COVID-19 Guidance – March 19, 2020

Guidance for Ohio Employers During the 2020 Coronavirus Pandemic

Rev. March 19, 2020

During the past week Ohio businesses have struggled to adapt to the changing governmental and legal guidance issued during the current stage of the COVID-19 pandemic.

This summary is meant to give employers practical guidance with regard to current law, the new federal paid sick leave law, and current best practices.

Applicable laws and regulations

Americans with Disabilities Act (ADA). The EEOC has developed guidelines for ADA compliance during a pandemic. The current EEOC document is attached. The ADA applies to employers with 15 or more employees.

Occupational Safety and Health Act. OSHA requires employers to maintain a safe workplace, and the agency acknowledges the risk COVID-19 poses to employees. OSHA guidance, which relies heavily on recommendations from the Center for Disease Control (CDC), is attached.

Families First Coronavirus Response Act (Paid Sick Leave) (FFCRA). The FFCRA provides paid sick leave benefits to employees who miss work due to the pandemic. It takes effect on April 2, 2020. A summary of the new law is attached. The FFCRA generally applies to employers who have fewer than 500 employees, subject to exceptions described in the attached summary.

Ohio executive orders and guidelines. Ohioans will be subject to various governmental orders with regard to the pandemic. Gov. DeWine’s administration has been a model of government action, communication, and leadership so far.

Ohio Unemployment. Ohio has established special unemployment benefits for employees who are isolated or quarantined at the request of a medical professional, local health authority, or employer. OJDFS guidance on the emergency benefit is attached.

Employers should require sick employees to stay home.

  • OSHA requires employers to maintain a safe workplace. Following guidance from the CDC or the Ohio Department of Health is a good way to maintain OSHA compliance for most employers.
  • Under EEOC pandemic guidelines, the ADA allows employers to require employees to stay home in accordance with CDC guidance.
  • Ohio employees who are requested by their employers to stay home can apply for special unemployment benefits related to the pandemic.

Employers may ask employees if they are exhibiting COVID 19 symptoms or otherwise meet the criteria for self-isolation currently established by the CDC or the Ohio Department of Health.

  • Under the ADA, employers are usually not allowed to make disability related inquiries, but during a pandemic employers are able to inquire about relevant symptoms, because the illness constitutes a direct threat to employees.

Employers must make reasonable accommodations for employees with COVID 19 symptoms.

  • Typical ADA accommodations for employees disabled by illness include teleworking and leaves of absence, which are appropriate for COVID-19 concerns.

Employers must not discriminate against employees who require leave or accommodations for COVID-19 concerns.

  • The ADA, OSHA, and the FFCRA contain anti-retaliation provisions. In addition, under the Paid Leave Act of the FFCRA, supervisors may incur personal liability for violating the law.

Employers may establish fitness for duty requirements for a return to work from an absence related to the pandemic.

  • Employers are generally entitled to ask for fitness for duty certifications when employees are returning from disability related leave.
  • Employers may relax certification requirements during and shortly the coronavirus pandemic, because health care providers are expected to be too busy to write so many excused-absence notes. Employers should work with evolving CDC and State guidance on hotlines, testing facilities, self-isolation practices, self-monitoring practices, and return to work guidance.

Employers who are covered by the FFCRA should keep a record of employees taking time off for FFCRA reasons.

  • The FFCRA will require record keeping on the part of employers, at least to be able to claim the tax credit.
  • Regulations and forms will issue from the Department of Labor, but in the meantime employers should keep track of the employee leave by the following categories:
    • FMLA Leave:
      • Are the employer and employee both qualified under the amended FMLA rule?
      • Does the employee have a need to care for their son or daughter under 18 years of age due to school closing, daycare closing, or unavailability of a childcare provider, as a result of the public health emergency?
      • Does the need to provide such care make the employee unable to work or telework?
      • Has the employee used 10 days of unpaid leave?
      • Has the employee used more than 10 days of unpaid leave?
    • Paid Sick Leave Act
      • Is the employee taking leave for a “full-pay” reason?
      • Is the employee taking leave for a “2/3 pay” reason?
      • How many paid leave hours is the employee entitled to?
      • Business owners and partners should also keep track of time they are unable to work for Paid Sick Leave Act reasons so they can claim the SECA tax credit.
    • Employers should encourage employees to qualify for paid leave.
      • Employees following self-quarantine guidelines without seeking a medical diagnosis, following advice received from a health care provider, or complying with a government order are not entitled to paid sick leave. Employees who are complying with CDC guidelines to self-quarantine should be instructed to call their healthcare provider or governmental hotline to receive instructions based on their symptoms, and inform their employers of compliance.
      • Employees who are caring for others should also call their health care providers for advice regarding their own protection. If their health care providers advise the employee to self-quarantine along with the individual under the employee’s care, the employee should be entitled to full pay leave for following the provider’s advice.

Other Employer Concerns

What about employers concerned about paid sick leave abuse?

  • Some employers may be concerned that employees will use paid sick leave for nonqualified purposes. Employers should communicate the gravity of the pandemic to employees and ask them to reserve sick leave for times when they are actually sick. Employers can emphasize the need for healthy employees to keep the enterprise going during a time when many employees are expected to fall ill, some critically, and some terminally. Employees who use the leave without a legitimate need are likely find themselves needing it later, when they or their family members fall ill.
  • Employers may require fitness for duty certifications. A self-certification that states the employee took leave for FFCRA purposes will encourage employee compliance and provide grounds for discipline if the employee provided false information.
  • If the government imposes a blanket isolation or quarantine order, the benefit limits may be exhausted.

Can employers lay off employees who are sick or self-isolated?

  • Employees who are sick or attempting to comply with CDC recommendations addressing COVID-19 concerns are protected by the ADA, and employers may not discriminate or retaliate against them on the basis of their illness or because they are regarded to be ill. However, employee protection is not absolute and protected employees are not “untouchable.” The coronavirus pandemic is creating a tremendous stress on businesses worldwide, and many businesses have had to make difficult decisions to lay off employees. As COVID-19 spreads, it is inevitable that companies making layoff decisions will have to lay off people who are sick.
  • Employers making layoff decisions must make their decisions on the basis of legitimate business reasons. Employers should document legitimate nondiscriminatory business reasons for their decisions, making sure to date their documentation.