Employment Law Quarterly

Tuesday, April 28, 2020

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:

*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.

Friday, April 24, 2020

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:

Tuesday, April 7, 2020

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:

Employee’s name;
Date(s) for which leave is requested;
Qualifying reasons for the leave; and
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:

The name of the son or daughter being cared for;
The name of the school, place of care, or child care provider that has closed or become unavailable; and
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:

*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.

Thursday, April 2, 2020

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:

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.