The Ohio Department of Job & Family Services (ODJFS) created a website for employers to report false claims of unemployment, available here. Employers should report to ODJFS any employees: (1) to which they offered work that the employee refused, (2) that refused to report back to work, or (3) that quit upon an offer to return to work. These employees will be ineligible for unemployment compensation benefits.

Any employee that refuses to return to work should be made aware that doing so will affect his/her eligibility for unemployment compensation.

The Equal Employment Opportunity Commission (EEOC) announced that it will delay the anticipated opening of the 2019 EEO-1 Component 1 (aka EEO-1 report) data collection and the 2020 EEO-3 and EEO-5 data collections due to the COVID-19 pandemic.

The EEO surveys collect data from employers on diversity statistics. The EEOC said that employers can delay submitting 2019 and 2020 EEO-1 Component 1 data until March 2021. That March 2021 date is subject to change. EEO-3 and EEO-5 data (covering local referral unions and public schools) is expected to be due in January 2021.

The EEOC is seeking approval to discontinue collecting Component 2 data: the much-debated compensation data.

As employers transition to return to work and return to in-office work, there will be employees who will be fearful of a return to work due to the risk of contracting COVID-19 in the workplace. How do employers handle those requests?

The employee fears contracting COVID-19 but has no underlying special risk factors

For those employees that fear contracting COVID-19 but have no underlying special risk factors, employers are free to do whatever they believe is best. They can terminate employment if the employee refuses to return to work. They also can place the employee on job-protected or non-job-protected unpaid leave.

The employee who fears contracting COVID-19 and has a disabling medical condition placing him/her at high risk

For those employees that fear contracting COVID-19 and have  underlying disabling medical conditions placing them at high risk, there are Americans with Disabilities Act (ADA) and state disability discrimination law concerns. The Equal Employment Opportunity Commission (EEOC) outlined accommodation options for employers:

  1. Changes to the work environment, such as designating one-way aisles or using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible;
  2. Temporary transfers to other roles with less contact with customers, clients, visitors, and/or other employees;
  3. Temporary transfers to shifts with less interaction with others;
  4. Re-assigning marginal job duties that are high-risk;
  5. Changing the work location to a desk or office with little contact with others;
  6. Telework; or
  7. Job-protected unpaid leave (if other accommodations do not exist).

Before making these temporary accommodations during the COVID-19 pandemic, employers can require certification by a healthcare provider of the underlying disability and the need to self-isolate because of that medical condition. Employers also can place an end date on the accommodation (such as the expiration of the current state or local stay-at-home or stay safe order ) and later revisit the end date as the situation changes. Employers that cannot safely accommodate a return to work and cannot facilitate telework should provide job-protected unpaid leave. Those employers should re-evaluate the leave at certain points in time and decide if the leave has become “indefinite,” such that continued accommodation in the form of job-protected leave is an undue burden. At present, there is no vaccine, and the COVID-19 pandemic is likely to last through 2020, job-protected medical leave until the pandemic is over may be an undue burden for many employers.

Accommodations do not need to be provided if they pose an undue hardship. What is an undue hardship during the pandemic may be different than what would have been a year ago. For example, it may be an undue hardship:

  1. To hire temporary workers to perform marginal functions;
  2. To acquire certain supplies necessary to the accommodation;
  3. To deliver items to teleworking employees who are self-isolating; or
  4. To accommodate anything that involves anything other than low-cost or no-cost, given reduced revenue.

I previously reported on the Governor’s Responsible Restart Ohio plan to phase-in a re-opening of businesses that were closed or affected by COVID-19. Originally, the plan required masks or face coverings for employees, customers, guests, and others. That requirement was eliminated one day later. Yesterday, on April 29, 2020, it was added back in for employees (not customers or guests) with exceptions. The revised requirement for all industries is below:

Face coverings are required while employers and employees are on the job, unless any one of the following apply:

  • An employee in a particular position is prohibited by a law or regulation from wearing a face covering while on the job
  • A face covering is not advisable for health purposes
  • Wearing a face covering on the job is against documented industry best practices
  • Wearing a face covering violates a company’s safety policies
  • There is a practical reason a face covering cannot be worn
  • An employee is sitting alone in an enclosed work-space. ​​​​​​

(If any of these exceptions apply to your business, or one of your employees, written justification must be provided upon request.)

Notably, the mandatory requirement to have employees work at home, if possible, was eliminated from the revised protocols.

My full updated blog is available here with a summary of all required protocols.

UPDATED 4/30/20:

On April 27th, Governor Mike DeWine announced a plan to re-open Ohio businesses that were closed by the stay-at-home order. The return to business (and work) will occur in phases. The Governor stressed that the five critical protocols, available here, for all businesses getting back to work are: (1) require face coverings for employees and recommend them for customers and guests; (2) daily health assessments of employees; (3) good hygiene; (4) cleaning and sanitizing workplaces during and after the workday; and (5) limiting capacity to achieve social distancing. He clarified that the stay-at-home order remains in place. The mandatory requirements and guidelines for operations apply regardless of whether the business is remaining open or re-opening. The Governor stated, “To not wear masks would be negligent and a mistake. We have to protect these employees.” However, the next day, on April 28, the Governor backtracked on the face covering requirement, making it a strong recommendation for employees, customers, and guests in all industries. On April 29, the requirements and recommendations changed again to make the face covering/masks mandatory for employees, with exceptions, but recommended for guests and customers.

The timeline is as follows:

  • Friday, May 1 – medical, veterinary, and dental offices that were closed may re-open; procedures not requiring an overnight hospital stay may resume
  • Monday, May 4 – manufacturing, distribution, construction, and office workplaces can re-open (if they were closed)
  • Tuesday, May 12 – consumer, retail, and services

There is no indication when commercial recreation, in-person restaurant dining, bars, and beauty and other personal services may resume or re-open.

Manufacturing, distribution, and construction must observe the following mandatory and optional procedures (a one-page printable guide available here):

  • Employees and guests:
    • Ensure a minimum of 6 feet between people; if not possible, install barriers
    • Face coverings are required while employers and employees are on the job, unless the face covering:
      • is prohibited by a law or regulation in the employee’s position;
      • is not advisable for health purposes;
      • is against documented industry best practices;
      • violates company safety policies;
      • practically cannot be worn; or
      • is unnecessary because the employee is sitting alone in an enclosed work-space.
      (If any of these exceptions apply to your business, or one of your employees, written justification must be provided upon request.)
    • Employees must perform daily symptom assessments
      • Require employees to stay home if symptomatic
    • Require regular hand washing
    • Stagger or limit arrivals of employees and guests
    • Personnel should work from home, if possible
    • Recommended best practices:
      • Face coverings recommended for guests
      • Provide a stipend for private transportation (for those employees who regularly relied on public transportation)
  • Shift patterns:
    • Daily disinfection of desks and workstations
    • Change shift patterns (e.g., fewer shifts)
    • Stagger lunch and break times
    • Recommended best practices:
      • Split into sub-teams, limit contact across sub-teams
      • Reduce pace to allow less FTEs per line
  • Physical spaces and workstations:
    • Ensure a minimum of 6 feet between people; if not possible, install barriers
    • Daily deep disinfection of high-contact surfaces
    • Space factory floor to allow for distancing
    • Regulate the maximum number of people in cafeterias and common spaces
    • Establish a maximum capacity (e.g., 50% of fire code)
    • Recommended best practices:
      • Close cafeteria and gathering spaces, if possible, or conduct regular cleanings
      • Daily deep disinfection of entire facility
  • When confirmed cases arise:
    • Immediately isolate and seek medical care for any employee who develops symptoms while at work
    • Contact the Local Health District about suspected cases or exposures
    • Shutdown shop/floor for deep sanitation
    • Recommended best practices:
      • Work with local health department to identify potentially infected or exposed individuals to help facilitate effective contact tracing/notifications
      • Once testing is readily available, test all suspected infections or exposures
      • Following testing, contact local health department to initiate appropriate care and tracing

Office environments must observe the following mandatory and optional procedures (a one-page printable guide available here):

  • Employees and guests:
    • Ensure a minimum of 6 feet between people; if not possible, install barriers
    • Face coverings are required while employers and employees are on the job, unless the face covering:
      • is prohibited by a law or regulation in the employee’s position;
      • is not advisable for health purposes;
      • is against documented industry best practices;
      • violates company safety policies;
      • practically cannot be worn; or
      • is unnecessary because the employee is sitting alone in an enclosed work-space.
      (If any of these exceptions apply to your business, or one of your employees, written justification must be provided upon request.)
    • Employees must perform daily symptom assessments
      • Require employees to stay home if symptomatic
    • Require regular hand washing
    • Reduce sharing of work materials
    • Limit travel as much as possible
    • Stagger arrival of all employees and guests
    • Post signage on health safety guidelines in common areas
    • Recommended best practices:
      • Face coverings for guests
      • Enable natural workplace ventilation
      • Health questionnaire for symptoms at entry
      • Temperature taking protocol
  • Physical spaces and workstations:
    • Frequent disinfection of desks, workstations, and high-contact surfaces
    • Daily disinfection of common areas
    • Cancel/postpone in-person events when social distancing guidelines cannot be met
    • No buffet in cafeteria
    • Utilize disposable tableware and other materials
    • Establish a maximum capacity (e.g., 50% of fire code)
    • Recommended best practices:
      • Redesign/space workstations for 6 feet or more distance between employees
      • Close cafeteria and gathering spaces, if possible, or conduct regular cleanings
      • Limit congregation in office spaces (the ban on in-person gatherings of more than 10 people remains in effect)
      • Divide essential staff into groups and establishing rotating shift
      • Availability of at least 3 weeks of cleaning supplies
  • When confirmed cases arise:
    • Immediately isolate and seek medical care for any individual who develops symptoms while at work
    • Contact the Local Health District about suspected cases or exposures
    • Shutdown workplace for deep sanitation if possible
    • Recommended best practice:
      • Work with local health department to identify potentially infected or exposed individuals to help facilitate effective contact tracing/notifications
      • Once testing is readily available, test all suspected infections or exposures
      • Following testing, contact local health department to initiate appropriate care and tracing

Consumer, retail, and services must observe the following mandatory and optional procedures (a one-page printable guide available here):

  • Employees:
    • Ensure a minimum of 6 feet between people; if not possible, install barriers
    • Face coverings are required while employers and employees are on the job, unless the face covering:
      • is prohibited by a law or regulation in the employee’s position;
      • is not advisable for health purposes;
      • is against documented industry best practices;
      • violates company safety policies;
      • practically cannot be worn; or
      • is unnecessary because the employee is sitting alone in an enclosed work-space.
      (If any of these exceptions apply to your business, or one of your employees, written justification must be provided upon request.)
    • Employees must perform daily symptom assessments
      • Require employees to stay home if symptomatic
    • Require regular hand washing
    • Place hand sanitizers in high-contact locations
    • Clean high-touch items after each use (e.g., carts, baskets)
    • Recommended best practices:
      • Face coverings recommended for customers and guests
      • Group employees by shift to reduce exposure
  • Customers and guests:
    • Ensure a minimum of 6 feet between people
    • Specify hours for at-risk populations (e.g., elderly)
    • Place hand sanitizers in high-contact locations
    • Ask customers and guests not to enter if symptomatic
    • Stagger entry of customers and other guests
    • Recommended best practices:
      • Face coverings to be worn while shopping or visiting
      • Health questionnaire for symptoms at entry point
      • Provide face coverings upon entry
      • Where possible, accept customers by appointment only
      • Increase availability for curb-side pickup
      • Consider suspending return policies
  • Physical spaces:
    • Ensure a minimum of 6 feet between people; if not possible, install barriers
    • Post social distancing signage and disinfect high-contact surfaces hourly
    • Clean merchandise before stocking, if possible
    • Establish a maximum capacity (e.g., 50% of fire code)
    • Discontinue self-service food stations and product samples
    • Food courts remain closed
    • Recommended best practices:
      • Close once a week for deep cleaning
      • Maximize available checkout space to promote social distancing (e.g., space customer lines with floor markers, use alternate registers)
      • Use contact-less payments where possible
      • Increase capacity for delivery and curb-side pickup
  • When confirmed cases arise:
    • Immediately isolate and seek medical care for any individual who develops symptoms while at work
    • Contact the Local Health District about suspected cases or exposures
    • Shutdown shop/floor for deep sanitation if possible
    • Recommended best practice:
      • Work with local health department to identify potentially infected or exposed individuals to help facilitate effective contact tracing/notifications
      • Once testing is readily available, test all suspected infections or exposures
      • Following testing, contact local health department to initiate appropriate care and tracing

Businesses that remain closed (indefinitely, for now):

  • Schools (K-12 schools)
  • Restaurants and bars
    • Carry-out and delivery services are permitted.
  • Beauty services
    • Hair salons, day spa, nail salons, barber shops, tattoo parlors, body piercing locations, tanning facilities, massage therapy, etc.
  • Older adult day care services and senior centers
  • Adult day support or vocational rehabilitation services in congregate settings
  • Rooming and boarding houses, and workers’ camps
  • Entertainment/recreation/gymnasium sites
    • All places of public amusement, whether indoors or outdoors, such as:
      • Laser tag facilities, roller skating rinks, ice skating rinks, arcades, indoor miniature golf facilities, bowling alleys, indoor trampoline parks, indoor water parks, arcades, and adult and child skill or chance game facilities;
      • Gambling industries;
      • Auditoriums, stadiums, and arenas;
      • Movie theatres, performance theatres, and concert and music halls;
      • Public recreation centers and indoor sports facilities;
      • Parades, fairs, festivals, and carnivals;
      • Amusement parks, theme parks, outdoor water parks, children’s play centers, playgrounds, and funplexes;
      • Aquariums, zoos, museums, historical sites, and similar institutions; and
      • Country clubs and social clubs.
    • Spectator sports, recreational sports tournaments, and organized recreational sports leagues
    • Health clubs, fitness centers, workout facilities, gyms, and yoga studios
    • Swimming pools, whether public or private, except swimming pools for single households
    • Residential and day camps
    • Campgrounds, including recreational camps and recreational vehicle (RV) parks

According to the EEOC’s updated guidance, during the course of the coronavirus/COVID-19 pandemic, employers may use the “direct threat” exception to conduct medical tests of employees entering the workplace.

Ordinarily, an invasive antibody test or infection test for COVID-19 would be an impermissible medical examination under the Americans with Disabilities Act (ADA). However, this medical examination is permitted during the pandemic because of the direct threat posed by infected employees.

Consistent with the ADA standard, employers should ensure that the tests they use are accurate and reliable.  For example, employers may review guidance from the U.S. Food and Drug Administration about what may or may not be considered safe and accurate testing, as well as guidance from CDC or other public health authorities.  Employers may wish to consider the incidence of false-positives or false-negatives associated with any test they consider using.  Finally, note that accurate COVID-19 testing only reveals if the virus is currently present at a threshold level; a negative test does not mean the employee will not acquire the virus later. Only antibody testing, once widely available, will show an employee with a past infection who is now immune.

Based on guidance from medical and public health authorities, employers should still require – to the greatest extent possible – that employees observe infection control practices (such as social distancing, regular hand washing, and other measures) in the workplace to prevent transmission of COVID-19.

Congress passed a myriad of tax credits, deferments, loans, and forgivable loan payments in response to the COVID-19 pandemic. Employers struggling to navigate the different options should work closely with their lender, accountant, and legal counsel.

Qualified Sick and Family Leave Tax Credits

Wages paid for COVID-19 family and sick leave under the Families First Coronavirus Response Act (FFCRA) will be refunded to employers through a dollar-for-dollar credit against payroll taxes owed. If that amount exceeds the payroll tax obligation for any quarter, it should be reported on the employer’s quarterly Form 941 to receive reimbursement. Employers can claim an advance refund using Form 7200 to obtain an advance on an anticipated excess credit/refund, which should be processed within 2 weeks.

Qualified leave is available for qualifying sick leave (2 weeks) and expanded COVID-19 FMLA (up to 10 weeks) taken from 4/1-12/31/20. This is only available to employers with less than 500 employees.

This credit cannot be claimed in conjunction a PPP loan with forgiveness of payroll costs–meaning that the same set of wages covered by the FFCRA sick or family leave cannot be included in the PPP loan forgiveness wage calculation.

Employee Retention Credit

For wages paid from 3/12-12/31/20, employers can take a 50% refundable payroll tax credit on wages if the business is:

  1. Fully or partially suspended due to orders from an appropriate governmental authority due to COVID-19; or
  2. Has gross receipts, for at least one quarter, that are less than 50% of gross receipts for the same quarter in 2019; the period of significant decline in gross receipts is recognized until gross receipts for a quarter are greater than 80% of gross receipts for the same quarter in 2019.

A refundable credit of 50% of the employer’s share of social security taxes, on up to $10,000 of wages and health insurance premiums paid 3/12-12/31/20 can be claimed.

For employers with 100 or fewer full-time employees, the credit can be claimed, regardless of whether business is suspended. For employers with more than 100 full-time employees, the credit applies only to employees who are not working (on a paid furlough) due to COVID-19.

Note that any employee retention credits for Q1 2020 should be reported in Q2 with the Q2 2020 retention credits. This employee retention credit is not available to employers receiving a PPP loan. It can be claimed in conjunction with qualified sick and family leave credits and payroll tax deferral, but an employer may not double (or even triple) dip by claiming a credit for the same wages under the employee retention credit and FFCRA sick and family leave.

PPP Loan

The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) provides for Paycheck Protection Program (PPP) loans, whereby 8 weeks of payroll costs can be forgiven. The loans can be used for payroll costs, rent, mortgage interest, and utilities. 75% of the loan must be used for payroll. The forgiveness amount is reduced for any decrease in headcount or a 25% decrease in salaries and wages for any employee who made less than $100,000 in 2019 (unless restored by June 30, 2020). Payroll costs in excess of $100,000 per year per employee are not eligible for forgiveness.

Use of this program disqualifies an employer for employee retention credits. An employer may not include FFCRA sick and family leave wages counted as a payroll tax credit in the PPP loan forgiveness calculation.

Deferral of Payment for Social Security Taxes

Employers can defer payment of social security tax payments due for 3/27-12/31/20 to 12/31/21 and 12/31/22, with 50% due on each date. All employers are eligible for this benefit, unless they take loan forgiveness under the PPP, in which case they can defer payroll taxes up to the point that the forgiveness is granted.

The EEOC released additional guidance on the types of questions employers can ask about symptoms and diagnosis and handling COVID-19-related information. This information is important for those “essential” businesses continuing to operate and keep their employees safe.

What can employers ask when an employee calls in sick?

Employers may ask if the employee has symptoms of COVID-19: fever, chills, cough, shortness of breath, and sore throat. Employers also may ask about new symptoms reported by the CDC to possibly be related to COVID-19, such as loss of smell and taste, diarrhea, nausea, and vomiting.

What can employers do to screen employees reporting to work?

Employers may ask about symptoms associated with COVID-19, such as those identified above. Employers also may ask employees if they have been exposed to COVID-19 or tested for COVID-19, and the results of any testing.

Employers may measure employee body temperature during the COVID-19 pandemic, and in Ohio, are encouraged to do so at the start of each workday or shift. (Ordinarily, this is considered a medical examination and is prohibited.) A temperature of 100.4F or higher is considered a fever and a potential symptom of COVID-19. Note that time spent waiting to have one’s temperature taken likely will be considered “working time” under the FLSA and should be paid time.

Employers may require employees with a fever or symptoms of COVID-19 to stay home from work.

According to EEOC guidance, employers may bar employees from the workplace if they refuse to answer screening questions about symptoms or refuse to have their temperature taken.

What can employers do with medical information gathered about symptoms or from taking daily temperature readings?

It must be stored in a confidential medical file. Use of the employee’s regular confidential medical file is permitted for this purpose.

What if an employer suspects that an employee has COVID-19; can the employer just ask that employee about their medical symptoms and take his/her temperature?

Yes, with a reasonable belief based on objective evidence indicating that the employee may have COVID-19. An example could be an observation that the employee seems unwell or is coughing at work.

Can an employer ask if an employee’s family members or household members have COVID-19?

No. It would be a violation of the Genetic Information Nondiscrimination Act (GINA). The EEOC made it clear that the Americans with Disabilities Act (ADA) and GINA will continue to be enforced during the pandemic. An employer could alternatively ask about known exposure to a person with confirmed or presumed COVID-19.

What is an employer’s duty to notify others about an employee’s COVID-19 diagnosis?

An employer should keep the name(s) of employee(s) with COVID-19 confidential from other employees. An employer can disclose the COVID-19 diagnosis to public health authorities. An employer can and should notify employees of exposure to COVID-19 but should not disclose the identity of the employee, even if it is very likely that employees will figure out who it was. Only those at the employer with a need to know the information should be informed; this information should be handled the same as ADA accommodation and FMLA leave requests.

What can employers do to screen applicants?

Employers can screen employees post-offer for symptoms of COVID-19. Employers are permitted to delay the start date, or revoke the job offer, of employees with a fever or other COVID-19-related symptoms.

What accommodations might be required for essential workers?

For workers that must do their job duties in the workplace, some employees with medical conditions may require an accommodation to stay home and work remotely (if possible) or medical leave. Employers should require documentation from a healthcare professional to document the employee’s medical condition and the risk if the employee is required to report to the workplace and risk exposure to COVID-19. If the employee can report to work but requires additional precautions, examples of accommodations might be a different shift schedule (with reduced exposure to the public or co-workers), transfer to another position with less or no contact with others, physical barriers between the public or co-workers, an isolated workstation or office, or PPE, such as a mask. Employers should think creatively about separating employees during the pandemic. Conference rooms, break areas, etc. could be used as workstations to increase social distancing.

Any existing accommodations already in place should be modified, as needed, for the COVID-19 era by working with the employee and his/her healthcare provider.

Keep in mind that any accommodations during the COVID-19 pandemic are temporary and can be reevaluated as the risks from the pandemic are reduced or eliminated.

The Department of Labor (DOL) issued two guidance letters this past weekend clarifying the unemployment compensation expansion of the CARES Act, which was passed on March 27, 2020. The guidance letters direct state unemployment and workforce agencies to cover workers who normally do not qualify for unemployment compensation through the Pandemic Unemployment Assistance (PUA) program and/or the Federal Pandemic Unemployment Compensation (FPUC) program.

The PUA provides benefits to independent contractors, the self-employed, and gig economy workers. Workers lacking sufficient work history for regular unemployment also are covered. PUA is not payable to employees who are able to telework or who are receiving paid sick, family, or other leave. PUA provides up to 39 weeks of unemployment benefits for those employees who are unemployed, partially unemployed, or unable to work due to COVID-19 reasons. PUA ends on December 31, 2020.

The FPUC gives eligible individuals an additional $600 in federal unemployment benefits added to state benefits, through the end of July. It also extends state benefits by an additional 13 weeks. Basically, every type of unemployment is eligible for the federal supplemental FPUC payment, including those receiving benefits through the PUA program, through any period of unemployment ending on or before July 31, 2020.

The avalanche of employment lawsuits to come out of the COVID-19 pandemic has begun earlier than expected. The first wrongful death lawsuit has been filed.

The estate of Wando Evans sued Walmart, alleging that lax safety caused his death due to COVID-19 complications. Evans died on March 25. According to his lawsuit, Walmart sent Evans home on March 23 due to illness, and several days later, another worker at the same Illinois WalMart store died of COVID-19. According to the lawsuit, several other workers showed symptoms of COVID-19 and/or coronavirus infection, but Walmart did not act to bar symptomatic workers from the store until after Evans died.

The lawsuit claims that Walmart knew or should have known of the high risk of infection and exposure in the store and had a duty to provide a safe work environment. The lawsuit alleges that Walmart failed to take precautions recommended by the CDC and OSHA by failing to implement cleaning, sterilizing, and social distancing guidelines and failing to provide PPE like masks, gloves, and soap. The lawsuit alleges that the employer should have shut the store down when it knew of COVID-19 symptoms and communicated exposure to workers.

Walmart has countered by expressing its sympathies over the death of two employees and insisting that it has implemented cleaning and sanitizing measures and provided social distancing barriers between employees and customers. Employers in essential businesses face these rock-and-a-hard-place decisions because they must continue to operate during stay-home orders and cannot 100% eliminate COVID-19 exposure risk to their employees.

It is unclear whether Evans’ estate will be successful in this lawsuit, as it appears that he has a high bar to overcome workers’ compensation immunity and pursue his lawsuit in court. In addition, Evans’ estate will have a difficult time showing causation because COVID-19 is unlike any typical industrial illness because it could have been caused by exposure virtually anywhere.