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Accommodating the Return to Work

Client Alert

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.

New York, Kansas, Massachusetts, and Delaware Become the latest States to Adopt Full Practice Authority for Nurse Practitioners

While the COVID-19 pandemic certainly created many obstacles and hardships, it also created many opportunities to try doing things differently. This can be seen in the instant rise of remote work opportunities, telehealth visits, and virtual meetings. Many States took the challenges of the pandemic and turned them into an opportunity to adjust the regulations governing licensed professionals, including for advanced practice registered nurses (APRNs).

Explosive Growth in Pot of Gold Opportunity for Bank (and Other) Cannabis Lenders Driving Erosion of the Barriers

Our original article on bank lending to the cannabis industry anticipated that the convergence of interest between banks and the cannabis industry would draw more and larger banks to the industry. Banks were awash in liquidity with limited deployment options, while bankable cannabis businesses had rapidly growing needs for more and lower cost credit. Since then, the pot of gold opportunity for banks to lend into the cannabis industry has grown exponentially due to a combination of market constraints on equity causing a dramatic shift to debt and the ever-increasing capital needs of one of the country’s fastest growing industries. At the same time, hurdles to entry of new banks are being systematically cleared as the yellow brick road to the cannabis industry’s access to the financial markets is being paved, brick by brick, by the progressively increasing number and size of banks that are now entering the market.

2021 EEOC Charge Statistics: Retaliation & Impact of Remote Work

The U.S. Equal Employment Opportunity Commission (EEOC) released its detailed information on workplace discrimination charges it received in 2021. Unsurprisingly, for the second year in a row, the total number of charges decreased as COVID-19 either shut down workplaces or disconnected employees from each other. In 2021, the agency received a total of approximately 61,000 workplace discrimination charges - the fewest in 25 years by a wide margin. For reference, the agency received over 67,000 charges in 2020, and averaged almost 90,000 charges per year over the previous 10 years.

Ohio’s Managed Care Overhaul Delayed – New Implementation Timeline

At the direction of Governor Mike DeWine, the Ohio Department of Medicaid (ODM) launched the Medicaid Managed Care Procurement process in 2019. ODM’s stated vision for the procurement was to focus on people and not just the business of managed care. This is the first structural change to Ohio’s managed care system since the Centers for Medicare & Medicaid Services' (CMS) approval of Ohio’s Medicaid program in 2005. Initially, all of the new managed care programs were supposed to be implemented starting on July 1, 2022. However, ODM Director Maureen Corcoran recently confirmed that this date will be pushed back for several managed care-related programs.

Laboratory Specimen Collection Arrangements with Contract Hospitals - OIG Advisory Opinion 22-09

On April 28, 2022, the Department of Health and Human Services, Office of Inspector General (“OIG”) published an Advisory Opinion[1] in which it evaluated a proposed arrangement where a network of clinical laboratories (the “Requestor”) would compensate hospitals (each a “Contract Hospital”) for specimen collection, processing, and handling services (“Collection Services”) for laboratory tests furnished by the Requestor (the “Proposed Arrangement”). The OIG concluded that the Proposed Arrangement would generate prohibited remuneration under the federal Anti-Kickback Statute (“AKS”) if the requisite intent were present. This is due to both the possibility that the proposed per-patient-encounter fee would be used to induce or reward referrals to Requestor and the associated risk of improperly steering patients to Requestor.