Legal Information & Sample Documents

** The information contained here is provided solely for a general information purpose.  It should not be interpreted as legal advice and does not constitute an attorney client relationship. The posted documents are samples and League attorneys have not reviewed them for legal sufficiency. The League’s attorneys do not provide legal representation to individual municipalities or officials; we encourage our members to consult their municipal attorneys on questions of law.**

Legislative Information - Federal Government

Government Employers are Now Eligible for Tax Credits if Voluntarily Extending FFCRA Leave – Update as of April 30, 2021:

The original version of the Federal Families First Coronavirus Response Act (FFCRA) went into effect April 1, 2020 and required employers to provide emergency paid sick leave and expanded family leave to employees under the terms specified by the law.  The requirements of the FFCRA expired December 31, 2020.

Beginning January 1, 2021, employers could voluntarily provide paid leave under the FFCRA and in return private sector employers were eligible for payroll tax credits to cover the cost of providing the leave.  This option was due to expire March 31, 2021.  Few local governments decided to voluntarily provide the paid leave in part because they were not eligible to receive the payroll tax credits that were available to private sector employers.

The American Rescue Plan Act (ARPA) extended the voluntary paid leave option and payroll tax credits to September 30, 2021.  In recently-issued guidance, the IRS confirms that state and local governments are now eligible for the payroll tax credits if they choose to provide paid leave under the FFCRA as modified by the ARPA (see Summary of Voluntary Paid Leave Provisions Under the Families First Coronavirus Response Act as changed by the American Rescue Plan Act.)

How do the payroll tax credits work?

Employers claim the tax credits by retaining payroll taxes that would otherwise be deposited with the IRS. They may retain payroll taxes equal to 100%of the qualified wages paid for leave under the FFCRA (as expanded by the ARPA), the employer’s share of Medicare owed on the wages, and any qualified health plan expenses that are allocable to the qualified wages. Employers must claim these paid leave tax credits on their Form 941 for the quarter in which they pay the leave wages.

Information on the amount of tax credits, how they are calculated, and how to claim the credit can be found on the IRS website: https://www.irs.gov/newsroom/employer-tax-credits-for-employee-paid-leave-due-to-covid-19.   The tax credits, required support for the credits, and completion of related IRS tax forms can be complicated and members who have questions should consult a municipal tax professional.

What Does This Mean for League Members?

1. Your community can decide if it will provide paid sick leave and/or paid family leave as of April 1^st through September 30^th under the FFCRA as changed by the ARPA. To reiterate, these provisions are not mandatory, but employers can choose to voluntarily provide the benefits of the act and take advantage of payroll tax credits if they do. Employers who choose to provide the paid sick leave or the expanded family and medical leave must comply with the leave requirements of each law in order to claim the tax credits.
2. The tax credits are only available to employers who provide the leave provisions without discriminating in favor of highly compensated employees, full-time employees, or based on employee tenure.
3. If your community elects to provide the leave and claim tax credits, you must maintain IRS-required documentation, which you can find here: https://www.irs.gov/newsroom/how-should-an-employer-substantiate-eligibility-for-tax-credits-for-qualified-leave-wages.

UPDATE AS OF DECEMBER 31, 2020:

****The FFCRA has expired.****

As of December 31, 2020, the Families First Coronavirus Response Act (FFCRA) and the programs it established, Expanded FMLA Leave and Paid Emergency Sick Leave, have expired. Municipal employers may choose, but are not required, to continue to provide FFRCA-type leave to employees. However, municipal employers who voluntarily continue providing such leave will no longer be exempt from paying the employer-share of FICA taxes for wages paid under the leave. Any tax treatment extension of the FFCRA applies only to private sector employers. Information provided on this page relating to the FFCRA is for reference only. 

Families First Coronavirus Response Act

HR 6201 Families First Coronavirus Response SUMMARY March 20, 2020
 HR 6201 Families First Coronavirus Response Paid Sick Leave  March 20, 2020

Who is an “emergency responder” under the Families First Coronavirus Response Act (FFCRA)? 
 “For the purposes of employees who may be excluded from paid sick leave or expanded family and medical leave by their employer under the FFCRA, an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA.” (Provided by the Federal Dept. of Labor.) 

Click here for more DOL guidance regarding the FFCRA.

Are employees of a local health department or agency considered “health care providers” that may be excluded from paid leave under the FFCRA?
 Yes. The Department of Labor issued guidance clarifying that a “health care provider” who may be excluded by their employer for purposes of emergency paid sick leave and/or expanded family and medical leave includes, among other things, anyone employed at a local health department or agency or at a nursing facility, retirement facility, or nursing home.

A municipal employee’s work is deemed non-essential under the Safer at Home order and is not currently working. Is the employee considered to be “subject to a state or local quarantine or isolation order” and, thus, eligible for emergency paid sick leave under the FFCRA? 

No. The Department of Labor’s temporary FFCRA regulations clarify that, in this situation, the order applies to the employer, not the employee as an individual. The reason for the employee not being able to work is because the municipality, subject to the order, does not have work for the employee.

Does a government employer’s requirement that an individual employee self-quarantine/isolate constitute a “local quarantine or isolation order” for purposes of emergency paid sick leave under the FFCRA?

It is unlikely that the regulations are meant to be applied in this manner. However, depending on the circumstances, the employee may be eligible for emergency paid sick leave under a different qualifying reason – e.g., the employee has been advised by a health care provider to self-quarantine.

Sample Employee Policy and Guidance (Revised)
 At this time, a policy is not required to implement paid leave under the FFCRA. This sample policy has been prepared for municipalities choosing to use a policy and to provide a more-detailed explanation of the FFCRA’s requirements than contained in the Department of Labor’s Notice poster. Note, municipalities are permitted, but not required, to exempt emergency responders and health care providers from paid leave under the FFCRA. This sample policy excludes emergency responders and health care providers. See “Considerations for Use of Sample Policy (Revised)” on the first page for additional information. Read the sample policy here. (PDF) Revised April 7, 2020. 

Sample FFCRA Employee Leave Request Form - Thanks to R&R Insurance

This is a sample only and it must be modified to suit the particular policies of your organization. Thank you to R&R Insurance for allowing our members to use their form. Sample form here. (PDF)

Legislative Information -State Government

Act 185 - State Government Response to the COVID-19 Pandemic

FAQs on Waiver of Interest on Late Property Tax Payments

• The League’s FAQs are here. (PDF) 
• Wisconsin Counties Association Supplemental FAQs (PDF) 
• Wisconsin Counties Association Model Act 185 Waiver Resolution (Word Doc will download to your computer.)
• DOR FAQs on property assessment and taxation during COVID-19 Pandemic, including changes made by Act 185 (PDF)

Guidance on Board of Review Provision in Act 185, Including Sample Notice

The League has prepared an explanation of the Board of Review provision included in Act 185, which includes a sample public notice. Read the memo and sample notice here.

General Covid-19 FAQs

Does a municipality have authority to impose a local mask order?   

Yes, municipalities may impose a local mask order pursuant to an emergency declaration under Wis. Stat. §§ 323.11 and 323.14(4)(a).  

Wisconsin Stat. § 323.11 provides that a governing body may declare, by ordinance or resolution, an emergency existing within the body’s municipality "whenever conditions arise by reason of . . . . a disaster, or an imminent threat of a disaster, that impairs transportation, food or fuel supplies, medical care, fire, health or police protection, or other critical systems” of the municipality. Section 323.02(6) defines “disaster” as a “severe or prolonged, natural or human-caused, occurrence that threatens or negatively impacts life, health, property, infrastructure . . . . or critical systems . . . .” 

When an emergency has been declared, Wis. Stat. § 323.14(4)(a) provides that governing bodies may order, by ordinance or resolution, “whatever is necessary and expedient for the health, safety, protection, and welfare of persons and property within the local unit of government in the emergency . . . .”  Although §§ 313.11 and 323.14(4)(a) do not specifically mention communicable disease, they do establish a municipality’s authority to declare an emergency in the event of a disaster or threatened disaster. As a highly contagious communicable disease that can cause serious illness or death and has the capacity to overwhelm health care systems, COVID-19 seems to clearly meet the statutory definition of “disaster” under Wis. Stat. § 323.02(6).  

 Accordingly, if a municipal governing body finds that COVID-19 is a disaster that is currently impairing or threatening to impair the health of its community (among other things), it may declare an emergency and rely on Wis. Stat. § 323.14(4)(a) to order whatever action is necessary and expedient to protect the health, safety, and welfare of its residents. A mask order is one example of such action. However, the municipality must articulate why the order is necessary to protect health, safety, and welfare. According to the CDC, masks are an effective barrier that reduces the transmission risk of COVID-19 through respiratory droplets.  

Although there is a potential argument that the provisions of Chapter 252 addressing communicable disease constrain municipal authority under Chapter 323 with respect to communicable disease, Chapter 323, on its face, provides municipalities with authority to establish local mask requirements if deemed necessary during a declared emergency. 

The Legislature’s adoption of SJR3 on 2/4/21, terminating Governor Evers’ Executive Order #104, does not affect local government emergency powers under Chapter 323. (2/5/21)

________

On May 13, 2020, the Wisconsin Supreme Court struck down DHS’s Emergency Order 28, Safer at Home, as invalid and unenforceable. See Wisconsin Legislature vs. Andrea Palm, 2020 WI 42. For more information on the Court’s opinion click here.

The following FAQs address some of the questions member municipalities are asking:

In the absence of a county or local health department order, does a municipality have authority to impose restrictions similar to Safer at Home, such as prohibiting public gatherings of a certain size and imposing restrictions on businesses? 

Yes, municipalities may impose such restrictions pursuant to an emergency declaration under Wis. Stat. § 323.11, but any regulations should be narrowly tailored to the particular circumstances of the local emergency.   

Under Wis. Stat. § 323.14(4)(a), which governs local governments’ powers and duties during a declared emergency, local governments have the general authority to order, by ordinance or resolution, “whatever is necessary and expedient for the health, safety, protection, and welfare of persons and property within the local unit of government in the emergency,” including “the power to bar, restrict, or remove all unnecessary traffic, both vehicular and pedestrian, from the highways...” Although § 323.14(4)(a) doesn’t explicitly mention controlling communicable diseases – in contrast to Wis. Stat. § 252.03 which provides that local health departments may do whatever is reasonable and necessary to prevent and suppress disease, including forbidding public gatherings when deemed necessary to control outbreaks or epidemics – § 323.14(4)(a) is broadly written to grant local governments authority to enact measures to protect the public health and welfare in an emergency.  

Any restrictions declared pursuant to a local emergency should be narrowly tailored to address the particular circumstances of the municipality’s emergency; those circumstances should be detailed in the emergency resolution or ordinance. Restrictions that may be justified in one municipality may not be justifiable in another. Additionally, a municipality should clearly articulate the rationale underlying the restrictions imposed to illustrate that the restrictions are based on facts rather than suppositions – e.g., capacity limits should be based on a defined formula derived to achieve compliance with the CDC’s social distancing recommendations in a given amount of square footage rather than setting a numerical capacity limit with no explanation for how it was reached. Municipalities should avoid imposing restrictions that appear arbitrarily defined. Moreover, some restrictions may impact individuals’ constitutional rights (e.g., right of assembly), so municipalities should strive to craft restrictions in a content-neutral manner and as narrowly as possible to address the emergency situation in their community.  

The Wisconsin Supreme Court’s recent decision overturning DHS’s Safer at Home Order (see Wisconsin Legislature v. Andrea Palm) should not be read as precluding local governments from enacting similar restrictions; narrowly crafted municipal restrictions should withstand judicial scrutiny. First, the Court’s opinion was limited in scope and did not address local government authority. It only pertained to DHS’s authority under Wis. Stat. § 252.02 and largely found fault with an unelected official promulgating a rule without following the emergency rulemaking procedures outlined in Ch. 227 of the Wisconsin Statutes. Local governments, however, are not subject to those rulemaking procedures, and restrictions imposed under § 323.14(4)(a) are imposed by elected officials – e.g., elected members of governing bodies. Second, the Court was concerned about the ability to impose criminal liability for violations of DHS’s order. However, that should not be a concern here because Wisconsin municipalities cannot create crimes; therefore, they cannot impose either a fine or imprisonment as a sanction for violation of a municipal ordinance. State v. Thierfelder, 174 Wis. 2d 213, 222, 495 N.W.2d 669 (1993). 

Finally, an interim opinion issued by Wisconsin Attorney General Josh Kaul on May 15, 2020 (“opinion”) supports the conclusion that the Supreme Court’s decision did not impact local authority to address the COVID-19 pandemic. The AG opinion concludes that the Supreme Court’s decision is limited in scope and does not constrain local health departments’ authority to issue similar orders under Wis. Stat. § 252.03. The opinion notes local government authority under Ch. 323 as an additional source of local powers but does not specifically address those powers.  

In conclusion, it is the League’s opinion that municipalities’ broad emergency powers enable them to enact restrictions addressing the COVID-19 pandemic in the absence of local health department orders.  5/19/20

Following the Wisconsin Supreme Court’s decision invalidating DHS’s Safer at Home Order 28 can a municipality choose to keep municipal facilities such as playgrounds, parks, athletic fields, etc. closed?

Yes. The legislature has granted municipalities management and control over municipal property and power to act for the health, safety and welfare of the public. See Wis. Stat. §§ 61.34(1) and 62.11(5). In the absence of an express limitation on those powers, a municipality has authority to decide whether municipal property should be open or closed. 5/14/20

Now that the Supreme Court has overturned Emergency Order 28 Safer at Home, what is the status of Emergency Order 5 which prohibited gatherings of ten people or more?

With Safer at Home overturned, Emergency Order 5 has no effect. The language in Emergency Order 5 specified the order would remain in effect for the duration of the public health emergency declared in Governor Evers’ Executive Order #72, which expired on May 11, or until a superseding order was issued. Emergency Order 28 Safer at Home appears to be a superseding order; therefore, Emergency Order 5 presumably is no longer in effect. 5/14/20

Would a county health order control in a municipality without a local health department?

Yes. Wisconsin Stat. § 251.08 provides that the jurisdiction of a county health department applies throughout the county unless a municipality within the county has its own local health department. 5/14/20

Must a library close if there is a county or local health department order in place establishing restrictions similar to Safer at Home?

Yes, pursuant to Wis. Stat. § 251.08, the jurisdiction of the local health department extends to the entire area represented by the governing body of the county, city, village or town that established the local health department, except that the jurisdiction of a single or multiple county health department or of a city-county health department does not extend to cities, villages and towns that have local health departments. 5/14/20 

In the absence of a county or local health department order, does the governing body have authority to close the library or does that authority fall to the library board? 

In the absence of such an order, the statutes appear to give the library board the authority to determine whether the library should open or close. Wisconsin Stat. § 43.58(1) provides that the library board has “exclusive charge, control and custody of all lands, buildings, money or other property devised, bequeathed, given or granted to, or otherwise acquired or leased by, the municipality for library purposes.” 5/14/20 

Open Meetings Law Policies & Advisories

Attorney General Office of Open Government Advisory: Coronavirus Disease 2019 (COVID-19) and Open Meetings March 16, 2020
 Madison Ordinance Prohibit meetings in a declared emergency March 12, 2020
 Madison Allowing members of the Common Council to appear at meetings telephonically in a declared emergency March 17, 2020