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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.

Workers’ Compensation Claims and COVID-19

Can one of my employees file a workers’ compensation claim if they claim that they contracted coronavirus at work? We get that question a lot. Yes, they can, but you should oppose any application for coverage if you receive one. Generally, the claim will not be granted unless the employee has a job that poses a special hazard or risk of exposure to the virus and the employee can prove that he or she contracted the virus at work.

Ohio State Dental Board Implements Teledentistry Rules

Ohio law defines “teledentistry” as the delivery of dental services through the use of synchronous, real-time communication and the delivery of services of a dental hygienist or expanded function dental auxiliary pursuant to a dentist’s authorization.[1] The law requires a dentist who desires to provide dental services through teledentistry to apply for a teledentistry permit from the Ohio State Dental Board (“OSDB”).[2] Pursuant to the mandate under Ohio Revised Code 4715.436, the OSDB is implementing the following teledentistry permit rules and requirements (to be set forth under Ohio Administrative Code Chapter 4715-23). These regulations, which were subject of a public hearing on February 19, 2020, are effective on May 30, 2020.

HHS Addresses Drug Manufacturer Coupons on Out-of-Pocket Limits

On May 7, 2020, the US Department of Health and Human Services (“HHS”) announced their Notice of Benefit Parameters for 2021 in which HHS addressed the application of prescription drug manufacturer copay coupons towards a patient’s out-of-pocket limit. Under this guidance, HHS will permit, but not require, plans and insurers to count direct support offered to enrollees by drug manufacturers (i.e., coupons) for specific prescription drugs toward the annual limits on cost-sharing, regardless of whether a generic equivalent is available.

Important Updates, Deadlines, and Clarifications for the HHS Provider Relief Funds

On May 20, 2020, HHS made important updates and clarifications regarding the General Distribution payments to providers. Between April 10, 2020 and April 24, 2020, HHS distributed an initial $30 billion to providers based on the provider’s 2019 Medicare fee-for-service receipts. These funds were distributed automatically and providers did not need to submit an application in order to receive these funds. The funds were originally touted as a “no strings attached” stimulus payment reserved for healthcare providers. But HHS issued a 10-page Terms and Conditions and required that providers sign an attestation confirming receipt of the funds and agreeing to the Terms and Conditions.

Reopening & Social Media: Tips for Businesses

As the country starts to reopen, businesses are under great pressure to keep employees and customers safe. Even if a business follows every reopening requirement, there will inevitably be scrutiny from within and outside the organization. And, in this world of social media, perception tends to become reality. Below are a few practical tips to avoid attracting negative press while restarting your business.