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Coronavirus Update for Employers - March 16, 2020

The key point for Employers to remember: It will be difficult for Employers to make a wrong decision.

The Coronavirus/COVID-19 is a “pandemic,” which means that there is sustained human-to-human transmission which is not geographically contained. It also means that Employers are given leeway in their workforce decisions.

“During a pandemic, employers should rely on the latest CDC and state or local public health assessments.” – EEOC

Employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.

What are the sources for Reliable Information?

  • Centers of Disease Control and Prevention – www.cdc.gov
    • Updated almost daily
    • Information for United States
  • World Health Organization – www.who.int
    • Updated daily
    • Focus is international
  • State Public Health Agencies

What are the Legal Considerations?

  • Workers Compensation
    • I became sick at work because you made me work with sick co-employees
    • Not an issue
    • Must be “occupational” meaning that it arose out of and in the course and scope of employment, and it must arise out of or be caused by conditions “peculiar” to the work. (e.g., black lung from coal mining; asbestosis from asbestos removal)

  • Intentional Tort and Third-Party Negligence Claims
    • I became sick because you failed to train, let in sick customers, or didn’t provide equipment
    • Not an issue of concern.
    • These claims require either the intent to injure, or the belief that the injury was substantially certain to occur
    • Solution: Post a Caution Sign at the entrance requiring anyone experiencing flu symptoms (fever, cough, shortness of breath) to not enter or to call before entering so that they may be greeted by someone who has taken precautionary measures

  • Americans with Disabilities Act (ADA)
    • I’m at-risk of getting sick and I want a disability accommodation, such as the right to work from home
    • Not an issue of concern because temporary conditions, which do not substantially limit a major life activity, are not disabilities (i.e., the flu)
    • Caution: It may become an issue if the Employer treats those with coronavirus or those at-risk of coronavirus as having a disability because ADA prohibits discrimination against those with actual and “regarded as” disabilities

  • National Labor Relations Act (NLRA)
    • My coworkers and I are banding together and not coming to work because you are letting a sick person sit in a common area without any protective measures or equipment
    • Employees, union and non-union, have a protected right to raise concerns about terms and conditions of work, including safety
    • A refusal to work may be deemed a concerted protected activity for which employers must comply with NLRA
    • Caution: Employers cannot discipline employees who are engaging in a concerted protected activity

  • Occupational Safety and Health Administration (OSHA)
    • If we are coming to work, what are you doing to protect us?
    • All employers are subject to the General Duty Clause to provide a place of employment that is free from recognized hazards that cause or are likely to cause death or serious physical harm
    • There is no universal standard for coronavirus, yet.
    • OSHA is creating and updating steps to reduce risks of exposure, including low, medium, and high/very high-risk level jobs:
    • Be sure to also check on:
      • Requirements for specific industries
      • PPE requirements
      • Required reporting of recordable illnesses for infection on the job

  • Family and Medical Leave Act (FMLA)
    • I’m sick and I should get paid leave
    • Coronavirus may not be technically FMLA eligible without incapacitation and either ongoing physician visits or regimen of continuing treatment
      • Rest and OTC pain relief is not a regimen of treatment
    • FMLA provides unpaid leave for employees who worked 1,250 hours at a workplace with 50 or more employees

    • BUT WAIT…Families First Coronavirus Response Act
      • Amends and expands FMLA for 2020
      • Covers workplaces with fewer than 500 employees
      • Lowers hours of work to only 30 days prior to leave
      • The first 14 days are unpaid, but employee can use accrued paid time off
      • After 14-days, employees receive two-thirds the regular rate for normal schedule
      • Expands the definition of “parent”
      • If the FFCRA passes, it will go into effect by the end of March 2020 and remain in effect until the end of 2020.
        • We will provide a supplemental update

  • Fair Labor Standards Act (FLSA)
    • If you send me home, you still have to pay me
    • Employers must pay hourly employees for hours actually worked
    • Employers must pay salaried employees for the full week in which the employee performed any work or used any accumulated paid leave
    • Employers do not need to pay salaried employees for days they miss on their own volition

  • Ohio Unemployment
    • Once you send me home without pay, I’m entitled to unemployment benefits
    • If an employer shuts down operations or lays off employees due to loss of production due to coronavirus, employees may be eligible for immediate unemployment benefits
    • If an employee is in mandatory quarantine because of coronavirus or suspicion of having the coronavirus, the employee is considered unemployed and may be eligible for immediate unemployment benefits.
    • If an employee is asymptomatic and self-quarantines, the employee is choosing not to work and not eligible for unemployment benefits
    • Rules are continuing to update throughout the day http://jfs.ohio.gov/ouio/CoronavirusAndUI.stm

What should Employers do now?

  • Prepare for work disruptions with the attached survey to determine who may need to work remotely
  • Start a Coronavirus Workforce File.  For any workforce decision, look to the CDC, WHO, or Public Health for justification because . . .“During a pandemic, employers should rely on the latest CDC and state or local public health assessments.” – EEOC
  • Print out the page from the website that supports the decision; type or write your workforce decision; staple the decision to the webpage guidance; and, place it in the Coronavirus Workforce File

Frequently Asked Questions?

  • Can we send employees for testing/medical examinations? Yes, if employer has a reasonable belief that either an employee’s ability to perform will be impaired by a medical condition; or, an employee will pose a direct threat due to a medical condition.
    • A direct threat is based on objective, factual information such as the latest CDC and state or local public health assessments.
  • Can we send employees home? Yes.
  • Even salaried employees? Yes. 
  • Can we ask employees about symptoms? Yes, related to disease (fever, cough, shortness of breath)
  • Can we take their temperature? Yes, but be careful to protect privacy, and be careful of asymptomatic employees
  • Can we inquire about exposure (travel, intimacy, family care)? Yes.
  • Can we enforce measures to prevent the spread? Yes. Including distancing, telework, hand washing, coughing etiquette; required PPE, offer vaccine (but be careful of ADA and religion issues)
  • Can we allow telework? Yes.
  • Do we have to allow telework? No. 
  • Can we ask why employees missed work? Yes.
  • Can we require employees who miss work to use accrued paid leave? Yes.
  • Can we require a fitness for return to work? Yes.
  • Can we continue to pay employees even though our office is closed? Yes, but if the employees are in a union, it must be negotiated with the union
  • Do we have to give time off? No, subject to the following exceptions:
      • Implementation of FFCRA
      • Federal contractors complying with paid sick leave
      • Paid sick leave by state and local laws
      • Collective bargaining agreements
      • Employee contracts

What do we need to worry about as Employers?

  • Consistency of decisions
  • Permitting employees who are on leave to continue to work
  • Failing to pay employees for all hours worked while working remotely
  • Allowing essential employees to work remotely at full productivity
  • Not paying attention to CDC, OSHA, and FFCRA

Vaccination Considerations for Employers

Today, three Covid-19 vaccines have tested as highly effective (90%+ efficacy) and are advancing in the process for emergency use. This is especially welcome news in Ohio, which has skyrocketing cases and our strategic response has been to turn the entire state into the small town of Bomont with strict curfews and bans on social gatherings.

Did You Receive More than $750,000 in Provider Relief Funds?

The Provider Relief Funds (“PRF”) - authorized under the CARES Act - has been a vital tool for health care providers during the COVID-19 public health emergency. These funds have allowed providers to stay open and continue to offer care during these pressing times. While helpful, these funds do come with several important obligations. First, fund recipients are required to comply with certain record-keeping requirements as well as comply with certain balance billing prohibitions. See our Client Alert. Second, fund recipients are required to report their intent, use of funds, and other data elements, which helps promote transparency to the federal government. Please see our Client Alert on provider relief fund reporting requirements. Third, and perhaps a new concept for many providers, fund recipients of more than $750,000 must undergo a “single audit” to ensure program compliance and appropriate use of funds.

Important Updates Every Provider Should Know: Information Blocking

In December 2016, Congress passed the 21st Century Cures Act (“Cures Act”) which: (1) authorized funding for the National Institutes of Health to promote medical research and drug development, (2) implemented provisions aimed at addressing the prevention and treatment of mental illness and substance abuse, and (3) reformed certain standards of the Medicare program and federal tax laws to foster healthcare access and quality improvement.

PPP Update: Loan Necessity Questionnaires

On October 26, 2020, the Small Business Administration (“SBA”) published a notice in the Federal Register which foreshadowed the release of two new forms seeking information from for-profit and nonprofit organizations that received Paycheck Protection Program (“PPP”) loans of $2 million or more. If approved, the SBA would use information from these forms to evaluate and determine whether economic uncertainty made a PPP loan request necessary.

Exposure to COVID-19 Flow Chart

Exposure to COVID-19 Flow Chart