September 15th, 2020 by Laura Wilson
September 2nd, 2020 by Austin LiPuma
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
July 2nd, 2020 by Laura Wilson
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.
June 22nd, 2020 by Elizabeth Newman
The Department of Labor recently issued guidance on when an employee may take leave under the Families First Coronavirus Response Act (FFCRA) to care for a child whose summer camp, summer enrichment program, or other summer program has been cancelled for COVID-19 related reasons. The DOL’s guidance is here.
As we have posted in earlier blogs: Families First Coronavirus Response Act: What Does It Mean For Workers?, More Families First Coronavirus Response Act Guidance for Workers, and More Updates on Paid Leave for Workers under the Family First Coronavirus Response Act and Limits on Paid Leave under the Act, the FFCRA requires public employers and private employers with less than 500 employees to provide eligible workers with up to 80 hours of paid sick leave and up to 12 weeks of expanded family and medical leave, under certain circumstances, including if an employee is unable to work or telework due to a need to care for his or her child whose school, daycare, or other place of care is closed for COVID-19 related reasons.
Because many camps were cancelled before children were enrolled, there has been confusion about whether a summer camp or summer program qualifies as a “place of care” under the FFCRA. The DOL guidance tries to clarify what a worker must show to be eligible for leave under the FFCRA based on the closure or cancellation of their child’s summer camp or program.
Under the DOL guidance, summer camps and programs may qualify as places of care for the purposes of FFCRA leave. If a worker wants to request FFCRA leave based on the closure of their child’s summer camp, under DOL guidance the following circumstances are examples of what would qualify:
- The child was enrolled in the camp or program before it closed;
- The employee took other action steps short of actual enrollment, like submitting an application or deposit, before the camp was closed or cancelled; or
- The child had previously attended the camp or program, for example, if the child attended during the summers of 2018 or 2019, showing that the camp or program would have been the child’s place of care during summer 2020, as long as the child would have been otherwise eligible to attend.
But these are only some examples. A child who, for example, only recently met the age requirement for a summer camp could not have attended the camp in prior years. The same would be true of a child who recently moved from an area not serviced by the summer camp that the child planned to attend this summer or of a child whose parents had not yet made summer arrangements at the outset of the COVID-19 pandemic and delayed doing so due to uncertainty surrounding summer camps’ and programs’ operations. In those cases there may be other ways to show that a particular camp or program would have been the child’s place of care this summer.
Generally, a worker requesting FFCRA leave needs to give their employer information in support of the need for leave either orally or in writing, including the reason for leave and a statement that the employee is unable to work because of that reason. In the case of leave because a child’s summer camp or summer care program is closed or cancelled, the employee must provide: (1) the name of the child, (2) the name of the specific summer camp or program that would have been the place of care for the child had it not closed, and (3) a statement that no other suitable person is available to care for the child.
We are working hard to stay up to date on the latest changes to the law and regulations related to the Coronavirus Pandemic. The rapid changes can be confusing. As always, we are here to help with your employment questions and issues.
June 8th, 2020 by Lorena Kcomt - Law Clerk at Freking Myers & Reul
On June 15, 2020, the Supreme Court of the United States issued its opinion in Bostock v. Clayton County, holding that an employer violates Title VII by discriminating against individuals for being LGBTQ. The issue before the Court was whether the statute—which prohibits employment discrimination on the basis of sex—also prohibits discrimination on the basis of sexual orientation and gender identity. Writing for the six-member majority, Justice Gorsuch explained that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual on the basis of sex.”
To reach this holding, the Court focused heavily on the statute’s text. Title VII makes it “unlawful for an employer to fail or refuse to hire or discharge any individual, or otherwise discriminate against any individual, because of such individual’s sex.” The parties conceded that “sex” was probably not intended to include sexual orientation or gender identity when the statute was passed in 1964. But the probable intent of Congress in 1964 could not override the inevitable conclusions drawn from the statute’s text, the Court reasoned. And because sex is inextricably bound up in sexual orientation and gender identity, discrimination on the basis of sex includes discrimination on the basis of those two traits, as well.
To illustrate the point as to sexual orientation, the Court considered two hypothetical employees who were both attracted to men. The two employees differed only in their sex: one was a woman and one was a man. If the employer fired the man because he was attracted to men, but not the woman, then the employer’s decision was based solely on the sex of the employee. Likewise, if an employer fires a transgender woman employee but does not fire a cisgender (identifies with sex assigned at birth) woman employee for the same conduct, then the employer has treated them differently based on their sex assigned at birth. Because an employment decision based on whether an employee is LGBTQ necessarily takes sex into account, it violates the statute on its face.
One of the employers’ counterarguments has been to point out that two variables are changed among the hypothetical employees—both sex and another factor (e.g. sexual orientation). The employers argued that because these examples do not isolate sex as the determinative variable, they do not demonstrate that an employer has made a decision based on sex. This argument did not persuade the Court, in part because Title VII contemplates multiple causes for an employment decision. Because an employer violates Title VII when it intentionally fires an individual employee based in part on sex, it does not matter if other factors besides the plaintiff’s sex contributed to the decision.
The Bostock decision is enormously consequential for LGBTQ workers. Prior to the decision, workers in 25 states had no recourse if they were fired for their sexual orientation or gender identity. Now the Court has made clear that LGBTQ employees cannot be fired simply for being who they are.
We are all facing moments of uncertainty about returning to work during these trying times. Here are some answers to questions many may have at the moment.
Can I refuse to report to work?
Many states, including Ohio, consider employment to be ‘at will’ which means that an employer may fire you at any point, for any reason. There are many exceptions to the employment at will doctrine. The National Labor Relations Act (NLRA) gives workers the ability to file complaints if they are fired for protesting against unsafe working conditions. The Board will examine if the employees in good faith have concerns that their working conditions aren’t safe.
The NLRA only protects group-based actions however, and would not apply to individual workers who refuse to return to work for the sake of their own health.
The Americans with Disabilities Act (ADA) requires employers to provide disabled workers “reasonable accommodations” that permit them do their jobs as long as their request doesn’t pose an “undue hardship” for the business. So if a worker has a serious health condition that puts them at high risk for COVID-19 complications, their employer may have to let them take leave or work remotely, or provide other reasonable accommodation like a staggered work schedule, even if their office has reopened.
Do I lose unemployment benefits if I won’t go back to work?
The federal government has stated that workers can’t collect unemployment benefits if they refuse suitable work. Although there is no specific standard in determining what suitable work is, there are standards created by both the Social Security Act and the Disaster Unemployment Assistance Program.
The Social Security Act states that suitable work can’t be worse than comparable places of work.
The Disaster Unemployment Assistance Program states that work is not suitable if it presents an unusual risk to the health and of employees.
In Ohio, the process for determining whether to deny unemployment benefits for a refusal to return to work looks at whether good cause exists for refusing an offer of suitable work and as part of the process, facts are sought from both the employer and employee. Under the CARES Act, unemployment benefits are available to workers who are unable to work because of a COVID-19 related reason including:
- The individual has been diagnosed with COVID-19 or is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
- A member of the individual’s household has been diagnosed with COVID-19;
- The individual is providing care for a family member or a member of the individual’s household who has been diagnosed with COVID-19;
- A child or other person in the household for which the individual has primary caregiving responsibility is unable to attend school or another facility that is closed as a direct result of the COVID-19 public health emergency and such school or facility care is required for the individual to work; and
- The individual is unable to reach the place of employment because the individual has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
Does my employer have to protect me?
The Occupational Safety and Health Act (OSHA) has created some requirements for employers:
It requires that employers provide their employees with personal protection equipment.
It also requires employers to provide hand-washing facilities to non-mobile workers.
The state of Ohio has also established rules for employers:
Employers must require that all employees wear a face covering unless it is prohibited by regulation, violates industry/business standards, is not advisable for health reasons, or the employee works alone in a designated area.
Employers must also designate 6-foot distances with signs to provide adequate social distance between employees, allow as many employees as possible to work from home by using teleworking and video conferencing, and have sanitizing products readily available. Sanitizing and protection supplies include soap, hand sanitizer, tissues, disposable wipes, and no-touch disposables.
Employers are asked to have their employees clean commonly touched surfaces such as countertops, railings, door handles, and doorknobs.
Employers are also asked to send home any employees with acute respiratory illness symptoms and to separate them from the other employees to ensure everyone’s safety.
If you, as an employee, have filed a complaint to OSHA regarding unsuitable working conditions, and believe your employer has retaliated, you can file a complaint with OSHA.
If an employee feels that their working condition is unsafe in an Ohio business they can report their concern to their local Health Department through an online form. The form allows employees to report anonymously. ODH | Find Local Health Districts
For those in Hamilton County, Ohio, you can report unsafe conditions to: Hamilton County Public Health: File a Complaint
What happens if I get sick?
The Families First Coronavirus Response Act (FFCRA) requires that employers who have less than 500 employees provide short and long term leave to workers who are diagnosed with COVID-19 or can’t work for reasons associated with the virus.
Examples of reasons why employees may not be able to work because of COVID-19 include:
You are subject to a government isolation order; your doctor has instructed you to self-quarantine; you are experiencing COVID-19 symptoms; you are caring for those who have been ordered to quarantine or children whose schools have been canceled.
The FFCRA also makes it illegal for employers to retaliate against employees who have requested paid sick days or leave under the Act.
The FFCRA expanded the Family and Medical Leave Rights and states that employees must be returned to their former position or a similar position when they return from leave.
Employees who have been underpaid or unfairly denied time may sue their employers.
Employees who become sick while working may also be able to collect workers’ compensation from the state, for any injuries or illnesses that result from working. In these cases employees will need to show proof that they were infected with COVID-19 while at work.
The new laws stemming from the COVID-19 crisis and their impact on the rights of employees who are returning to the workplace can be complicated. We are here to help workers understand and protect their rights.