A New York federal judge struck down or limited several of the Department of Labor (DOL)’s restrictions on federal COVID-19 paid leave under the Families First Coronavirus Relief Act (FFCRA): (1) work availability requirement, (2) healthcare worker exemption, (3) intermittent leave employer consent, and (4) requirement to submit documentation before taking leave.

Work availability requirement

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:

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.

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

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

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

The CDC issued updated guidance for employers, including a user-friendly checklist for employers to prepare workplaces for return to work. Among the recommendations:

  1. Encourage employees to stay home when sick; provide flexible sick leave
  2. Physically ensure separation among employees
  3. Promote hygiene – frequent hand washing and sanitizing
    1. Post CDC posters on hand hygiene and coughing