July 2nd, 2020 by Laura Wilson
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.
May 26th, 2020 by Laura Wilson
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.
May 26th, 2020 by Laura Wilson
Two companion bills, SB 308 and HB 606, are under consideration in the Ohio House and Senate. Fast-track hearings on these bills are set for Wednesday, May 27, 2020. The bills say businesses can’t be held liable for illnesses or death arising from what they did or did not do during a declared disaster. The proposed law does not explicitly mention COVID-19, making it apply to any illness and any disaster including events like tornadoes, floods, fires or other emergencies not related to COVID-19.
So far these bills have not received much public input. This is very concerning because this legislation would make it very difficult to hold bad actors accountable during any state of emergency in Ohio. HB 606 and SB 308 are extreme measures that harm Ohio citizens and allow businesses to injure and kill people with no liability. At a recent Senate hearing on SB 308, the bill’s sponsor admitted that as the law is written, if a business reopens and ignores Ohio Department of Health and CDC guidance by not limiting customers inside, not enforcing social distancing, not requiring masks for employees, or failing to offer hand sanitizer and soap, the company would still be immune from lawsuits.
The provisions of the proposed law include:
- All health care providers are exempt from lawsuits and from professional discipline for all negligent and reckless acts taken, or not taken, because of a disaster or emergency.
The law is written so broadly that if a physician is drunk during a procedure to put a COVID-19 patient on a ventilator, and injures him or her, the patient cannot sue the doctor. Not only is the injured patient prevented from bringing suit for his or her injuries, but under the law, the medical board would not be allowed to investigate or issue any professional discipline to that doctor. This shield from liability even applies in places that care for our most vulnerable Ohioans, like nursing homes, adult day care centers, and residential homes that care for people with physical and mental disabilities.
- Businesses cannot be held responsible for the spread of a coronavirus during the disaster because the proposed laws bans lawsuits regarding exposure to any illness.
This lawsuit ban applies whether the business follows recommended safety guidelines or not. That means that a business that intentionally ignores the recommended safety guidelines cannot be held accountable if a customer or employee contracts an illness. So, for example, if a grocery store sells lettuce tainted with e-coli after a recall has been issued, and the contaminated lettuce is sold during a disaster or emergency, the business could not be sued for selling the recalled lettuce knowing that it will make customers sick.
The law would also protect employers from suit for recklessly endangering the health and safety of their employees, forcing employees to choose between keeping their jobs and keeping themselves and their families safe. The Workers Compensation system will not effectively protect employees from many potential illnesses like COVID-19. This part of the law means greater harm for people with disabilities and unrelated health problems, the elderly, and minorities and low-income populations who are all at greater risk of severe long-term illness or death if exposed to any illness.
- Under the Ohio Senate version of the law, all essential businesses such as grocery stores, pharmacies, manufacturers of PPE, meat processing plants, etc. are shielded from suit for all negligent and reckless acts or omissions taken, directly or indirectly, in providing its services during any disaster or emergency.
This means the law would shield these businesses from all suits for injuries, even those that are unrelated to COVID-19. This provision is so broad it could even shield employers who punish or fire employees for reporting unsafe conditions.
The bill will be retroactive to December 1, 2019, a completely random date which is more than three months prior to the current state of emergency declared by the Ohio Governor on March 9, 2020. There is no effective end date for declared disasters and emergencies in this legislation. So, businesses could continue to harm and kill people with no repercussions forever.
While many businesses support the proposed law, they also recognize that the law needs to be amended to offer protection to those businesses that follow the guidelines, not the ones who disregard them. The Buckeye Institute, a conservative think tank, called for changes to require that the legal standard for protection from lawsuits be tied to CDC or state health guidelines. Otherwise, the bill would shield business owners who act badly, who fail to provide proper safety measures for employees, and even reward those who are lax or ignore the recommended protocols. As currently written, HB 606 and SB 308 put vulnerable Ohioans at serious risk. These bills need to be amended to protect Ohio’s citizens and not just Ohio businesses.
To contact your Ohio state senator and ask that these bills be changed to protect Ohio workers and vulnerable citizens, you can go to this link to find your senator: The Ohio Senate District Map
For more information on the proposed law see:
Coronavirus: Lawmakers consider legal immunity for health care, businesses
AARP Opposes Critical Gaps for Nursing Homes in Current Legislation
The COVID-19 pandemic has brought the U.S. unemployment rate to levels not seen since the Great Depression. While some parts of the country start to reopen, employers have and will likely continue to sharply trim their workforces. Large numbers of workers have been laid off in the wake of shuttered businesses and employers who have seen a stark drop in customers and revenue.
While many layoffs may be unavoidable, some employers may use the COVID-19 crisis as a way to target older workers even when layoffs are not necessary. Older employees often have higher salaries. Some employers may worry that older workers who may be at higher risk for COVID-19 or may cost them more because of insurance or the need for paid time off. Some employers might also believe in discriminatory stereotypes and think that older workers are less likely to be able to adapt to remote work and the heavy reliance on technology that comes with working from home.
With the current flood of COVID-19 layoffs, there are some red flags that could point towards an employer who is targeting employees for layoffs because of their age not because the business needs to reduce its workforce. These red flags may include:
- The number of employees laid off is relatively small for the size of the company but includes many experienced, older, and higher paid employees
- Younger, less experienced, and less expensive employees are retained and in some cases take over the work of the laid-off, older workers
- Comments made by decision-makers about the experience level, age, higher salaries, nearness to retirement, etc. of the older employees
- The employer hires new, younger workers within a relatively short period of time after the older employees are let go
The key federal law that prohibits age discrimination in employment is known as the Age Discrimination in Employment Act (ADEA). It prevents an employer from discharging or otherwise “[discriminating] against any individual… because of such individual’s age.” 29 U.S.C. § 623(a). In the case of layoffs involving employees 40 or older, the Older Workers Benefit Protection Act (“OWBPA”) applies and requires employers to provide certain basic information about the layoff in writing if the company plans to offer a severance package in exchange for a worker signing a release not to bring an age discrimination case against the company. Under the OWBPA, the release has to meet these standards:
- Be in writing.
- Be written in a manner reasonably calculated to be understood by the employee.
- Specifically refer to the ADEA.
- Not require the worker to waive claims that may arise after the date of execution.
- Be in exchange for something of value in addition to which the employee is already entitled.
- Advise the worker to consult an attorney before executing the release.
- Allow the worker 21 days to consider the offer; if the lay-off includes two or more employees who are age 40 or older, the time period to consider the offer increases to 45 days.
- Allow the worker 7 days to revoke the agreement after execution.
The requirements of the OWBPA and the information an employer must provide can be confusing so it is important to consult an attorney if you have questions or think your layoff may have been rooted in age discrimination. As always, our attorneys are here to help you navigate these issues.