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Employment Law Pitfalls in the New Normal

Client Alert

This week the state of Ohio announced its Responsible RestartOhio plan and issued a Stay Safe Order amending to Department of Health’s prior order, designed to get people back to work and gradually reopen the state, available at https://coronavirus.ohio.gov/static/publicorders/Directors-Stay-Safe-Ohio-Order.pdf. This new order directs employers to require their employees to wear masks (with certain limited exceptions) and recommends changes to shifts, break times, and use of break rooms as a means to limit the spread of the virus. These workplace developments raise a number of potential concerns regarding wage and hour issues, reasonable accommodation, employee medical information, and off-duty conduct policies. 

  • Do employers need to compensate employees for time spent on workplace temperature checks or putting on face coverings or other protective equipment? This is a question that requires fact-specific, case-by-case analysis, but the short answer is - "yes, most likely." The key question under the federal Fair Labor Standards Act is whether or not these are considered "principal activities." Principal activities are those activities that a person is employed to perform and also activities that are "integral and indispensable" to the performance of principal activities. In the context of coronavirus, where temperature checks and face coverings have been mandated by employers or the government, such activities are most likely principal activities that must be compensated. In addition, any walking or waiting time after a principal activity should be compensated under the Department of Labor's continuous workday rule. For example, if an employer requires a temperature check and the employee then has a five-minute walk to their workstation, the time spent on the check and the walk should likely be compensated. The U.S. Supreme Court has held that time spent waiting for a principal activity to occur, such as putting on protective gear, need not be compensated, but this is also a fact-specific issue and should be carefully analyzed. 
  • Are there wage and hour risks to consider if an employer shuts down their break room or staggers break times to comply with Ohio's new Stay Safe Order? If employees must now take lunch breaks at their desks or workstations, or are taking breaks at unusual times, they are more likely to be interrupted or handle work projects during their lunch period. The FLSA and Ohio law require that an unpaid lunch break must be uninterrupted. If the lunch break is interrupted, or the employee is doing work during the lunch break, it becomes compensable. Employers should take steps to ensure that employees are still able to take unpaid breaks without interruption and prevent off-the-clock work. 
  • Must an employer accommodate an employee who declines to wear a face covering for medical reasons? The new Stay Safe Order provides that employees must wear a face covering, with a few exceptions, including when it "is not advisable for health purposes." Employers should therefore engage in an interactive process, similar to an accommodation request under the ADA, to determine if the employee should be accommodated in this manner. 
  • What precautionary steps should employers take as they regularly collect medical information from employees regarding coronavirus symptoms and body temperature? Employers should institute practices and procedures so that employees' medical information is not shared with others. Employers are permitted to obtain information regarding coronavirus symptoms or body temperature during a pandemic emergency, but the Americans with Disabilities Act still requires that it be kept confidential. Any information collected should be kept separate in a medical file and only shared to the extent necessary (for example, sharing with a supervisor or manager when there is a work restriction or accommodation or scheduling impact). 
  • Can an employer impose restrictions on its employees consistent with Ohio's social distancing guidelines and stay-at-home order? Yes, employers may take steps to encourage or require employees to abide by social distancing or stay-at-home practices. Particularly in Ohio, where a stay-at-home order is in place and the state has issued extensive guidelines and recommendations related to social distancing, employers have a reasonable basis for expecting such from their employees. For example, an employer may prohibit employees from attending social gatherings of more than 10 people and may take appropriate action if an employee violates this policy. Of course, employers should seek to communicate and implement such policies in a fair and reasonable manner, given the potential impact on employee relations and morale during a time of crisis.

For more information, please contact Russell Rendall at 216.658.2205 or rtrendall@bmdllc.com.


Valley National Bank/Trulieve Loan: A Big Step Out of the Shadows

In a late December press release, Trulieve announced that it had secured a $71.5 million commercial bank loan. In addition to the amount of the loan, which may be the largest commercial bank loan to date to a cannabis company, the release prominently identified Valley Bank and featured both a quote from Valley’s Senior Vice President, John Myers, and a description of the Bank’s service platform and commitment to the cannabis industry.

The End of Non-Competes? The Impact It Will Have on the Healthcare Industry

On January 5, 2023, the Federal Trade Commission (“FTC”) announced a proposed rule that, if enacted, will ban employers from entering into non-compete clauses with workers (the “Rule”), and the Rule would void existing non-compete agreements. In their Notice, the FTC stated that if the Rule were to go into effect, they estimate the overall earnings of employees in the United States could increase by $250 billion to $296 billion per year. The Rule would also require employers to rescind non-competes that they had already entered into with their workers. For purposes of the Rule, the FTC has defined “worker” to also include any employees, interns, volunteers, and contractors.”

2022 Healthcare Recap and 2023 Healthcare Check-Up

As the country begins to return to a new “normal” following the COVID-19 pandemic, there are many healthcare rules changing on both the federal and state levels as a result. Thus, it is important for healthcare providers and their employers to be aware of these changing rules, and any implications they may have on their practice. Look back on healthcare in 2022 and find a checklist for 2023.

Direct Support Professional Retention Payments

On December 15, the Ohio Senate and House passed House Bill 45, which authorizes the Department of Developmental Disabilities (DODD), in conjunction with the county boards of developmental disabilities, to launch their initiative to issue retention payments to Direct Support Professionals (DSPs). These retention payments will be distributed quarterly to participating home and community-based waiver providers to address the workforce crisis in the direct provider sector. Governor DeWine needs to sign the Bill to begin the payments, but he is expected to do so by the end of 2022.

Real Estate Investors Position for 2023 Opportunities

Real estate investors weathered another year in a post-pandemic world, with the year closing with yet another interest rate increase coupled with both uncertainty and heightened interest carrying into 2023. Just last Wednesday, the Federal Reserve raised its benchmark interest rate 0.50 percentage points, shifting the target range to 4.25% to 4.50%. The new level is the highest the fed funds rate has been since December 2007 and marks the seventh rate hike this year. So what does this mean to investors, brokers, lenders, and others in the real estate world? Read a few perspectives below from stakeholders familiar with our BMD clients and the markets in which they do business.