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How Nursing Homes Must Battle COVID-19

Mark Napier

As of this writing (4-7-20), US deaths from COVID-19 are increasing hourly. Many of these deaths have occurred in nursing homes. It is well-documented that the virus spreads rapidly. If an infected person coughs, sneezes, or even talks, it is now suspected by medical authorities that the infected person’s respiratory droplets can remain in the air for up to three days. So, nursing Homes are on the front lines in battling COVID-19.

Nursing home residents generally are elderly people with co-morbidity conditions that make them more at risk than healthy, younger persons. As we age, in general, our immune systems weaken. To assist nursing homes, The Centers for Medicare & Medicaid Services (CMS) and Centers for Disease Control and Prevention (CDC) have continually issued and updated their guidance for nursing homes. Nursing homes must take reasonable steps to comply with these guidelines, some that include the following:

* Strict immediate compliance with all CMS and CDC infection control guidance.
* Prohibition of all visitors, volunteers, and non-essential healthcare personnel to the facility.
* Prohibition of all resident group activities or gatherings, including communal dining facilities.
* Strict screening for fever of all personnel entering the facility, except EMS responding to an urgent medical need.
* Use of face masks by all personnel and by all residents having to leave their room for any reason.
* Personal Protection Equipment (PPE), such as face shields, eye protection, and gowns by all personnel who attend to residents who have or who are suspected of having the virus.
* Daily screening of all residents for fever, cough, or shortness of breath.
* Separate staffing and Isolation for all residents who have or are suspected of having the virus.

Nursing homes will likely need state and local leaders’ assistance to address some of these needs, particularly acquiring the proper PPE to treat virus patients and COVID-19 tests. If you have any questions or concerns about the care your loved one is receiving in a nursing home, please feel free to contact Mark Napier at mnapier@fmr.law.

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Essential Business and Operations under Ohio’s Stay at Home Order

Laura Wilson

On March 22, 2020, in response to the COVID-19 global Pandemic, Ohio Governor Mike DeWine and Ohio Health Director Dr. Amy Acton issued Ohio’s “Stay at Home Order” directing that all non-essential businesses be closed starting at 11:59 pm on Monday March 23, 2020.  Although this Order is slated end on April 6, 2020, Gov. DeWine indicated yesterday that the Order will likely be extended. The Order made mandatory many health and safety recommendations that the Governor had issued recently to combat Coronavirus in Ohio. The Order includes a list of the types of employers considered “Essential Business or Operations.”

Law Firms are considered an Essential Business under Governor DeWine’s Stay at Home Order. That means our law firm continues to operate during this crisis and is using technology to continue our mission of providing excellent legal services for our clients as Advocates for Working People. We are using phone and/or video conferences to meet with individuals who are seeking legal advice; conducting client meetings by phone and/or video; and participating in other legal proceedings like depositions and court appearances by phone or video where permitted by the courts. While many of us are working from home as recommended by the Governor’s Order, we are staying connected to our office and legal resources.

The Ohio Stay at Home Order also requires Essential Businesses and Operations to follow safe workplace guidelines. If your workplace, like ours, is an Essential Business or Operation under the Order, and is still open, the Order requires that employers do the following:

a. Allow as many employees as possible to work from home by implementing policies in areas such as teleworking and video conferencing.

b. Actively encourage sick employees to stay home until they are free of fever (without the use of medication) for at least 72 hours (three full days) AND symptoms have improved for at least 72 hours AND at least seven days have passed since symptoms first began. Do not require a healthcare provider’s note to validate the illness or return to work of employees sick with acute respiratory illness; healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.

c. Be sure that sick leave policies are up to date, flexible, and non-punitive to allow sick employees to stay home to care for themselves, children, or other family members. Consider encouraging employees to do a self-check each day to check if they have any COVID-19 symptoms (fever, cough, or shortness of breath).

d. Separate employees who appear to have acute respiratory illness symptoms from other employees and send them home immediately. Restrict their access to the business until they have recovered.

e. Provide protection supplies such as soap and water, hand sanitizer, tissues, and no-touch disposal receptacles for use by employees.

f. Frequently perform enhanced cleaning of commonly touched surfaces in the workplace, such as workstations, countertops, railings, door handles, and doorknobs. Provide disposable wipes so that commonly used surfaces can be wiped down by employees before each use.

For a copy of the Oho Stay at Home Order, click here.

The coronavirus pandemic, and its impact on employees, is changing quickly every day. Our attorneys are closely monitoring the situation and working hard to stay up-to-date on new developments in the law. For example, as we noted in a prior blog post, changes in the law under the Families First Coronavirus Response Act provides for emergency leave under the Family Medical Leave Act and the Emergency Paid Sick Leave Act for certain employees. See attorney Erin Heidrich’s post here.  If your employment has been impacted by the coronavirus pandemic, we are here to help.

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Expanded Access to Unemployment Benefits in Ohio

Erin Heidrich

The coronavirus pandemic has had a massive impact on unemployment rates across the country. Last month, the unemployment rate in Ohio was a little over 4%. While unemployment numbers have not yet been released for March, it is expected that the unemployment rate in Ohio could reach 20% or more.

Ordinarily, employees are eligible for unemployment benefits if they are laid off or if they are fired without a good reason. Unemployment benefits continue to be available for employees in those situations. If you are laid off for any reason, including the coronavirus pandemic, you should apply for benefits.

In addition, as a result of the pandemic, Ohio Governor Mike DeWine has signed an executive order that makes unemployment benefits available to even more people. The federal government has also recently passed the CARES Act, which extends unemployment benefits to most people who are out of work due to the coronavirus pandemic.

Governor DeWine’s Executive Order

Ordinarily, employees must wait one week following their termination/layoff to collect unemployment benefits. But Governor DeWine’s order states that this waiting period will be waived during the coronavirus pandemic.

Additionally, if your employer, a medical professional, or a local health authority asks you to quarantine yourself because you have possibly been exposed to COVID-19 (the disease caused by the coronavirus), you are also eligible to collect unemployment benefits during the time you are quarantined.

These new rules are in effect now, and will last until Governor DeWine determines that Ohio is no longer experiencing a state of emergency.

CARES Act

Last week the federal government passed the CARES act, which provides significant relief to unemployed people. Under CARES, eligible workers will get an extra $600/week on top of the amount paid by the State of Ohio. For the first time, gig workers (like Uber drivers and Doordash deliverers), freelancers, independent contractors, and self-employed people will be eligible to collect unemployment benefits.

Under CARES, you can collect unemployment benefits if you are out of work because you are experiencing symptoms of COVID-19, have been diagnosed with COVID-19, or are caring for a family member who has COVID-19. You are also eligible if you are unable to work because your child’s school or daycare has closed, or because you are caring for an elderly relative whose care facility has closed. People who were about to start a new job and now cannot work due to the pandemic are also covered.

Note, however, that neither Ohio law nor the new federal law cover employees who resign from their employment voluntarily because they are afraid of contracting the virus.

How to Apply for Benefits

Many more people are eligible for unemployment benefits than ever before. If you are out of work, you should apply for benefits even if you are not sure whether you are covered. While there are many factors that contribute to benefit eligibility, the Ohio Department of Job and Family Services, which processes unemployment claims in Ohio, can assist you in determining whether you are eligible. To file a claim online, visit https://unemployment.ohio.gov. To file a claim by phone, call 1-877-644-6562.

If you have questions about unemployment benefits, or if your claim has been denied and you need help, contact us. Our attorneys are staying up-to-date on these rapid changes to the law.

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More Families First Coronavirus Response Act Guidance for Workers

Laura Wilson

The Families First Coronavirus Response Act (FFCRA) passed by Congress last week contains two key provisions that affect many workers. First, the Act expands Family and Medical Leave Act (FMLA) rights (called the Emergency Family and Medical Leave Expansion Act).  Second, the Act gives some employees a right to paid leave in certain circumstances (called the Emergency Paid Sick Leave Act).  The Department of Labor has not yet issued its regulations explaining how this law operates but it did answer some Frequently Asked Questions with important information for workers.

Here are some important points for workers to know:

* The FFCRA’s paid leave provisions are effective on April 1, 2020, and apply specifically to leave taken between April 1, 2020, and December 31, 2020.
* The Family and Medical Leave Act that existed before the coronavirus is still in effect and employees have all of their former rights under that law.
* The FMLA has been expanded under the new emergency provisions to include some paid leave.
* Under the FMLA Expansion Act not all FMLA leave is now paid leave. The only leave that must be paid under the Emergency Family and Medical Leave Expansion Act is when the FMLA leave exceeds ten days and is taken because the employee must care for a child whose school or daycare closed for reasons related to COVID-19.
* Under the Emergency Paid Sick Leave Act any paid leave that an employer offered prior to the coronavirus pandemic stays the same, but the emergency law creates rights to additional sick leave in certain circumstances.
* Workers are entitled to paid sick leave if they cannot work because the employee is subject to a quarantine order, the employee has been told by a doctor or other health care provider to self-quarantine, the employee is experiencing symptoms of COVID-19, the employee is caring for someone who is sick or quarantined, or the employee is caring for children because their school or daycare is closed.
* Workers covered by this law are entitled to paid sick leave, but the law caps at 80 the number of hours of paid leave. So if an employee takes 80 hours of paid sick leave because he or she in quarantine, that worker cannot take additional paid sick leave under this law for one of the other four reasons, like caring for someone else who is sick.
* An employee may be eligible for both types of leave, but only for a total of twelve weeks of paid leave to care for a child whose school or day care is closed due to COVID-19 related reasons.

Employment laws are complex and, in this unprecedented situation, they are changing rapidly.  The FFCRA is no exception. Under this new law, workers who have to take time off because of the coronavirus pandemic may be entitled to paid sick leave and/or paid leave under the FMLA emergency expansion. As always, we are here to help you with your employment situation.

For more information on who qualifies for relief under the FFCRA and what the laws cover see Erin Heidrich’s recent post on the subject.

Click here to view the DOL’s poster with information employers are required to provide to their employees.

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Families First Coronavirus Response Act: What Does It Mean For Workers?

Erin Heidrich

The Families First Coronavirus Response Act was signed into law on March 18, 2020.  What does the Act mean for workers?

The Families First Coronavirus Response Act contains two key provisions that may impact workers: first, the Act expands Family and Medical Leave Rights (called the Emergency Family and Medical Leave Expansion Act).  Second, the Act gives employees a right to paid leave in certain circumstances (called the Emergency Paid Sick Leave Act).  These laws become effective on April 2, 2020 and expire at the end of the year.  The laws only apply to smaller employers, with fewer than 500 employees.  (Employers with fewer than 50 employees may be exempt in some cases).

Emergency Family and Medical Leave Expansion Act

The Family and Medical Leave Act that existed prior to the coronavirus pandemic continues to exist, and employees retain all of their former rights under that law.  But under the new Emergency Family and Medical Leave Expansion Act, employees are eligible for leave if:

  1. Their employer has fewer than 500 employees
  2. They have been employed for 30 days
  3. They are unable to work (in person or remotely) because they need to care for a child due to a school or daycare closure.

Employees who qualify may take leave for up to 12 weeks.  The first 10 days of leave are unpaid. However, the employee may take existing paid leave during this time, or use Emergency Paid Sick Leave (explained below).

After the 10 unpaid days, the employee must be paid 2/3 of his or her regular salary or hourly rate, up to a maximum of $200/day or $10,000 total.

When an employee returns from leave, they must generally be returned to their former position or a similar position.

Emergency Paid Sick Leave Act

Any paid leave that an employer offered prior to the coronavirus pandemic continues to exist.  But the Emergency Paid Sick Leave Act creates rights to additional sick leave in certain circumstances.  Employees are entitled to paid sick leave if they cannot work (in person or remotely) for one of the following reasons:

  1. The employee is subject to a quarantine or isolation order
  2. The employee has been advised by a health care provider to self-quarantine
  3. The employee is experiencing symptoms of COVID-19
  4. The employee is caring for a person who is sick or quarantined
  5. The employee is caring for children because their school or daycare is closed

Full-time employees are entitled to 80 hours of paid leave.  Part-time employees are entitled to be paid for the number of hours a day they worked, on average, in the two weeks before their leave.  The pay the employee receives depends upon the reason for the leave.

Independent contractors and self-employed individuals are eligible for refundable tax credits for days that they are unable to work.

Employees can still take whatever paid leave was available to them before this law was passed.  Employers cannot change their leave policies in response to the new law.

Employment laws are complex and, in this unprecedented situation, they are constantly changing.  As always, we are here to help you with your employment situation.

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