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.

El Contrato Escrito: La Herramienta Predilecta

No existe mejor herramienta a una disputa contractual que un documento firmado por las partes en el cual se expongan las obligaciones y acuerdos entre éstas.

New State Budget Institutes Licensure Requirement for Ohio’s Hospitals

On July 1, 2021, Governor Mike DeWine signed Ohio’s final budget codified at Ohio Revised Code 3722.01 et seq., which includes a new licensing requirement for Ohio’s hospitals. For years, Ohio was the only state in the country that did not license its hospitals. This approach will now be replaced with new, detailed requirements that will require careful review and compliance. Here are some of the highlights concerning these new changes:

Healthcare Provisions in the Ohio FY 22-23 Budget

Governor Mike DeWine signed Ohio’s Fiscal Year 2022-2023 budget bill (HB 110) into law on July 1, 2021. At almost 1,000 pages and 74.1 billion dollars, the budget lays out the State’s spending for the next two years. Below are a few highlighted provisions from the budget that will be important for the healthcare industry in Ohio

Interim Final Rule for Surprise Billing

In an effort to implement the new bipartisan No Surprises Act, on July 1, 2021, the Department of Health and Human Services (HHS), along with the Departments of Labor and Treasury, issued an interim final rule to safeguard patients against unforeseen medical bills arising from out-of-network care.

President Biden Seeks to Limit Non-Compete Agreements

Today, President Biden announced he would issue an Executive Order that calls on the Federal Trade Commission (FTC) to adopt rules to curtail worker non-compete agreements. Interestingly, a week ago, the FTC approved changes to its Rules of Practice to modernize and expedite the way it issues Trade Regulation Rules. If you have followed our alerts, we predicted the elimination of non-competes would probably happen. In 2016, then-Vice President Biden was a vocal opponent against non-compete agreements. He led the Obama administration’s initiative seeking to limit or eliminate non-compete agreements. In his presidential campaign, Biden promised to “work with Congress to eliminate all non-compete agreements, except the very few that are absolutely necessary to protect a narrowly defined category of trade secrets . . ..”