health care – Page 4

June 17, 2020June 29, 2023

Does Title VII protect employees whose spouses are pregnant?

A male Disney employee has filed suit against his former employer, claiming that Disney unlawfully discriminated against him because of his wife’s pregnancy.

According to Steven Van Soeren’s complaint, Disney fired him after he took two weeks of paternity leave following the birth of his child, and after supervisors advised him during his wife’s pregnancy on the wisdom of having a child. (As an aside, Van Soeren claims that his supervisors learned of the pregnancy by hacking his computer.)

The Pregnancy Discrimination Act (enacted in 1978) amended Title VII’s definition of “sex” to make clear that it also includes “pregnancy, childbirth, or related medical conditions.” Disney is now arguing that Van Soeren’s lawsuit should be dismissed because Title VII doesn’t protect a male employee because of his wife’s pregnancy. Yet, the statute does not say “a woman’s pregnancy”; the definition is gender-neutral. Thus, Disney has an uphill battle to establish that the Pregnancy Discrimination Act doesn’t equally cover dads as moms.

Further, consider the following passage from Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County—

It doesn’t matter if other factors besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee — put differently, if changing the employee’s sex would have yielded a different choice by the employer — a statutory violation has occurred.

Bostock says very clearly that an employer discriminates on the basis of sex if “changing the employee’s sex would have yielded a different choice by the employer.” Would Disney have made the same decision relating to a woman’s choice to have a child, or did it rely on outdated and illegal stereotypes about a man’s role as a provider instead of a caregiver? It’s doubtful, based on the comments Van Soeren claims his supervisors made after they learned of his wife’s pregnancy.

Bostock leaves open a lot of questions: Can religious employers claim an exemption from Title VII’s prohibition against LGBTQ discrimination, and if so, how broadly?

Does Title VII’s prohibition against LGBTQ discrimination moot the Trump Administration’s plan to roll back protections for transgender people from discrimination in health care and insurance coverage? Add to this list the question of just how broadly Bostock’s causation standard will apply, and if it applies to other forms of sex discrimination such as pregnancy discrimination?

I believe it does, and I believe Disney will lose its effort to have Van Soeren’s lawsuit dismissed.

June 8, 2020

‘I was terminated for refusing to wear a Trump 2020 face mask.’

Ohio requires that all employees wear face masks or other face coverings as a condition to any business reopening that (subject to a few limited exceptions). The only rules are that the mask cover the employee’s nose, mouth, and chin. There are no other requirements about the nature of the mask or face covering, including its design or style.

One southern Ohio business, The Village Inn restaurant in Farmersville, is testing the mask-requirement waters by requiring its employees to wear “Trump 2020” masks.

Worse, it’s firing employee who refuse.

Or at least that’s what Kris Hauser, a former waitress of the restaurant, claimed happened to her in her viral Facebook post describing her termination.

The owner then approached me again and stated I needed to wear my Trump 2020 mask. I responded and told him I would wear it, but I would wear it inside out (which a majority of employees had been doing already for the days prior).

The owner, Scott, told me “No, you will wear it with Trump 2020 facing out for people to see.”

I told him I would not do this and he said that I needed to leave.

Your first inclination might be to say, “Jon, Ohio, like every other state besides Montana, is an at-will state, meaning that an employer can fire any employee for any reason, good or bad. And just last Thursday you told us that there are only a few states that ban political opinion discrimination, and Ohio isn’t one of them. So while many will feel that Kris Hauser’s termination is morally and ethically reprehensible, I don’t see anything unlawful about it.”

While Ohio is an at-will state, it recognizes several key exceptions to employment-at-will, including a tort claim for wrongful discharge in violation of public policy. What does this mean? I’ll let the Ohio Supreme Court explain:

In order for a plaintiff to succeed on a wrongful-termination-in-violation-of-public-policy claim, a plaintiff must establish four elements: (1) that a clear public policy existed and was manifested either in a state or federal constitution, statute or administrative regulation or in the common law (“the clarity element”), (2) that dismissing employees under circumstances like those involved in the plaintiff’s dismissal would jeopardize the public policy (“the jeopardy element”), (3) the plaintiff’s dismissal was motivated by conduct related to the public policy (“the causation element”), and (4) the employer lacked an overriding legitimate business justification for the dismissal (“the overriding-justification element”).

In other words, if a termination offends a clear public policy of the state, and the employee does not have any other remedy to redress the termination, the employee can sue in tort for the wrongful discharge.

In this case, Ohio has a clear public policy against employers influencing employees’ political opinions—Ohio Revised Code section 3599.05, which criminalizes employers that make expressed or implied threats “intended to influence the political opinions or votes of his or its employees.”

That’s exactly what The Village Inn did in imposing its “Trump 2020” mask requirement under threat of termination. And it’s not too far off the mark from Kunkle v. Q-Mark, Inc. (S.D. Ohio 6/28/13), which refused to dismiss a public policy claim based on section 3599.05, after the employer allegedly threatened employees with termination if President Obama won re-election, and allegedly fired the plaintiff after she stated she voted a “straight Democratic ticket.”

I’ve never been shy about calling out an employer that has wronged an employee. The Village Inn has wronged Kris Hauser. The internet has already spoken. I hope Ms. Hauser finds a lawyer to take her case and the courts have their say as well.

June 3, 2020June 29, 2023

Do Lake of the Ozarks employees sent home from work qualify for paid sick leave under FFCRA?

Last week I discussed how to handle employees who are not social distancing outside of work.

My thoughts were spurred by videos of employees partying over the Memorial Day weekend at Lake of the Ozarks and elsewhere around the country.

I said the following:

I would also place any employee who violated social distancing rules outside of work (whether the information is volunteered on a self-assessment or discovered through a viral video) on a mandatory two-week unpaid leave of absence and require a quarantine as a condition of continued employment.

It looks like I might have a reader in Lincoln County, Missouri.

According to KSDK, employers are mandating unpaid leaves of absence and quarantines for employees who spent their holiday weekend amid the throngs at Lake of the Ozarks, The story also quotes an attorney who says that placing an employee on an unpaid leave of absence, under those circumstances, might violate the FFCRA’s requirements for paid sick leave for an employee “advised by a health care provider to self-quarantine due to concerns related to COVID-19.”

I completely disagree, and the Department of Labor has my back.

Take a look at Question 77 to the DOL’s FFCRA Questions and Answers:

May I take paid sick leave or expanded family and medical leave under the FFCRA if I am on an employer-approved leave of absence?

It depends on whether your leave of absence is voluntary or mandatory. If your leave of absence is voluntary, you may end your leave of absence and begin taking paid sick leave or expanded family and medical leave under the FFCRA if a qualifying reason prevents you from being able to work (or telework). However, you may not take paid sick leave or expanded family and medical leave under the FFCRA if your leave of absence is mandatory. This is because it is the mandatory leave of absence—and not a qualifying reason for leave—that prevents you from being able to work (or telework).

In other words, if an employee’s leave of absence is the employer’s choice, as is the case in the Lake of Ozarks example, then the employee does not qualify for FFCRA paid sick leave, because it’s not a COVID-19 medical recommendation or quarantine that’s preventing the employee from working but the leave of absence.

It’s no different from a furlough, for which employees also do not qualify for FFCRA paid leave. As long as you place an employee on leave before they tell you they’ve been advised by a health care provider to self-quarantine because of COVID-19 concerns, you shouldn’t have to worry about paying the employee for that leave under the FFCRA.

June 2, 2020June 29, 2023

Justice Department indicts employee for COVID-19 workplace fraud

COVID-19, coronavirus, public health crisis

In mid-April the FBI warned employers to be on the lookout for fake COVID-19 diagnoses, doctors’ notes, and other coronavirus-related documents from employees.

The Justice Department has now indicted the first employee for committing this new breed of fraud.

The Justice Department provides the details:

Santwon Antonio Davis has been charged with defrauding his employer by allegedly faking a positive COVID-19 medical excuse letter, causing the employer to stop business and sanitize the workplace. Davis has since admitted that he did not have COVID-19. …

According to the … charges and other information presented in court: The defendant, who was employed by a Fortune 500 company with a facility located in the Atlanta, Georgia area, falsely claimed to have contracted COVID-19 and submitted a falsified medical record to his employer. In concern for its employees and customers, the corporation closed its facility for cleaning and paid its employees during the shutdown. This caused a loss in excess of $100,000 to the corporation and the unnecessary quarantine of several of the defendant’s coworkers.

You can read the full affidavit submitted by the U.S. attorney in support of the criminal complaint here. (Disclaimer: Mr. David is presumed innocent until proven guilty.)

This is as good as time as any to remind you of the steps can you take if you think an employee is faking a coronavirus diagnosis.

Pay attention to inconsistencies on notes and other documents in fonts and spacing, or grammatical or spelling errors.
Look for computer-generated, versus hand signatures.
Compare legitimate medical excuse letters from health care providers to be aware of their typical format and structure.
Contact the medical provider to authenticate the document (after first providing the employee the opportunity to authenticate).

Be alert, because it’s fair to assume that as more employees return to work, more employees will try to take advantage.

May 26, 2020June 29, 2023

When an employee isn’t social distancing outside of work

How did you spend your Memorial Day weekend? Mine was way more mundane than years past.

I watched my nephew receive his high school diploma and pre-record his valedictory address in an individual, family-only ceremony. We walked the dogs a bunch. We went to Lowe’s, masks on faces (the first store in which I’ve been inside other than a grocery store in over two months). I barbecued for my wife and kids.

Other people chose less COVID-appropriate holiday weekend activities.

Scenes like this one were repeated all over the country. Will you be surprised when COVID-19 cells spring up in two weeks linked to these mass gatherings? Because they will.

Here’s my question. What do you do if you see one of your employees in one of these social-gathering viral videos? Do you welcome him or her back into the workplace today with open arms?

I would not. I’d screen employees for risky behaviors during the holiday weekend or otherwise. Ohio already requires all businesses, as a condition to reopening, to “conduct daily health assessments by employers and employees (self-evaluation) to determine if ‘fit for duty.’” With the country reopen and summer upon us, I’d recommend adding two questions to this self-assessment

Did you take part in a social gathering in which you were within 6 feet of others? Being within 6 feet of others who do increases your chances of getting infected and infecting others.
If you attended a social gathering, was everyone around you wearing a mask or facial covering? Others within six feet of you not wearing masks increases your chances of becoming infected.

I would also place any employee who violated social distancing rules outside of work on a mandatory two-week unpaid leave of absence and require a quarantine as a condition of continued employment. (According to NBC News, the Kansas City health director has called for self-quarantine of all Lake of the Ozarks partiers.)

If an employee returns after being at one of these weekend parties and then tests positive, there is a really good chance that you will have to shut down your entire business (or at least a sizable part of it). Is this a risk you want to take? I wouldn’t, which is why I’d ask the questions and place anyone on an unpaid quarantine leave who answers “yes” or who I otherwise discover violated social distancing rules (such as if I see them on a viral video or photo.

We all have a social responsibility to help stop the spread of coronavirus. If an employee fails to play his or her part and chooses to act irresponsibly, I am not going to lose any sleep by sending them home for two weeks to protect the rest of my employees and their families, and my business and its continuing operations.

May 4, 2020June 29, 2023

Handling employee mental health issues in a world and workplace changed by coronavirus

employers mental health; Millennials and mental health

May is Mental Health Awareness Month, which is as good a time as any to bring up an issue that has been weighing heavily on my mind — the looming mental health crisis that our employees are facing and will continue to face in a world and workplace changed by coronavirus.

Coronavirus has altered all of our lives, and all employees are dealing with stress, anxiety, and isolation.

Social distance has robbed us of the human contact we need from our family and friends, and work-from-home of the connections with our co-workers.

Some have fallen ill with coronavirus. Most of us know someone who has. And sadly there are those of us who have dealt with the loss, unable to properly grieve because of social distancing rules.

We’ve all missed celebrating milestones such as graduations, birthdays and weddings.

Many of us have dealt with the stress of layoffs, furloughs, lost income or closed businesses, and the stress that flows from figuring out how to pay the bills and feed our families.

Parents are balancing the new job of homeschooling (or at least assistant homeschooling) their kids with the old job of their actual paying job.

We’ve all lived with the everyday stress of just stepping out into the world. The simple task of grocery shopping has transformed into a life-and-death game of six-foot distance, anti-bacterial wipes and face coverings. Even the simplest of daily tasks such as walking the dog has transformed into a game of social distancing chicken — who is going to move off the sidewalk first.

And when society starts to return to some semblance of normal, some of your employees will return to work with mental health issues of varying degrees caused by all of this stress, change and loss. Some will be dealing with the exacerbation of pre-existing mental health issues, and some will have what I am calling coronavirus PTSD.

The easy part is understanding that coronavirus has caused these mental health issues. The harder part is figuring out what we as employers can do and should do to help employees identify and manage these serious issues.

For starters, Ohio has created a free COVID Careline for people to talk to someone about their concerns. It’s available 24/7 at 1-800-720-9616.

Other than letting employees know about this state-provided resource, what else can employers do to help ensure that employees have the support and resources they need now and in the future? I have five suggestions.

1. Check the benefits available to your employees. Do you have an Employee Assistance Plan and are its mental health and counseling services are up to date? Are your health insurance plan’s mental health benefits easy to access and affordable?

2. Revisit paid-time-off policies and consider providing employees the time they need to take care of themselves and their families. And understand that everyone’s situation at home is different. Some only have themselves to worry about, while others have children to tend to during the workday. None of this is ideal, but for some, it’s less ideal than for others, depending on how much non-work responsibilities are on one’s plate.

3. Consider holding town hall or all-employee meetings that focus on mental health awareness. If senior leadership encourages education and communication around mental health issues, your employees will be more likely to access care if and when they need it.

4. Just because many are working remotely does not mean that employees have to be separated. You can use technology to foster togetherness and a sense of community. Virtual get-togethers, mindfulness breaks and online team-building events all help ease the sense of aloneness and isolation that many are feeling.

5. Small gestures of kindness can go a long way. An extra day paid day off, a gift certificate for takeout meals or grocery deliveries, or a surprise delivery of a midday snack can help employees feel appreciated and connected instead of overwhelmed and stressed.

A business is only as strong (or as weak) as its employees. Those that are considerate, flexible and kind will be in the best position to come out of this on the other side with as vibrant a workforce as possible.

April 29, 2020June 29, 2023

Ohio governor’s explanation why masks are only recommended falls woefully short

essential workers; workers' compensation, mask

I tuned in April 28 to Ohio Gov. DeWine’s briefing to learn why Ohio had changed its stance on face masks and coverings from “mandatory” to “recommended best practice.” His explanation falls way short.

The governor offered two explanations, both based on feedback he received from constituents in the hours after his original pronouncement.

Masks are offensive to some, who don’t like the government telling them what to do.
Masks can be problematic for people with disabilities.

The answer to point No. 2 is as easy as three letters: A-D-A. The ADA allows employers to modify work rules as a reasonable accommodation for an employee’s disability. If a mask or face covering causes an issue for someone with a disability, the solution is to offer that individual an accommodation.

Maybe you segregate the employee so he or she does not come into contact with anyone else. Maybe you permit that employee to work from home. Maybe you grant a leave of absence until the risk abates. The point is that the employer and the employee have options other than the state modifying a rule that puts everyone at a greater risk of infection.

Which brings me to point No. 1. The governor said, “I understand some people may find that offensive, the government telling you what to.” Yet, if I’m choosing between offending some people and safety, I’m choosing safety 10 times out of 10. As I pointed out yesterday, everyone wearing masks or facial coverings reduces the risk of transmissions and infection down to a virtual zero.

Models show that if 80 percent of people wear masks that are 60 percent effective, easily achievable with cloth, we can get to an effective R0 of less than one. That’s enough to halt the spread of the disease.

One of the things we absolutely must do to combat the spread of COVID-19 is to wear masks or other facial coverings when at work or in public. While there are studies that question the ability of masks to protect people from the virus, we are not wearing masks to protect ourselves from catching COVID-19.

We are wearing them to protect others from us spreading COVID-19 to them. Thus, if everyone covers their face in public, we will protect everyone by limiting the spread of this virus. It’s just that simple, not difficult to comprehend, and not an affront to personal liberty.

So here’s my bottom line. Anyone who refuses to wear a mask in public because it’s offensive is selfish, thoughtless and doesn’t give a damn about the well being of their fellow humans, period.

I’ll be continuing to wear my mask when around others in public. I sincerely hope that for the well being of all others, you will too.

April 21, 2020June 29, 2023

Can and should employers require antibody testing as a return-to-work condition?

We all want to get back to work as safely and as quickly as possible.

One thing that would allow us to do this with confidence is widespread antibody testing, a quick blood test to reveal if one carries the COVID-19 antibodies from which an employer can presume exposure, immunity and a reasonable degree of safety for an employee to return to work.

This testing, however, raises two critical questions.

1. Can employers legally require it?
2. Should employers rely on it as an indicia of safety?

Can an employer legally require antibody testing?

The “can” question is easy to answer. According to the EEOC, because coronavirus is a “direct threat,” employers have carte blanche to test employees, including antibody testing as a return-to-work condition.

The Americans with Disabilities Act prohibits an employer from making disability-related inquiries or engaging in medical examinations unless they are job-related and consistent with business necessity, which includes when an employee will pose a direct threat due to a medical condition.

Also read: What a business operating in the time of coronavirus cannot look like

A “direct threat” is “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” If an individual with a disability poses a direct threat despite reasonable accommodation, the nondiscrimination provisions of the ADA do not protect him or her, and disability-related inquiries and medical examinations are legal and permissible.

Per the EEOC, “As of March 2020, the COVID-19 pandemic meets the direct threat standard,” because “a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time.”

Thus, because COVID-19 is a direct threat, employers absolutely can require antibody testing as a condition for an employee to return to work.

Should an employer rely on antibody testing as an indicia of safety?

The more difficult question is whether an employer “should” require it and rely on it.

On Sunday, The New York Times ran a cautionary article, taking major issue with the reliability of COVID-19 antibody tests, which yet do not even have FDA approval.

More than 90 companies have jumped into the market since the F.D.A. eased its rules and allowed antibody tests to be sold without formal federal review or approval.

Some of those companies are start-ups; others have established records. In a federal guidance document on March 16, the F.D.A. required them to validate their results on their own and notify the agency that they had done so.…

Most of the tests offered are rapid tests that can be assessed in a doctor’s office — or, eventually, even at home — and provide simple yes-or-no results. Makers of the tests have aggressively marketed them to businesses and doctors, and thousands of Americans have already taken them, costing a patient roughly $60 to $115.

Rapid tests are by far the easiest to administer. But they are also the most unreliable — so much so that the World Health Organization recommends against their use.

These tests have a false-positive rate of 5 percent (or higher), a significant margin of error when you consider that in a community with a five percent infection rate you’d have as many false positive as actual positives.

Even labs that are marketing these antibody tests to employers are cautioning against their reliability.

This test hasn’t been reviewed by the FDA. Negative results don’t rule out SARS-CoV-2 infection, particularly in those who have been in contact with the virus. Follow-up testing with a molecular diagnostic lab should be considered to rule out infection in these individuals. Results from antibody testing shouldn’t be used as the sole basis to diagnose or exclude SARS-CoV-2 infection. Positive results may be due to past or present infection with non-SARS-CoV-2 coronavirus strains, such as coronavirus HKU1, NL63, OC43, or 229E.

In other words, these tests aren’t reliable because the FDA hasn’t reviewed them, and because of risk of a strand of coronavirus other than COVID-19 flagging a false-positive result.
What does all of this mean?

First, employers should not and cannot rely on currently available antibody tests as the magic bullet to get employees safely back to work. They are simply not sufficiently reliable.

Secondly, for the time being, employers will have to rely on measures other than testing to keep employees safe.

Third and finally, the government needs to ramp up the approval of reliable testing. Without readily available quick and reliable tests we are shooting in the dark by bringing employees back to work, and we will continue to spread infections no matter how many other steps businesses take to attempt safely to return employees to work.

April 1, 2020June 29, 2023

The rise of the sick, distressed and oppressed worker

Why does it take an international pandemic that costs tens of thousands of lives to reveal the worst in some employers and government leaders who put themselves ahead of the welfare of workers?

OK, that broke one of Rick’s cardinal rules of writing: Never lead your story with a question. But in this case, I think a question, rhetorical as it is, embellishes the senseless selfishness of some of the world’s largest and wealthiest corporations that treat its workers as if they are nothing more than disposable widgets.

Let’s start with Amazon, which of course owns Whole Paycheck — oops, upscale grocery chain Whole Foods. According to the Wall Street Journal, a Whole Foods workers group urged employees to call in sick on March 31 after seeking health care coverage for its part-time workers and paid leave for all workers who must isolate or self-quarantine as a result of coronavirus. Whole Foods employees also sought improved workplace safety measures including hazard pay and sick pay for employees who may be sick but haven’t been tested for the coronavirus.

We’ve seen a similar corporate insensitivity on the part of grocery delivery service Instacart. Some employees stayed off the job March 30 demanding greater pay and better access to disinfectant and paid leave.

Really, Instacart and Amazon, is it asking too much to provide these workers with more humane working conditions? You’ve both amassed fortunes on the backs of these low-paid employees. As you and dozens of other retailers desperately seek to hire thousands of new employees, providing them with a bottle of hand sanitizer and paid leave if they are sick is the least you could do for your workers who are being lauded nationwide as heroes.

And frankly, it never occurred to me just a few short weeks ago as Instacart shoppers scurried past me filling brown paper bags with spaghetti sauce and Cinnamon Toast Crunch cereal that these workers would be risking their health and safety for customers. I’m guessing it never crossed their minds, either.

Yet here we find ourselves. As an insidious virus ravages our population, we now come face-to-face with an age-old standoff between labor and employer. I won’t quite say that the downtrodden workers will throw off their chains and “expropriate the expropriators,” but these companies need to quickly understand that the coronavirus is creating a radically new workplace.

While it’s just mind-boggling to consider hazard pay for hourly grocery store employees, the sad reality is these people are on the front lines spending hour after hour, day after day restocking shelves and being downright pleasant to customers — any one of whom could be a ticking time bomb spreading COVID-19.

In fact, big-box grocer Costco is among the companies (Target and Walmart, too) that are temporarily doling out extra money to its employees. Costco is paying $2 more per hour from March 2 to April 5 for its U.S. workers.

But even that temporary perk comes at a price. A family member employed by Kirkland, Washington-based Costco now understandably lives in fear of contracting the virus.

She was extremely grateful when the memo came from corporate leaders about the temporary bump in pay. Three weeks later, however, it was clear that working in an essential job among the public was taking an emotional toll on her.

She was literally crying the other night as she told me that she knows two people who have died from the deadly virus. The reality that it lurks in any customer she comes in contact with has set in.

The bump in pay was appreciated, but what is the cost? The physical toll on first responders has been apparent for several weeks. We are just now awakening to the mental and emotional anguish these employees are revealing. I doubt any retail employee ever envisioned themselves as a first responder.

As my colleague Andie Burjek so adeptly penned recently, “COVID-19 clearly has severe and potentially deadly physical symptoms. But that doesn’t mean mental health is something that can be sidelined for now.”

I don’t think I am overstating here, but governments and employers across the globe need to set aside their differences and undertake drastic measures to salve the emotional and physical needs of workers. As New York Gov. Andrew Cuomo said recently, COVID-19 is colorblind.

“This virus doesn’t discriminate — it attacks everyone, and it attacks everywhere,” Cuomo stated March 30. “There are no red states, and there are no blue states, and there are no red casualties, and there are no blue casualties. It is red, white and blue. If there was ever a moment for unity, this is it.”

I opened this post with a question so I’ll close with one, too.

Is unity among government and business leaders to ease the burden on the world’s working people too much to ask?

March 23, 2020June 29, 2023

Frequently Asked Questions about Ohio’s coronavirus ‘stay at home’ order

Effective Monday, March 23 at 11:59 p.m., and continuing through at least April 6, the state of Ohio, via an order of Dr. Amy Acton, director of the Ohio Department of Health, has closed all non-essential businesses to help combat the spread of COVID-19. Gov. DeWine stated that he would reevaluate the April 6 end date as necessary.

These closures are mandatory. A copy of the order is available here.

To help answer your most pressing questions about how this stay at home order impacts your business and your employees, I drafted this FAQ.

Also read: During COVID-19 outbreak, utilize your internal communications in your company crisis plan

For additional information and updates on how coronavirus will continue to impact your business, bookmark workforce.com/news, coronaviruslaw.blog or ohioemployerlawblog.com, or subscribe via RSS or email.

Frequently Asked Questions about Ohio’s stay at home order:

Q: What businesses are open and what businesses are closed?
A: All non-essential businesses in Ohio are closed from March 24 through at least April 6.

Q: What are the “essential businesses” that are permitted to remain open?
A: The Stay at Home Order deems the following 26 categories of businesses as “essential.”

Healthcare and public health operations, human services operations, essential government functions, and essential infrastructure
The critical infrastructure sectors as defined by the Department of Homeland Security
Stores that sell groceries and medicine
Food, beverage, and licensed marijuana production and agriculture
Organizations that provide charitable and social services
Religious entities
Media
First Amendment protected speech
Gas stations and businesses needed for transportation
Financial and insurance institutions
Hardware and supply stores
Critical trades
Mail, post, shipping, logistics, delivery, and pick-up services
Educational institutions
Laundry services
Restaurants for consumption off-premises
Supplies to work from home
Supplies for essential businesses and operations
Transportation
Home-based care and services
Residential facilities and services
Professional services
Manufacture, distribution, and supply chain for critical products and industries
Critical labor union functions
Hotels and motels
Funeral services

Q: We are an “essential business.” What does this mean for us?
A: It means that your physical location is open until further notice, business as usual (as best as can be under the circumstances). Employees who have been diagnosed with coronavirus, who are exhibiting coronavirus-like symptoms, or who have been exposed to coronavirus should remain at home and telework if possible. The State has said that law enforcement should not be stopping people on their way to and from work to confirm the need to travel. Nevertheless, it might not be a bad idea to provide letters to employees documenting the essential nature of the business, just in case. Remember, above all else, despite the essential nature of your business, your employees’ health and safety remain the most important thing.

Register for Jon Hyman’s webinar on Thursday, March 26, “What HR Needs to Know about Coronavirus.”

Q: What social distancing measures must essential businesses follow as a condition to remaining open?
A: Businesses must take the following proactive measures to ensure compliance with social distancing requirements as a condition to remaining open for business:

Designate six-foot distances, with signage, tape, or other means, to ensure six-foot spacing for employees and customers.
Have hand sanitizer and other sanitizing products available for employees and customers.
Implement separate operating hours for elderly and vulnerable customers.
Post online whether a business is open and how best to reach it, and be available to continue services by phone or remotely.

Q: What other actions must all businesses follow regarding the health and welfare of their employees?
A: The Stay at Home Order requires that businesses follow these protocols in managing their employees through this crisis:

Encourage telework and video conferencing when possible.
Actively encourage sick employees to stay home until they are fever-free for 72 hours, symptoms have improved for 72 hours, and at least seven days have passed since the first symptoms began.
Do not require doctors’ notes to validate illnesses or returns to work.
Ensure that sick leave policies are up to date, flexible, and non-punitive to allow sick employees to stay home or non-sick employees to stay home to care for others who are sick.
Separate employees who appear to have acute respiratory illness and send them home immediately.
Reinforce key health and hygiene messages such as staying home when sick, washing ones hands, and proper cough and sneeze etiquette, including hanging posters and providing protection supplies and no-touch receptacles.
Perform frequent enhanced environmental cleanings.
Be prepared to change business practices if needed to maintain critical operations.

Q: Are there any instances in which a “non-essential business” can operate?
A: Non-essential businesses can maintain “minimum basic operations.” As long as employees comply with the above social distancing requirements, non-essential businesses can still engage in the minimum necessary activities to maintain the value of the business’s inventory, preserve the condition of the business’s physical plant and equipment, ensure security, process payroll and employee benefits, facilitate employees to be able to continue to work remotely from their residences, or for related functions.

Q: We are a “non-essential business.” How do we handle our employees in response to this Stay at Home Order?
A: There are myriad questions for non-essential businesses to answer to try to remain open and as operational as possible.

1. Communication is key. Your employees are worried and scared. Talking to them in person, remotely, or by email is crucial so that they understand what is happening to their jobs.
2. The Stay at Home Order closes physical places of business that are non-essential, but it does not prohibit the employees of those businesses to work remotely from home.
3. Wage and hour laws still apply. If employees of non-essential employers are working during the shut-down (i.e., remotely) they must be paid. For hourly workers, this means their regular hourly rate for all hours worked, and time-and-a-half for any overtime after 40 hours worked during the week. For salaried exempt employees, this means their full weekly salary for any week in which they work for even one minute. If employees are not working, then they do not have to be paid, and they would be free to apply for unemployment benefits. It is, however, within a company’s discretion and means to continue paying non-working employees during this shutdown of non-essential businesses.
4. If you have to cut headcount, you should be furloughing people or laying them off. A furlough is a temporary, short-term layoff with an expectation of recall in the near future. Employees remain on payroll, just with no assigned hours. A layoff is usually of longer duration or permanent and results in the employee’s removal from payroll. This is largely a business decision, not a legal decision. Depending on the terms of an employer’s group health plan, a furlough may permit employees to remain covered. In that case, employers will have to determine how to cover an employee’s share of premiums. A layoff is typically a triggering event for COBRA coverage. If either triggers COBRA, those premiums are typically an employee’s responsibility to pay in full, although employers that are able to do so can choose to pay COBRA premiums for as many months as possible.
5. Employees who are not working during this shutdown can apply for unemployment from the state. Employers should encouraging non-working employees to apply for these benefits as soon as possible. This should not hurt the employer’s experience or unemployment rating.
6. Do not forget about paid sick leave and family leave under the Families First Coronavirus Response Act, which takes effect on April 2, 2020. Employees who have been laid off prior to April 2 will not qualify for this emergency paid leave. It is an open issue whether employees who have been furloughed or ordered by the government to stay at home will qualify. The Act provides up to 80 hours of paid sick leave at 100 percent of an employee’s regular rate of pay to employees “subject to a … State … quarantine or isolation order related to COVID-19.” One could interpret the Stay at Home Order as imposing a “State quarantine or isolation order” because it prohibits employees of a non-essential business from working at the business’s physical location. One could also interpret the Order as not imposing a “State quarantine or isolation order” because it has not required employees of non-essential employers to stay at home, but merely closed the physical locations at which they work. I believe the latter interpretation is more reasonable until the state, local, or federal government imposes a broader stay-at-home or quarantine order. Regardless, the Families First Coronavirus Response Act is a floor, not a ceiling, and employers are always able to offer more paid leave benefits than the law requires if they are able and willing to do so.

Q: We have a labor union. Are there any other issues we need to be thinking about?
A: Yes. If a collective bargaining agreement covers any of your employees, you have additional things to think about, including layoffs, recall, bumping, seniority, and super-seniority. Collective bargaining agreements can also have their own provisions for sick leave, PTO, vacation, and severance. If you are thinking of changing these benefits, you may need to first bargain with the union.

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