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.

Medicaid Announces Next Generation of Managed Care Organizations

For the first time since 2005, the Ohio Department of Medicaid (“ODM”) made significant changes to the structure of the Medicaid program by finalizing the Medicaid Managed Care Procurement process. The Procurement process began in 2019 at the behest of Governor Mike DeWine who had a goal to make Medicaid managed care more focused on the health and well-being of individuals.

BMD Appellate Win Clarifies Waiver of Contractual Right to Arbitrate

Brennan, Manna & Diamond, LLC attorneys David M. Scott, Lucas K. Palmer, and Krista D. Warren prevailed before the United States Court of Appeals for the Sixth Circuit regarding if/when a party waives a contractual right to arbitrate. Borror Property Management, LLC v. Oro Karric North, LLC, No. 20-3146 (the “Decision”).

Relief for Ohio Under the Federal American Rescue Plan Act

On March 11, 2021, President Biden signed the American Rescue Plan Act (the “Act”) — a $1.9 trillion COVID-19 relief package — a significant portion of which will be directed to the State of Ohio to support economic recovery, as outlined below.

Cleveland Manufacturer Violated OFAC Sanctions By Allowing Shipments To Iran - Know Your Customer and Know Their Customer

UniControl, Inc., a Cleveland, Ohio manufacturer of process controls, airflow pressure switches, boiler controls and other instruments, agreed to pay the Office of Foreign Assets Control “OFAC,” the financial enforcement agency of the U.S. Treasury Department, $216,464 to settle its liabilities for violations of the Iran Sanctions Program. OFAC stated that “this enforcement action highlights the importance of identifying and assessing multiple warning signs that indicate a foreign trade partner may be re-exporting goods to a sanctioned jurisdiction.”

Ohio Breach of Contract Statute of Limitations Shortened to 6 Years

On March 16, 2021, Governor DeWine signed into law S.B. 13 which shortens Ohio’s statute of limitations for filing lawsuits based on breach of contract. A statute of limitation is the time period within which a party must file a lawsuit before its claim expires as a matter of law.