Print/PDF

COVID-19 Employer FAQs and Answers

Last Updated: 4.24.2020 @ 11:15 am

DISCLAIMER: The following information is a guide, not intended to be used as legal advice, and no attorney client relationship is established by any communication through this website.  Because every situation and every workplace is different we ask that you contact us with specific questions. 

 

ADA

Q: May an ADA-covered employer send employees home if they display influenza-like symptoms during a pandemic?
A: an employer can send an employee home with COVID-19 or symptoms associated with it.

Q: During a pandemic, how much information may an ADA-covered employer request from employees who report feeling ill at work or who call in sick?
A: Employers may ask employees who report feeling ill at work, or who call in sick, questions about their symptoms to determine if they have or may have COVID-19. Currently these symptoms include, for example, fever, chills, cough, shortness of breath, or sore throat.

Q: When may an ADA-covered employer take the body temperature of employees during a pandemic?
A: Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions as of March 2020, employers may measure employees’ body temperature. As with all medical information, an employee’s fever or other symptoms would be subject to ADA confidentiality requirements.

Q: May an employer administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace?

A:  The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.”  Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.

Consistent with the ADA standard, employers should ensure that the tests are accurate and reliable.  For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities, and check for updates.  Employers may wish to consider the incidence of false-positives or false-negatives associated with a particular test.  Finally, note that accurate testing only reveals if the virus is currently present; a negative test does not mean the employee will not acquire the virus later.

Based on guidance from medical and public health authorities, employers should still require – to the greatest extent possible – that employees observe infection control practices (such as social distancing, regular handwashing, and other measures) in the workplace to prevent transmission of COVID-19.

Q: When an employee returns from travel during a pandemic, must an employer wait until the employee develops influenza symptoms to ask questions about exposure to pandemic influenza during the trip?
A: employers may follow the advice of the CDC and state/local public health authorities regarding information needed to permit an employee’s return to the workplace after visiting a specified location, whether for business or personal reasons.

  • In Ohio, a 2 week quarantine is recommended/ordered for anyone returning from traveling. Exceptions for those working across state lines.

Q: During a pandemic, may an ADA-covered employer ask employees who do not have coronavirus symptoms to disclose whether they have a medical condition that the CDC says could make them especially vulnerable to coronavirus complications?
A: No.

  • If an employee voluntarily discloses (without a disability-related inquiry) he has a specific medical condition or disability that puts him or her at increased risk of coronavirus complications, the employer must keep this information confidential. The employer may ask him to describe the type of assistance he thinks will be needed (e.g. telework or leave for a medical appointment). Employers should not assume all disabilities increase the risk of coronavirus complications. Many disabilities do not increase this risk (e.g. vision or mobility disabilities).
  • If a pandemic becomes more severe or serious according to the assessment of local, state or federal public health officials, ADA-covered employers may have sufficient objective information from public health advisories to reasonably conclude that employees will face a direct threat if they contract pandemic coronavirus. Only in this circumstance may ADA-covered employers make disability-related inquiries or require medical examinations of asymptomatic employees to identify those at higher risk of coronavirus complications.

Q: Does the ADA allow employers to require employees to stay home if they have symptoms of the pandemic influenza virus?
A: Yes

Q: What is a direct threat?
A: DIRECT THREAT AND PANDEMIC INFLUENZA, COVID-19, AND OTHER PUBLIC HEALTH EMERGENCIES

  • Direct threat is an important ADA concept during an influenza pandemic. Whether pandemic influenza rises to the level of a direct threat depends on the severity of the illness. If the CDC or state or local public health authorities determine that the illness is like seasonal influenza or the 2009 spring/summer H1N1 influenza, it would not pose a direct threat or justify disability-related inquiries and medical examinations. By contrast, if the CDC or state or local health authorities determine that pandemic influenza is significantly more severe, it could pose a direct threat. The assessment by the CDC or public health authorities would provide the objective evidence needed for a disability-related inquiry or medical examination.
  • During a pandemic, employers should rely on the latest CDC and state or local public health assessments. While the EEOC recognizes that public health recommendations may change during a crisis and differ between states, employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.
  • Based on guidance of the CDC and public health authorities as of March 2020, the COVID-19 pandemic meets the direct threat standard. The CDC and public health authorities have acknowledged community spread of COVID-19 in the United States and have issued precautions to slow the spread, such as significant restrictions on public gatherings. In addition, numerous state and local authorities have issued closure orders for businesses, entertainment and sport venues, and schools in order to avoid bringing people together in close quarters due to the risk of contagion. These facts manifestly support a finding that 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. At such time as the CDC and state/local public health authorities revise their assessment of the spread and severity of COVID-19, that could affect whether a direct threat still exists.

Q: During a pandemic, must an employer continue to provide reasonable accommodations for employees with known disabilities that are unrelated to the pandemic, barring undue hardship?
A: Yes.

    • An employer’s ADA responsibilities to individuals with disabilities continue during an influenza pandemic. Only when an employer can demonstrate that a person with a disability poses a direct threat, even after reasonable accommodation, can it lawfully exclude him from employment or employment-related activities.
    • If an employee with a disability needs the same reasonable accommodation at a telework site that he had at the workplace, the employer should provide that accommodation, absent undue hardship. In the event of undue hardship, the employer and employee should cooperate to identify an alternative reasonable accommodation.
      • Example: An accountant with low vision has a screen-reader on her office computer as a reasonable accommodation. In preparation for telework during a pandemic or other emergency event, the employer issues notebook computers to all accountants. In accordance with the ADA, the employer provides the accountant with a notebook computer that has a screen-reader installed.
    • All employees with disabilities whose responsibilities include management during a pandemic must receive reasonable accommodations necessitated by pandemic conditions, unless undue hardship is established.
      • Example: A manager in a marketing firm has a hearing disability. A sign language interpreter facilitates her communication with other employees at the office during meetings and trainings. Before the pandemic, the employer decided to provide video phone equipment and video relay software for her at home to use for emergency business consultations. (Video relay services allow deaf and hearing impaired individuals to communicate by telephone through a sign language interpreter by placing a video relay call.(37)) During an influenza pandemic, this manager also is part of the employer’s emergency response team. When she works from home during the pandemic, she uses the video relay services to participate in daily management and staff conference calls necessary to keep the firm operational.
    • The rapid spread of COVID-19 has disrupted normal work routines and may have resulted in unexpected or increased requests for reasonable accommodation. Although employers and employees should address these requests as soon as possible, the extraordinary circumstances of the COVID-19 pandemic may result in delay in discussing requests and in providing accommodation where warranted. Employers and employees are encouraged to use interim solutions to enable employees to keep working as much as possible.

Back to Top

FMLA/EFMLEA


Q: If I am a small business with fewer than 50 employees, am I exempt from the requirements to provide paid sick leave or expanded family and medical leave?
A: A small business is exempt from certain paid sick leave and expanded family and medical leave requirements if providing an employee such leave would jeopardize the viability of the business as a going concern. This means a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the:

  • employer employs fewer than 50 employees;
  • leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and
  • an authorized officer of the business has determined that at least one of the three conditions described in below is satisfied:
    • The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
    • The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
    • There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

Q: Does the FMLA+ require an additional 12 weeks on top of the 12 weeks already available under FMLA?
A: No

Q: Does EMFLEA apply to healthcare employers?
A: Both the FMLA expansion and the Emergency Paid Sick Leave Act indicate that health care providers and emergency responders may be exempted from the leave requirements. Both laws provide an employer may elect to exclude a health care provider or emergency responder from the act. Presumably, this means an employer may elect to not allow a doctor, nurse or other provider to take leave under the act but must provide the leave to clerical, custodial and executive employees.

Q: Who is a “health care provider” who may be excluded by their employer from paid sick leave and/or expanded family and medical leave?
A: For the purposes of employees who may be exempted from paid sick leave or expanded family and medical leave by their employer under the FFCRA, a health care provider is anyone employed at:

  • any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.
  • This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities’ institutions to provide services or to maintain the operation of the facility.
  • This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.
  • This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider 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 health care providers from the provisions of the FFCRA.

Q: Who is an emergency responder?
A: 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.

Q: Under the EFMLEA exemption, what constitutes as “jeopardizes the viability of business”?
A: The DOL stated that it will be providing additional regulations about the small business exemption. In the meantime, however, employers who employ less than 50 employees and believe that such leave will jeopardize the viability of their business, should gather documentation to demonstrate such. However, such documentation does not need to be sent to the DOL.

Q: If companies are not paying employee taxes (fed, ss, mc) as part of the credit, how will that be recognized when they file their taxes next year?
A: If you are not required to withhold payroll taxes because of an exemption it appears that employers will be able file a request for an accelerated payment from the IRS. The IRS expects to process these requests in two weeks or less. The details of this new, expedited procedure will be announced next week.

Q: Will the EFMLEA and Emergency Paid Sick Leave be retroactive if the individual was negatively affected prior to April 2nd?
A: No. The DOL has announced the paid sick leave and expanded FMLA leave requirements will not be retroactive. Accordingly, any paid leave provided before April 1, 2020 will not count towards the employer’s requirement under the new law and the employer will not be eligible for the tax credits.

Q: Does the EFMLEA and Emergency Paid Sick Leave Act apply if the employee is currently laid off due to COVID-19?
A: No.

Q: How do we count the 500 employees?
A: DOL guidance confirmed it will be using the integrated employer test under the Family and Medical Leave Act of 1993 to determine whether two or more entities is a single employer for purposes of calculating employees under the 500-employee threshold.
The Integrated Employer test under the FMLA considers:

  • common management,
  • interrelation between operations,
  • centralized control,
  • degree of common ownership/financial control.
    • 29 CFR 825.104(a)(2).

Q: Is there overlap between Paid Sick Leave and FMLA Expansion?
A: If an employee takes paid sick leave and expanded FMLA leave to care for a minor child whose school or childcare is unavailable due to COVID-19, the employee may only receive a total of twelve weeks of paid leave.

“The Emergency Paid Sick Leave Act provides for an initial two weeks of paid leave. This period thus covers the first ten workdays of expanded family and medical leave, which are otherwise unpaid under the Emergency and Family Medical Leave Expansion Act unless the you elect to use existing vacation, personal, or medical or sick leave under your employer’s policy. After the first ten workdays have elapsed, you will receive 2/3 of your regular rate of pay for the hours you would have been scheduled to work in the subsequent ten weeks under the Emergency and Family Medical Leave Expansion Act.”

Q: What records do I need to keep when my employee takes expanded family and medical leave?
A: Regardless of whether you grant or deny a request for expanded family and medical leave, you must document the following:

  • The name of your employee requesting leave;
  • The date(s) for which leave is requested;
  • The reason for leave; and
  • A statement from the employee that he or she is unable to work because of the reason.

If your employee requests leave because he or she is subject to a quarantine or isolation order or to care for an individual subject to such an order, you should additionally document the name of the government entity that issued the order. If your employee requests leave to self-quarantine based on the advice of a health care provider or to care for an individual who is self-quarantining based on such advice, you should additionally document the name of the health care provider who gave advice.

If your employee requests leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, you may must also document:

  • The name of the child being cared for;
  • The name of the school, place of care, or child care provider that has closed or become unavailable; and
  • A statement from the employee that no other suitable person is available to care for the child.

Private sector employers that provide expanded family and medical leave required by the FFCRA are eligible for reimbursement of the costs of that leave through refundable tax credits. If you intend to claim a tax credit under the FFCRA for your payment of the expanded family and medical leave wages, you should retain appropriate documentation in your records. You should consult Internal Revenue Service (IRS) applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit. You are not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.

Q: Can an employee take expanded family and medical leave intermittently while their child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, if they are not teleworking?
A: Yes, but only with the employer’s permission. Intermittent expanded family and medical leave should be permitted only when the employee and employer agree upon such a schedule. For example, if your employer and you agree, you may take expanded family and medical leave on Mondays, Wednesdays, and Fridays, but work Tuesdays and Thursdays, while your child is at home because your child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, for the duration of your leave.

The Department encourages employers and employees to collaborate to achieve flexibility. Therefore, if employers and employees agree to intermittent leave on a day-by-day basis, the Department supports such voluntary arrangements.

Q: If an employer closes the worksite while an employee is on expanded family and medical leave, what happens?
A: If an employer closes while an employee is on expanded family and medical leave, the employer must pay for any expanded family and medical leave used before the employer closed. As of the date the employer closes the worksite, the employee is no longer entitled to expanded family and medical leave, but may be eligible for unemployment insurance benefits. This is true whether the employer closes your worksite for lack of business or because the employer was required to close pursuant to a Federal, State or local directive.

Q: Can an employee use employer’s preexisting leave entitlements and emergency paid sick leave and expanded family and medical leave concurrently for the same hours?
A: During the first two weeks of unpaid expanded family and medical leave, employees may not simultaneously take paid sick leave under the EPSLA and preexisting paid leave, unless the employer agrees to allow them to supplement the amount received from paid sick leave with preexisting paid leave, up to their normal earnings. After the first two workweeks (usually 10 workdays) of expanded family and medical leave under the EFMLEA, however, employees may elect—or be required by the employer—to take the remaining expanded family and medical leave at the same time as any existing paid leave that, under the employer’s policies, would be available to the employee in that circumstance. This would likely include personal leave or paid time off, but not medical or sick leave if the employee is not ill.

If employees are required to take existing leave concurrently with remaining expanded family and medical leave, the employer must pay the full amount to which the employee is entitled under the existing paid leave policy for the period of leave taken. If the employee exhausts preexisting paid leave and is still entitled to additional expanded family and medical leave, the employer must pay at least 2/3 of employee pay for subsequent periods of expanded family and medical leave taken, up to $200 per workday and $10,000 in the aggregate, for expanded family and medical leave.

Q: If I am an employer, may I require my employee to take paid leave he or she may have under my existing paid leave policy concurrently with expanded family and medical leave under the EFMLEA?
A: Yes. After the first two workweeks (usually 10 workdays) of expanded family and medical leave under the EFMLEA, you may require that your employee take concurrently for the same hours expanded family and medical leave and existing leave that, under your policies, would be available to the employee in that circumstance. This would likely include personal leave or paid time off, but not medical or sick leave if your employee (or a covered family member) is not ill.

If you do so, you must pay your employee the full amount to which he or she is entitled under your existing paid leave policy for the period of leave taken. You must pay your employee at least 2/3 of his or her pay for subsequent periods of expanded family and medical leave taken, up to $200 per workday and $10,000 in the aggregate, for expanded family and medical leave. If your employee exhausts all preexisting paid vacation, personal, medical, or sick leave, you would need to pay your employee at least 2/3 of his or her pay for subsequent periods of expanded family and medical leave taken, up to $200 per day and $10,000 in the aggregate. You are free to amend your own policies to the extent consistent with applicable law.

Back to Top

 

Intentional Tort


Q: Will Employers Who Remain Open Have Intentional Tort Liability?
A: R.C. 2745.01 Liability of Employer for Intentional Tort

  • Intentional tort in Ohio allows claimants to file personal injury lawsuits against their employer to seek compensation and punitive damages in addition to the WC claim, under a theory of intentional tort, essentially meaning that an employer had actual knowledge or was substantially certain an injury would result to a claimant from an employer’s actions.
  • There must be evidence of an actual, deliberate intent to injure the claimant.
  • The statute provides a “rebuttable presumption” of the required intent to injure if the employer deliberately removes a safety guard or deliberately misrepresents a toxic or hazardous substance.
    • The question will ultimately be whether an employer’s actions or more likely, inaction in connection with the coronavirus rises to the level of deliberate intent or substantial certainty. This will require an individual assessment of each employer’s action/inaction in response to the coronavirus.
    • Will claimants argue a rebuttable presumption under a deliberate misrepresentation of a toxic or hazardous substance?
  • The safe course is to follow all recommendations from the federal government, state of Ohio and county health departments and document the actions taken.

Back to Top

 

OSHA/Safety

 

Q: What if OSHA finds our business in violation of an OSHA standard pertaining to audits, reviews, training and required activities during COVID-19 restrictions?

A: OSHA issued a 4/16/2020 Enforcement Memo addressing discretion regarding enforcement when considering an employer’s good faith efforts during the COVID-19 Pandemic. CSHOs will evaluate and document if the company in violation has made good faith to prevent hazards for employees and to adhere to the existing, applicable OSHA standards. These factors will be strongly considered before issuing a citation:

  • Did employer explore options such as remote work;
  • Employer’s interim alternative protections (social distancing, limited staffing);
  • Employer take steps / action to reschedule the required activity (i.e. training, assessment, audit);
  • Sufficient employer documentation of actions toward compliance

If employer shows no effort in compliance, the existing OSHA policies and standards are in effect, and the employer could be subject to a citation for documented violations.

To ensure corrective actions are taken by the employer, OSHA is developing a program to conduct monitoring inspections from random case sampling where violations were documented but not cited. OSHA will be providing additional guidance in the future on this program.

Q: Should employers restrict workers who have had potential exposures from coming to work?
A: The United States has implemented travel restrictions and quarantine measures to help safeguard the public’s health and limit imported cases from abroad.

Most employers do not need to institute monitoring on their own, but they may consider allowing workers with potential exposure or infection to use flexibilities, such as telework and sick leave, to reduce the exposure risk for others.

Q: Is the “fear” of going to a construction work site doing essential business function good cause for an employee to avoid work under OSHA 11(c) unsafe work condition?
A: OSHA 11(c) whistle-blower provisions only apply after reporting a hazard and would be in effect for employees. However, employees are only entitled to refuse to work if they believe they are in imminent danger. Section 13(a) of the Occupational Safety and Health Act (OSH Act) defines “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” OSHA discusses imminent danger as where there is “threat of death or serious physical harm,” or “a reasonable expectation that toxic substances or other health hazards are present, and exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.”

  • The threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short time, for example, before OSHA could investigate the problem. Requiring travel to China or to work with patients in a medical setting without personal protective equipment at this time may rise to this threshold. Most work conditions in the United States, however, do not meet the elements required for an employee to refuse to work. Once again, this guidance is general, and employers must determine when this unusual state exists in your workplace before determining whether it is permissible for employees to refuse to work.

Q: What is recommended for U.S. workers and employers of workers with potential occupational exposures to COVID-19?

  • Identify and isolate suspected cases.
  • Implement other precautions appropriate for the worksite and job tasks, and according to the hierarchy of controls.

Q: What should standard, contact, and airborne precautions consist of in workplaces where workers may be exposed to COVID-19?

A: OSHA guidance breaks this down by worker type.

  • Engineering controls, such as isolation rooms and other physical barriers, can limit most workers’ exposures.
  • Administrative controls and safe work practices include measures such as limiting access to patient care areas, effective sharps management, and worker training.
  • PPE may include gloves, gowns, goggles or face shields, and N95 or better respirators.

Q: Why do OSHA and CDC recommend goggles in addition to airborne precautions?
A: Precautions for COVID-19 are based on evolving epidemiologic evidence of how the virus spreads, and what is known about transmission from SARS and MERS outbreaks.

  • Airborne precautions, including the use of NIOSH-certified N95 or better respirators, are appropriate because the virus may be spread through a range of respirable particle sizes.
  • Since COVID-19 may infect people through mucous membranes of the eyes and face, face/eye protection is also needed.

Q: Clinical samples of sputum are not covered by the BBP standard’s universal precautions. How should employers protect workers handling these samples?
A: While universal precautions do not apply to sputum in the BBP standard, standard precautions that CDC introduced to protect healthcare workers from a wider range of pathogens, do. Follow standard and transmission-based (contact + airborne) precautions.

  • OSHA and CDC infection prevention recommendations are more protective than the minimum precautions the BBP standard requires.

Q: COVID-19 is not a bloodborne pathogen, so does the BBP standard apply?
A: The BBP standard applies to occupational exposure to blood, certain body fluids, and other potentially infectious materials, as defined in the standard.

  • Even though COVID-19 is a respiratory virus, workers in healthcare and other sectors may still have occupational exposures covered by the standard.
  • In those cases, employers must comply with the provisions of the standard.

Q: Do I have to record cases of COVID-19 on my entity’s OSHA 300, 300A, & 301 forms?
A: While 29 CFR 1904.5(b)(2)(viii) exempts recording of the common cold and flu, COVID-19 is a recordable illness when a worker is infected on the job. OSHA has published a memo with additional injury and illness recordkeeping information at https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19

Q: What disinfectant products should we use?
A: This list is updated frequently. https://www.epa.gov/pesticide-registration/list-n-disinfectants-use-against-sars-cov-2

Q: Could you address the right to refuse, regarding if an employee refuses to come to work, but does not have COVID symptoms? As far as employee rights versus employer rights?
A: Typically, employees can only refuse to work if they believe they are in imminent danger. OSHA defines “imminent danger” as “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” Most work environments do not meet the threshold of an “imminent danger” standard, but each employer will need to determine on a case by case basis whether an employee is able to refuse work. It is also worth noting that employees may be protected under Section 7 of the National Labor Relations Act for discussing the safety of the workforce with other employees and participating in a concerted refusal to work in unsafe condition.

Back to Top

Ohio Stay At Home Order


Q: Is there an Exception for Home-Based Businesses and People Working from Home?
A:Yes

Q: What are Essential Businesses?
A: The Director of the Ohio Department of Health issued an amended order on April 2, 2020 requiring all Ohio businesses and operations except essential businesses and operations to cease all activities within Ohio. This Order includes all workers identified in Cybersecurity & Infrastructure Security Agency’s (CISA) updated list as of March 28, 2020. The list of essential businesses is broad and includes:

  • businesses that sell supplies to work from home,
  • grocery stores,
  • restaurants for consumption off premises,
  • laundry services,
  • hardware and supply stores,
  • churches,
  • gas stations,
  • banks,
  • post offices,
  • hotels and motels,
  • funeral services,
  • schools for purposes of distance learning,
  • professional services including legal services,
  • critical labor union functions,
  • home-based care and services,
  • garden centers and nurseries,
  • printing services,
  • manufacturing,
  • distribution and supply chains for critical products and industries which include:
    • pharmaceutical,
    • technology,
    • healthcare,
    • transportation, and
    • communications industries

Q: What are the requirements for the businesses allowed to remain open under the Stay at Home Order?

  • Social distancing including designating 6-foot distances between employees and customers in line with signage, tape or other means of spacing to maintain appropriate distance is required.
    • All stores shall determine and enforce the maximum capacity of persons at one time to maintain a 6 foot distance, and
      • display that capacity number at every entrance,
      • if a line is formed inside or outside the store, a 6 foot distance shall be maintained.
    • all carts and baskets must be cleaned between customers.
  • Hand sanitizer and sanitizing products must be available for employees.
  • The order also requires separate operating hours for vulnerable populations and online and remote access.
  • Businesses are asked to post online whether their facilities are open and how best to reach the facility remotely and by phone.
  • Essential businesses are required to allow as many employees as possible to work from home and encourage sick employees to stay home.
  • Businesses are required to ensure sick-leave policies are up to date and non-punitive to allow employees to care for sick family members and themselves and return to work without punishment.
  • The order also requires employers to separate employees who appear to have acute respiratory illness symptoms from other employees and send them home immediately.
  • Employers must clean the workplace frequently and be prepared to change business practices

Additional concerns regarding the Stay at Home Order

  • Governor Dewine recommends all businesses that remain open create a document explaining why they are an essential business and how the business is creating a safe workplace.
  • Businesses are asked not to call law enforcement, the health department or the #COVID19 helpline to ask for advice on whether they are an essential business
  • Governor Dewine announced they are starting to take action against a nonessential business that remains open in defiance of the order. He expects more activity against similar businesses in the near future.

Additional recommendations for Keeping Employees Safe at the Workplace

  • Governor DeWine encouraged business owners to begin taking the temperature of employees when they arrive at work in an effort to identify anyone who was becoming ill. If this is not feasible, Governor DeWine asked that employers require workers to take their own temperatures prior to arriving at work. Anyone with a temperature of 100.4 or higher should self-quarantine with members of their household.
  • The CDC recommends employees clean hands at the door and schedule regular hand-washing reminders by email. Employers should create habits and reminders to employees to cover their coughs and sneezes and avoid touching their faces. Employees should stop handshaking and use non-contact greetings such as waving instead.
  • The CDC also recommends employers disinfect surfaces like doorknobs, tables, desks and handrails regularly and increase ventilation by opening windows or adjusting air conditioning.
  • Employers should use videoconferencing for meetings when possible. When not possible, meetings should be held in open, well-ventilated spaces and attendees should be at least 6 feet apart. Employers should consider adjusting or postponing large meetings, gatherings and business travel.
  • Finally, the CDC recommends limiting food sharing and strengthening health screening for cafeteria staff and their close contacts. Cafeteria staff and their close contacts should practice strict hygiene.

Q: Could you address the right to refuse, regarding if an employee refuses to come to work, but does not have COVID symptoms? As far as employee rights versus employer rights?
A: Typically, employees can only refuse to work if they believe they are in imminent danger. OSHA defines “imminent danger” as “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act.” Most work environments do not meet the threshold of an “imminent danger” standard, but each employer will need to determine on a case by case basis whether an employee is able to refuse work. It is also worth noting that employees may be protected under Section 7 of the National Labor Relations Act for discussing the safety of the workforce with other employees and participating in a concerted refusal to work in unsafe condition.

Back to Top

Paid Sick Leave


Q: If I am a small business with fewer than 50 employees, am I exempt from the requirements to provide paid sick leave or expanded family and medical leave?
A: A small business is exempt from certain paid sick leave and expanded family and medical leave requirements if providing an employee such leave would jeopardize the viability of the business as a going concern. This means a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the:

  • employer employs fewer than 50 employees;
  • leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and
  • an authorized officer of the business has determined that at least one of the three conditions described in below is satisfied.
    • The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
    • The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
    • There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.

Q: Who is a “health care provider” who may be excluded by their employer from paid sick leave and/or expanded family and medical leave?
A: For the purposes of employees who may be exempted from paid sick leave by their employer under the FFCRA, a health care provider is anyone employed at:

  • any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions.
  • This definition includes any individual employed by an entity that contracts with any of the above institutions, employers, or entities’ institutions to provide services or to maintain the operation of the facility.
  • This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.
  • This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider 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 health care providers from the provisions of the FFCRA.

Q: Who is an emergency responder?
A: For the purposes of employees who may be excluded from paid sick 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.

Q: To calculate usual pay, do I include overtime?
A: Yes. When calculating an employee’s pay under the Emergency Family and Medical Leave Expansion Act, you are required to pay an employee for the hours the employee would have been normally scheduled to work even if that is more than 40 hours in a week. However, under the Emergency Paid Sick Leave Act an employer is required to pay only up to 80 hours over a two week-period.

Q: Will the Emergency Paid Sick Leave be retroactive if the individual was negatively affected prior to April 1st?
A: No. Based on the plain language of the act itself, it is not retroactive. Before the law is effective, employers could encourage or enforce employees to take a portion of accrued paid time while they are off work. Employers will need to be compliant by April 1, 2020.

Q: Is 10 days for unpaid leave counted by consecutive days meaning weekends too, or days worked?
A: Under traditional FMLA, many employers know employees can have intermittent leave and reduced schedules. The same might be true here, but is not discussed in the new law, we are hoping for clarification from the Secretary of Labor.

Q: How far back do we use to calculate “usual pay”?
A: Six (6) months average. If an employee has a varied weekly schedule, or if an employee typically works overtime, the employer must calculate the average number of hours per day over a six-month period, with the ending date the date the employee takes such leave.

Q: Does the Emergency Paid Sick Leave Act apply if the employee is currently laid off due to COVID-19?
A: No. An employee must be qualified due to a reason. Under the FMLA extension, if an employee is unable to work or telework for a qualifying reason, i.e. due to care of a minor child, they would be eligible for benefits. Under the emergency paid sick leave act there are six qualifying reasons. Neither act nor current legislation mentions furlough / temporary layoff or termination during this period, but those employees would not be eligible for these benefits with the current statute. The Secretary of Labor could provide guidance otherwise on any day.

Q: We laid employees off due to lack of work as a result of declining business operations. One of the employees we laid off, is also a single-mom home with a child in elementary school which is closed. Do we retract the layoff and pay her under the new legislation?
A: If the employer called back employees from lay off, and the employee fell under qualifying reasons under either act, the employee is eligible for such benefits. Employers do not have to retract your employees from layoff under this act.

Q: If I am an employer, may I use the paid sick leave mandated under the EPSLA to satisfy paid leave entitlements that an employee may have under my paid leave policy?
A: No, unless your employee agrees. Paid sick leave under the EPSLA is in addition to your employee’s (including Federal Employees’) other leave entitlements. You may not require your employee to use provided or accrued paid vacation, personal, medical, or sick leave before the paid sick leave. You also may not require your employee to use such existing leave concurrently with the paid sick leave under the EPSLA. But if you and your employee agree, your employee may use preexisting leave entitlements to supplement the amount he or she receives from paid sick leave, up to the employee’s normal earnings. Note, however, that you are not entitled to a tax credit for any paid sick leave that is not required to be paid or exceeds the limits set forth under the EPSLA. You are free to amend your own policies to the extent consistent with applicable law.

Q: What records do I need to keep when my employee takes paid sick leave?
A: Regardless of whether you grant or deny a request for paid sick leave, you must document the following:

  • The name of your employee requesting leave;
  • The date(s) for which leave is requested;
  • The reason for leave; and
  • A statement from the employee that he or she is unable to work because of the reason.

If your employee requests leave because he or she is subject to a quarantine or isolation order or to care for an individual subject to such an order, you should additionally document the name of the government entity that issued the order. If your employee requests leave to self-quarantine based on the advice of a health care provider or to care for an individual who is self-quarantining based on such advice, you should additionally document the name of the health care provider who gave advice.

If your employee requests leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, you may must also document:

  • The name of the child being cared for;
  • The name of the school, place of care, or child care provider that has closed or become unavailable; and
  • A statement from the employee that no other suitable person is available to care for the child.

Private sector employers that provide paid sick leave required by the FFCRA are eligible for reimbursement of the costs of that leave through refundable tax credits. If you intend to claim a tax credit under the FFCRA for your payment of the sick leave or expanded family and medical leave wages, you should retain appropriate documentation in your records. You should consult Internal Revenue Service (IRS) applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit. You are not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.

Q: If an employer closes the worksite while an employee is on paid sick leave, what happens?
A: If an employer closes while an employee is on paid sick leave, the employer must pay for any paid sick leave used before the employer closed. As of the date the employer closes the worksite, the employee is no longer entitled to paid sick leave, but may be eligible for unemployment insurance benefits. This is true whether the employer closes your worksite for lack of business or because the employer was required to close pursuant to a Federal, State or local directive.

Q: Can an employee use employer’s preexisting leave entitlements and emergency paid sick leave and expanded family and medical leave concurrently for the same hours?
A: During the first two weeks of unpaid expanded family and medical leave, employees may not simultaneously take paid sick leave under the EPSLA and preexisting paid leave, unless the employer agrees to allow them to supplement the amount received from paid sick leave with preexisting paid leave, up to their normal earnings. After the first two workweeks (usually 10 workdays) of expanded family and medical leave under the EFMLEA, however, employees may elect—or be required by the employer—to take the remaining expanded family and medical leave at the same time as any existing paid leave that, under the employer’s policies, would be available to the employee in that circumstance. This would likely include personal leave or paid time off, but not medical or sick leave if the employee is not ill.

If employees are required to take existing leave concurrently with remaining expanded family and medical leave, the employer must pay the full amount to which the employee is entitled under the existing paid leave policy for the period of leave taken. If the employee exhausts preexisting paid leave and is still entitled to additional expanded family and medical leave, the employer must pay at least 2/3 of employee pay for subsequent periods of expanded family and medical leave taken, up to $200 per workday and $10,000 in the aggregate, for expanded family and medical leave.

Q: If I am an employer, may I require my employee to take paid leave he or she may have under my existing paid leave policy concurrently with expanded family and medical leave under the EFMLEA?
A: Yes. After the first two workweeks (usually 10 workdays) of expanded family and medical leave under the EFMLEA, you may require that your employee take concurrently for the same hours expanded family and medical leave and existing leave that, under your policies, would be available to the employee in that circumstance. This would likely include personal leave or paid time off, but not medical or sick leave if your employee (or a covered family member) is not ill.

If you do so, you must pay your employee the full amount to which he or she is entitled under your existing paid leave policy for the period of leave taken. You must pay your employee at least 2/3 of his or her pay for subsequent periods of expanded family and medical leave taken, up to $200 per workday and $10,000 in the aggregate, for expanded family and medical leave. If your employee exhausts all preexisting paid vacation, personal, medical, or sick leave, you would need to pay your employee at least 2/3 of his or her pay for subsequent periods of expanded family and medical leave taken, up to $200 per day and $10,000 in the aggregate. You are free to amend your own policies to the extent consistent with applicable law.

Back to Top

Unemployment


Q: My employees are having difficulty with the unemployment site. Will there unemployment benefits be made retroactive to the start of their eligibility date?
A: Yes

Q: We have not sent out layoff notices yet for employees. Can they file unemployment prior to receiving something in writing from us?
A: An employee can file for unemployment anytime they want including while employed. The claim is set up, the benefit year established, and the base period for the earnings and calculations of the payment rate is accomplished. However, the weeks for which the employee worked while requesting unemployment benefits will be denied. Unemployment compensation is a determination made on a week by week basis so the employee must be unemployed, ready, willing and able to work, and separated from employment for a non-disqualifying reason in order to qualify for unemployment compensation for that week.

Q: When taking employees temps as they enter the building, is there a requirement to have that be private from other employees – example a line of employees waiting to be screened and temp’d?
A: Yes. Recommendations include drive through screenings, having employees take temperatures at home, or a line with at least 6 feet of distance between each person for privacy and safety reasons. Any medical information must remain private.

Q: If we reduce a full-time employee’s hours from 40 to 20, can they file for unemployment for the lost wages?
A: Yes, employees can get unemployment compensation for a reduction in hours.

Q:If an asymptomatic employee imposes a self-quarantine because of the coronavirus, will they be eligible for unemployment benefits?

A: In most cases, no. Unemployment benefits are available to individuals who are totally or partially unemployed due to 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. If the employer allowed this individual to telework, they would not qualify for benefits because they would not be unemployed. If the employer required the individual to stay home but did not offer telework, the individual might be eligible for benefits if they met the monetary and weekly eligibility criteria.

Back to Top

Workers’ Compensation (Ohio)


Q: How Long Will Telephone Hearings Be In Effect?
A: At least 3 weeks (Probably longer)

Q: What types of hearings will be addressed?
A:

  • Permanent Total Disability
  • Temporary Total Disability
  • Termination of Temporary Total Disability Compensation
  • Wage loss
  • Allowances (Which most likely includes death allowances)
  • Additional Allowances
  • Permanent Partial Disability
    • These hearings should only go forward if employers are able to obtain their own independent medical examinations.

Q: What types of hearings will NOT be addressed?
A:

  • Alternate Dispute Resolution
  • AWW & FWW Calculations
  • Treatment

Q: Is Coronavirus/COVID-19 a compensable occupational disease under Ohio’s workers’ compensation?
A: As a general rule, exposure to viruses are not compensable under Ohio workers’ compensation law. Most claimants will have a difficult time establishing a compensable workers’ compensation claim unless they can prove the virus was contracted in the course of and arising out of employment
In Ohio, a claimant must prove four elements to have a compensable workers’ compensation claim for COVID-19:

  • The claimant must establish COVID-19 was contracted as a result of exposure in the workplace.
  • The disease is peculiar to the claimant’s employment by its causes and the characteristics of its manifestation,
  • The conditions of the employment result in a hazard which distinguishes the employment in character from employment generally, and
  • The employment creates a risk of contracting the disease in a greater degree and a different manner than the public generally.
  • The claimant must submit a medical opinion from a physician who diagnosed COVID-19 and causally relates that condition to an exposure at work
    • It should be difficult to obtain this type of medical opinion in a pandemic context with the coronavirus existing throughout the general public.
    • With the coronavirus, it will be difficult to determine exactly where an employee contracted the virus making it extremely difficult to hold an employer responsible for a compensable workers’ compensation claim.
    • Employers can argue exposure could have happened at any time or anywhere outside of employment.
    • Latency period of between 2-14 days will make pinpointing exposure virtually impossible
      • Certain occupations may make it more likely than members of the general public to be infected, such as health care workers and first responders.
  • Legislation is currently pending to make it easier for claimants seeking the allowance of COVID-19 to have their claim allowed. Under the current law it would be difficult to connect COVID-19 to work.

News

  • Ohio House Bill 606 Seeks to Provide Immunity to Essential Workers Who Transmit COVID-19Read more

Events

  • The Path Forward: Legal & Safety Considerations to Prepare Your Workplace for Return Amid the COVID-19 PandemicRead more

Newsletter Signup

Signup here to be added to receive our quarterly publications Safety Sense, The Employer, and Comp Connection, as well as webinar and event invitations.