Governor DeWine signed an executive order on June 16, 2020 that provides exceptions to the general rule that employees may not refuse to return to the workplace following a COVID-19 pandemic layoff or work-at-home situation. Employees with “good cause” may remain at home and refuse to work and still receive unemployment benefits. Good cause includes:

  1. Employee is over the age of 65;
  2. A medical professional’s recommendation that an individual not return to work because the individual falls into a category that is considered high risk for contracting COVID-19 by the Centers for Disease Control, and the employer cannot offer teleworking;
  3. Tangible evidence of a health or safety violation that does not allow the employee to practice social distancing, wear protective equipment, or practice appropriate hygiene;
  4. Employee has potentially been exposed to COVID-19 or has been prescribed a quarantine period by a healthcare professional; and
  5. Employee is staying home to care for a family member with COVID-19 or subject to a prescribed quarantine period by a healthcare professional.

Absent these “good cause” exceptions, an employee may not refuse an offer of “suitable work” and continue to receive unemployment benefits. Suitable work is any work that is consistent with the employee’s prior training and experience and need not be the same position as pre-pandemic.

It is unclear what constitutes “tangible evidence” of a health or safety violation. In addition, refusing to work due to COVID-19 related childcare issues or living with a high-risk household member are not included in the reasons to refuse to return to work.

Employers are free, however, to terminate any employee that refuses to work. This executive order does not affect a potential termination or require that the employer provide job protected or paid leave. This executive order only affects the eligibility for unemployment benefits. Employers should carefully consider the impact of the ADA, FMLA, CARES Act and FFCRA before taking any adverse employment action.

The U.S. Department of Labor announced June 24 that it will no longer automatically pursue double damages for overtime and minimum wage violations when it seeks to settle claims prior to filing suit. This new policy is effective July 1, 2020. This announcement follows an executive order by President Trump to eliminate regulations and enforcement policies that will impact the economic recovery in the wake of the COVID-19 pandemic shutdown.

The DOL clarified that it will still seek double damages (liquidated damages plus actual damages) where there is clear evidence of bad faith or a willful violation. Proof of a lack of bad faith could come in the form of the employer’s bona fide dispute of unsettled FLSA law and lack of past history of violations.

The DOL also noted that investigations and enforcement proceedings will move more quickly with the new policy.

EEOC charge data graph

The chart above illustrates charge filing data for fiscal year 2019. Retaliation charges continue to dominate EEOC charge filings. Following closely behind are disability, sex, and race discrimination charges. This should continue to serve as a reminder not to turn an otherwise meritless charge or complaint of discrimination into a good retaliation claim or charge by taking a negative action in response to a complaint or charge of discrimination. If employment action is taken following a recent complaint of discrimination, the non-discriminatory basis should be defensible based on objective criteria, policy, and/or past precedent.

OSHA released a guide to nonessential businesses on safely returning to work during the COVID-19 pandemic. Businesses should review this guidance, keeping in mind that businesses have a duty under OSHA’s general duty clause to keep employee’s safe. Following this guidance could operate as a defense to an employee safety complaint related to COVID-19 protections.

OSHA divides the reopening of non-essential businesses in terms of three phases:

Phase 1:

  • Limit in person work and observe social distancing for those returning to the workplace
  • Continue telework where feasible
  • Consider flexible work hours and locations to improve social distancing
  • Provide accommodations to workers at higher risk for severe COVID-19 complications–the elderly and those with serious underlying health conditions
  • Consider accommodations for workers with household members at higher risk of severe COVID-19 complications
  • Limit non-essential business travel

Phase 2:

  • Ease limits on the number of workers in the workplace, but continue strict social distancing
  • Continue to provide telework where possible
  • Resume non-essential business travel
  • Continue to accommodate high risk workers as identified in Phase 1

Phase 3:

  • Resume unrestricted staffing as normal

At all phases:

  • Develop a plan to monitor and respond to resurgence of COVID-19 in the workplace or community
  • Develop a plan for contact tracing in the event of a workplace exposure

A re-Opening plan should address:

  • Hazard assessment
  • Hygiene practices
  • Social distancing
  • Identification and isolation of sick workers
  • Return to work after illness or exposure
  • Controls, including PPE (NOTE: cloth face coverings are not PPE but may be advisable per health department guidance)
  • Workplace flexibility
  • Training
  • Anti-retaliation

OSHA noted in its FAQs that, if employers maintain records of temperature screenings and exposures, those records may be subject to its exposure and medical record standard, which requires retention for the duration of the employee’s employment plus 30 years.

Don’ts:

  • Don’t involuntarily exclude employees based on being over the age of 65 and thus “high risk” for contracting COVID-19. Doing so is illegal, even if the motivation is to keep the employees safe.
  • Likewise, don’t involuntarily exclude pregnant workers based on perceived virus risk to the employee or her child.
  • Don’t require COVID-19 antibody testing as a condition of workplace re-entry.

Dos:

  • Engage in an individualized assessment as to whether an employee with a disability can safely return to work, with or without accommodation, without being a direct threat to himself.
  • Provide accommodations for pregnant employees on the same terms as disabled employees to enable them to safely return to work.
  • Prevent harassment based on national origin (particularly, Chinese and Asian employees).
  • Provide accommodations based on caregiving responsibilities and school closures to employees on a gender-neutral basis.
  • Apply accommodations and policies consistently.

Do if you want:

  • Provide accommodation for work at home, if possible, for employees age 65 and older who choose not to return to work due to COVID-19 virus risk, even though it is not legally required to do so.
  • Provide accommodation for work at home to employees with high-risk family members, if possible.
  • Provide temperature screeners of the same gender.

In a decision on June 15th, the U.S. Supreme Court held 6-3 that the protections for “sex discrimination” include discrimination based on sexual orientation and gender identity. In three combined cases, the Supreme Court held that Title VII of the Civil Rights Act of 1964 protects against sexual orientation and gender identity because it is discrimination because of sex. Justice Gorsuch wrote the opinion in which Justices Ginsburg, Breyer, Sotomayor, and Kagan, and Chief Justice Roberts joined. Justices Alito, Kavanaugh, and Thomas dissented.

Prior to the decision, the Eleventh Circuit held that sexual orientation was not protected, while the Sixth and Second Circuit held that sexual orientation and gender identity were protected.

The opinion was based on a textualist approach to constitutional analysis. The Court wrote: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different
sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” Under this analysis, if an employer would have reached a different decision if the employee were of the other sex, sex discrimination occurred. Discrimination based on sexual orientation and gender identity involves two factors: sex and something else (either the sex to which the person is attracted or the sex to which the person identifies). Even with two causes, it still meets the definition of discrimination because of sex because the employment action would not have taken place but for the person’s biological sex.

The Court rejected the argument that “because of . . . sex” would not have been intended or understood to include homosexuality and transgender in 1964 when the statute was written. The Court held that something can mean one thing at one time and another thing at a later time, but the written word is the law, absent an ambiguity that requires looking at legislative intent.

The Court also rejected the argument that it is not discrimination “because of sex” when an employer treats males and females who are homosexual or transgender equally badly. Ultimately, the reason for the employment action comes back to the employee’s biological sex, at least in part.

Justices Kavanaugh, Alito, and Thomas accused the Court of legislating from the bench, which should be reserved for Congress. All three dissenting justices recognized that the result was good policy, while disagreeing with the Court’s role in achieving it.

The combined cases are: Bostock v. Clayton County, Georgia, No. 17-1618, Altitude Express, Inc., et al. v. Zarda, et al., No. 17–1623, and R. G. & G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission et al., No. 18–107

Undoubtedly, you received numerous communications from businesses by now about their responses or stances on the George Floyd issue, protests, and recent discussions about systemic racism. Should your business send one out to customers or vendors? What about employees? What should it say?

It is a business-specific decision about whether to send out a communication clarifying the company’s practices on discrimination and stance on systemic racism. If a business chooses to send one, the content should be customized to fit the business’s size, employee and customer demographics, policies, and culture. Keep in mind that many employees interpret silence to be a message of complicity.

Examples of content:

  • A statement of empathy
  • A message of inclusion
  • A statement condemning racism
  • Reiterating the company’s non-discrimination and non-harassment policies, specifically as to race, but confirming the commitment as to all protected classes
  • Reiterating the company’s diversity initiatives or equal employment opportunity efforts
  • Provide examples of affinity or employee resource groups (ERGs), if any, that are specific to minority employees
  • Examples of outreach or social action steps taken by the business, such as partnerships and/or donations to non-profits

Take care of your own house first. If a business chooses to send out a statement, the internal statement to employees should come before the external one to customers and/or vendors.

Some businesses are considering limiting their liability from COVID-19 infections in their facilities and workplaces through liability waivers for employees, guests, and other visitors. Are they a good idea? Probably not. Here’s why.

Employee waivers

Employer return-to-work COVID-19 waivers are problematic for a variety of reasons, most notably, the fact that they are likely an impermissible prospective (future) waiver of workers’ compensation claims. Basically, workers cannot release their claims under workers’ compensation laws for illnesses or injuries that have not yet occurred. (An exception to this rule is waivers for voluntary recreational activities, for which the Ohio Bureau of Workers’ Compensation has a required waiver form.) In the event that an employee successfully claimed that his/her illness fell outside of the workers’ compensation system, which would require proof of willful or intentional conduct that resulted in the employee’s COVID-19 illness, it is possible that the waiver would be useful, but unlikely. Why? Prospective waivers are rarely effective against intentional conduct.

Additionally, if the employee brought the COVID-19 virus home to family members or those with whom they live, it is unlikely that the employee’s waiver would effectively waive the claims of other adults (without their signature) or a child (without the signature of the other parent).

With the limited usefulness, why take the risk of alienating employees by asking them to sign something assuming the risk that they might contract COVID-19 in the workplace? A better approach is to follow all CDC, OSHA, and state health department guidance for reopening workplaces. Ohio’s sector specific operating requirements are available here.

Visitor and guest waivers

This category includes non-employees: guests, vendors, customers, etc. Workers’ compensation laws are not an issue. There are non-legal reasons that waivers are a bad idea for this group, for example: public relations, customer relations, logistics, and record keeping. Legally, prospective waivers may be effective against negligence claims, but just like employees, they will not hold up against gross negligence or intentional tort claims.

As with employees, an alternative to waivers is following CDC, OSHA, and state and local health department guidance on cleaning, social distancing, face coverings, capacity limits, and other requirements. Businesses also could consider posting signs on hygiene practices, encouraging face coverings, social distancing, and hand washing, and requiring those who are ill not to enter the business. The CDC has examples of these posters: face coverings, symptoms of coronavirus, hygiene, and stay home if you are sick. The Ohio Department of Health has its owns posters, available here.

 

 

Governor DeWine expanded Ohio’s responsible restart program and added several categories of businesses to the list of businesses that may reopen beginning June 10th:

  • Aquariums
  • Art galleries
  • Country clubs
  • Ice skating rinks
  • Indoor family entertainment centers
  • Indoor sports facilities
  • Laser tag facilities
  • Movie theaters (indoor)
  • Museums
  • Playgrounds (outdoor)
  • Public recreation centers
  • Roller skating rinks
  • Social clubs
  • Trampoline parks
  • Zoos

The following may open June 19th:

  • Amusement parks
  • Casinos and racinos
  • Water parks
  • Outdoor theatres

Sector specific operating requirements are available here.

The following remain closed:

  • K-12 schools
  • Certain spectator sports, sports tournaments, and organized recreational sports leagues
  • Recreational sports leagues involving contact sports
  • Parades, fairs, festivals, and carnivals
  • Auditoriums, stadiums, arenas (except as set forth above)
  • Older adult day care services and senior centers
  • Adult day support or vocational habilitation services in congregate settings
  • Rooming and boarding houses, and workers’ camps

UPDATED 6/17/20 with SBA interim guidance and new application

Businesses that took PPP loans now have more flexibility to spend the money than the original CARES Act and the IRS and SBA regulations permitted. More information and regulations on this new expansion should be forthcoming. The law is the Paycheck Protection Program Flexibility Act of 2020 (HR 7010).

Among the changes:

  • Extends the covered period to spend the PPP funds from 8 to 24 weeks (or 12/31/20), whichever is first;
    • However, post June 5th borrowers, MUST use the 24-week period, while pre-June 5th borrowers may choose between the 8- and 24-week periods
  • Extends the date from 6/30/20 to 12/31/20 that businesses have to rehire employees and restore salaries to 2/15/20 levels and still qualify for loan forgiveness;
  • Extends the loan period (for funds not forgiven) from 2 to 5 years but only for post-June 5th loans and only if the borrower applies for forgiveness within 10 months after the 24-week period;
    • Pre-June 5th loans are extended only by mutual agreement of the borrower and lender
  • Extends the payment deferral period (for funds not forgiven) from 6 months to 1 year;
  • Reduces the proportion of funds that must be used on payroll from 75% to 60% to qualify for forgiveness;
    • Spending less will result in 66.67% of rent, utilities, mortgage amount above the 40% threshold being forgiven and the rest not forgiven
  • Allows employers more exemptions to rehiring employees who were laid off due to the pandemic (inability to hire qualified employees and an inability to safely operate due to due to social distancing, sanitation requirements, or customer safety needs); and
  • Allows employers to defer 2020 payroll taxes under the CARES Act, even if the employer received PPP funds (defer 50% of the employer’s share of payroll taxes until 2021 and the remaining 50% until 2022).

Regulation changes:

  • A loan is “made” for purposes of the June 5th deadlines above when it is assigned an SBA loan number.
  • Principal and interest must be paid back 10 months after the 8- or 24-week period if no forgiveness application is filed.
  • Felons may apply for SBA loans, unless the felony was within 1 year or within 5 years for fraud, robbery, embezzlement, or false statements on a loan application.
  • New EZ forgiveness application released for borrowers that did not reduce wages by 25% or more, did not reduce average hours, and did not reduce employees, available here.

Will future legislation reverse the IRS’s position that payroll and other permitted expenses that were forgiven are not deductible expenses on the borrower’s 2020 tax returns? This was a frequent complaint because it effectively reduces the advantage of the PPP loan forgiveness by the rate of taxation. Everyone expected this issue to be addressed in the legislation, but it was not.