Client Alerts, News Articles & Blog Posts

Everything you need to know about BMD and the industry.

Employment Law Pitfalls in the New Normal

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.

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.

Chinese Product Tariff Challenge Causes Flurry of Importer Lawsuits

A lawsuit filed late in 2020 at the U.S. Court of International Trade (“CIT”) challenging the U.S. Trade Representative’s (USTR) implementation of Section 301 “List 3” and “List 4” duties on products from China, HMTX Industries LLC et al. v. United States (Court No. 20-00177), has resulted in the filing of thousands of additional lawsuits brought by other affected importers. There are now 3,700+ companies added to the list, including Ford, Home Depot, Target, Tesla, and Walgreens, along with many other smaller importers.