual school day.

If virtual learning is asynchronous (meaning prerecorded where a student can watch it whenever they want), they can work during what would normally be school hours.

It is important for parents and minors to understand that the hours limitations for minors under 16 years of age still apply. Minors of any age are not permitted to work more than 3 hours on a school day, between the hours of 7a – 7p.

More Information about Wisconsin's Minor Employment Laws

• Be aware of employee rights under the state and federal FMLA (Refer to Employee Information).
• Consider allowing even those employees not covered by FMLA to take sick time without consequence. Encouraging sick individuals to report to work risks spreading infection to coworkers and customers.

• 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.

• 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.

Yes – If you are an employer and you require your employees to undergo a medical examination as a condition of continued employment, Wisconsin law requires that you pay the cost of the mandatory medical examination. The same is true even if you require vaccination and offer COVID testing as an alternative because the test is still employer-mandated. Section 103.37, Stats., provides that "No employer may require an employee or applicant for employment to pay the cost of a medical examination required by the employer as a condition of employment."

However, the federal Occupational Safety and Health Administration (OSHA) has promulgated an Emergency Temporary Standard (ETS) that mandates employee vaccinations for employers with 100 employees or more. The ETS requires employers to ensure that employees who are not fully vaccinated are tested at least weekly for COVID-19, as long as they are in the workplace at least once per week. If an employer is required to test employees by the OSHA ETS, the Wisconsin statute providing that the employer bears the costs does not apply because the test is an alternative to vaccination that is not "required by the employer." Employers should bear in mind that even under the ETS, an employee may be entitled to a reasonable accommodation under state and federal anti-discrimination laws, and in such cases, the employer may be required to bear the cost of testing in those cases.

• 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.

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.