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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

Changes to Physician Assistant Statutes in Florida

In the last year, there have been many changes to the scope of practice and collaboration/supervision requirements for advanced practice providers such as APRNs and physician assistants in the state of Florida. In a previous Client Alert we discussed House Bill 607, which expanded the autonomous practice of APRNs providing primary care services in Florida.

Ohio Senate Bill 49 – Ohio Expands Lien Rights for Design Professionals

Effective September 30, 2021, Ohio granted limited lien rights to design professionals, including architects, landscape architects, engineers, and surveyors. Ohio Governor Mike DeWine signed Senate Bill 49 into law on July 1, 2021. This new law established a statutory right to lien commercial real estate by Ohio design professionals who, until now, could not file a lien for non-payment of professional services. Senator Vernon Sykes, a primary sponsor of Senate Bill 49, stated that the “legislation ensures that architects, engineers and other designers will get paid for their work, regardless of the outcome of their projects . . . It will support hardworking Ohioans by protecting the value of their labor . . ..”

Primary Care Practice Officially Defined in Florida for APRNs Practicing Autonomously

As many providers in Florida are aware, House Bill 607 (the “Bill”), which was passed in February of last year, gives certain APRNs in Florida the ability to practice autonomously. The only catch is that they must work in primary practice. When the Bill was initially passed, there was question as to what was exactly considered primary care, absent a definition from the Florida Board of Nursing. However, as of February 25, 2021, “primary care practice” has officially been defined.

Part II of the No Surprises Act

The Department of Health and Human Services (“HHS”) published Part II of the No Surprises Act on September 30, 2021, which will take effect on January 1, 2022. The new guidance, in large part, focuses on the independent dispute resolution process that was briefly mentioned in Part I of the Act. In addition, there is now guidance on good faith estimate requirements, the patient-provider dispute resolution processes, and added external review provisions.

Safer Federal Workforce Task Force - Guidance for Federal Contractors and Subcontractors

The Safer Federal Workforce Task Force has issued its Guidance for Federal Contractors and Subcontractors (Guidance). Note that the Guidance applies only to “covered contracts,” which are contracts that include the clause (Clause) set forth in Sec. 2(a) of Executive Order 14042 (Ensuring Adequate COVID Safety Protocols for Federal Contractors). The Federal Acquisition Regulatory Council (FARC) is to conduct rulemaking and take related action to ensure that the Clause is incorporated into federal contracts. Until that happens, federal contractors likely will not see the Clause in its contracts. Following is a broad summary of the Guidance.