Client Alerts, News Articles & Blog Posts

Everything you need to know about BMD and the industry.

Accommodating the Return to Work

It has been two months since Ohio declared coronavirus an emergency, and although it is clear things will not be fully back to "normal" anytime soon, the state of Ohio is rolling out the reopening process for businesses with a number of new guidelines and restrictions. As businesses reopen, employers and employees will face difficult decisions about returning to work, including reasonable accommodation concerns under the Americans with Disabilities Act and state law equivalents. The EEOC recently updated its question and answer document with additional guidance regarding this issue, available here.   

As explained in prior BMD client alerts, an employee's fear of coronavirus, by itself, does not provide a legal basis for accommodation or refusal to work. For a discussion of how an employee's refusal to work or return to work affects the analysis of unemployment claims, see Bryan Meek's article available here. However, if an employee has an underlying medical condition that puts them at higher risk for severe illness due to coronavirus, they may be entitled to a reasonable accommodation. For example, having an immuno-compromised condition greatly increases the risk for an employee who regularly interacts with coworkers or the public. The employee should communicate to their employer regarding the medical condition and corresponding need, and the employer may then ask questions or request medical documentation to determine if a reasonable accommodation is appropriate. Questions may include how the disability creates a limitation, how the requested accommodation will address the limitation, and whether other forms of accommodation could be effective in enabling the employee to perform essential job functions.   

The EEOC's updated Q&A provides a number of examples of accommodations for individuals at higher risk related to coronavirus, including the following:

  • additional or enhanced protective gowns, masks, gloves, or modified protective gear;
  • barriers or increased space providing separation between an employee with a disability and others;
  • elimination or substitution of particular “marginal” job functions (note that reasonable accommodation does not require elimination of "essential" job functions);
  • temporary modification of work schedules or remote work; or
  • relocating an employee's work location or station.

This is by no means a comprehensive list, and the EEOC is encouraging employers and employees to be "creative and flexible" in working out accommodations. As with any other accommodation request, employers should engage in an interactive process with their employees. There is no legal obligation to provide a particular accommodation if it poses an "undue hardship" on the employer or there is a "direct threat" to health or safety to the individual or others that cannot be eliminated by reasonable accommodation. Although coronavirus has significantly affected the analysis of reasonable accommodation and direct threat, the same framework for the interactive process remains in place and should be utilized. 

For more information, please contact Russell Rendall at 216.658.2205 or rtrendall@bmdllc.com.

Lockdowns, Landlords, & Litigation: Abercrombie & Fitch Flips The Script on Simon Property Group Inc.

Novel litigation between commercial property owners and tenants arises from COVID-19 lockdowns. Typically, owners sue for nonpayment of rent. But in Franklin County, Ohio, a large retail tenant turned the tables and sued the owner to recoup payments.

UPDATE: Ohio Businesses Remain Required to Post Exceptions to State-Wide Mask Mandate at All Entrances

On August 1, 2020, Lance D. Himes, Interim Director of the Ohio Department of Health, issued an amended order continuing the requirement that Ohio businesses post at all entrances any permitted exceptions they provide to customers, patrons, visitors, contractors, vendors and similar individuals to use facial coverings.

2020 Marcum National Construction Survey Marks a New, Post-Pandemic Construction Environment

The results of the 2020 Marcum National Construction Survey are in, and the construction industry’s outlook for the remainder of 2020 and beginning of 2021 remains cautiously optimistic despite the COVID-19 global pandemic. Ability to find skilled labor, healthcare expenses, and material costs remain the top concerns for the industry, while “lack of future work” joins the list.

Wrongful Death Lawsuits in the Wake of COVID-19

Several major “essential business” employers, including Walmart and Tyson, have been served with wrongful death lawsuits in relation to COVID-19. As many Ohio employees begin to return to work, employers should be prudent in following workplace safety practices.

We are Working in a Virtual, Video-Conferencing World – But What About Wiretapping?

Businesses and other organizations often have a need or desire to record telephone conversations related to their business interests and customer dealings; however, this practice is not always permissible as federal and state laws vary on this issue. Knowing and understanding your jurisdiction’s rules and regulations on this practice is essential to remaining in compliance with the law.