EEOC’s Final Rule Implementing the Pregnant Workers Fairness Act

By Natalie M. Stevens*

The Pregnant Workers Fairness Act (“PWFA”) went into effect June 27, 2023. On Monday, April 15, 2024, the Equal Employment Opportunity Commission (“EEOC”) released its final rule implementing the PWFA, which is set to be published in the Federal Register on April 19, 2024. The final regulation will go into effect sixty (60) days from April 19, 2024.

The PWFA

The PWFA requires covered entities (most employers with 15 or more employees) to provide “reasonable accommodations” for a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless doing so will cause an undue hardship on the covered entity.

The Final Rule

According to the EEOC, the final rule is intended to “provid[e]important clarity that will allow pregnant workers the ability to work and maintain a healthy pregnancy and help employers understand their duties under the law.”

Known Limitations

The final rule explains what constitutes a “known limitation.” Specifically, “known” refers to the employee or applicant or their representative having informed the employer of the limitation.

Additionally, “limitation” is defined as “a physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.”

Further, “pregnancy, childbirth, or related medical conditions” include, but are not necessarily limited to, current pregnancy; past pregnancy; potential or intended pregnancy (which can include infertility, fertility treatment, and the use of contraception); labor; and childbirth (including vaginal and cesarean delivery); termination of pregnancy, including via miscarriage, stillbirth, or abortion; ectopic pregnancy; preterm labor; pelvic prolapse; nerve injuries; cesarean or perineal wound infection; maternal cardiometabolic disease; gestational diabetes; preeclampsia; HELLP (hemolysis, elevated liver enzymes and low platelets) syndrome; hyperemesis gravidarum; anemia; endometriosis; sciatica; lumbar lordosis; carpal tunnel syndrome; chronic migraines; dehydration; hemorrhoids; nausea or vomiting; edema of the legs, ankles, feet, or fingers; high blood pressure; infection; antenatal(during pregnancy) anxiety, depression, or psychosis; postpartum depression, anxiety, or psychosis; frequent urination; incontinence; loss of balance; vision changes; varicose veins; changes in hormone levels; vaginal bleeding; menstruation; and lactation and conditions related to lactation, such as low milk supply, engorgement, plugged ducts, mastitis, or fungal infections.

Reasonable Accommodations

The final rule contains examples of possible reasonable accommodations, including:

• Additional, longer, or more flexible breaks to drink water, eat, rest, or use the restroom;
• Changing food or drink policies to allow for a water bottle or food;
• Changing equipment, devices, or workstations, such as providing a stool to sit on, or a way to work while standing;
• Changing a uniform or dress code or providing safety equipment that fits;
• Changing a work schedule, such as having shorter hours, part-time work, or a later start time;
• Telework;
• Temporary reassignment;
• Temporary suspension of one or more essential functions of a job;
• Leave for health care appointments;
• Light duty or help with lifting or other manual labor; and
• Leave to recover from childbirth or other medical conditions related to pregnancy or childbirth.

Supporting Documentation

The final rule also addresses when it is appropriate to request supporting documentation; specifically, when it is needed to confirm the physical or mental condition, the relation to pregnancy, childbirth, or related medical conditions, and if it is reasonable to do so to determine whether to grant the accommodation. It is not considered reasonable to request documentation when the limitation and accommodation need are obvious, the employer has sufficient information to substantiate the limitation and accommodation need, or when the accommodation request is: (i) to carry or keep water near and drink, as needed; (ii) to take additional restroom breaks, as needed; (iii) to allow an employee whose work requires standing to sit and whose work requires sitting to stand, as needed; and (iv) to allow an employee to take breaks to eat and drink, as needed..

What Now?

Employers should evaluate whether their reasonable accommodation policies address the requirements of the PWFA and, if not, revise them, and ensure supervisors, managers, and those responsible for reviewing accommodation requests are informed of the requirements of the PWFA.

*Please contact ZR Team Member Natalie M. Stevens (nms@zrlaw.com) if you have questions relating to the Pregnant Workers Fairness Act and final rule.

ZASHIN & RICH SCORES ANOTHER SHAREHOLDER FROM A NATIONAL LABOR & EMPLOYMENT BOUTIQUE — Natalie M. Stevens joins Zashin & Rich’s Employment & Labor Group

After snagging shareholder Sarah J. Moore from Fisher & Phillips a few months ago, Zashin & Rich has now hired shareholder Natalie M. Stevens from Ogletree Deakins. With the hiring of Stevens, Zashin & Rich continues its quest to build the most powerful, diverse and inclusive labor and employment boutique emanating from its Cleveland, Ohio headquarters.

Natalie Stevens has practiced employment law for almost two decades. She concentrates her practice on counseling employers on compliance with workplace laws and regulations. Natalie regularly litigates employment-related matters, including discrimination, accommodation and leave issues and non-compete violations. Natalie also defends unionized employers in grievance and arbitration matters. Co-Managing Partner, Stephen Zashin, stated: “This was a no-brainer. Natalie has an incredible reputation and represents some of the biggest and best employers. We knew that she would fit our diverse and energetic culture and provide an immediate impact on the depth and breadth of our national labor and employment practice.” According to Natalie, she joined Zashin & Rich because of “its strong labor and employment practice and incredible reputation in the business and legal community” and she “looks forward to continuing to provide excellent service to existing and new clients with the Zashin & Rich team!”

Zashin & Rich represents large publicly traded and privately held businesses, non-profit organizations, and public-sector entities. Zashin & Rich is one of the largest, if not the largest, labor and employment boutiques in Ohio and has offices in Cleveland and Columbus, Ohio. If you have any labor or employment law questions, please contact Natalie Stevens (nms@zrlaw.com) or Stephen Zashin (ssz@zrlaw.com) at (216) 696-4441.

U.S. Supreme Court Stays OSHA’s Private Employer COVID-19 Emergency Temporary Standard, but Allows Vaccine Mandate for Healthcare Facilities

By Scott Coghlan*

On January 13, 2022, the U.S. Supreme Court stayed the Occupational Safety and Health Administration’s (“OSHA”) COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”) requiring large employers to mandate COVID-19 vaccinations or masking and weekly testing for their workforces. On account of the stay, covered employers are no longer required (at least during the pendency of the stay) to comply with the ETS and its deadlines – including the February 9, 2022 deadline to require weekly testing of unvaccinated employees. In a separate ruling, the Supreme Court allowed a vaccine mandate applicable to healthcare workers at federally-funded facilities.

OSHA’s ETS

On November 5, 2021, OSHA issued the ETS (previously summarized by Z&R here), which required private employers with 100 or more employees to mandate either (1) COVID-19 vaccinations or (2) weekly testing and masking requirements for unvaccinated employees. Among other requirements, covered employers had to confirm and keep records of their employees’ vaccination status. OSHA estimated that the mandate would apply to 84.2 million employees.

After OSHA issued the ETS, the U.S. Court of Appeals for the Fifth Circuit issued a stay preventing OSHA from enforcing the ETS. Subsequently, legal challenges to the ETS were consolidated and randomly assigned to the U.S. Court of Appeals for the Sixth Circuit for resolution. As discussed here, The Sixth Circuit dissolved the Fifth Circuit’s stay, allowing OSHA to begin enforcing the ETS. Parties challenging the ETS quickly appealed to the U.S. Supreme Court seeking a stay.

In its decision, the Supreme Court held the parties challenging the ETS are likely to ultimately prevail on their arguments that OSHA exceeded its authority and that the ETS is otherwise unlawful. Accordingly, the Supreme Court stayed OSHA’s implementation of the ETS pending ongoing legal proceedings challenging the ETS.

In discussing OSHA’s authority to issue the ETS, the Court called it “a significant encroachment into the lives – and health – of a vast number of employees.” Countering OSHA’s characterization of COVID-19 as a work-related danger, the Court noted “COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather.” In light of this, the Court stated that “[p]ermitting OSHA to regulate the hazards of daily life – simply because most Americans have jobs and face those same risks while on the clock – would significantly expand OSHA’s regulatory authority without clear congressional authorization.” The Court did state, however, that OSHA has the authority to regulate occupation-specific risks related to COVID-19 and, “[w]here the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible.”

Healthcare Worker Mandate

While the Supreme Court stayed OSHA’s implementation of the ETS, it allowed a separate vaccine mandate that applies to federally-funded healthcare facilities. In that decision, the Court lifted injunctions precluding the implementation of an interim final rule issued by the Secretary of Health and Human Services (“HHS”) requiring staff at facilities that receive federal funding (i.e., Medicare and Medicaid) to be vaccinated against COVID-19, unless exempt for medical or religious reasons. The Court concluded that HHS did not exceed its statutory authority to issue regulations necessary in the interest of the health and safety of patients at participating facilities.

Conclusion

For employers covered by OSHA’s ETS, the Supreme Court’s decision is the latest twist in a frustrating legal saga that has created great uncertainty. At least for the time being, covered employers are no longer required to comply with the ETS, including the vaccination or testing and masking mandates, vaccine-status record collecting, and unvaccinated employee testing requirements. However, federally-funded healthcare facilities must comply with HHS’s interim rule requiring vaccination.

*Scott Coghlan chairs the firm’s Workers’ Compensation Group and regularly advises clients on all workers’ compensation and OSHA related matters. If you have questions about the Supreme Court’s decision, OSHA’s ETS, or other employment law issues, please contact Scott at sc@zrlaw.com or (216) 696-4441.

Employer Considerations for the Juneteenth Holiday

By Jonathan J. Downes and George S. Crisci*

Last week, Congress, President Biden, and Governor DeWine declared June 19th (often referred to by the portmanteau “Juneteenth”) as an officially recognized holiday.

Juneteenth commemorates the end of slavery in the United States. The holiday originates from the events of June 19, 1865, when Gordon Granger, a Union general, arrived in Galveston, Texas and announced that the Civil War had ended and that the enslaved African-Americans were free. Granger’s announcement put into full effect the Emancipation Proclamation, which President Abraham Lincoln issued more than two and a half years earlier on January 1, 1863.

How should employers respond to the federal and state recognition of Juneteenth, especially in light of the last-minute nature of these announcements?

For private sector employers, these changes do not constitute a binding mandate. Such private sector employers should consider whether to include Juneteenth in the list of recognized holidays in their company policies, handbooks, and/or collective bargaining agreements. Such employers should also review the existing language of their holiday leave policies and applicable collective bargaining agreements to determine whether they have already incorporated federal or state recognized holidays (which would now include Juneteenth).

For public sector employers without unionized employees, the same considerations would generally apply, subject to statutory provisions that establish paid holidays for employees (such as the civil service laws or statutes regulating cities, villages and counties). However, the last-minute nature of these announcements may create some confusion – at least, for 2021. For public sector employers with collective bargaining agreements, such employers should also review the existing language of their applicable collective bargaining agreements to determine whether they have already incorporated federal or state recognized holidays (which would now include Juneteenth).

Ohio Revised Code References for Public Sector Employers

Under Ohio’s civil service laws, specifically R.C. § 124.19, state holidays include several specific dates along with “any day appointed and recommended by the governor of this state or the president of the United States.” R.C. § 124.18(B)(1) requires that, “[a]n employee, whose salary or wage is paid in whole or in part by the state, shall be paid for the holidays declared in section 124.19 of the Revised Code and shall not be required to work on those holidays, unless, in the opinion of the employee’s responsible administrative authority, failure to work on those holidays would impair the public service.”

For county employees, employers may not charge against a county employee’s vacation leave days defined as holidays under R.C. § 124.19 See R.C. 325.19(C). However, that statute (at present) omits Juneteenth as a specifically enumerated holiday. See R.C. 325.19(D)(1).

For municipal employees (cities and villages), the provisions of R.C. § 124.19 do not apply, and cities may establish their own holidays by local ordinance. City officials should consult their existing ordinances, policies, and handbooks to determine whether they have incorporated any of the holiday lists (such as the “any day” language found in R.C. § 124.19) into their policies, which may trigger an obligation to recognize Juneteenth in 2021 or subsequent years. Similarly, Townships may designate holidays for their employees, but should consult the existing language to determine whether it would automatically include recognition of Juneteenth.

In addition, public employers should carefully review their policy manuals or handbooks for references to holidays outside of those listed in the Ohio Revised Code or ordinance.

Union Collective Bargaining Agreements in Public and Private Sectors

Some collective bargaining agreements (“CBA”) have general language in their contract which provides for any holiday established by Act of Congress or the Ohio General Assembly or declared by the President or the Governor. If the employer’s CBA has the same or substantially similar language, the Juneteenth holiday likely applies –even in 2021. Employers will need to negotiate how to address the observance of Juneteenth for 2021, as the actual date of the holiday passed before employers could implement the new holiday.

Absent such language (e.g., the CBA just lists the observed holidays and contains no language that could expand the list during the term of the CBA), employers can argue that they do not have to permit– and cannot unilaterally provide the new holiday. This is because the new holiday constitutes a change in working conditions that the employer and union must negotiate.

Regardless of the employment setting, employers might want to consider two alternatives for observing Juneteenth during 2021:

1. Give employees an extra vacation day this year; or
2. Establish a holiday this year or early next year, possibly appending the day to an existing holiday, such as:

• the Friday before the Independence Day holiday weekend (July 4 falling on a Sunday and Monday as the observed holiday),
• the Friday before the Labor Day weekend,
• the day before or after Thanksgiving (depending upon whether the employer observes the day after Thanksgiving as a holiday),
• the day before Christmas Eve (Christmas occurring on a Saturday, making Christmas Even the observed holiday),
• the day before New Year’s Eve or New Year’s Eve (depending upon whether the employer observes New Year’s Eve as a holiday),
• the Friday before the MLK holiday weekend or MLK Day (depending upon whether the employer observes MLK Day as a holiday),
• the Friday before the President’s Day holiday weekend or President’s Day (same rationale as MLK Day), or
• the day before Good Friday, Good Friday or the day after Easter Sunday.

Employers could designate these extra holiday options as a ‘late’ observance of Juneteenth for 2021.

Conclusion

Employers have many options relative to this holiday. These options depend on the type of employer, relevant laws and ordinances, the employer’s policy manual, or the existence of a CBA. Given that both state and federal governments have recognized Juneteenth as an official holiday, employers should consider how and when to implement policies and answer employee questions regarding the Juneteenth holiday moving forward.

*For more information about implementation of Juneteenth, employer policies generally or collective bargaining issues, please contact George S. Crisci (gsc@zrlaw.com) at 216-696-4441 or Jonathan J. Downes (jjd@zrlaw.com) at 614-224-4411.

COVID-19 Alert: EEOC Addresses Whether Employers May Require Employees to Get a Vaccine

By David R. Vance*

As individuals begin receiving COVID-19 vaccines throughout the country, many employers are wondering whether they can require their employees get a vaccine. On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 technical assistance guidance (available here) to include a new section addressing vaccines. The EEOC’s updated guidance suggests employers may require employees to get the vaccine, but it identifies multiple limitations.

Employers considering a mandatory vaccination policy should first determine whether such a policy makes sense for their organization. When making this determination, a key consideration is whether an unvaccinated employee poses a direct threat to the health or safety of individuals in the workplace. Employers answering yes to this question, like those with high-risk work environments (e.g., healthcare) or that regularly interact with high-risk individuals (e.g., the elderly), have stronger rationale for implementing a mandatory vaccine policy than employers that answer no. Employers answering no should consider encouraging employees to get the vaccine, as compared to mandating that they do so.

The updated EEOC guidance addresses the impact the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and the Genetic Information Nondiscrimination Act (“GINA”) may have on an employer vaccine mandate.

ADA

Getting the vaccine is not a medical examination under the ADA. However, for those employers that intend to directly administer the vaccine to their employees, or contract with a third party to do so, the pre-screening questions likely will elicit information about whether an employee has a disability. Per the EEOC, if an “employer requires an employee to receive the vaccination, administered by the employer, the employer must show that these disability-related screening inquiries are ‘job-related and consistent with business necessity.’”

Under the ADA, employers may institute safety measures, like vaccination mandates, that are job-related and consistent with business necessity. To apply a vaccination mandate to employees who are unable to get a vaccine due to a disability, employers must show that “an unvaccinated employee would pose a direct threat due to a ‘significant risk of substantial harm to the health or safety of the individual or others [in the workplace] that cannot be eliminated or reduced by reasonable accommodation.’”

The EEOC guidance does not identify accommodations that would allow employees, who due to a disability are unable to get a vaccine, to remain in workplace. Earlier this year, though, a Massachusetts federal court suggested wearing a mask was a reasonable accommodation for an employee who refused to get a mandatory flu vaccine. Other courts similarly have concluded that requiring an unvaccinated employee to wear additional personal protective equipment may be a reasonable accommodation.

Assuming a direct threat exists and a reasonable accommodation is not available, an employer can refuse to allow an unvaccinated employee into its workplace, but this does not end the inquiry. Before discharging the employee for refusing to get a vaccine, the employer must consider whether allowing the employee to work remotely or other accommodations would be reasonable. If the employee’s disability only delays the employee’s ability to get a vaccine, employers should consider other accommodations like unpaid leave before discharge. As with all accommodation requests, it is imperative that employers engage in the interactive process with any employee seeking an accommodation.

Title VII and Religion-Based Accommodations

If an employee has a sincerely held religious belief, practice, or observance preventing the employee from getting the vaccine, the employer must provide the employee a reasonable accommodation or demonstrate that the employee not getting the vaccine would place an undue hardship on the employer (i.e., more than de minimis cost or burden on the employer). Generally, employers should take employee claims of a limiting sincerely held religious belief, practice, or observance at face value. However, as explained by the EEOC, if “an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.”

GINA

Requiring an employee to get a COVID-19 vaccine does not violate GINA. However, GINA would cover pre-vaccine screening questions that elicit genetic information, including family medical history. To avoid both GINA and related ADA issues, employers should avoid administering the vaccine internally. Instead, employers with a mandatory vaccine policy should request that employees provide proof of vaccination, including a warning not to provide covered genetic information with any proof of vaccination provided.

While not addressed in the EEOC’s recent guidance, employers contemplating a vaccine mandate also should consider the following questions.

Does a collective bargaining agreement apply

Employers with unionized workforces should review their collective bargaining agreements before unilaterally implementing a mandatory vaccination requirement, as there likely will be bargaining obligations related to implementing such a requirement.

Are there any possible workers’ compensation issues

Whether an injury is work related and compensable under Ohio’s workers’ compensation laws is often very fact specific. Injuries arising from vaccinations are no different. Several Ohio courts have addressed vaccinations and focused on whether the employer required the employee to get vaccinated or simply encouraged the vaccination. In 1934, the Ohio Supreme Court held that the death of an employee following a vaccination was work-related and entitled his surviving spouse to death benefits. Spicer Mfg. Co. v. Tucker, 127 Ohio St.421, 188 N.E.2d 870 (1934). A different result occurred in Rolsen v. Walgreen Co., 8th Dist. Cuyahoga No. 104431, 2016-Ohio-8304. Rolsen filed a claim for workers’ compensation benefits after he developed cellulitis following a pneumonia vaccination. He was vaccinated during work hours at the Walgreens store where he worked by what the court suggested was one of his Walgreens coworkers. Nevertheless, the court disallowed Rolsen’s claim holding that his injury did not occur “in the course of his employment.” The court stressed that Walgreens encouraged but did not require its employees receive the vaccination. The takeaway from these decisions is that complications from an employer mandated vaccination by an employer-specified health care provider will likely result in a compensable workers’ compensation claim. Complications arising from vaccinations that are simply encouraged by employers will not be compensable injuries.

What are the practical considerations of a mandatory vaccine policy

Polls indicate that many people remain hesitant to get a vaccine. As a practical matter, employers wishing to mandate vaccinations need to consider whether they are willing to discharge strong, long-term performers who refuse to get vaccinated. In the alternative, what happens if the employer only encourages their employees to get the vaccine and an employee, client, or customer gets infected with COVID-19 in the workplace? As to this concern, Ohio recently granted employers civil immunity from COVID-19 claims (see related article here for more information).

Does it matter that the Food and Drug Administration (“FDA”) is approving vaccines under Emergency Use Authorizations

U.S. Surgeon General Jerome Adams thinks so. Emergency Use Authorization is different than full approval under FDA vaccine licensure requirements. Due, in part, to this distinction, on the same day the EEOC issued its updated guidance, Surgeon General Adams said, “[r]ight now, we are not recommending that anyone mandate a vaccine.”

Whether an employer should institute a mandatory vaccine policy, encourage employees to get a vaccine, or not address the matter varies greatly by employer and implicates a number workplace laws that employers should discuss with counsel. Vaccine or no vaccine, employers should continue to abide by applicable CDC guidance and government orders and recommendations.  

*David R. Vance, an OSBA Certified Specialist in Labor & Employment Law, regularly advises clients on COVID-19’s impact on the workplace. If you have questions about mandating vaccines or other COVID-19 related issues, please contact David at drv@zrlaw.com or (216) 696-4441.

FFCRA UPDATE: DOL’s response to recent court opinion is (a few) revised regs and (a lot of) reaffirmations

By Helena Oroz*

A recent court decision has prompted the Department of Labor to issue revisions to regulations implementing the paid leave provisions of the Families First Coronavirus Response Act. The changes are effective Wednesday, September 16, 2020 when published in the Federal Register. (The “unpublished” version is available here.)

In April, when the Department of Labor first issued FFCRA regulations, the State of New York challenged certain parts of those regulations in court. Last month, the U.S. District Court for the Southern District of New York sided with the State of New York and held that several portions of the regulations are invalid because, among other reasons, the DOL did not sufficiently explain its rationale for certain requirements (State of New York v. United States Department of Labor, et al., S.D.N.Y. No. 20-CV-3020, J. Oetken, Aug. 2, 2020).

As a result, the DOL issued revised regulations “to reaffirm its regulations in part, revise its regulations in part, and further explain its positions.” Mostly, though, the DOL reaffirmed and explained. Here’s a quick rundown:

1. The DOL reaffirmed that emergency leave (expanded FMLA or sick leave) may be taken “only if the employee has work from which to take leave.”
   
   Over the course of almost nine pages of preamble text, the DOL explained why the qualifying reason for the leave “must be the actual reason the employee is unable to work” (the so-called “work-availability requirement”). In other words, an employee cannot take FFCRA paid leave if the employer would not have had work for the employee to perform.
   
   
2. The DOL reaffirmed that “employer approval is needed to take FFCRA leave intermittently in all situations in which intermittent FFCRA leave is permitted.”
   
   The DOL emphasized that employer approval is appropriate in the context of FFCRA intermittent leave taken for qualifying reasons that “do not exacerbate risk of COVID-19 contagion,” as well as for FFCRA leave taken intermittently to care for a child.
   
   
3. The DOL revised the definition of “health care provider” for purposes of an employer’s optional exclusion of employees who are health care providers from FFCRA leave.
   
   The revised definition focuses on employee duties and roles, and provides examples of employees who are not health care providers (IT professionals, building maintenance staff, human resources personnel, cooks, food service workers, records managers, consultants, and billers).
   
   
4. The DOL revised the notice and documentation requirements to clarify that required documentation need not be given “prior to” taking paid leave, but rather may be given as soon as practicable, which in most cases will be when an employee provides notice.

So, the DOL is mostly sticking to its guns. Will these changes have much of an impact on FFCRA’s remaining three-month lifespan? As with all things COVID – only time will tell.

*Helena Oroz, an OSBA Certified Specialist in Labor and Employment Law, is a member of the firm’s Labor and Employment Groups and regularly advises clients on all employment related matters. If you have questions, please contact Helena at hot@zrlaw.com or (216) 696-4441.

NEW NORMAL / OLD NORMAL: New Rapid Test Might Mean Going Back to Work Sooner

By Helena Oroz*

It’s a card. It’s cheap. It comes with a free app. You get accurate and reliable results in just 15 minutes. But this test detects SARS-CoV-2, the virus that causes COVID, and everyone can get one when they need it – no special equipment needed, no lab required.

Is this our future, where “new normal” sort of resembles our old normal?

Time will tell, but the future might be now, and yesterday might turn out to be a big day in the fight against COVID-19.

On Wednesday, the U.S. Food & Drug Administration (“FDA”) granted an Emergency Use Authorization to Abbott Diagnostics Scarborough, Inc. for its new rapid COVID-19 test, the “BinaxNOW COVID-19 Ag Card.” (To be clear, the FDA has not approved the test; FDA Emergency Use Authorization permits the use of unapproved medical products in an emergency when there are no alternatives).

According to Abbott, the company designed the test and app to work together to facilitate a return to normalcy. Abbott will sell the test for $5. The free app will display test results. The company says the app is not for contact tracing and collects only first and last name, email address, phone number, zip code, date of birth, and test results.

Also important: Abbott’s COVID card is an antigen test. According to the Centers for Disease Control, positive results from antigen rests are usually highly accurate but negative results may need to be confirmed with a molecular test (still the “gold standard” in COVID testing). Abbott’s data says its test results are accurate and reliable, demonstrating both high sensitivity with respect to positive results (97.1) and high specificity with respect to negative results (98.5%) in patients suspected of COVID-19 by their healthcare provider within the first seven days of symptom onset.

Really important: Abbott’s ability to get the test out there. According to Abbott, the company has “invested hundreds of millions of dollars since April in two new U.S. facilities to manufacture BinaxNOW at massive scale.”

Living in COVID world means, for this long moment, living with this virus. For employers, schools, and other organizations searching for ways to move forward – this is a promising development.

We will continue to monitor and analyze these developments.

*Helena Oroz, an OSBA Certified Specialist in Labor and Employment Law, is a member of the firm’s Labor and Employment Groups and regularly advises clients on all employment related matters. If you have questions, please contact Helena at hot@zrlaw.com or (216) 696-4441.

The Department of Labor Makes it Easier: A Complete Redesign of All FMLA Forms

By Patrick M. Watts*

The Family and Medical Leave Act (FMLA) requires employers to provide their employees mandatory notices and for employees to provide certification of their need for FMLA leave to their employers. Historically, the Department of Labor’s Wage and Hour Division has provided forms aimed at assisting both employers and employees navigate these requirements and the FMLA leave process. The WHD recently issued revised forms that it hopes are easier to understand and use. The redesigned forms are available here.

While the FMLA does not require employers to use any specific form to meet their FMLA obligations, Z&R strongly encourages employers to use the WHD’s forms. Using company created forms or forms from other sources creates the needless possibility of failing to abide by the FMLA’s requirements.

Although the new forms do not affect employers’ FMLA obligations, reviewing the new forms provides employers a valuable opportunity to re-evaluate their current procedures. For those employers that do not use the WHD’s forms, the WHD’s roll out of the new forms provides a great opportunity to begin doing so. Employers should contact counsel with questions regarding the adequacy of their FMLA policies, notices and forms.

*Patrick M. Watts, an OSBA Certified Specialist in Employment & Labor Law, regularly advises clients on labor and employment matters, including the FMLA. If you have questions about the FMLA or the redesigned forms, please contact Patrick at pmw@zrlaw.com or (216) 696-4441.

Breaking News from the U.S. Supreme Court: Title VII Prohibits Discrimination Based on Sexual Orientation and Transgender Status

By David R. Vance*

On June 15, 2020, in a landmark decision, the U.S. Supreme Court held that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. The decision in Bostock v. Clayton County, Georgia, one of three consolidated cases before the Supreme Court, resolves a circuit split over the scope of Title VII’s protections for homosexual and transgender persons.

Title VII makes it “unlawful … for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual … because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). In Bostock, the Supreme Court ruled that an employer violates Title VII if it intentionally fires an employee based, in part, on sex, which includes an employee’s sexual orientation and gender identity.

In reaching this conclusion, the Supreme Court reasoned that discrimination on the basis of an individual’s sexuality or gender identity necessarily “requires an employer to intentionally treat individual employees differently because of their sex.” The Supreme Court further stated that an "individual’s homosexuality or transgender status is not relevant to employment decisions … because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex."

In light of the Supreme Court’s decision, employers should:

• Review and, if necessary, update their policies to specifically prohibit discrimination and harassment based on sexual orientation and gender identity; and
• Train employees, particularly those in management and human resources, that Title VII prohibits discrimination based on sexual orientation and gender identity.

It is imperative that employers address the Supreme Court’s decision quickly and thoroughly.

*David R. Vance, an OSBA Certified Specialist in Employment & Labor Law, regularly advises clients on labor and employment matters, including equal employment opportunity policies, employer handbooks, and employment decisions. If you have questions about the Supreme Court’s recent decision, please contact David at drv@zrlaw.com or (216)696-4441.

Pandemic Fallout Continues: Employment Related COVID-19 Lawsuits Begin to Surge

By Tiffany S. Henderson*

COVID-19 has changed the world as we know it, including the world of work.

With new COVID-related laws, regulations, and guidance impacting virtually every aspect of the employment relationship, a surge of COVID-19 related lawsuits is sure to follow. Per information available through LexisNexis, as of June 5, 2020, plaintiffs have filed approximately 2,544 state and federal COVID-19 related lawsuits. The following is a summary of the various types of COVID-19 related labor and employment lawsuits that employees have filed:

• Unsafe work environment. Lawsuits alleging an unsafe workplace (i.e., an employer failed to sanitize or take appropriate measures to prevent spreading COVID-19) caused COVID-19-related sickness and/or death.
• Discrimination. Lawsuits alleging that employers denied a work from home request or otherwise failed to accommodate COVID-19-related concerns due to disability, age, or another protected class.
• Leaves of Absence. Lawsuits encompassing employee allegations regarding COVID-related leaves of absence under the Family and Medical Leave Act (FMLA), the Families First Coronavirus Response Act (FFCRA), or state laws.
• Wage and Hour. Lawsuits alleging improper payment of wages under the Fair Labor and Standards Act or similar state/local laws for work completed before or after COVID-19-related business closures, remote work completed by non-exempt employees, or “off the clock” employer temperature checks or COVID-19 testing.
• Unlawful Termination. Lawsuits alleging retaliation or employment termination for complaining about exposure to COVID-19 in the workplace, including whistleblower complaints.
• Other. Lawsuits alleging violations of the notice provisions of the Worker Adjustment and Retraining Notification Act (WARN) or the Consolidated Omnibus Budget Reconciliation Act (COBRA).

As states begin to reopen, employers should expect increased COVID-19-related lawsuits and other activity:

• In some states, including Ohio, pending legislation could extend workers’ compensation coverage to certain employees (generally first responders and other essential workers) under a rebuttable presumption that COVID-19 was contracted at work.
• The Occupational Safety and Health Administration (OSHA) has reported receiving 1,342 COVID-related complaints since May 22, 2020.

What can employers do?

• Review and follow all state and local reopening guidance applicable to your business.
• Stay abreast of guidance from the Centers for Disease Control and Prevention (CDC), including Interim Guidance for Businesses and Employers (accessible here).
• Stay up to date on new COVID-19 laws, regulations, and guidance. Review COVID-19-related guidance from the Equal Employment Opportunity Commission, OSHA, Department of Labor, and other relevant authorities.
• Confirm all relevant policies and procedures are current, and ensure all management and human resources personnel are familiar with the revised policies.
• Ensure Workplace Safety. Develop a plan for reducing COVID-19 transmission in the workplace and communicate the plan to employees. Emphasize appropriate workplace infection control practices like handwashing, sanitizing, and social distancing. Include a process for employees to report COVID-related concerns, and prohibit retaliation for using that process.

Each employment situation is unique, and employers must do what works best for their current situation and employees. As always, please consult Z&R to discuss your particular circumstances.

Z&R has developed form policies, request forms and other guidance documents related to COVID-19 issues. Z&R will continue to monitor the latest information governing employers. Previous Z&R articles addressing employer requirements and considerations during the COVID-19 pandemic can be found here:

• EEOC Allows Employers to Test Employees for COVID-19 before Resuming Work
• Coronavirus Considerations for Employers
• Ohio Provides Some Cover for Employers and Employees in Wake of COVID-19
• Federal COVID-19 response mandates paid leave (for now)
• Application of the Worker Adjustment and Retraining Notification Act (“WARN”) to Closures Caused by the COVID-19 Pandemic
• Ohio BWC: Allows Deferment of Premium Payments and Addresses Compensability of Contracting COVID-19
• Ohio Department of Insurance Provides Coverage Flexibility for Ohio Employees in the Wake of COVID-19
• FLSA Implications for Employers Considering Reductions in Pay
• Ohio Legislature Passes Emergency COVID-19 Response Legislation
• U.S. Department of Labor Issues Families First Coronavirus Response Act Model Notice
• Loans, Unemployment Assistance, and Other Relief Under the CARES Act
• U.S. Secretary of Labor Releases Temporary Rules Implementing The Emergency Family and Medical Leave Expansion Act and The Emergency Paid Sick Leave Act
• CORONAVIRUS TESTING: The Equal Employment Opportunity Commission Says Employers May Test Employees for COVID-19 Before Allowing Them to Work
• SharedWork Ohio: An Alternative Option to Employer Layoffs Made Even More Attractive by the CARES Act
• What Employers Need to Know as They Reopen or Bring Employees Back
• As Unemployment Claims Surge, The Ohio Department of Jobs and Family Services Urges Employers to Report Employees Who Refuse to Return to Work

*Tiffany S. Henderson practices in all areas of labor and employment law. If you have questions regarding COVID-19 and your workforce, please contact Tiffany at tsh@zrlaw.com or 216-696-4441.

As Unemployment Claims Surge, The Ohio Department of Jobs and Family Services Urges Employers to Report Employees Who Refuse to Return to Work

By Tiffany S. Henderson*

Ohio businesses have started to reopen and to recall employees back to work under Governor DeWine’s Responsible RestartOhio Plan, However, some employees have refused to return, including employees who receive unemployment benefits.

On May 3, 2020, The Ohio Department of Jobs and Family Services (“ODJFS”) asked employers to report employees who refuse to return to work. Generally, Ohio law does not provide unemployment benefits for employees who quit without just cause or refuse employment offers. By extension, ODJFS likely will find those employees who refuse to return to work ineligible to receive unemployment benefits.

ODJFS developed an easy to use online form employers can use to report those employees who refuse to return to work. Employers can access that form here. With claims for unemployment benefits skyrocketing recently due to the COVID-19 pandemic, ODJFS will likely take a hard line on employees who refuse to return to work without proper justification.

When completing the online form, ODJFS requires employers to provide information concerning:

• whether the employer’s business is essential and if not what date the business opened;
• whether the employee refused to return to work;
• whether the work was the same as the employee’s pre-COVID-19 work;
• the nature of the work; and,
• whether the employer maintains the health and safety standards required by the Stay Safe Ohio Order.

Due to these requirements, employers should ensure that they are following the guidelines of the Stay Safe Ohio Order before making such reports. Further, employers should consider providing employees with advance notice prior to notifying ODJFS when employees fail to return to work and must consider whether the employee cannot return to work due to his/her medical condition or to care for others.

Z&R has developed form policies, request forms and other guidance documents related to COVID-19 issues. Z&R will continue to monitor the latest information governing employers. Previous Z&R articles addressing employer requirements and considerations during the COVID-19 pandemic can be found here:

• EEOC Allows Employers to Test Employees for COVID-19 before Resuming Work
• Coronavirus Considerations for Employers
• Ohio Provides Some Cover for Employers and Employees in Wake of COVID-19
• Federal COVID-19 response mandates paid leave (for now)
• Application of the Worker Adjustment and Retraining Notification Act (“WARN”) to Closures Caused by the COVID-19 Pandemic
• Ohio BWC: Allows Deferment of Premium Payments and Addresses Compensability of Contracting COVID-19
• Ohio Department of Insurance Provides Coverage Flexibility for Ohio Employees in the Wake of COVID-19
• FLSA Implications for Employers Considering Reductions in Pay
• Ohio Legislature Passes Emergency COVID-19 Response Legislation
• U.S. Department of Labor Issues Families First Coronavirus Response Act Model Notice
• Loans, Unemployment Assistance, and Other Relief Under the CARES Act
• U.S. Secretary of Labor Releases Temporary Rules Implementing The Emergency Family and Medical Leave Expansion Act and The Emergency Paid Sick Leave Act
• CORONAVIRUS TESTING: The Equal Employment Opportunity Commission Says Employers May Test Employees for COVID-19 Before Allowing Them to Work
• SharedWork Ohio: An Alternative Option to Employer Layoffs Made Even More Attractive by the CARES Act

*Tiffany S. Henderson practices in all areas of labor and employment law. If you have questions regarding COVID-19 and your workforce, please contact Tiffany at tsh@zrlaw.com or 216-696-4441.

SharedWork Ohio: An Alternative Option to Employer Layoffs Made Even More Attractive by the CARES Act

By Ryan Spitzer*

SharedWork Ohio, a seldom utilized state program in existence since 2013, could add yet another tool to an Employer’s tool belt that faces tough employment decisions in light of COVID-19.

SharedWork Ohio is a voluntary layoff aversion program that allows employers to reduce an employee’s hours between 10% percent to 50% percent each week. Once an employer has its plan approved by the Ohio Department of Job and Family Services (“JFS”), an employee works reduced hours and JFS provides the employee an unemployment benefit.

SharedWork Ohio allows employers to maintain their workforce, saving employers money by not having to recruit, train, and hire new workers.

SharedWork Ohio is open to private “contributory” employers as well as public sector “reimbursing” employers. All positions are eligible for SharedWork Ohio with the exception of employees who are seasonal, temporary, or employed on an intermittent basis.

Employers have discretion to determine which employees comprise an “affected unit” as long as each unit has at least two employees. Full-time employees in each unit must work the same percentage after the reduction in hours. Because of this, it makes sense for employers to have multiple “affected units.”

Employers must apply to participate in SharedWork Ohio through JFS and certify a number of items. In particular, an employer must continue to provide preexisting health and retirement benefits to an employee as if no reduction had occurred or to the same extent as other employees not participating in the program.

An approved SharedWork plan can last for 52 weeks. However, an employer can terminate the plan by written notice to the director. This termination option provides flexibility to employers to terminate the SharedWork program when business “gets back to normal.”

Governor DeWine has removed the “waiting week” period under Ohio law. As a result, employees working an approved SharedWork program can receive benefits immediately.

What is the interplay between SharedWork Ohio and the CARES Act?

Under Section 2108 of the CARES Act, the federal government pays states an amount equal to 100% of the amount of short-time compensation paid under a short-time compensation program under the provision of the State law. A short-time compensation program is known as a work sharing or shared-work program which an employer can use as an alternative to layoffs when experiencing a reduction in work.

SharedWork Ohio qualifies as a short-time compensation plan under Section 2108 of the CARES Act. Therefore, private employers utilizing SharedWork Ohio may not be charged for any SharedWork compensation paid to individual employees as Section 2108 of the CARES Act provides that the federal government will reimburse the State for 100% percent of the compensation paid. JFS is awaiting confirmation that the federal government will also be reimbursing Ohio at 100% percent for public sector SharedWork benefit payments (at a minimum, public sector reimbursements will be 50% percent).

SharedWork Ohio employees can also receive the $600 Federal Pandemic Unemployment Compensation (“FPUC”) payments provided under Section 2104 of the CARES Act. The federal government funds the FPUC benefits. Any employee who is eligible to receive at least $1 in underlying state unemployment benefits for the claimed week can receive the FPUC weekly $600 supplement (until July 31, 2020) in addition to their state benefits.

In summary, employees under an approved SharedWork plan would receive:

(1) Wages from the employer for the employee’s hours worked (from 50-90% of the normal schedule);

(2) The employee’s SharedWork Ohio benefit amount;

(3) The $600 FPUC supplement under Section 2104 of the CARES Act (until July 31, 2020); and,

(4) The employee maintains their current level of benefits.

The cost to the employer is the employee’s wages for the hours worked and the employee’s benefits. Employers do not pay for an employee’s SharedWork benefit amount or the $600 FPUC supplement.

Currently, JFS has approved SharedWork program applications within the same week. Developing a SharedWork Ohio program may benefit employers and avoid otherwise unavoidable employee layoffs due to the impact from COVID-19.


*Ryan Spitzer, works in Z&R’s Columbus office, and regularly advises clients on all employment matters. If you have questions about SharedWork Ohio, the CARES Act, or changes Ohio’s unemployment compensation law as a result of COVID-19, please contact Ryan at rcs@zrlaw.com or (614) 224-4411.

The Next Step: What Employers Need to Know as They Reopen or Bring Employees Back

By Tiffany S. Henderson*

Yesterday, Governor DeWine outlined “Responsible RestartOhio,” the state’s phased COVID-19 reopening plan. As of May 4, 2020, manufacturing, distribution, and construction businesses may open, as well as general office environments. On May 12, 2020, consumer, retail, and service outlets may open. All businesses must follow specific protocols to reopen and stay open. Notably, among other requirements, employees must undergo daily symptom assessments and must wear face coverings at all times. More information about the protocols is available here.

This is unchartered territory, and, while there is hope that the worst is over, businesses must remain safe and protect their employees. As businesses reopen or return employees to the workplace, they may encounter some of the following concerns:

Rehiring Bias:

As employers look to rehire or bring back employees, they should consider carefully how to do so as to prevent the appearance of bias or discrimination. Employers may subject themselves to lawsuits by consciously deciding to bring back only certain workers (e.g., a disproportionate number of younger employees). Employers also need to be wary of neutral rehire policies that disparately impact a protected class of individuals.

What can employers do?
Employers should have a rational, objective basis for their hiring or onboarding choices. For example, if employers conducted layoffs, perhaps returning employees to work in the order in which they were laid off should be a consideration.

Requiring Employees to Return to Work Immediately:

Employers that abruptly demand that workers return to the workplace may face opposition from their workforce. Many workers have adjusted their daily routines and behavior during the COVID-19 pandemic. As businesses reopen or bring workers back, workers may still have concerns about the pandemic and their employers’ ability to keep them safe. Workers also may have new constraints that limit their ability to return to work immediately, such as caring for elderly family members or child care.

What can employers do?
Employers could consider allowing workers to return on a voluntary basis, at least initially. This allows employers to resume operations slowly and with less risk. A gradual return helps employers test new or improved workplace infection control practices on a smaller scale. These practices must follow all requirements outlined by Governor DeWine and the Ohio Department of Health. A phased approach also gives employees who want to return immediately the chance to do so, while allowing those with concerns or constraints more time to address them.

Workplace Safety:

Regardless of how employers choose to bring back their workforce, employers should put safety at the forefront. Besides the obvious threat of an outbreak, employers that do not implement workplace infection control practices to mitigate transmission of COVID-19 in the workplace face a myriad of issues, such as: unwanted attention from state and local health departments; increased litigation exposure; and fearful employees who do not want to return to work.

What can employers do?

• Follow all Sector Specific Operating Requirements and other mandates for employers issued by the Ohio Department of Health.
• Review COVID-19-related guidance from the U.S. Equal Employment Opportunity Commission, Occupational Safety and Health Administration, CDC, U.S. Department of Labor, and other relevant authorities.
• Require employees who are sick to stay home.
• Require employees who exhibit COVID-19 symptoms (in general, fever, cough, shortness of breath) while at work to go home.
• Take employee temperatures at the start of each work day.
• Continue emphasizing appropriate workplace infection control practices like frequent handwashing, increased cleaning/sanitizing, social distancing, and other measures.
• If possible, alter the physical worksite to add plastic screens and barriers where appropriate.
• Know what to do if an employee contracts COVID-19.
• Listen and respond to employee concerns about COVID-19.

Non-Traditional Work Arrangements:

For most employers, immediately returning to pre-pandemic business arrangements, schedules and standards will not be possible. Employers will be forced to re-evaluate operations previously considered “the norm.” In doing so, employers may face challenges balancing business operations, workforce safety, and mitigating the transmission of COVID-19.

What can employers do?
Consider implementing non-traditional work arrangements like four-day work weeks, telework, staggered employee shifts, or flexible workweeks.

Each employment situation is unique, and employers must do what works best for them and their employees. As always, please consult Z&R to discuss your particular circumstances.

Z&R has developed form policies, request forms and other guidance documents related to COVID-19 related issues. Z&R will continue to monitor the latest information governing employers. Previous Z&R articles addressing employer requirements and considerations during the COVID-19 pandemic can be found here:

• EEOC Allows Employers to Test Employees for COVID-19 before Resuming Work
• Coronavirus Considerations for Employers
• Ohio Provides Some Cover for Employers and Employees in Wake of COVID-19
• Federal COVID-19 response mandates paid leave (for now)
• Application of the Worker Adjustment and Retraining Notification Act (“WARN”) to Closures Caused by the COVID-19 Pandemic
• Ohio BWC: Allows Deferment of Premium Payments and Addresses Compensability of Contracting COVID-19
• Ohio Department of Insurance Provides Coverage Flexibility for Ohio Employees in the Wake of COVID-19
• FLSA Implications for Employers Considering Reductions in Pay
• Ohio Legislature Passes Emergency COVID-19 Response Legislation
• U.S. Department of Labor Issues Families First Coronavirus Response Act Model Notice
• Loans, Unemployment Assistance, and Other Relief Under the CARES Act
• U.S. Secretary of Labor Releases Temporary Rules Implementing The Emergency Family and Medical Leave Expansion Act and The Emergency Paid Sick Leave Act

*Tiffany S. Henderson practices in all areas of labor and employment law. If you have questions regarding COVID-19 medical testing or related issues, please contact Tiffany at tsh@zrlaw.com or 216-696-4441.

CORONAVIRUS TESTING: The Equal Employment Opportunity Commission Says Employers May Test Employees for COVID-19 Before Allowing Them to Work

By Tiffany S. Henderson*

On April 24, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated its Technical Assistance Questions and Answers about COVID-19 to include clear guidance that employers may test their employees for COVID-19 before allowing them to enter the workplace. Under the updated guidance, the EEOC explains that the Americans with Disabilities Act (“ADA”) “requires that any mandatory medical test of employees be ‘job related and consistent with business necessity.’" Since individuals with the virus “pose a direct threat to the health of others” in the workplace, mandatory testing of employees for COVID-19 before letting them come to work is job related and consistent with business necessity, as the testing allows the employer to protect its workers.

Employers that implement COVID-19 testing must still comply with ADA standards and ensure the tests they administer are reliable and accurate. The EEOC urges employers to seek guidance about safe and accurate testing standards from the Food and Drug Administration, the Center for Disease Control, and other state and local public health agencies. Employers also will need to determine how to address the potential for “false-positives or false-negatives associated with a particular test.” The EEOC reminds employers “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.” Employers also cannot test in a discriminatory manner.

For most employers, the limited availability of testing at the individual employer level will prevent mandatory testing for the near future. In the meantime, employers should continue to emphasize appropriate workplace infection control practices like frequent handwashing, increased cleaning/sanitizing, social distancing, and other measures. Employers also may continue taking employee temperatures, so long as they do so in a confidential manner. Please remember that temperature readings and COVID-19 testing results are private, health-related information that employers must keep confidential.

Z&R has developed form policies, request forms and other guidance documents related to COVID-19 related issues. Z&R will continue to monitor the latest information governing employers. Previous Z&R articles addressing employer requirements and considerations during the COVID-19 pandemic can be found here:

• Coronavirus Considerations for Employers
• Ohio Provides Some Cover for Employers and Employees in Wake of COVID-19
• Federal COVID-19 response mandates paid leave (for now)
• Application of the Worker Adjustment and Retraining Notification Act (“WARN”) to Closures Caused by the COVID-19 Pandemic
• Ohio BWC: Allows Deferment of Premium Payments and Addresses Compensability of Contracting COVID-19
• Ohio Department of Insurance Provides Coverage Flexibility for Ohio Employees in the Wake of COVID-19
• FLSA Implications for Employers Considering Reductions in Pay
• Ohio Legislature Passes Emergency COVID-19 Response Legislation
• U.S. Department of Labor Issues Families First Coronavirus Response Act Model Notice
• Loans, Unemployment Assistance, and Other Relief Under the CARES Act
• U.S. Secretary of Labor Releases Temporary Rules Implementing The Emergency Family and Medical Leave Expansion Act and The Emergency Paid Sick Leave Act

*Tiffany S. Henderson practices in all areas of labor and employment law. If you have questions regarding COVID-19 medical testing or related issues, please contact Tiffany at tsh@zrlaw.com or 216-696-4441.

U.S. Secretary of Labor Releases Temporary Rules Implementing The Emergency Family and Medical Leave Expansion Act and The Emergency Paid Sick Leave Act

By Patrick M. Watts*

On April 6, 2020, the Secretary of Labor officially published temporary rules through the Federal Register concerning the Emergency Family and Medical Leave Expansion Act and that Emergency Paid Sick Leave Act of the Families First Coronavirus Response Act (“FFCRA”). The FFCRA and these temporary rules are effective from April 1, 2020 through December 31, 2020, after which, they will have no continued effect.

This alert summarizes some of the significant aspects of the temporary regulations. Please consult with your Z&R contact to discuss your particular circumstances.

Paid Leave Entitlements Include Employees Unable to Work Because of Stay at Home Orders.

Under the FFCRA, there are six qualifying reasons for which an employer is required to provide paid sick leave to an employee, all of which relate to COVID-19. One of these qualified reasons includes when an employee is unable to work because they are subject to a Federal, State, or local COVID-19 quarantine or isolation order. The new regulations state that a quarantine or isolation order includes quarantine, isolation, containment, shelter-in-place, or stay-at-home orders issued by any Federal, State, or local government authority that cause the employee to be unable to work even though his or her employer has work that the employee could perform but for the order. This also includes when a Federal, State, or local government authority has advised categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine, causing those categories of employees to be unable to work even though their employers have work for them.

Child Care Provider Includes Family Members Who Are Uncompensated.

Another qualifying reason for which an employer is required to provide paid sick leave and Expanded FMLA leave includes when an employee is unable to work because their son or daughter’s school or place of care has closed or their child care provider is unavailable due to COVID-19 related reasons. While the term “Child Care Provider” was defined under FFCRA as a provider who receives compensation for providing child care services on a regular basis, the new regulations clarify that an eligible child care provider need not be compensated or licensed if he or she is a family member or friend, such as a neighbor, who regularly cares for the employee’s child.

Paid Leave Entitlements Include Employees “Affirmatively” Seeking Medical Diagnosis.

A third qualifying reason for which an employer is required to provide paid sick leave is when the employee is experiencing symptoms of COVID-19 and seeking medical diagnosis from a healthcare provider. The temporary rules state that experiencing symptoms includes fever, dry cough, shortness of breath, or any other COVID-19 symptoms identified by the U.S. Centers for Disease Control and Prevention. Additionally, “seeking medical diagnosis” includes taking affirmative steps to obtain a medical diagnosis, such as making, waiting for, or attending an appointment for a test for COVID-19.

Intermittent Leave is Permitted If the Employer and Employee Agree.

An employee is permitted to take intermittent leave only if the employer and employee agree. The employer and employee may make the agreement in writing, but a clear and mutual understanding between the parties is sufficient. If agreed upon, intermittent leave may be taken in any increment of time agreed to by the employer and employee.

Employee Notice of Need for Leave.

An employer can require an employee to provide reasonable notice after the first workday (or part of) for which the employee takes paid sick leave for any reason other than caring for a child or dependent whose school or place of childcare is closed. What constitutes “reasonable notice” depends on the facts of the situation. If an employee does not give notice, the employer should notify the employee of the failure and provide an opportunity for required documentation prior to denying the request for leave. For leave requested to care for a son or daughter whose school or place of care or child care provider is closed, the employee shall provide notice as soon as practicable. In either event, it is reasonable for the employer to require the employee to comply with the employer’s usual notice and procedural requirements for requesting leave unless there are extenuating circumstances.

Documentation of Need for Leave.

An employee is required to provide the following documentation to their employer prior to taking paid sick leave under the EPSLA or expanded family and medical leave under the EFMLEA:

1. Employee’s name;
2. Date(s) for which leave is requested;
3. Qualifying reasons for the leave; and
4. Oral or written statement that the employee is unable to work because of the qualified reason for leave.

In addition, to take paid sick leave for a qualifying COVID-19 reason related to a quarantine or isolation order, an employee must provide the employer with the name of the government entity that issued the quarantine or isolation order. To take paid sick leave for a qualifying COVID-19 reason related to a health care provider advising the employee to self-quarantine, the employee must provide the employer with the name of the health care provider.

To take paid sick leave for a qualifying COVID-19 related reason under the EFMLEA, an employee must provide:

1. The name of the son or daughter being cared for;
2. The name of the school, place of care, or child care provider that has closed or become unavailable; and
3. A representation that no other suitable person will be caring for the son or daughter during the period for which the employee takes paid sick leave or expanded family and medical leave.

An employer may also request an employee to provide additional material as needed for the employer to support a request for tax credits pursuant to the FFCRA. If these materials have been requested and not provided, the employer is not required to provide leave. For more information on the tax credits, please click here.

Z&R has developed form policies, request forms and other guidance documents related to these new laws and COVID-19 related issues. Z&R will continue to monitor the latest information governing employers. Previous Z&R articles addressing employer requirements and considerations during the COVID-19 pandemic can be found here:

• Coronavirus Considerations for Employers
• Ohio Provides Some Cover for Employers and Employees in Wake of COVID-19
• Federal COVID-19 response mandates paid leave (for now)
• Application of the Worker Adjustment and Retraining Notification Act (“WARN”) to Closures Caused by the COVID-19 Pandemic
• Ohio BWC: Allows Deferment of Premium Payments and Addresses Compensability of Contracting COVID-19
• Ohio Department of Insurance Provides Coverage Flexibility for Ohio Employees in the Wake of COVID-19
• FLSA Implications for Employers Considering Reductions in Pay
• Ohio Legislature Passes Emergency COVID-19 Response Legislation
• U.S. Department of Labor Issues Families First Coronavirus Response Act Model Notice
• Loans, Unemployment Assistance, and Other Relief Under the CARES Act

*Patrick M. Watts, an OSBA Certified Specialist in Employment & Labor Law, regularly advises clients on all employment related matters. If you have questions about the CARES Act or any employment law questions, please contact Patrick at pmw@zrlaw.com or (216) 696-4441.

RELIEF, PART FIVE: Loans, Unemployment Assistance, and Other Relief Under the CARES Act

By Patrick M. Watts*

On March 27, 2020, President Donald Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). As the economic fallout of the COVID-19 pandemic worsens, this expansive legislation provides relief to businesses, employees, states, and municipalities through various mechanisms including loans and unemployment assistance.

While not meant as a comprehensive summary, the following highlights some of the key provisions of the CARES Act that apply to employers or their employees:

1. “Paycheck Protection” Loans

The CARES Act provides for forgivable loans to eligible recipients, including businesses and nonprofit organizations with no more than 500 employees, to cover operational expenses. In general, the loan amounts are limited to the lesser of $10 million or an average of 2.5 months of payroll costs. The law also allows for advances on these loans up to $10,000. Interest rates on the loans are capped at 4% and these loans do not require a personal guarantee or collateral.

Recipients may use the loans to cover various expenses such as payroll costs (including employee salaries and wages), group health care benefit continuation costs, mortgage interest, rent, utilities, and other debt obligations. The recipient must make good-faith certifications including that the loan is necessary to support ongoing operations and will be used to retain workers, maintain payroll, or make mortgage, lease, and utility payments.

These loans are forgivable up to certain amounts, not to exceed the principal, based upon specific costs and payments made by the recipient during the first eight weeks of the loan. The forgivable amount is subject to further limits if the recipient reduces its workforce or its employees’ salaries or wages.

2. Unemployment Assistance

The CARES Act also provides relief to individuals in the form of unemployment assistance beyond what is traditionally available under state unemployment insurance programs. In order to provide these expanded unemployment benefits, the CARES Act requires states to enter into agreements with the federal government to receive reimbursement. Some of the key benefits under the law are summarized below:

• Allows for up to 39 weeks of assistance (traditionally, unemployment compensation is available for 26 weeks);
• Extends eligibility to individuals who are self-employed, seeking part-time employment, do not have a sufficient work history, or otherwise would not traditionally qualify for benefits (e.g., independent contractors, gig workers, etc.);
• In addition to the amount available to eligible recipients under the applicable state’s unemployment program, the law provides for an additional $600 of assistance per week;
• Assistance is available without any waiting period;
• Provides funding for reimbursement of half of payments made by governmental entities and non-profits into the unemployment fund;
• Allows individuals who are actively seeking work and have already exhausted their pre-existing unemployment benefits to receive an additional 13 weeks of assistance (including the added $600 per week).

In addition, the CARES Act provides financing for states to implement short-time compensation/shared work programs to help avoid layoffs. Under these programs, participating employers reduce affected employees’ hours in a uniform manner, and the employees receive unemployment assistance that is proportionate to their reduced hours.

3. Emergency Relief Loans

The CARES Act also provides for non-forgivable loans and other relief to businesses, states, and municipalities. Some of the loans are designated specifically for air carriers and businesses that are “critical to maintaining national security.” Apart from these industry-specific loans, the CARES Act allocates $454 billion to support lending to eligible businesses, states, and municipalities by purchasing obligations and making loans.

The CARES Act specifically directs the Secretary of the Treasury to implement programs that provide financing to banks/lenders for loans to eligible “mid-size” businesses with between 500 and 10,000 employees. These loans must have annualized interest rates not higher than 2%. For the first six months, no interest or principal is due on the loans. These loans require the borrower to make certifications including, among other things, that: the funds will be used to retain at least 90% of the workforce until September 30, 2020; they intend to restore not less than 90% of the workforce as it existed on February 1, 2020 and restore all compensation and benefits within 4 months after the COVID-19 public health emergency ends; and they will not outsource or offshore jobs for the term of the loan plus 2 years after completing repayment. Furthermore, the borrower must certify that they ““will not abrogate existing collective bargaining agreements for the term of the loan and 2 years after completing repayment of the loan” and “will remain neutral in any union organizing effort for the term of the loan.” Finally, loan agreements for some of these Emergency Relief Loans place limits on compensation for highly compensated employees.

Conclusion

In addition to the above, the CARES Act contains other provisions applicable to employers, e.g., tax credits, delayed payment of employer payroll taxes, etc. The CARES Act also includes some amendments to the recently-passed Families First Coronavirus Response Act (“FFCRA”) (discussed here). Of note, the amendments clarify the eligibility of rehired employees for expanded family and medical leave under the FFCRA. Specifically, rehired employees who were laid off not earlier than March 1, 2020 are eligible for that leave if they worked for not less than 30 of the last 60 calendar days prior to their layoff.

Due to the expansive nature of this legislation, employers who have questions regarding the CARES Act should contact their counsel, tax advisers, and other consultants as needed for specific advice.

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:

• Coronavirus Considerations for Employers
• Ohio Provides Some Cover for Employers and Employees in Wake of COVID-19
• Federal COVID-19 response mandates paid leave (for now)
• Application of the Worker Adjustment and Retraining Notification Act (“WARN”) to Closures Caused by the COVID-19 Pandemic
• Ohio BWC: Allows Deferment of Premium Payments and Addresses Compensability of Contracting COVID-19
• Ohio Department of Insurance Provides Coverage Flexibility for Ohio Employees in the Wake of COVID-19
• FLSA Implications for Employers Considering Reductions in Pay
• Ohio Legislature Passes Emergency COVID-19 Response Legislation
• U.S. Department of Labor Issues Families First Coronavirus Response Act Model Notice

*Patrick M. Watts, an OSBA Certified Specialist in Employment & Labor Law, regularly advises clients on all employment related matters. If you have questions about the CARES Act or any employment law questions, please contact Patrick at pmw@zrlaw.com or (216)696-4441.

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:

• Coronavirus Considerations for Employers
• Ohio Provides Some Cover for Employers and Employees in Wake of COVID-19
• Federal COVID-19 response mandates paid leave (for now)
• Application of the Worker Adjustment and Retraining Notification Act (“WARN”) to Closures Caused by the COVID-19 Pandemic
• Ohio BWC: Allows Deferment of Premium Payments and Addresses Compensability of Contracting COVID-19
• Ohio Department of Insurance Provides Coverage Flexibility for Ohio Employees in the Wake of COVID-19
• FLSA Implications for Employers Considering Reductions in Pay
• Ohio Legislature Passes Emergency COVID-19 Response Legislation

*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.

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

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:

• Coronavirus Considerations for Employers
• Ohio Provides Some Cover for Employers and Employees in Wake of COVID-19
• Federal COVID-19 response mandates paid leave (for now)
• Application of the Worker Adjustment and Retraining Notification Act (“WARN”) to Closures Caused by the COVID-19 Pandemic
• Ohio BWC: Allows Deferment of Premium Payments and Addresses Compensability of Contracting COVID-19
• Ohio Department of Insurance Provides Coverage Flexibility for Ohio Employees in the Wake of COVID-19
• FLSA Implications for Employers Considering Reductions in Pay

*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.