Employment Law Quarterly: March 2020

Friday, March 27, 2020

U.S. Department of Labor Issues Families First Coronavirus Response Act Model Notice

By David P. Frantz*

The recently passed Families First Coronavirus Response Act (the “Act”) requires covered employers (private employers with fewer than 500 employees and certain public sector employers) to post a notice summarizing the Act’s requirements “in conspicuous places on the premises of the employer where notices to employees are customarily posted.” The Act directed the Secretary of Labor to make a model notice publicly available.

The U.S. Department of Labor (“DOL”) issued two versions of that model notice, one for federal employees, and the other for non-federal employees. The DOL also issued an FAQ document regarding the Act’s posting requirement. The model notices and FAQ document are available here.

With respect to employees working from home, the DOL advises in the FAQ that an “employer may satisfy [the posting] requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website.”

The DOL’s model notice clarifies that the Act’s effective date is April 1, 2020, not April 2, 2020 as previously believed based on the Act’s language that it would become effective “not later than 15 days after the date of enactment,” which was March 18, 2020.

As Z&R previously reported here, the Act includes both The Emergency Family and Medical Leave Expansion Act (Division C of the Act) and The Emergency Paid Sick Leave Act (Division E of the Act). The DOL’s model notice advises employees of rights with respect to both paid sick leave and expanded family and medical leave. The DOL also addressed the interplay between the two paid leaves in a recent Q&A about the Act:

Q. If I am home with my child because his or her school or place of care is closed, or child care provider is unavailable, do I get paid sick leave, expanded family and medical leave, or both—how do they interact?

A. You may be eligible for both types of leave, but only for a total of twelve weeks of paid leave. You may take both paid sick leave and expanded family and medical leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons. 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.

Please note that you can only receive the additional ten weeks of expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act for leave to care for your child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons.

Z&R will continue to monitor the latest information governing employers and has created a resource center. Previous Z&R articles addressing employer requirements and considerations during the COVID-19 pandemic can be found here:

*David P. Frantz works in Z&R’s Cleveland office and regularly advises clients on all employment matters. If you have questions regarding the Families First Coronavirus Response Act or other employment-related matters, please contact David at dpf@zrlaw.com or (216)696-4441.

Thursday, March 26, 2020

RELIEF, PART FOUR: Ohio Legislature Passes Emergency COVID-19 Response Legislation

By Jonathan J. Downes*

On March 25, 2020, both chambers of the Ohio General Assembly approved HB 197 which includes several emergency measures in response to the ongoing COVID-19 outbreak, including a tax conformity measure. Because there was an emergency clause attached to the legislation, the bill will immediately take effect. There are 27 separate substantive provisions in the Bill and you can find a complete summary of all the provisions here.

The provisions included in the amendment are temporary and will not continue after the declared pandemic emergency ends. The following are a few of the relevant provisions:

Sunshine Laws - Allows local governments to meet remotely with sufficient provisions for public participation (such as video or telephone communications) until December 1 or the expiration of the declaration of emergency.
Tax Deadlines - Aligns the Ohio tax filing deadline with the delayed federal July 15 deadline, and;

Extends the date for estimated payments;
Waives interest payments;
Waives the "20-day rule" under municipal income tax for employees working from home for the duration of the health emergency plus 30 days; and,
Extends the due date of the state-administered municipal net profit tax.

Unemployment – Codifies the changes in the Governor’s executive order.
Water Bills - Prevents the disconnection of public water service.
Primary Election - Makes April 28 the new primary and extends to April 28 the mail-in voting period for absentee ballots.
Drivers’ Licenses - Extends validity of licenses issued by state agencies and political subdivisions with a 90-day window for renewal.
Criminal Laws - Tolls statute of limitations for criminal & civil cases and administrative acts that would expire between March 9th and July 30th 2020

*Jonathan J. Downes is an OSBA Certified Specialist in Employment & Labor Law and a member of the College of Labor and Employment Lawyers. He advises clients on employment related matters, negotiates labor agreements, and is a regular speaker with professional associations on labor and employment law issues. If you have questions about these changes to Ohio’s law and other COVID-19 impact, please contact Jonathan at jjd@zrlaw.com, 614-224-4411 or 614-565-2075.

Tuesday, March 24, 2020

FLSA Implications for Employers Considering Reductions in Pay

By Lauren Drabic*

The spread of COVID-19 has already created significant economic downturn in the United States that will undoubtedly have a lasting impact. As the government and private businesses continue to take action to curb the spread of the pandemic, employers will face difficult decisions to address the financial hardships that result. Employers who are considering lowering their employees’ rate of pay during this economic decline must be mindful of the constraints of the Fair Labor Standards Act (“FLSA”) and parallel state wage and hour statutes to ensure that they remain compliant. When it comes to reducing an employee’s rate of pay, what is and is not permissible under the FLSA hinges largely on whether the employee is exempt or non-exempt from the FLSA’s minimum wage and overtime requirements.

Reductions in Pay for Salaried, Exempt Employees

Typically, under the FLSA, an employer must pay an exempt employee his or her full, predetermined salary amount for any week in which the employee performs any work, regardless of the number of days or hours the employee works. If an employee performs any work during a workweek, an employer cannot make deductions from the employee’s pay for absences due to changes in the operating requirements of the business. In other words, employees who are ready, willing, and able to work, and perform some work in a workweek, are entitled to their full predetermined salary, even when work is available only on a limited basis. With limited exceptions, an employer that makes such deductions to a salaried employee’s pay loses its entitlement to the exemption under the FLSA.

Despite these general rules, an employer may prospectively reduce an exempt employee’s predetermined salary amount during a business slowdown or economic downturn, so long as the salary change is bona fide and not simply used to evade the FLSA’s requirements. A prospective reduction in an exempt employee’s regular salary is permissible if the reduction is made prior to the employee performing any work in a workweek and the employee receives a salary of at least $684 per week. Employers should implement such a reduction only when it reflects the anticipated long-term needs of the business. Employers should not reduce or change employee salaries on a day-to-day or week-to-week basis based upon their operating requirements. Rather, prospective reductions in salary should remain consistent throughout the period of business need.

Reductions in Pay for Non-Exempt Employees

The limitations on an employer’s ability to reduce the pay of non-exempt, hourly employees are less stringent. Employers may lower a non-exempt hourly employee’s hourly rate of pay as long the employee receives the controlling minimum wage under federal, state or local law, whichever is higher, provided the employer notifies the employee before any work is performed under the new hourly rate. Likewise, the FLSA does not preclude employers from reducing the number of hours a non-exempt employee is scheduled to work and does not require employers to pay non-exempt employees for hours not actually worked.

State and Local Laws May Have Stricter Requirements

Employers should also be mindful that wage and hour laws vary state-by-state and state and local laws may have more stringent requirements than those mandated by the FLSA. Some states and cities have specific notice requirements that employers must comply with prior to implementing a wage reduction.

Z&R will continue to monitor the latest information governing employers and has created a resource center. Previous Z&R articles addressing employer requirements and considerations during the COVID-19 pandemic can be found here:

*Lauren Drabic works in Z&R’s Cleveland office and regularly advises clients on all employment matters. If you have questions regarding the Ohio Department of Insurance Bulletin other employment-related matters, please contact Lauren at lmd@zrlaw.com or 216.696.4441.

Monday, March 23, 2020

RELIEF, PART THREE: Ohio Department of Insurance Provides Coverage Flexibility for Ohio Employees in the Wake of COVID-19

By Lauren Drabic*

On March 20, 2020, the Ohio Department of Insurance issued a Bulletin providing relief to certain insurance regulations in Ohio. This Bulletin followed Governor Dewine’s directive that agencies implement procedures to help prevent or alleviate the public health threat from COVID-19. The Bulletin applies to all health insurance carriers that reimburse the costs of health care services under a health benefit plan in Ohio, including insurance companies, stop loss insurers, and non-federal governmental health plans. The changes will alleviate the impact of COVID-19 by making it easier for employees to remain on their employers’ health insurance plans, providing a grace period for employers to make premium payments, and relaxing standards for continuation of coverage as follows:

Employee Eligibility: Insurers must permit employers to continue covering employees under group health insurance policies even if an employee would otherwise become ineligible for coverage due to a decrease in the employee’s hours worked per week. Insurers must permit employers to continue providing coverage to employees regardless of any “actively at work” hours requirement or similar eligibility requirements. Furthermore, insurers are prohibited from increasing premium rates based on a group’s decrease in enrollment or participation due to the impact of COVID-19.
Grace Period for Premium Payment: Insurers are required to give policyholders the option of deferring their premium payments, interest free, for up to 60 days from each original premium due date.
Continuation Coverage: Employees’ options for continuation coverage depend on the size of their employer. For employers with 20 or more employees, employees may elect to continue coverage under COBRA under the normal notice and election procedures as long as at least one person remains actively employed with the employer. For employers with fewer than 20 employees, employees may elect to continue coverage under state continuation coverage for up to twelve months if one person remains actively employed and enrolled in the plan. If no active employees remain covered under a plan, employees become eligible for a special enrollment period, as detailed below.
Special Enrollment: Employees who lose coverage are eligible for a special enrollment period to enroll in new coverage. They may do so through the federal exchange or through outside insurance providers. Individuals who apply for coverage on the federal exchange may qualify for premium subsidies. Their coverage becomes effective the first day of the next month after enrollment. Insurers providing policies outside of the federal exchange must waive normal special enrollment procedures and allow applicants to obtain coverage effective the day after their loss of employment.

This Bulletin is specific to the State of Ohio and does not affect health insurance coverage outside of this state. It will remain in effect until the expiration of the State of Emergency declared by Governor Dewine on March 9, 2020.

Separately and finally, the Ohio Department of Job and Family Services has created this form to help expedite the unemployment claim process.

Z&R will continue to monitor the latest information governing Ohio employers and has created a resource center. Previous Z&R articles addressing employer requirements and considerations during the COVID-19 pandemic can be found here:

OHIO BWC: Allows Deferment of Premium Payments and Addresses Compensability of Contracting Covid-19

By Scott Coghlan*

On March 21, 2020, the Ohio Bureau of Workers’ Compensation announced that it is permitting public and private employers to defer insurance premium installment payments due for March, April and May for the current policy year to Jun 1, 2020. The BWC will reconsider the issue of deferment again in June. Notably, the BWC stated that it will not lapse coverage or assess penalties for amounts not paid because of the Covid-19 pandemic.

The BWC also addressed whether contracting Covid-19 is a compensable workers’ compensation claim stating “it depends.” Generally, communicable diseases like Covid-19 are not compensable workers’ compensation claims because they are contracted in a variety of ways that are not unique to one’s employment. Certain jobs, however, expose employees to a special hazard or risk that increases the chance of contracting Covid-19 or other communicable diseases. To address exposure concerns, the BWC enacted an Exposure Policy in 2015.

The BWC Exposure Policy applies to emergency medical workers (i.e., first responders, EMTs, paramedics, etc.), firefighters and peace officers that are exposed to bodily fluids in the course of employment through mouth-to-mouth resuscitation, a splash or spatter in the eye or mouth, skin puncture or other entryway. The manner in which the BWC handles exposure claims depends on whether the exposure was accompanied by a physical injury.

It is the BWC’s policy to disallow a claim for an exposure without an accompanying physical injury. However, if the claimant is an emergency medical worker, firefighter or police officer and was exposed to bodily fluid in the course of and arising out of the employment and the medical diagnostic services and preventive treatment is consistent with medical, CDC and OSHA standards, the BWC or self-insuring employer will reimburse the cost of the testing and preventative treatment. If the employee contracts an occupational disease (OD) following an exposure, the employee may file a claim for an OD but must satisfy the elements of an OD claim described below.

In exposure claims with a physical injury, it is the BWC’s policy to accept the claim for the specific physical injury but not for the exposure. Reimbursement for the cost of diagnostic testing and preventative treatment is the same for exposure only claims. If the employee contracts an OD following an exposure, the employee may request an additional allowance for the OD.

Employees that are not subject to the BWC Exposure Policy must satisfy the elements of an OD claim in order for the contraction of Covid-19 to be compensable as a workers’ compensation claim. To satisfy this burden, the employee must demonstrate that: (1) Covid-19 was contracted in the course of employment; (2) the causes and characteristics of Covid-19’s manifestation or the conditions of the employment, result in a hazard that distinguishes the employment from employment generally and (3) the employment created a risk of contracting Covid-19 in a greater degree and in a different manner than in the public generally. Because Covid-19 is a pandemic, it is unlikely to result in compensable claims except in very limited circumstances.

We will continue to monitor the BWC’s response to the Covid-19 situation carefully and responsibly and will provide additional information as it becomes available.

*Scott Coghlan, chairs the firm’s Workers’ Compensation Group and regularly advises clients on all workers’ compensation related matters. If you have questions about the Ohio BWC’s response to Covid-19 or any other workers’ compensation questions, please contact Scott at sc@zrlaw.com or (216) 696-4441.

Friday, March 20, 2020

Application of the Worker Adjustment and Retraining Notification Act (“WARN”) to Closures Caused by the COVID-19 Pandemic

By Jon Dileno*

The COVID-19 pandemic has raised questions as to the application of the Worker Adjustment and Retraining Notification Act (“WARN” or “the Act”), 29 U.S.C. §§ 2101-2109, where the pandemic has caused the closure of businesses and/or the layoff of employees.

WARN’S REQUIREMENTS

Generally speaking, WARN requires private-sector (and some semi-public) employers who employ 100 or more full-time employees to provide 60 days’ advance notice to employees and governmental agencies of a “plant closing” or a “mass layoff.” A “plant closing” is defined as a temporary or permanent shut down of a single site of employment involving an employment loss of 50 or more full-time employees. A “mass layoff” is a reduction in force of 50 or more full-time employees constituting at least 33% of the full-time workforce at a facility. In turn, an “employment loss” does not occur unless the employee is permanently separated, or is on a layoff for more than six months (or has had his/her hours reduced by more than 50% for a six-month period).

EXCEPTIONS TO THE 60-DAY NOTICE PERIOD PERTAINING TO COVID-19 RELATED CLOSURES AND LAYOFFS

Unforeseen Business Circumstances

A covered employer can provide less than 60 days’ advance notice of a closure or mass layoff due to business circumstances that “were not reasonably foreseeable” at the time notice would have had to been provided. The regulations defining WARN further state, regarding this exception, that:

“[u]nforseen business circumstances” include “an unanticipated and dramatic major economic downturn” or “a government-ordered closing of an employment site.”
CFR 639.9(c)(1).

Natural Disasters
A covered employer can also provide less than 60 days’ advance notice where the covered closure or layoff is due to “any form of natural disaster, such as a flood, earthquake, or a drought…” While the Act does not reference a “pandemic” as an example of a “natural disaster,” one could reasonably argue that it is. That said, there is no current guidance in relying on this natural disaster exception.

As to both of these aforementioned exceptions, WARN requires the employer to give as much notice as possible. Moreover, the regulations suggest that notice should be provided, under the “natural disaster” exception, even if the employment loss has already occurred. CFR 639.9(c)(3). (It is worth noting that the Act also states that no notice is required for the “natural disaster” exception. Therefore, an inconsistency exists within the Act and regulations in that regard).

Extending the Layoff Period

The Act also allows for a layoff that was presumed to be of less than six months in duration (for which no notice needed to be provided), to be extended beyond six months, where business circumstances were not reasonably foreseeable at the time of the initial layoff.

SPECIFIC ADVICE TO EMPLOYERS EXPERIENCING COVERED CLOSURES OR MASS LAYOFFS

Employers should initially determine if their closure, shut-down or layoff is a covered circumstance. As noted, permanent separations of less than 50 employees or layoffs of less than 50 employees or less than six months in duration do not invoke WARN.

Where a covered event does occur, employers potentially can rely upon the exceptions defined under WARN due to the unprecedented nature of the COVID-19 pandemic.

More specifically, if an employer has had to permanently close its business, it is highly likely that such would qualify as an “unforeseen business circumstance” or “natural disaster.” As for mass layoffs, they likewise would likely be considered as the result of these above-referenced unpredictable and extraordinary circumstances, for which 60 days’ notice would have been impossible. Of further note regarding mass layoffs, those employers who have had to lay off their employees will likely have done so with the reasoned expectation that they would recall their employees prior to the expiration of six months. Therefore, if the layoff extends beyond six months, those employers potentially can rely upon WARN’s defined exception, allowing them to extend the layoff period.

In sum, if the current COVID-19 pandemic has not triggered WARN’s notice exceptions, then it is hard to imagine what would. However, irrespective of some of the contradictory language in the Act and regulations pertaining to the need to provide some amount of notice, the safest route for employers to follow is to provide as much notice as possible – whether due to a closure, mass layoff, or if extending a layoff beyond six months.

*Jon Dileno regularly advises clients on all labor related matters, including WARN. If you have questions about the WARN Act or any labor law questions, please contact Jon at jmd@zrlaw.com or (216)696-4441.

Thursday, March 19, 2020

RELIEF, PART TWO: Federal COVID-19 response mandates paid leave (for now)

By Helena Oroz*

Last night, President Trump signed into law H.R. 6201, the Families First Coronavirus Response Act (the “Act”).

The Act appropriates billions of dollars for various programs to provide relief during the COVID-19 pandemic and requires group health plans and health insurers to provide no-cost coverage for COVID-19 testing.

The Act also mandates paid leave in two different ways:

The Emergency Family and Medical Leave Expansion Act (Division C of the Act); and
The Emergency Paid Sick Leave Act (Division E of the Act).

This alert summarizes some of the significant aspects of each of these two portions of the Act. Please consult the Act for specifics, and contact your Z&R to discuss your particular circumstances.

Significant aspects of the Emergency FML Expansion Act.

Effective date: 04/01/2020.
New leave entitlement: Public Health Emergency Leave (“PHE leave”). From 04/01/2020 through 12/31/2020, eligible employees may request leave for a “qualifying need related to public health emergency,” which means the employee is unable to work or telework because they need to care for their minor child if, due to the COVID-19 emergency, the child’s school or place of care has been closed, or the child’s care provider is unavailable.
Employee eligibility. An “eligible employee” for purposes of PHE leave is any employee who the employer has employed for at least 30 calendar days.
Employer coverage. An “employer” for purposes of PHE leave is one with fewer than 500 employees. Please note the Act includes a provision that allows the Secretary of Labor to issue regulations to exclude employers with fewer than 50 employees. We will need to see how this plays out.
Calculating paid PHE leave. The first 10 days of an employee’s PHE leave may be unpaid. After 10 days, an employer must provide paid leave for the duration of the employee’s PHE leave. Paid PHE leave is calculated based on:

two-thirds of the employee’s regular rate of pay; and
the number of hours the employee would otherwise be normally scheduled to work (or the average number of hours scheduled per day over the six-month period preceding the leave, if the employee’s schedule varies from week to week) up to a maximum of $200 per day or $10,000 in the aggregate.

Notice. If PHE leave is foreseeable, an employee must provide notice of leave “as is practicable.”
Job Restoration. Normally, the FMLA requires that an employer restore an employee who returns from FMLA leave to his or her position or an equivalent one. Under the Act, these requirements do not apply to employers with fewer than 25 employees if certain conditions are met:

the employee takes PHE leave;
the employee’s position no longer exists due to economic conditions or other changes in the employer’s operating conditions that affect employment and are caused by the COVID-19 emergency;
the employer makes reasonable efforts to restore the employee to an equivalent position; and
if the employer cannot restore the employee to an equivalent position, the employer makes reasonable efforts to contact the employee if an equivalent position becomes available during the “contact period.” The “contact period” is one year from either (a) the date PHE leave ends, or (b) the date that is 12 weeks after PHE leave starts, whichever is earlier

No liability for certain employers. Normally, employers who violate the FMLA are subject to civil action by employees. Under the Act, employers with fewer than 50 employees are not subject to civil actions by employees for failing to provide PHE leave (despite the fact that such employers must provide PHE leave, absent further action by the Secretary of Labor).

Significant aspects of the Emergency Paid Sick Leave Act.

Effective date: 04/01/2020.
Entitlement. Under the Act, an employer must provide emergency paid sick leave (“EPSL”) to an employee who cannot work or telework because the employee:

is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
is caring for an individual who is subject to Federal, State, or local quarantine or isolation order related to COVID-19; or who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
is caring for their minor child if the child’s school or place of care has been closed, or if the child’s care provider is unavailable due to COVID-19 precautions; or
is experiencing “any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.” We will have to see how this provision plays out as well.

Duration. A full-time employee is entitled to 80 hours of EPSL. A part-time employee is entitled to an amount of EPSL equal to the average number of hours the employee works over a two-week period.
Employee eligibility. Employees are entitled to EPSL regardless of how long the employee has been employed by the employer.
Employer coverage. “Covered employer” includes any private entity or individual that employs fewer than 500 employees; and any public agency or other entity that is not a private entity that employs one or more employees. Please note the Act includes a provision that allows the Secretary of Labor to issue regulations to exclude employers with fewer than 50 employees. Again, we will need to see how this plays out.
Employer prohibitions. An employer cannot:

require that an employee search for or find a replacement employee to cover the hours during which the employee is using EPSL.
require an employee to use other paid leave provided by the employer before the employee uses EPSL.
discharge, discipline, or discriminate against any employee who takes EPSL/ has filed any complaint/instituted any proceeding under the Act

Notice. Employers must post a notice summarizing the Act’s requirements in conspicuous places on premises where notices are customarily posted. The Act directs the Secretary of Labor to make a model notice publicly available by 03/25/2020.
Calculating EPSL. Under the Act, paid sick time is calculated differently, and subject to different caps, based on the reason for the leave.

the employee is entitled to the full amount of his or her wages (sick pay is calculated based on regular rate of pay and the number of hours the employee would otherwise be normally scheduled to work)
up to a maximum of $511 per day or $5,110 in the aggregate.

the employee is entitled to two-thirds of his or her wages (sick pay is calculated based on two-thirds of their regular rate of pay and the number of hours the employee would otherwise be normally scheduled to work)
up to a maximum of $200 per day or $2,000 in the aggregate.

The Act directs the Secretary of Labor to issue guidelines to assist employers with these calculations by 04/01/2020.

Zashin & Rich will continue to monitor these developments.

*Helena Oroz, an OSBA Certified Specialist in Employment & Labor Law, regularly advises clients on all employment related matters. If you have questions, please contact Helena at hot@zrlaw.com or (216)696-4441.

Tuesday, March 17, 2020

RELIEF: Ohio Provides Some Cover for Employers and Employees in Wake of COVID-19

By Patrick Watts*

On March 15, 2020, Ohio Governor Mike DeWine held a press conference and announced an executive order granting the Ohio Department of Job and Family Services (“ODJFS”) authority to suspend some eligibility requirements for unemployment compensation and to expand the reasons for which employees may receive unemployment compensation. According to the ODJFS website, the following changes were made:

the individual waiting period for unemployment benefits was suspended;
the requirement that individuals must actively seek work was suspended for applications related to the coronavirus outbreak;
allowing for unemployment compensation when employees are not offered paid leave and are quarantined by a medical professional or by their employer; and,
allowing for unemployment compensation when employees are not offered paid leave and their employer temporarily closes operations.

Under most circumstances, employees who choose to self-quarantine will likely not be eligible for unemployment compensation. However, because of these changes, employees who are quarantined by their employer or by a medical professional will generally be eligible for unemployment compensation if their employer does not provide for paid leave.

The ODJFS website also states that fees typically assessed to employers for late reports and late payments will be waived. Additionally, the ODJFS website reports that unemployment compensation payments paid to employees as a result of a shutdown due to the coronavirus outbreak will be paid from the “mutual” account. This will result in favorable tax treatment for those employers.

All levels of government are making rapid changes to many employment laws. Due to the speed in which governments are making these changes, misinformation has circulated, including from other law firms. We will continue to monitor this situation carefully and responsibly and will provide additional information as it becomes credible and available.

*Patrick Watts, an OSBA Certified Specialist in Employment & Labor Law, regularly advises clients on all employment related matters, including unemployment compensation. If you have questions about these changes to Ohio’s unemployment compensation law or any employment law questions, please contact Patrick at pmw@zrlaw.com or (216)696-4441.

Thursday, March 5, 2020

Coronavirus Considerations for Employers: stay informed, get prepared, don’t flip out.

By Helena Oroz*

When 2020 rolled around, the word “coronavirus” was not even a blip on most people’s radars. That has changed dramatically in just a few short months. Business disruptions, travel restrictions, and mandatory quarantines are already a reality. So are fear and uncertainty.

Coronavirus disease 2019, or COVID-19, is an acute respiratory illness caused by a new strain of the coronavirus (a large family of viruses that are common in people and many different species of animals). An outbreak of COVID-19 was first detected in China, but has since spread to every continent except Antarctica and at least 77 countries at the time of this writing. (https://www.cdc.gov/coronavirus/2019-ncov/locations-confirmed-cases.html#map).

On January 30, 2020, the World Health Organization (“WHO”) declared the outbreak of COVID-19 a “Public Health Emergency of International Concern” and has recently raised its alert level to the highest level in terms of spread and impact. U.S. Health and Human Services Secretary Alex M. Azar II declared COVID-19 a “Public Health Emergency” for the United States in remarks given January 31, 2020.

Workplaces bring their own set of concerns, and as usual, employers must deal with multiple (and sometimes competing) concerns: employee health and safety; confidentiality; rules around medical examinations and inquiries; absence and leave policies; wage and hour issues; and others. No article can cover all the answers or even all the questions, and this is certainly not an attempt to do so. But there are some strategies for COVID-19 preparedness that employers can and should take now, and any step toward action is a helpful step away from the panic button.

Get and stay informed.

This is an emerging situation that will require ongoing vigilance. Employers should continuously consult official sources for updated health and travel guidelines concerning COVID-19:

U.S. Centers for Disease Control and Prevention (“CDC”)
World Health Organization
State health departments (e.g., Ohio Department of Health)
Local health departments
U.S. Department of State (“State Department”)

Take steps to prepare.

The following strategies include recommendations from the CDC that employers should take now to help prevent workplace exposure to respiratory illnesses such as COVID-19. Employers should review the CDC’s Interim Guidance for Businesses for more information (available here).

Employees who are ill and contagious should stay home. Employees who are ill and contagious should recover at home to avoid potentially sickening others in the workplace. All sick employees should report an absence from work pursuant to the employer’s policy. However, employers should consider not requiring a doctor’s note for employees to validate a respiratory illness or to return to work as healthcare providers may be extremely busy and not able to provide such documentation in a timely fashion.
Separate sick employees. Employees who report to work with acute respiratory illness symptoms (i.e. cough, shortness of breath) or become sick during the day with these symptoms should separate themselves from other employees and go home immediately.
Hygiene Etiquette. Employers should encourage proper cough and sneeze etiquette and hand hygiene by placing posters in workplace areas where employees are likely to see them; providing tissues and no-touch disposal receptacles for employee use; instructing employees to clean their hands often with an alcohol-based hand sanitizer or wash their hands with soap and water for at least 20 seconds; and providing soap and water and alcohol-based hand sanitizer in multiple locations to encourage hand hygiene.
Housekeeping. Employers should ensure routine cleaning of frequently touched surfaces in common areas of the workplace, including countertops, doorknobs, handles, and copiers. Employers should also recommend that employees routinely clean frequently touched surfaces in their personal workspaces, such as desks, keyboards, and telephones. Employers may also make disposable wipes or other cleaning agents available to employees to reinforce these strategies.
Business travel. Employers may consider limiting non-essential business travel. If employees are traveling for work, employees should check themselves for symptoms of acute respiratory illness (fever, cough, shortness of breath) before traveling and notify their supervisor/Human Resources if they are sick. Employees who become sick while traveling should notify their supervisor/Human Resources and promptly call a healthcare provider for advice if needed.

Importantly, employers must maintain the confidentiality of those diagnosed with COVID-19 in compliance with applicable statutes and regulations governing the confidentiality of personal health information. Employers also should not make risk determinations based on race, national origin, ancestry, disability, or any other protected class consistent with the employer’s non-discrimination policy.

Finally, employers should ensure their current medical and sick leave policies are flexible and consistent with public health guidance. Employers may also consider implementing a communicable disease policy outlining strategies to prevent workplace exposure of communicable diseases and supplying employee and management training on these strategies. Employers should consult counsel to ensure their current policies, procedures, and training programs are sufficient to maintain a safe and healthy workplace and avoid potential negative legal implications.

Avoid the panic button.

Employers should inform employees about preparedness efforts and keep the lines of communication open. There may not be an answer for every question yet, but it is critical to attempt to answer employee questions and concerns and to communicate response planning efforts.

Zashin & Rich will continually monitor information from government and other official sources as it becomes available.

*Helena Oroz, an OSBA Certified Specialist in Labor and Employment Law, is a member of the firm’s Labor and Employment Groups and has extensive experience with drafting employment policies and procedures. If you have questions regarding your employment policies and procedures, contact Helena at hot@zrlaw.com or (216) 696-4441.

Monday, March 2, 2020

A Win for Employers: NLRB Issues Long-Awaited Final Rule Governing Joint-Employer Status

By Jessi L. Ziska*

On February 26, 2020, the National Labor Relations Board (the “NLRB”) issued a final rule governing the determination of joint-employer status under the National Labor Relations Act (“NLRA”). The pro-employer rule provides that a business must possess and exercise “substantial direct and immediate control over one or more essential terms or conditions” of the employment of a separate employer’s employees for the NLRB to classify them as a joint-employer. The final rule makes it less likely that the NLRB will classify a company as joint-employer liable for labor law violations or bargaining obligations involving workers the company engages at arm’s length, such as subcontractors or franchisees.

The NLRB defined key terms in the final rule which provides that “essential terms and conditions of employment” includes “wages, benefits, hours of work, hiring, discharge, discipline, supervisions, and direction.” The NLRB also explained that “substantial direct and immediate control” includes actions that have “a regular or continuous consequential effect” on the core aspects of a worker’s job noting that “sporadic, isolated or de minimis” actions are insufficient to create a joint-employer relationship.

This final rule restores the standard in place prior to the controversial 2015 Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015) (“Browning-Ferris”) decision which based joint employer status on potential control of another employer’s employees even where no actual control is exercised. In September 2018, the NLRB published a Notice of Proposed Rulemaking outlining a joint-employer standard mirroring the final rule. This final joint employer rule closes this chapter of the ever-changing joint-employer test odyssey. A more detailed summary of the years-long saga surrounding the joint-employer standard, including the pre-2015 rule, the Browning-Ferris standard, and the move to return to the pre-2015 standard can be found here.

NLRB Chairman John F. Ring stated, “This final rule gives our joint-employer standard the clarity, stability, and predictability that is essential to any successful labor-management relationship and vital to our national economy.” He added, “With the completion of today’s rule, employers will now have certainty in structuring their business relationships, employees will have a better understanding of their employment circumstances, and unions will have clarity regarding with whom they have a collective-bargaining relationship.”

Although the final rule is arguably more favorable for employers than the pre-2015 standard, employers must remain cognizant of the control they exert over subcontractors, independent contractors, etc., and analyze whether it creates an employment relationship with such individuals, giving rise to related liability.

*Jessi L. Ziska practices in all areas of labor and employment law. If you have questions regarding the NLRB’s proposed joint-employer rule, please contact Jessi at jlz@zrlaw.com or 216.696.4441.