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Coronavirus/COVID-19

RESTORE ILLINOIS: Phase 3 Guidelines for Reopening Business and Returning People to Work Safely

RESTORE ILLINOIS: Phase 3 Guidelines for Reopening Business and Returning People to Work Safely

By Anthony J. Caruso Jr. of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Coronavirus/COVID-19 on Friday, May 29, 2020.

Today, May 29, 2020 starts Phase 3 of Restore Illinois for the State of Illinois (excluding Chicago where Phase 3 is scheduled for June 3, 2020).

On Tuesday, May 5, 2020, Governor Pritzker released Restore Illinois, a five-phased plan that will reopen Illinois after the stay-at-home order due to COVID-19.

To prepare businesses and employers to implement the new safety guidelines and to bring employees back to work, the State of Illinois has developed a business toolkit complete with signage, training checklist, and other resources for employers.

Phase 3 guidelines span ten different industry categories. Each set of guidelines includes a common set of guidelines that are expected and encouraged among all employers and activity types, as well as workplace and program-specific guidelines.

The Phase-3 Business Toolkit is available here: https://dceocovid19resources.com/assets/Restore-Illinois/businesstoolkits/all.pdf

Industry definitions and specific guidelines are listed for the following categories:

Manufacturing
Manufacturing facilities such as plants, factories, and mills

Offices
Non-customer-facing offices such as: legal; accounting services; architectural/engineering design; and other professional services

Retail
Retailers and merchandisers such as: grocery stores; hardware stores; clothing stores; pharmacies; department stores; shopping malls

Service Counters
Stores providing assorted services for dropped off goods, such as: dry cleaners; electronics repair shops; shoe repair shops; car washes

Personal Care Services
Hair salons, barber shops, nail salons, spas, waxing centers, tattoo parlors

Restaurants and Bars (outdoor dining and drinking)
Full-service restaurants, limited-service restaurants, snacks bars, taverns, and other food and beverage businesses

Outdoor Recreation
Customer facing services such as driving ranges, outdoor shooting ranges, paintball courses, outdoor adventure parks

Day Camps
Recreational youth programs such as sports camps, recreational camps, educational camps

Youth Sports
Youth sports games or matches, group sports lessons, team or group sports practices (no competitive sports permitted in Phase 3)

Health and Fitness Centers
Gyms, fitness centers, yoga, dance, cycling, pilates, barre studios, and other customer-facing fitness centers

It is recommended that employers follow these guidelines.

Questions? Contact attorney Anthony Caruso in our St. Charles office at (630) 377-1554 or by e-mail at ancaruso@wesselssherman.com

Related Posts: Some Minnesota Businesses Allowed to Resume Operations , Employee Return to Work Under Covid-19: What Should Employers Do?, OSHA Issues Guidance on Recording COVID-19 Cases, New Federal Covid-19 Legislation And Its Dramatic Impact On Independent Contractor Status: How Have Things Changed?

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Coronavirus/COVID-19

Employee Return to Work Under Covid-19: What Should Employers Do?

Employee Return to Work Under Covid-19: What Should Employers Do?

By Anthony J. Caruso Jr. of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Coronavirus/COVID-19 on Wednesday, May 27, 2020.

Unfortunately, our country along with all countries, are dealing with the pandemic crisis. As the restrictions are gradually being lifted on the stay-at-home orders, businesses will resume operations with limitations. Employers will be recalling employees back to work. What should employers do to protect themselves against potential workers’ compensation claims and other liability issues?

The Occupational Safety and Health Administration (OSHA) requires employers to protect the health and safety of employees under the general duty clause.

As return to work activities are phased in by governors and elected officials, various guidelines are being implemented. Employers should follow the guidelines as to providing safety devices and protective equipment, sanitation procedures and safety protocols in the operations of the business.

Based upon the above, Employers should prepare written safety rules under Covid-19 to be signed by each individual employee with the following statement included:

I have read and fully understand the above rules and agree to follow such rules. Further, I understand that my failure to follow such rules may result in discipline up to and including termination.

NOTE: If employees are covered under a collective bargaining agreement, Company must bargain with the Union.

The above recommendations should help to minimize an employer’s exposure to workers’ compensation and negligence claims.

If you have any questions, please contact attorney Tony Caruso in our St. Charles office at (630) 377-1554 or by email at ancaruso@wesselssherman.com

Related Posts: RESTORE ILLINOIS: Phase 3 Guidelines for Reopening Business and Returning People to Work Safely, Some Minnesota Businesses Allowed to Resume Operations , OSHA Issues Guidance on Recording COVID-19 Cases, New Federal Covid-19 Legislation And Its Dramatic Impact On Independent Contractor Status: How Have Things Changed?

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Coronavirus/COVID-19

Some Minnesota Businesses Allowed to Resume Operations

Some Minnesota Businesses Allowed to Resume Operations

By Attorneys of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Coronavirus/COVID-19 on Wednesday, May 27, 2020.

Governor Walz issued Executive Order 20-56 authorizing some businesses to reopen provided that they comply with OSHA, MDH, and CDC guidelines. The Order went into effect on May 17, 2020, at 11:59 p.m. and remains in effect until May 31, 2020.

Reopened non-critical business must establish and implement a COVID-19 Preparedness Plan that provides for the implementation of Minnesota OSHA standards, MDH guidelines, and CDC guidelines. Each plan must address the following:

  • Require work from home whenever possible;
  • Ensure that sick workers stay home;
  • Establish social distancing policies and procedures;
  • Establish hygiene and source control policies for workers; and
  • Establish cleaning, disinfection, and ventilation protocols for areas within the workplace.

Beginning on June 1, 2020, bars and restaurants may begin serving customers outdoors only as long as customers maintain at least six feet of social distance and the number of customers does not exceed 50. Barbers, salons, tattoo shops, and the like may operate at partial capacity as long as patrons wear masks, schedule their appointments ahead of time, and maintain six feet of social distance.

Essential businesses under current CISA guidelines may continue to operate. However, whether the business is deemed critical or not, any employees who are able to work from home must continue to work from home.

Questions? Contact Christopher Jison in our Minnesota office at (262)746-1700 or by email at chjison@wesselssherman.com

Related Posts: RESTORE ILLINOIS: Phase 3 Guidelines for Reopening Business and Returning People to Work Safely, Employee Return to Work Under Covid-19: What Should Employers Do?, OSHA Issues Guidance on Recording COVID-19 Cases, New Federal Covid-19 Legislation And Its Dramatic Impact On Independent Contractor Status: How Have Things Changed?

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Coronavirus/COVID-19

OSHA Issues Guidance on Recording COVID-19 Cases

OSHA Issues Guidance on Recording COVID-19 Cases

By Alan E. Seneczko of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Coronavirus/COVID-19 on Monday, May 25, 2020.

On May 19, 2020, OSHA issued an Enforcement Guidance on recording cases of alleged Coronavirus illnesses in the workplace. Given the difficulty of establishing the causation of many alleged work-related illnesses, and these unprecedented times, this Guidance should prove helpful.

According to OSHA, COVID-19 is a recordable illness if:

  1. The case is a confirmed case of COVID-19, as defined by the CDC 9 (i.e., the employee has tested positive);
  2. The case is work-related (i.e., an event or exposure in the work environment either caused or contributed to the condition, or significantly aggravated a preexisting condition); and,
  3. The case involves one or more of the recordkeeping criteria (i.e., results in death, lost time, restricted duty or medical treatment other than first aid).

Recognizing the difficulty of determining whether a positive COVID-19 test is work-related, OSHA will exercise enforcement discretion when reviewing an employer’s decisions on this issue, considering:

  1. The reasonableness of the employer’s investigation into the issue. It will be sufficient if the employer asks the employee how he believes he contracted the illness; what work and outside activities may have caused it; and, reviews the employee’s work exposure, including any other reported cases in the work environment.
  2. The available evidence. What information was reasonably available at the time the determination was made, and whether any other information became subsequently available.
  3. The evidence that the illness was contracted at work. Evidence of work-relatedness may include, in the absence of an alternative explanation, whether employees work close together; lengthy, close exposure to a co-worker or customer who tested positive; and, frequent, close exposure to the general public in a locality with ongoing community transmission. Evidence that the illness may not be work-related include being the sole person to test positive in the vicinity, with no frequent contact with the public; close and frequent contact with someone outside of the workplace who has tested positive during a period when they were likely infectious.

Hopefully, employers are taking heed of all of the OSHA guidance on preventing the spread of the virus in the workplace and will never need to consider any of the above.

For more information on OSHA recommendations for preventing the spread of COVID-19 in the work environment and other helpful information, see https://www.osha.gov/SLTC/covid-19/.

If you have any questions regarding OSHA recordkeeping and COVID-19, preventing the spread of COVID-19 in the workplace or any other employment issues related to COVID-19, feel free to contact Attorney Alan E. Seneczko at (262) 560-9696, or alseneczko@wesselssherman.com.

Related Posts: RESTORE ILLINOIS: Phase 3 Guidelines for Reopening Business and Returning People to Work Safely, Some Minnesota Businesses Allowed to Resume Operations , Employee Return to Work Under Covid-19: What Should Employers Do?, New Federal Covid-19 Legislation And Its Dramatic Impact On Independent Contractor Status: How Have Things Changed?

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New Federal Covid-19 Legislation And Its Dramatic Impact On Independent Contractor Status: How Have Things Changed?

New Federal Covid-19 Legislation And Its Dramatic Impact On Independent Contractor Status: How Have Things Changed?

By Nancy E. Joerg of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Coronavirus/COVID-19 on Thursday, May 21, 2020.

The independent contractor “legal world” is quickly transforming in many ways! It is hard to keep up with the flood of new laws and court cases impacting independent contractor status on both the Federal and State levels.

FEDERAL COVID-19 LEGISLATION AFFECTING INDEPENDENT CONTRACTORS: Recently Congress passed two major bills (signed into law by President Trump) which included benefits historically reserved for employees but now suddenly expanded by these two surprising laws to also include self-employed individuals (also known as independent contractors or gig workers).

COVID-19 related unemployment insurance benefits have been made available to independent contractors under the Coronavirus Aid, Relief and Economic Security (“CARES”) Act. Paid sick and family leave has also been made available to independent contractors under the Families First Coronavirus Response Act (“FFCRA”).

CARES ACT: Under the CARES Act, enacted into law on March 27, 2020, independent contractors will be entitled to Federal Pandemic Unemployment Assistance (PUA) if the independent contractors are able and willing to work or telework for pay, but are unable to do so due to the obstacles and economic stresses related to the COVID-19 pandemic. PUA is available not only if such independent contractors are “unemployed” but also if “partially unemployed.” PUA is available to independent contractors retroactively from January 27, 2020 through December 31, 2020.

FFCRA: Under the FFCRA, enacted on March 18, 2020 and effective April 1, 2020, both paid sick time under the Emergency Paid Sick Time Act, and expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act are available not only to employees, but (very surprisingly!) also to eligible independent contractors.

Paid sick leave is available to independent contractors for up to ten (10) days where the independent contractor is unable to work or telework because the independent contractor is subject to a government quarantine or order of isolation related to COVID-19; has been advised by a health care provider to self-quarantine; or is experiencing symptoms of COVID-19 and is seeking medical attention. It is clear that Congress viewed many independent contractors as needing significant financial help.

UNEMPLOYMENT INSURANCE BENEFITS: Now that Congress has provided an emergency form of financial help for freelancers, gig workers, and other independent contractors, state departments of unemployment insurance (across America) have for the most part struggled to quickly create online processes to provide such unemployment insurance benefits to independent contractors.

Strangely, most state departments of unemployment insurance require independent contractors to first apply for unemployment benefits as if they were employees, and then, only when DENIED by their state’s department of unemployment insurance because they are found to be non-employees, are they able to proceed with the process to submit documentation that they are self-employed (i.e., independent contractor) and have suffered a loss of income. Yes, a very awkward process!

COMPANIES ARE RECEIVING NOTICES OF CLAIM ON INDEPENDENT CONTRACTORS: As a result of independent contractors being “forced” to apply for unemployment insurance benefits as if they were employees, companies are receiving Notices of Claim from state departments of unemployment insurance about workers they regard as independent contractors. Clearly the independent contractor claimants have no choice but to apply for unemployment insurance benefits as if they were really employees. What a confusing situation for all involved!

By not responding in an effective manner to an unemployment insurance Notice of Claim about a worker regarded by the company as an independent contractor, companies using independent contractors will likely receive a determination from the state department of unemployment insurance that the claimant is really an employee of that business.

Such a legal finding of employee status can create enormous potential legal risks and liabilities for companies that have not been paying unemployment and payroll taxes on the money paid to individuals treated as independent contractors.

TIMELY AND THOUGHTFULLY REPLY TO NOTICES OF CLAIM: Any company who receives a Notice of Claim (for unemployment insurance benefits) on an independent contractor should thoughtfully and fully respond in a timely manner. Even being one day late with a protest response may take away a Company’s right to protest a Notice of Claim.

The Company should explain in detail why the unemployment insurance claimant is not an employee but rather is an independent contractor. Each state has its own legal definition of independent contractor status. Be aware of your state’s “legal test” for independent contractor status under that state’s unemployment insurance law. Design your protest response to prove legally that the unemployment insurance claimant is in fact an independent contractor under your state’s “legal test” for independent contractor status. Attach any available proof of independent contractor status to your written response (protest) such as the independent contractor’s business card, the IRS Form 1099 you issued that independent contractor, print-outs from the independent contractor’s website, any advertising done by the independent contractor, etc.

If you do not aggressively respond to these unemployment insurance Notices of Claim by independent contractors, you may find in the future that your ability to defend the independent contractor status of your workers has been severely damaged! For example, if your company is audited by your state’s department of unemployment insurance in the coming years, the agency may attempt to use these “COVID-19 era” unemployment insurance decisions as the legal basis to find your independent contractors to be misclassified (i.e., they should have been classified as employees).

We do not know exactly what will be the legal long-term result of all these independent contractors getting unemployment insurance benefits in this COVID-19 era. No one knows at this juncture. We are in unchartered waters. Play it “safe” and vigorously defend the independent contractor status of your workers. Answer (protest) each Notice of Claim (by independent contractors) for unemployment insurance benefits with great seriousness and detail.

For assistance with figuring out the best course of action in view of these dramatic new laws regarding unemployment insurance benefits, contact Attorney Nancy Joerg at Wessels Sherman’s St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com.

Related Posts: Employee Return to Work Under Covid-19: What Should Employers Do?, Some Minnesota Businesses Allowed to Resume Operations , OSHA Issues Guidance on Recording COVID-19 Cases, Illinois Companies Using Independent Contractors Must Now Handle IDES Notices of Claims: What Should Illinois Companies Do?

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Coronavirus/COVID-19

Illinois Companies Using Independent Contractors Must Now Handle IDES Notices of Claims: What Should Illinois Companies Do?

Illinois Companies Using Independent Contractors Must Now Handle IDES Notices of Claims: What Should Illinois Companies Do?

By Nancy E. Joerg of Wessels Sherman Joerg Liszka Laverty Seneczko P.C. posted in Coronavirus/COVID-19 on Thursday, May 7, 2020.

We now know the basic outline of how the Illinois Department of Employment Security (IDES) will process independent contractor unemployment insurance claims.

The IDES issued a press release on May 5, 2020 about 1099 workers who have lost work due to COVID-19.

The IDES press release states: “Workers who believe they may be eligible for new federal benefits under the Pandemic Unemployment Assistance (PUA) program, must first apply for regular unemployment insurance before applying for benefits under PUA when a new application portal opens on May 11, 2020 via the IDES website.”

IDES Notices of Claims From 1099 Workers Will Be Arriving!: This means that Illinois companies using independent contractors should expect to begin receiving IDES Notices of Claims for these unemployment insurance benefit claims that are now being filed by 1099 workers!

Be sure to timely respond to the IDES when your company receives a Notice of Claim filed by a 1099 worker (independent contractor). Make it clear to the IDES that the claimant is, in fact, an independent contractor and not your employee. Respond with a very detailed letter in support of independent contractor status. Keep your record strong with the IDES in defending independent contractor status.

Several clients have already called to tell me that they have received a Notice of Claim in the mail which already is “not timely.” In other words, the Notice of Claim has a reply due date which has already passed. The client wants to know if it is a waste of their time to protest the Notice of Claim since the reply due date has already come and gone. My advice to the client is to absolutely protest the Notice of Claim!, even though technically it is not timely.

I instruct the client to explain in the protest that the Notice of Claim arrived on [fill in date of arrival] and the company opened its mail immediately on that day and discovered the reply due date had come and gone. I tell the client to state there are witnesses in the company who are willing to testify under oath that the Notice of Claim from the unemployment insurance agency arrived on a specific date and was opened immediately.

If the envelope in which the Notice of Claim arrived has a postmark, I tell the company to attach a copy of the envelope as an exhibit to the protest.

Independent Contractors Have Joined The Ranks of Those Applying for Unemployment Insurance Benefits: Federal and IDES laws have historically shut out independent contractors from unemployment insurance benefits-until the COVID-19 crisis hit the U.S. economy. This COVID-19 pandemic, almost overnight, wrecked work opportunities for many of those who have operated as 1099 workers.

To Be Eligible For PUA, Independent Contractor Must First Be Denied Regular Unemployment Insurance Benefits: If a 1099 worker (independent contractor) receives an eligibility determination of $0 after applying for regular unemployment insurance benefits with the IDES, this shows the IDES views the 1099 worker to be a “non-employee.” Then the 1099 worker can protest that decision by providing to the IDES verification of wages earned, or the 1099 worker can submit a claim to the IDES for PUA benefits.

Unemployment insurance claimants who have already applied for and been denied regular unemployment benefits by the IDES can submit a claim to the IDES through the new PUA portal when it opens on the IDES website on May 11, 2020. Receiving a denial for regular unemployment benefits is a mandatory first step in determining eligibility for PUA under the IDES system.

What is Pandemic Unemployment Assistance (PUA) And How Long Does It Last?: PUA provides 100% federally-funded unemployment benefits for independent contractors who are unemployed for specified COVID-19-related reasons. These 1099 unemployment insurance claimants must not be eligible for the IDES’s regular unemployment insurance program, the extended benefit (EB) program under Illinois law, or the Pandemic Emergency Unemployment Compensation program (PEUC). Up to 39 weeks’ worth of unemployment insurance benefits are potentially available under the program for COVID-19-related unemployment claims.

PUA claims by independent contractors will be backdated by the IDES to the 1099 claimant’s first week of unemployment, but no earlier than February 2, 2020, and will continue for as long as the independent contractor remains out of work as a result of COVID-19, but no later than the week ending December 26, 2020.

PUA will be available to independent contractors who are unable to work or telework if the 1099 worker certifies that he or she:

  • is diagnosed with COVID-19 or experienced symptoms or is seeking a diagnosis,
  • has a member of his or her household that has been diagnosed with COVID-19,
  • is providing care to a family member with COVID-19,
  • has primary caregiving responsibility to a child that is unable to attend school due to COVID-19,
  • cannot reach his or her place of work because of a quarantine or advice of a health care provider to self-quarantine,
  • has become a breadwinner after the head of household has died from COVID-19,
  • has had to quit his or her work as a result of Coronavirus, or
  • has a work location that is closed as a direct result of a COVID-19 public health emergency.

PUA is available not only if such independent contractors are “unemployed” but also if “partially unemployed.” This benefit is not available, though, if and when such self-employed individuals are receiving paid sick leave or other paid leave benefits, including such benefits available to independent contractors under the federal Families First Coronavirus Response Act or a state law providing such paid benefits to self-employed workers.

Companies Must be Vigilant about Defending Independent Contractor Status: This is a crucial time to have a strong independent contractor agreement and strong independent contractor files loaded with documentation of self-employment. Companies need to be extremely vigilant about defending the independent contractor status of their workers who might be applying for unemployment insurance benefits. Yes, they may be entitled to unemployment insurance benefits, but only as independent contractors-not as employees!

For assistance with protesting IDES Notices of Claims and evaluating independent contractor relationships, contact Attorney Nancy Joerg at Wessels Sherman’s St. Charles, Illinois office: 630-377-1554 or email her at najoerg@wesselssherman.com.

Related Posts: Employee Return to Work Under Covid-19: What Should Employers Do?, Some Minnesota Businesses Allowed to Resume Operations , OSHA Issues Guidance on Recording COVID-19 Cases, New Federal Covid-19 Legislation And Its Dramatic Impact On Independent Contractor Status: How Have Things Changed?

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