Update for Ohio Employers During the 2020 Coronavirus Pandemic

Rev. March 25, 2020

Ohio businesses are adapting to the quick developments in 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 developments in current law and discussions in current best practices.

“Essential Businesses and Operations” under the Ohio Stay At Home Order. The Director of the Ohio Department of Health, Amy Acton, issued an order that all persons in the state stay at home unless engaged in Essential Activities, Essential Governmental Functions ,or to participate in Essential Businesses and Operations. The Order is effective today. A copy of the Order is available at https://coronavirus.ohio.gov/wps/portal/gov/covid-19/home/public-health-orders/directors-order-to-stay-at-home.

Businesses are given primary responsibility to classify their operations under the Order. Many are finding that they qualify as “Essential Businesses” allowed to stay open, and are looking for further guidance regarding compliance. The Essential Business classification is not a magic pass that allows business as usual – businesses still must comply with guidelines to slow and limit the spread of COVID-19, which is overarching purpose of the Order. Those guidelines are established in sections 15 and 18 of the Order.

Here are the key steps for Essential Businesses complying with the Order:

1. Have nonessential employees stay home. Even for Essential Businesses, nonessential operations should be closed, and those employees sent home or give work that can be done entirely at home. This is the overarching point of the Order, and sending employees home will not violate the Order.
2. Separate certain individuals.
   1. Identify everyone who can work from home, and make allowances for them to do so (section 18(b)).
   2. Vulnerable customers and other individuals (section 15(a)(iii)). Vulnerable customers should be provided special hours (e.g., grocery stores having special hours for seniors).
   3. Sick employees (section 18(d)). Employees with respiratory distress should be sent home. Employees can also be encouraged to self-assess for symptoms every day before coming to work (section 18(c)). New information indicates that coronavirus causes patients to lose their sense of smell and taste, so a “smell test” could also be part of the self-assessment guideline.
3. Proactive Social Distancing (section 15(a)(i)). We have heard a lot lately about social distancing and the six-foot rule, but the key for employers is to be proactive. It’s not enough to mention social distancing in the morning staff meeting (esp. if you are not practicing social distancing at the time) or to send an indifferent email. Employers are required to designate markers for separation, such as taping off the floor or establishing distance between workstations. Each employer can scrutinize the workplace for social distancing measures, focusing on places where employees line up or congregate, such as bathrooms and break areas, and implement appropriate barriers and markers; other physical interaction points should be scrutinized, such as customer counters and delivery areas.
   Being proactive about implementing and communicating workplace safety protocols establishes common cause with workers, letting them know that their employer takes the lead in providing for their safety in a real way, and respects their efforts to keep the enterprise going in a time of crisis. Maintaining workplace morale and culture will be especially important as the pandemic tears through our community and fewer healthy people are able participate in the workplace.
4. Proactive Workplace Hygiene (section 15(a)(ii), 18(e) and (f)). Again, the key is for employers to be proactive. Workplace hygiene in the order mainly consists of hand hygiene and common surface cleaning. Management must make sure soap, hand sanitizer, and disinfectant supplies are readily available, and be proactive about using them. Reinforcing hygiene messaging will promote a workplace culture that helps slow infection rates. Employers must diligently and frequently clean “high touch” surfaces, such as doors, countertops, handles, and workstations. Employers should scrutinize their particular workplaces for other common surfaces where multiple employees could spread infection.
5. Modify Policies. The most important workplace policy in the order is to have sick workers stay home (section 18(b), (d), and (e)). Return to work guidelines are also included in the order (section 18(b)), which follow current CDC recommendations. Employers are encouraged to implement sick leave policies that are current, flexible, and nonpunitive to allow sick employees to stay home. The “nonpunitive” element means, don’t implement emergency policies that punish employees for staying home when they are sick or not safe at work.

Gov. DeWine’s office recommends that anyone encountering a business that is not in compliance with the safety standards set forth in the Order first call the noncompliance to the attention of the business, then, if compliance is not forthcoming, to report the business to the local health department or police department.

**This information is offered for discussion, marketing and news purposes and is not intended to constitute legal advice.**