COVID-19

Can Employees Be Required to Get a COVID-19 Vaccine?

December 29th, 2020 by

The arrival of the first two COVID-19 vaccines from Pfizer and Moderna (and news that a third vaccine from AstraZeneca may be close behind) is rare good news in the on-going fight against the global Coronavirus Pandemic.   As vaccine distribution has begun throughout the U.S., and shots are being given to certain high risk groups including healthcare workers and nursing home residents, employees have begun to ask the question: Can my employer require me to get the vaccine? The short answer is yes, with certain exceptions.  

While there is no law or regulation that directly addresses this issue, the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing the nation’s non-discrimination laws, recently issued guidance addressing mandatory COVID-19 vaccination policy issues.  The EEOC guidance suggests that employers may require their employees to get a COVID-19 vaccine once they become available as a condition of remaining at or returning to work.  But there are exceptions for employees who do not to get the vaccine due to either a medical disability or because of a sincerely held religious belief.   

Because some employees may be unable to receive the vaccine due to medical conditions, before an employer can exclude that worker from the workplace, the employer must show that the unvaccinated employee presents a significant risk of substantial harm to health or safety that cannot be eliminated or reduced through reasonable accommodations. In other words, the employer must attempt to accommodate an employee who cannot receive the vaccine due to a disability unless there is no reasonable way to do so. Only after conducting a review and finding that the disabled employee cannot be reasonably accommodated can the employer exclude the employee from the workplace. But the decision to exclude the employee does not automatically mean that the employer can simply fire the unvaccinated worker.  Instead, the employer has to review and evaluate whether other there are other accommodations that can be made, such as permitting the employee to work, or continue to work, remotely, or having the employee work in another location on-site where the threat is reduced or eliminated.

Employers also must accommodate employees whose sincerely-held religious beliefs prevent them from receiving the COVID-19 vaccine, unless doing so would present an undue hardship to the employer. If that is the case, the employer can exclude the employee from the workplace.  But just like with a disabled employee who cannot get the vaccine, an employer cannot automatically terminate the employee.  Instead, the employer must decide if any other accommodations can be provided to permit the employee to continue working, such as remote work or work in an alternate location.

The COVID-19 pandemic continues to raise unique questions and challenges for workers.  We are working hard to stay up to date on the latest changes to the law and regulations, and we are here to help with your employment questions and issues.

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SCAM ALERT: Ohioans Who Received Pandemic Unemployment Benefits Being Targeted

November 19th, 2020 by

The Ohio Department of Job and Family Services (ODJFS) announced today that it has learned of a potential scam targeting current and past recipients of Pandemic Unemployment Assistance. The notifications appear to be from the Ohio Department of Job and Family Services, and contain the agency’s logo, but they are not legitimate. They instruct those targeted to click on a link to obtain a pandemic stimulus benefit. The link requests personal information. ODJFS WARNS –DO NOT CLICK ON THE LINK OR PROVIDE PERSONAL INFORMATION IN RESPONSE TO THESE NOTIFICATIONS. ODJFS does not send these types of communications. ODJFS also warns all Ohioans to beware of scams using texting or emails to obtain your personal information.

Anyone who receives an email that they suspect may be a phishing attempt should not click on any links. Individuals who have received this notification are encouraged to report it to the Ohio Attorney General’s office at 1-800-282-0515 or ohioprotects.org.

For more information click HERE.

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Telework During the COVID-19 Crisis – Can Employees with Disabilities Keep Working from Home after Businesses Reopen?

September 15th, 2020 by

The Equal Employment Opportunity Commission (EEOC) is the federal agency in charge of enforcing workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA).  The law requires employers to provide reasonable accommodation for disabled employees to do their jobs.  Recent guidance from the EEOC suggests that employers who allowed employees to work from home to navigate stay at home orders during the pandemic may not be able to reject out of hand requests from their disabled workers to work from home even after the pandemic is over.

Under the ADA, if a reasonable accommodation is needed and requested by a disabled worker, the employer must provide it unless it would pose an “undue hardship,” meaning significant difficulty or expense.  An employer can choose among effective accommodations and does not have to provide the exact accommodation requested by the worker. 

For years many employees who requested to work from home as a reasonable accommodation under the ADA faced stark opposition from employers who claimed that allowing employees to work from home would decrease productivity or otherwise cause an undue financial or other burden on the business.  So employees’ requests to work from home were often denied.  

Over the past six months, many employers have allowed all or most of their employees, not just those workers with a disability covered by the ADA, to “telework” or work from home during the COVID-19 pandemic.  These remote work arrangements helped many business stay open throughout the stay at home orders issued in many states this spring and summer.  And, “teleworking” has been considered a reasonable accommodation during the pandemic for many disabled workers, especially those who are at higher risk of contracting COVID-19.  See the EEOC’s Pandemic Preparedness in the Workplace and ADA.   

The question now is whether the decision to send workers home or let them telework means that employers are required to provide similar accommodations for employees with disabilities in the future? The answer, according to the EEOC’s most recent guidance is, maybe. A disabled employee who was working from home because their employer shut down or assigned employees to work from home during the COVID pandemic is not automatically entitled to keep working from home as an accommodation once the employer recalls its workers to the office or worksite.  The EEOC guidance says that: 

If there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation. Or, if there is a disability-related limitation but the employer can effectively address the need with another form of reasonable accommodation at the workplace, then the employer can choose that alternative to telework.

But the guidance also notes that the need for telework is a fact-specific determination. So assuming all the requirements for telework as a reasonable accommodation are satisfied, the temporary telework experience brought on by the COVID pandemic could be used to show that an employee’s renewed request to work from home once the workplace reopens is reasonable and the employee can perform the job without an undue hardship to the company. In other words, the period of allowing telework because of the COVID-19 pandemic could serve as a trial period that establishes whether or not an employee with a disability can satisfactorily perform all essential functions of the job while working remotely.  According to the EEOC, the employer should consider any new requests for telework in light of this information. As with all accommodation requests, the employer is required to engage in a flexible, cooperative interactive process with its employees to determine what reasonable accommodation can be made under the ADA.  After the COVID pandemic and the reality that workers can effectively and efficiently perform many jobs working from home or other remote locations, employers should understand that telework is a reasonable accommodation.

For the most recent EEOC guidance see What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

 

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Personal Injury Claims During a Pandemic & Beyond: I contracted COVID-19 at work—do I have a personal injury claim?

September 2nd, 2020 by

Without exception, there is one question I’ve received more than any other in recent months: Do I have a personal injury claim against my employer if I get COVID-19 at work?

Short answer: No.

 

a. Personal Injury Claim

To explain why, it’s first important to understand the nature of the claim from the onset. Even prior to The Pandemic, a personal injury claim against an employer was a rarity. In Ohio, an employer is liable for an injury sustained at the workplace only when the employer acted “with the intent to injure another or with the belief that the injury was substantially certain to occur.” R.C. 2745.01. This exceedingly high bar requires an injured employee to prove the employer intentionally sought out to inflict harm or, as defined by the Ohio legislature, to act “with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.” Id.  

A further reading of the law seems to provide an opening when an employer’s conduct is particularly egregious in flouting COVID-19 mandates. Specifically, an employer may be liable for injury when the employer removes “an equipment safety guard” or makes a “deliberate representation about a toxic or hazardous substance.” Id. At this stage, nearly six months into The Pandemic, most have heard some horrific anecdote about an employer’s bad behavior—from forcing employees to remove masks to intentional misinformation about its spread within the company and everything in-between. Do these type of scenarios open the door for liability? If an employee is forced to take down a glass barrier protecting her from an upper respiratory disease, should that not be considered removal of an equipment safety guard?

Again, the short answer is no. The Ohio Supreme Court has adopted a narrow interpretation in applying the above exception by limiting the term “safety guard” to “a device designed to shield the operator from exposure to injury by a dangerous aspect of the equipment.” See Hewitt v. LE. Myers Co. 2012-Ohio5317. As such, removing a glass barrier or any form of PPE from an employee unequivocally increases the likelihood of contracting COVID-19. However, it does not subject the employee to a dangerous component of a piece of equipment.

b. Workers’ Compensation Claim

Fine. With the prospect of a personal injury claim all but vitiated, what about workers’ compensation, where there is no such requirement of proving fault whatsoever? While not an emphatic “no”, it is highly unlikely as we head into fall, 2020.

As with COVID-19 itself, there are a myriad of moving parts involved. Prior to the flurry of proposed local, state, and federal emergency legislation, the answer was clear—workers’ compensation was an available avenue when an employee became disabled after contracting an occupational disease. See R.C. 4123.01(F). The legislature provided an exhaustive schedule of what an “occupational disease” is and is not under R.C. 4123.68. The list of diseases is effectively dispositive although some illnesses not expressly listed, like emphysema or chronic bronchitis, may be compensable if a causal link is established.

In one piece of emergency legislation, The Ohio House proposed adding COVID-19 as an occupational disease for frontline workers. See H.B. No. 606. Specifically, the amendment included “a presumption, which may be refuted by affirmative evidence, that COVID-19 was contracted in the course of and arising out of the employee’s employment.” Am.Sub.H.B.No.606 As Passed by the House. However, The State Senate omitted this amendment in passing its own version of the bill. Sub.H.B.No.606 As Passed by the Senate. While not yet signed into law, this version is silent on any available remedies for workers through workers’ compensation. The final version (proposed as temporary or uncodified law) is expected to be signed by The Governor in early September, 2020.

If we have learned one thing from this year, it’s just how much can change week-to-week, sometimes even day-to-day. Currently, limited recourse is available for a worker who contracts COVID-19 while on the job. This may seem appropriate when a worker successfully recovers and returns to the job within a reasonable timeframe. However, this will not always be the case. We are actively learning just how pernicious this disease may be for long-term health. What about future complications from COVID-19? Or those that suffer from a protracted illness with symptoms that persist much longer than two weeks? Is there an effective avenue of recovery? Unfortunately, as you’re likely expecting, the short answer is no.

 

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Personal Injury Claims During a Pandemic & Beyond

July 4th, 2020 by

Treatment, Technology, & Telehealth: Receiving Care During COVID-19

Even prior to a pandemic, an emergency department (“ED”) was one of the last places any person would want to be. Since the known proliferation of COVID-19 in March, 2020, ED numbers have starkly declined by almost half, from 2.1 million visits between March/April, 2019 to 1.2 million visits between March/April, 2020. Of course, one of the contributing factors to this decline was the limited opportunity in which to sustain a trauma-level injury. Massive shutdowns meant less people on the road, which inherently meant less motor vehicle accidents. However, for many people that were injured and required treatment, the thought of going to an ED in the midst of a pandemic was distressing.

This Catch-22 did not go unnoticed by the Center for Disease Control and Prevention (“CDC.”) Recently The CDC, in their weekly mortality and morbidity weekly report, expressly recommended that those needing triage and trauma-level care seek out “virtual visits.” The CDC also acknowledged that those without an established primary care physician/accessible medical provider suffered further. Without treading into fear mongering, it is clear that COVID-19 will be with us one way or another for some time. Embracing and expanding Telehealth services, especially when it comes to personal injury claims, will assist in a dual-purpose way: 1) timely treatment for injured people; and 2) preserving personal injury claims.

It’s something we have all heard from a loved one at some point in our lives: “Go to a doctor.” I heard this from many when I foolishly failed to seek out immediate medical treatment after dislocating my shoulder several years ago. It was a learning lesson and one that I now use as a cautionary tale for many clients who, for whatever reason, express reticence in seeking necessary medical treatment. If you are experiencing pain, it is essential to go to a doctor (or any other qualified medical professional). Beyond the obvious in ensuring you obtain treatment for a noted injury, it is necessary in establishing “harm” in a personal injury claim.

The “harm” suffered in a personal injury claim is often referred to as “damages.” Under Ohio law, damages include many impacts suffered as a result of an injury. Often the largest calculable harm suffered comes in the form of medical damages. These damages include “all expenditures for medical care or treatment, rehabilitation services, or other care, treatment, services, products, or accommodations as a result of an injury or loss to person or property that is a subject of a tort action.” In other words, care from a medical provider is compensable. This is true whether you are standing face-to-face with the medical professional or through the lens of your smartphone/device. With the rapid increase of Telehealth services, a simple Google search should instantly turn up local, virtual providers, including ED-level care. The hope that Broadband and WiFi capacity will continue to grow across all geographical areas over time makes this all the more appealing.

Obtaining appropriate medical care following an injury has always been intrinsically costly, stressful, and time-consuming. This onus has been compounded by an ongoing pandemic. Taking advantage of technology with telehealth services helps preserve your physical wellbeing as well as a personal injury claim.

Remember: Go (virtually) to a doctor.

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