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.

HHS Announces an Additional $20 Billion In Provider Relief Grants

The U.S. Department of Health and Human Services (“HHS”) announced an additional $20 billion in new funding for providers on October 1, 2020. Eligible providers include those that have already received Provider Relief Fund payments as well as previously ineligible providers, such as those who began practicing in 2020, and an expanded group of behavioral health providers confronting the emergence of increased mental health and substance use issues exacerbated by the pandemic. The new Phase 3 General Distribution is designed to balance an equitable payment of 2% of annual revenue from patient care for all applicants plus an add-on payment to account for revenue losses and expenses attributable to COVID-19.

DOL Proposes New Rule Regarding Independent Contractor Status - But How Will the Election Affect Its Future?

On September 22, 2020, the U.S. Department of Labor announced a new proposed rule regarding employee and independent contractor status under the Fair Labor Standards Act. The full text of the proposed rule is available here. The rule's drafters intend to reduce uncertainty and enhance the precision and predictability of the long-standing "economic reality" test, which currently relies on a multifactor balancing test.

Major Change to Franklin County, Ohio Eviction Process: Landlord Testimony Required

Although there is currently a nationwide temporary halt on all residential evictions through December 31, 2020 in place, the eviction process in Franklin County – which processes the highest number of evictions in the State of Ohio at approximately 18,000 a year – recently changed significantly.

UPDATE: Governor Dewine Signs HB 606 Granting Short Window of Immunity from COVID-19 Personal Injury Lawsuits

The Ohio General Assembly, in Am. Sub. H.B. No. 606, is in the final stages of passing a law that will prohibit lawsuits seeking damages from COVID-19. This includes injury, death, or loss to person or property if the lawsuits are based, in whole or in part, on the exposure to, or the transmission or contraction of the coronavirus, unless the defendant in the lawsuit acted intentionally or recklessly. In circumstances where this immunity does not apply, H.B. 606 prohibits such claims being aggregated and brought as a class action.

Revised Department of Labor FFCRA Guidance, Effective September 16, 2020

In response to attacks on the legality of the Department of Labor’s (“DOL”) Final Rule regarding the Families First Coronavirus Act (“FFCRA” or the “Act”), which took effect in April 2020, the Department of Labor issued new guidance on Friday, September 11th to formally address ongoing questions and concerns related to the COVID-19 legislation.