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Addressing concerns about returning to work

The Department of Workforce Development (DWD) is addressing concerns from employers and employees, about how to safely return to the workplace, in light of the May 13, Wisconsin Supreme Court, ruling that struck down most of the Safer at Home Order.

“It is more important than ever, that the people who are able to work from home, continue to stay at home, so that we can protect those who must go back,” said DWD secretary Caleb Frostman. “Self-isolating and quarantining is part of the Badger Bounce Back plan to decrease COVID-19 cases and deaths, and is aimed to protect the health, safety and well-being of Wisconsinites, so that we can all get back to work.”

As it relates to unemployment claims, the DWD announced that the Supreme Court’s ruling does not have any impact on submitted applications or pending claims.

The DWD will continue to process claims and adjudicate issues. Benefits will be paid when due, even if the person returns to work before their case has been addressed, since back weeks will continue to be payable, if a determination finds benefits are due.

Note that if an employer now has work for an employee who was laid off or furloughed, and that employee refuses to return to work, the eligibility issue must be adjudicated. Depending on the specifics of the reason for the refusal to work, that person may or may not be eligible for benefits.

Unemployment benefits are available to individuals who are totally or partially unemployed, because of no fault of their own. In this example, the individual – not the employer – is choosing not to work and, therefore, would be ineligible. However, the facts of each circumstance are important. An investigation would be conducted to determine if a worker would still be eligible.

Individuals not returning to work because they are the primary caregiver for a child unable to attend school or another facility closed because of COVID-19, may not be eligible for regular unemployment, but could still be eligible for Pandemic Unemployment Assistance (PUA).

As employers consider whether they should resume operations or how they can return workers to their jobs, the DWD’s Equal Rights Division (ERD), reminds employers and employees to be mindful of the Fair Employment Act, and other employment laws.

In general, employers should be mindful of the following:

• Avoid making return to work decisions based on age, marital status, real or perceived disability, or any other protected bases.

• Make return to work decisions based on non-discriminatory factors, such as whether work duties are essential/ non-essential; the ability to perform job duties remotely; and individual medical risks which may require accommodation.

• Make sure “legitimate non-discriminatory criteria” do not unintentionally impact one protected class over another.

• Avoid blanket policies that treat individuals with disabilities differently.

• Instead, engage in the interactive accommodation process where needed.

Employers/employees with questions or concerns, should visit