By: Carl Habekost, Esq.
The Coronavirus is from a family of viruses that cause illness in people with symptoms of respiratory distress, fever, cough, and shortness of breath. Symptoms begin between 2-14 days after exposure. The virus spreads mainly from person-to-person contact. There are currently no vaccines nor specific treatment to deal with COVID-19.
Coronavirus and COVID-19 have been declared a pandemic by the World Health Organization (WHO) as of March 11, 2020. The Equal Employment Opportunity Commission (EEOC) created a pandemic guidance in 2009. With the escalation to pandemic status, the EEOC’s Pandemic Guidance is now officially in effect. Employers should review not only the EEOC’s Pandemic Guidance, but also the Center for Disease Control’s (CDC) Interim Guidance for Businesses and Employers. Finally, the Occupational Safety and Health Administration (OSHA) has also put out guidance on Preparing Workplaces for COVID-19 to assist employers. Obviously, numerous federal agencies and health organizations are doing everything possible to assist employers to deal with this crisis.
OSHA has been closely coordinating with the CDC and the National Institute of Occupational Science and Health (NIOSH) and other federal agencies to monitor the ongoing outbreak of COVID-19. Although most work environments present a low risk of exposure to the virus, employees working in the healthcare industry, mortuary services, airline operations, and international business travel are at an increased risk of occupational exposure to COVID-19. There is no OSHA standard specifically addressing airborne viruses or diseases such as COVID-19. However, employers should be aware that OSHA would rely upon Section 5(a)(1) of the OSH Act, otherwise known as the General Duty Clause, if appropriate to issue a citation. Section 5(a)(1) of the Occupational Safety and Health Act states:
(a) Each employer —
- shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees.
In order to reduce the risk of hazard as much as possible, employers should review OSHA’s new Guidelines for Preparing Workplaces for COVID-19. The guidelines are advisory and informational in nature only. The guidelines do not create any new legal obligations. The guidelines assist employers with identifying a risk level for their employees and to determine appropriate control measures. Most employers should follow basic steps to reduce risk. Employees should be encouraged to promote frequent hand-washing, stay home if sick, exercise respiratory etiquette (sneeze and cough into the elbow or a tissue), discourage employees from using other employees’ phones, desks, offices, and work tools, and finally maintain regular housekeeping including cleaning and disinfecting surfaces. If an employee is exposed to COVID-19 in the work environment, and is diagnosed with the Coronavirus, and receives “medical treatment” or the case involves restricted work duties or days away from work, then the case may be an OSHA recordable event.
Ohio Workers’ Compensation
As a general rule, exposure to viruses are not compensable under Workers’ Compensation law. Therefore, most employees will have a difficult time establishing a compensable workers’ compensation claim unless it can be proven that the virus was contracted in the course of and arising out of employment. In Ohio, a claimant must prove three elements to have an allowed workers’ compensation claim for COVID-19.
- The disease was contracted in the course of and arising out of employment;
- The disease is peculiar to the claimant’s employment by its causes and the characteristics of its manifestation, or 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 in a different manner than in the public generally.
The claimant must establish that the virus was contracted as a result of exposure in the workplace. The claimant must also submit a medical opinion from a physician who diagnosed COVID-19 and causally related it to exposure at work. This will be difficult in a pandemic context with the virus existing throughout the general public. However, certain occupations may make it more likely than members of the general public to be infected, such as healthcare workers and first responders.
Americans with Disabilities Act (ADA)
Employers should also be aware that typically taking an employee’s temperature at work is considered a medical examination under the Americans with Disabilities Act (ADA). Absent an undue hardship, an employer may only conduct medical examination for current employees if it is job-related and consistent with business needs. However, according to the EEOC’s Pandemic Guidance, employers may measure employees’ body temperature if a pandemic influenza becomes widespread in the community and assessed by state or local health authorities or the CDC.
The ADA prohibits employers from making disability-related inquiries and requiring medical examinations unless they are job-related and consistent with business necessity. Employers further should not disclose the name or personal information of the employee who has tested positive for COVID-19.
Family and Medical Leave Act (FMLA)
Further, employees who are sick with COVID-19 may qualify for job-protected leave under the Family and Medical Leave Act (FMLA). If an employee is sick for at least 3 consecutive days and has seen a doctor and otherwise meets FMLA eligibility requirements, employers should be aware that the rules and regulations of this law would apply. Employers should remember that FMLA also applies for caregivers of individuals who are sick with COVID-19.
The CDC has advised employers not to show prejudice to individuals of Asian descent due to fear of COVID-19. The CDC specifically stated “do not assume that someone of Asian descent is more likely to have COVID-19.” Therefore, employers should ensure that all policies and decisions regarding sending employees home or working remotely should be made in a non-discriminatory manner and not based upon any protected classes under the law. Employers should recognize, however, that leave taken by an employee solely for the purpose of avoiding exposure to the COVID-19 virus is not protected under the FMLA.
Ohio Executive Orders & Recommendations
In Ohio specifically, bars and restaurants were ordered to close for dine-in customers at 9 p.m. on Sunday. On Monday, Ohio Gov. Mike DeWine announced he is issuing an executive order to close gyms, fitness centers, recreation centers, bowling alleys, indoor water parks, movie theaters, and trampoline parks across the state until further notice at the close of business. Governor DeWine has also extended and issued a number of orders to help employers and employees.
- Unemployment Aid
- Ohio’s current one-week waiting period before an individual can receive unemployment will be waived.
- Ohio Department of Job and Family Services will waive employer penalties for late reporting and payments for the next quarter to assist employers impacted by the lack of staff availability.
- Those that are quarantined by a doctor or by their employer will be considered unemployed and will be eligible for unemployment benefits.
- Those currently receiving unemployment benefits will not be asked to show they are seeking work during this period.
- Employees imposing self-quarantine who are not showing symptoms will not be, in most cases, eligible for unemployment benefits.
- Visit unemployment.ohio.gov for additional information.
- Support for Small Businesses and Non-Profit Organizations
- Small business owners and non-profit agencies impacted by the public health crisis can apply for low-interest loans. Those impacted should immediately send their contact information to BusinessHelp@Development.Ohio.Gov.
- Additional information on the U.S. Small Business Administration’s Economic Injury Disaster Loan program is available at SBA.gov/disaster.
- Governor DeWine also announced today he would be modifying his existing order banning gatherings of 100 or more people to comply with the CDC’s latest guidance which recommends no gatherings of 50 people or more.
The Ohio Department of Health has issued a Businesses/Employers – COVID-19 Checklist that includes the following recommendations:
- Allow as many employees as possible to work from home by implementing policies in areas such as teleworking and video conferencing.
- If employees do report to workplaces:
- Actively encourage sick employees to stay home until they are free of fever or symptoms (without the use of medication) for at least 24 hours.
- Do not require a healthcare provider’s note to validate the illness or return to work of employees sick with acute respiratory illness; healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.
- Ensure that your sick leave policies are up to date, flexible, and non-punitive to allow sick employees to stay home to care for themselves, children, or other family members.
- Consider encouraging employees to do a self-assessment each day to check if they have any COVID-19 symptoms (fever, cough, or shortness of breath.).
- Separate employees who appear to have acute respiratory illness symptoms from other employees and send them home immediately. Restrict their access to the business until they have recovered.
- Reinforce key messages — stay home when sick, use cough and sneeze etiquette, and practice hand hygiene — to all employees, and place posters in areas where they are most likely to be seen.
- Provide protection supplies such as soap and water, hand sanitizer, tissues, and no-touch disposal receptacles for use by employees.
- Frequently perform enhanced environmental cleaning of commonly touched surfaces, such as workstations, countertops, railings, door handles, and doorknobs. Use the cleaning agents that are usually used in these areas and follow the directions on the label. Provide disposable wipes so that commonly used surfaces can be wiped down by employees before each use.
- Be prepared to change business practices if needed to maintain critical operations (e.g., identify alternative suppliers, prioritize customers, or temporarily suspend some of your operations).
The United States House of Representatives passed the Families First Coronavirus Response Act this morning which would extend FMLA definitions and benefits, unemployment benefits, and more to those affected by the virus, school closings, and more. Look for an update if or when this bill is voted on by the Senate. The crisis situation employers and employees alike face with the advent of COVID-19 is rapidly changing. Therefore, we recommend that employers with questions contact a member of our Labor and Employment Section.