Client Alert: Questions Employers Should Consider Before Reopening | Brouse McDowell | Ohio Law Firm

Client Alert: Questions Employers Should Consider Before Reopening

By Stephen P. Bond & Linda L. Stepan on May 5, 2020

5/13/20 OSHA UPDATE for Manufacturers

OSHA has publicly taken the position that, in view of the extraordinary circumstances, they, temporarily, may not hold employers to the letter of some workplace requirements, provided that the employer has demonstrated a good faith attempt to comply, but may have been hindered by problems beyond their immediate control, such as supply issues, from immediately and fully complying. Yesterday, OSHA and the CDC jointly issued guidance for manufacturers for how to deal with the virus in making decisions about returning to work. In the interests of being able to demonstrate “good faith,” it would be prudent to review their 12 page document and confirm what steps have been taken towards compliance. The newest guidance is available here.

The President recognized that a pandemic exists and declared a state of national emergency to exist effective as of March 13, 2020. While the State of Ohio is going to allow businesses to reopen, the “state of emergency” remains in effect as the predicate to the government’s purporting to restrict businesses.  The guidance listed below assumes that the “emergency” situation officially continues to exist (which is to say, once the emergency conditions are declared to no longer exist, different legal recommendations are likely to apply).  Here are some issues you may want to consider as you begin reopening.
1. An employer may be selecting some people to return to work, BUT not everyone is coming back immediately.  This can give rise to claims of discrimination based on age, pregnancy, and/or disability.  Can an employer decide to utilize one of these criteria in the interests of “protecting” an employee in one of these groups?
No.  The fact that, for example, the CDC may have identified that certain groups of people are more likely to have serious impact from the virus does not authorize an employer to make an employment decision for the employee, even though intended to protect the employee.
And, as in ordinary circumstances, an employer cannot ask an employee who does not have symptoms whether he/she has a medical condition that would make him/her especially vulnerable to the coronavirus.
In addition, be aware that, if an employee seeks an accommodation for return to work issues, and the employee potentially has a “disability,” then traditional requirements for attempting to reach a reasonable accommodation may come into play.
2. An employer starts calling people back to work.  An employee complains that the virus is still out there; and he/she will not leave the house for fear of getting it.  Is a generic fear of getting the virus a sufficient excuse for the employee to refuse to return?
No.  Fear of contracting the disease doesn’t gain any type of protection under the Federal programs for sick leave or expanded FMLA benefits.  Nor does it, in itself, constitute a “disability” that would gain ADA protection.  Ultimately, an employee could be terminated for refusing to return.
Bear in mind, however, that, under the Federal sick leave program, an individual with medical conditions could well be advised by a healthcare provider to self-quarantine, thereby being eligible for sick leave.  And, as discussed above, someone claiming a disability, could legitimately ask for reasonable accommodations.  Note also that it is possible for someone to have a preexisting mental illness, claiming that fear about returning to work exacerbates the problem; and such an individual would at least also be entitled to consideration for reasonable accommodation.
3. Can an employer calling people back to work require the employee to self-report as to his/her symptoms?
Yes, under the current emergency situation, because the return to work by someone who is already infected is considered to be a direct threat to the safety of the other employees.  Bear in mind that this information should be collected and maintained in a confidential manner, the same as would apply to medical information in general.
Employers can ask about the symptoms which the CDC has currently identified as appropriate to this disease.  At this time the symptoms or combinations of symptoms may be:
• Cough
• Shortness of breath or difficulty breathing

Or at least two of these symptoms:
• Fever
• Chills
• Repeated shaking with chills
• Muscle pain
• Headache
• Sore throat
• New loss of taste or smell
4. Can an employer take the temperature of people reporting for work?
Yes.  In fact, under the State’s conditions for allowing reopening of businesses, monitoring employee temperatures will be required.  The State guidance anticipates that employees could take their temperatures at home and report them at work.
5. Could an employer decide to test all the people reporting for work?
Yes.  The Ohio Department of Health advises employers intending to do so to be sure to only use tests that have been approved by the FDA for Emergency Use Authorization, something that some vendors assert when it is not actually true; the FDA provides written confirmation to a vendor when it has issued such an approval.
6. Could an employer insist that individuals returning to work from a medically-related leave have a medical clearance?
7. How should this information be maintained by the employer? 
Employers need to treat any of this information, including records on temperatures as “medical records,” the same as would normally be done before the virus.  That means it must be treated confidentially, and in records separate from standard personnel files.
8. Can an employer send home an employee who is exhibiting the symptoms of the coronavirus?
Yes.  In fact, the industry-specific instructions from the State to permit reopening require employees to stay home if symptomatic.
9. What are the working conditions that employers need to have in place to be allowed to reopen?
The State has posted on the internet specific ground rules it considers requirements as a condition for reopening with regard to: “Manufacturing, Distribution & Construction,” “Consumer, Retail & Services,” and “General Office Environments.”  These are readily available (and have been actively changing) at:
10. Will the reopening rules bring an end to the federal programs for sick leave and extended FMLA?
No.  Those programs exist independent of the State’s rules for closing and opening.  While, presumably, most employers have already dealt with and implemented leaves for employees due to the initial closure, bear in mind that employees who have not already exhausted those benefits will continue to have the potential right to qualify for leave if circumstances make them eligible.  Employees who have been working in essential businesses will continue to have federal sick leave rights if they acquire the virus; and employees whose child care providers remain closed due to the virus will continue to have the right to the extended FMLA benefits.
These rights continue through the end of 2020; and there is a continuing duty for employers to have posted at the workplace the federal notice of these rights.  That poster is readily available at this website:
11. If an employee contracts COVID-19, is it a compensable workers’ compensation claim?
Generally, the answer is no.  That is because people are exposed to COVID-19 in many different ways.  In order to establish an occupational disease claim, the employee must show that the condition was contracted in the course of employment and the employment creates a risk of contracting the disease in a greater degree and in a different manner than in the public generally.
The answer can be yes for an employee who can show that their job poses a special hazard or risk and that they contracted the disease from work exposure.
Three bills have been introduced in the Ohio General Assembly that would make it easier for an employee to prove a compensable claim.  All three bills shift the burden of proof to the employer to refute the presumption that COVID-19 was contracted in the course of and arising out of employment.  H.B. 573 would apply the rebuttable presumption to any employee required to work outside of their home.  H.B. No 571 would apply the rebuttable presumption to peace officers, firefighters and emergency medical workers.  H.B. 605 would apply the rebuttable presumption to employees of a retail food establishment and to employees of a food processing establishment.

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