John Cernelich:
Well, good morning, everyone. My name is John Cernelich. Welcome to our labor and employment workers' comp webinar here at Calfee, Halter & Griswold. I am the co-chair of the group, and I'm very pleased that we have a nice turnout for this morning seminar. We're going to be talking about responsible reopening and beyond. And this morning, we're going to talk about some of the rules and guidelines that we've seen as to reopening. And we're also going to pivot from there and talk about some of the issues we're seeing affecting the workplace regarding COVID-19. Jen Colvin, who's a senior counsel in our Cincinnati office is going to talk a little bit about the issues of employees in the workplace who may be testing positive for COVID-19, may be appearing with symptoms. We are starting to get, unfortunately, some questions about that. We wanted to address that issue specifically.
John Cernelich:
And Jen will take us through that. Talk a little bit about guidelines and best practices. Then Jen Whitt, who leads our workers' compensation and workplace safety practice, is going to talk us a little bit about worker's comp claims and kind of the landscape there, because as I think some of you who subscribed to some of the SHRM periodicals, some of the other HR periodicals are seen, there are more and more instances of people applying for workers' comp claiming that they experienced COVID-19 at work. So, Jen's going to talk a little bit about that and again, what the landscape is. And then I'm going to finish up and talk a little bit about planning for reductions in force. When COVID-19 first came out, we got a flurry of phone calls about leave of absence, things like that, the new FFCRA law, what to do in terms of providing paid leave.
John Cernelich:
And that was fast and furious. And that's subsided as employers have become comfortable with that. And we're starting to get questions about furloughs and layoffs. Some of those unfortunately are going to be deeper, reflecting what we saw in 2008 and 2009. And I'll talk a little bit about planning for that. So, thank you. We have about a hundred people signed on this morning. We appreciate everybody's support. We hope we have some useful information here this morning. And I'll turn it over to my partner, Todd Palmer, who's the vice chair of our labor employment and workers' comp group. Todd.
Todd Palmer:
Thank you, John. Good morning, everyone. Thanks for spending some time here with us this morning. The national conversation over the last, certainly the last two weeks, four weeks, has been dominated by the topic of reopening the economy and businesses reopening their facilities and their offices, and trying to at least maybe even taking baby steps towards a return to some fashion of normal operations.
Todd Palmer:
And so, as part of that conversation, some reopening protocols and guidelines have been emerging and those protocols and guidelines, they're not really a mystery. There's a ton of material about this out on the internet. In fact, probably too much material. It can be a little overwhelming, but it need not be overwhelming. And employers need not be intimidated by this process of reopening or starting a re-entry to operations. And there are really, there are two principle websites I would recommend in terms of finding guidance on reopening protocols. And one of those is that the CDC website. Their website keeps expanding as the pandemic continues because they keep issuing more and more guidance, but it still remains a pretty easy to navigate website. And it's very easy to get to their materials.
Todd Palmer:
It's called Interim Guidance for Businesses and Employers Responding to Coronavirus, that is chock full of a lot of good information on reopening guidelines. The other very good source for reopening guidelines is our own Ohio Department of Health. And the directors 'Stay Safe Ohio' order, which was issued on April 30th. And it implements the responsible Restart Ohio program that governor DeWine announced, I think, two Mondays ago. But as you look at developing your reopening or your return to work protocol, there's a handful of, I think, overarching goals to keep in mind. And first, of course, is prevention. You want to take as many measures as you reasonably can to reduce the risk of transmission of the virus within your facility, within your workforce. But a second goal, and it's certainly at tension with the first one is, you need to get your business open.
Todd Palmer:
There's an imperative to resuming operations so that you can generate revenue and allow your business to survive so that you continue to provide a livelihood to your employees. I think a third overarching goal is minimizing legal liability or minimizing the risk of that liability. But then a fourth overarching goal, I would call it positive employee relations. This is really an opportunity for employers to send a message to employees that you care about their health and wellbeing, and you care about the health and wellbeing of their families. And especially by taking as many measures as you can think of and reasonably implement to try to reduce the risk of coming to work. Hopefully your people are going to appreciate that and recognize what you're doing and be grateful for it.
Todd Palmer:
Now, there's probably, in terms of reopening protocols, there's probably about four or five buckets of items or categories of measures. And those are, the first bucket is temperature and symptom assessment, the second is face coverings, the third is social distancing measures, the fourth is cleaning and disinfecting measures. And probably, I guess I would call it a fifth bucket, is exceptions to the return protocol. In terms of that first bucket, temperature assessment and symptom check, an employer has several options for doing that. One, you can ask your employees to take their temperatures at home each morning, or before reporting to work. And hopefully, everyone has one of those little digital thermometers so that they can at home, they can take their temperature, snap a photo of it, send it to HR, send it to their supervisor, so that you have some contemporaneous, I guess, proof that the person's temperature is not elevated. But additionally, you want to have employees answer a short battery of questions. In particular, are you experiencing any COVID-19 symptoms today? Do you have a cough? Are you experiencing difficulty breathing?
Todd Palmer:
Do you live at home with someone who is sick or who has been exposed to COVID-19? Have you recently traveled? Another option for an employer looking to do that temperature and symptom assessment is to kind of set up your own assessment station at kind of the entrance to your facility or office. You can staff this with your own employees. It takes going out and buying one of the thermal scan thermometers, the gun. But you could have one of your employees, probably someone in HR, taking temperatures of employees as they enter. And also asking that quick battery of questions. Another option is to engage a nurse or a medical technician for a temp service, they can certainly be available to run your assessment station.
Todd Palmer:
The assessment is a very simple pass/fail test. Those who pass, in other words, they're not showing symptoms and not showing an elevated temperature, those who pass get to enter and work that day. Those who fail are sent home and told to stay home as long as they're demonstrating the symptoms, as well as certainly advise them to seek medical attention, especially if they start to feel ill. One final point on the temp assessments is, we recommend keeping, I call it a log, but it's just a pass/fail log of each individual. It's not recording individual temperatures, it's just more a name, date, pass, or fail. That can be an important document. First of all, if someone in your workforce should develop the virus, should become ill to the extent that public health authorities reach out to you to do contact tracing, your contemporaneous record of who was there on what day and who did not exhibit symptoms can be helpful in that process.
Todd Palmer:
But also, of course, it can be an important evidentiary tool in the event that down the road, you're facing some sort of claim that the person contracted the virus while on the job for you. Okay. The second bucket of protocols is face coverings. This one's fairly simple, especially under Ohio's order, all employees are required to wear face coverings at all times in the workplace. Now there are a number of exceptions. I think there's probably seven exceptions that are in the Ohio order. Perhaps the most common exception, certainly in an office environment, is going to be that facial coverings are not required when the employee works alone in an assigned work area. So, that means certainly people who work with offices with doors, as long as they're behind that closed door, they need not wear the mask.
Todd Palmer:
And even folks who work out in kind of larger full pan areas, if there is, I would call maximum social distancing. And by that, I mean, something much greater than just a six foot radius. But if a person is truly kind of isolated and working alone, even if in an open area, I think it's acceptable for those persons not to wear the mask every single moment they're in the workplace. But certainly, anytime people are moving about through common areas or public areas of the workplace, they need to be wearing that face covering. Okay. A third bucket is the social distancing bucket. And here, there are some obvious measures, keeping six foot distance between people in any place where a line of employees might form, say at the assessment station, taping out six foot measurements on the floor, and doing things like split shifts.
Todd Palmer:
But what I really advise for employers to do on social distancing is, take the time to analyze your operations and your people flow, do a walkthrough through your office, through your facility. And as you do that walkthrough, identify places where people congregate and then kind of attack those kind of choke points. And as you do that walkthrough, a flood of ideas are going to appear to you. And then you can help design ways to alleviate that type of crowding. But some very common measures include staggering arrival times, staggering lunchtimes and break times. It's wise to close lunch rooms and break rooms and cafeterias and conference rooms. It's a good practice to regulate vending areas. I'm not saying close them down, but limit them to one or two persons at a time and require basically people to wait in line for the vending area.
Todd Palmer:
If you have an elevator in your facility, control that capacity if you can, control restroom capacity, limit it to one or two persons at a time. Also, get creative in terms of new ways of handling tools or materials or documents. What you want to do, you want to avoid face-to-face handoffs where employee A hands a tool directly to employee B. Instead, work with employees to design kind of practical workarounds where maybe that tool is... Employee A takes it to a neutral spot, walks away, and then employee B comes and picks it up. But the goal here is, you're really trying to minimize face-to-face interaction and face-to-face conversations. A fourth bucket of these measures is, of course, cleaning and disinfecting. And as much as all of us were probably doing cleaning and disinfecting in early March when the pandemic first hit, now is the time to really double down on that cleaning and disinfecting of common areas and touchpoints.
Todd Palmer:
I read an article in the paper within the last few days about an employer who is cleaning touchpoints 12 times per day. So, there's probably no limit to it. It's completely okay to be a little OCD in this situation. But also put out for your employees at spots throughout work areas, hand sanitizer and cleaning products, whether it's Lysol or Clorox, whatever you can find, as well as paper towels. Give employees the tools to do their own kind of self-policing of their work areas.
Todd Palmer:
Lastly, the final important bucket of reopening protocols is what I call the exceptions, the folks who will be permitted to stay at home or who are not mandated to come to work. And that includes persons over the age of 65, persons with health conditions which make them more vulnerable to COVID-19, certainly employees who need to stay home for childcare reasons. Also be careful about employees who rely on public transit to get to your workplace because public transit can be kind of a high risk atmosphere for people. But then probably the fifth category of exceptions are what I just call folks who are uncomfortable returning to work. I still think we're at a point where employers need to show a lot of patience for those folks. And that's because health issues and health risk, different people react to these things very differently.
Todd Palmer:
And there's a whole spectrum of risk tolerance. And there's no right answer or wrong answer on risk tolerance. And so, at least for now, and for now, I mean probably the next month or so, I think it's going to be best for employers to continue to show patience with those who, notwithstanding all your good work, are just uncomfortable returning to work. And then my last piece of advice, and then I'll finish up and turn it over to Jen, is develop a written plan, put your reopening protocol in writing. There's two important reasons to do that. One... And we've had clients for whom this has happened. An employee makes a complaint to OSHA or an employee makes a complaint to the local department of health. In the event of that complaint in some kind of agency investigation, you have that written protocol as evidence of the things you're doing. And secondly, a good reason to do a written plan is, it makes the process very intentional.
Todd Palmer:
The act of putting your protocol into writing forces you to do a lot of thinking about it. And in that process, you'll think of new inventive and unique ways of social distancing and some of these other measures that can help keep your employees safe. So, I know in a little bit, we're going to take Q&A, and I'm happy to take your questions on this, but for now, I'm going to hand it over to Jen Colvin, who's going to talk with you about one kind of particular slice of this pie of returning to work, which is what you do with your employees if they become exposed or develop symptoms.
John Cernelich:
And excuse me, let me mention, yes we are taking Q&A's and you'll see at the bottom of your screen, you can submit those. So, please, if you have a question, please submit them and we'll try to get to them at the end of the presentation. Jen.
Jennifer Colvin:
Okay. Thank you, Todd and John. Okay. All right. So, as Todd mentioned, I'm going to talk a little bit about handling COVID-19 in the workplace when it does come to you and hopefully that doesn't happen, but we're finding that it may be inevitable, that workplaces have to deal with positive or presumed positive cases of COVID-19. So, when you're faced with symptoms or with someone who tests positive, I'm going to talk about how you handle three areas, how you handle the employee, how you address coworkers, and then what, if anything, in addition needs to be done for the workplace itself. So, the first scenario I'll talk about is when an employee appears for work at your workplace with symptoms, and this is assuming that you are doing what Todd mentioned with screening employees, whether they're doing the virtual screening at home and having to send you proof that they're able to come to work, or if you have an at the door screening.
Jennifer Colvin:
So, if someone shows up to your health screening, say at your front door, and has symptoms of COVID-19, what do you do? And the first thing you do is, with respect to that employee, you isolate them from their coworkers and then send them away, send them home with instructions to call their medical provider. And hopefully this is another reason to really think intentionally about how you're structuring your health assessment at the door and how you're structuring your workplace. If you have properly social distanced and asked employees to use their face coverings when coming to work, and when standing in line and waiting for the health assessment, then there shouldn't be an exposure risk for someone who appears at your door with symptoms. That person, you should be able to isolate them, send them home, but then other coworkers shouldn't really be impacted.
Jennifer Colvin:
So, with respect to the other coworkers, the recommendation is that you continue requiring the CDC recommended measures, such as daily health assessments and temperature screenings, frequent hand-washing, social distancing, the use of face coverings, and restrictions on common spaces and common items, such as tools. With respect to the workplace as well, if someone doesn't get through your front door then you can continue with your enhanced cleaning procedures and your schedule for your general workplace, you really don't need to put enhanced measures in place since they never really got into your facility.
Jennifer Colvin:
The next scenario is, what if you don't catch it at the door. And so, after an employee has been in your workplace, you learn that the employee has tested positive for the COVID-19 virus, or is reasonably suspected to be infected, a presumed positive. Again, the first scenario I'll talk about is a general business environment. These guidelines really differ for the essential critical infrastructure employees. So, I'll touch on that at the end. But for the general business environment, how do you handle the employee themselves? So, for that employee who has symptoms or has tested positive-
PART 1 OF 4 ENDS [00:23:04]
Jennifer Colvin:
So for that employee who has symptoms or has tested positive, require them to stay at home in accordance with the self isolation guidelines that the CDC has recommended. If someone has tested positive, you want to immediately report that confirmed case of COVID-19 to the State Health Department. And then prior to returning to work, you need to put practices into place to make sure that that employee returning to work is safe.
Jennifer Colvin:
There are three different mechanisms for our return to work, safe return to work. The first one is a symptoms-based strategy. So this is someone who is sick and has tested positive, or has been told by their medical provider that they are presumed positive, they should treat themselves as positive. For that individual, they can only return to work once they are at least three days past having a fever or respiratory symptoms without medication.
Jennifer Colvin:
So once they've stopped medication and no longer have a fever, they have to wait at least 72 hours after having gotten rid of the fever and respiratory symptoms. And then the return to work day has to be at least 10 days after the first symptoms appeared. So both of those conditions need to be met on the symptoms-based strategy. For an employee without symptoms, you can use a time-based strategy. So if there are confirmed laboratory tests but no symptoms, then the individual needs to isolate at home, self quarantine for at least 10 days since the first positive test, if they still have no symptoms.
Jennifer Colvin:
So you can use this time-based strategy when someone has no symptoms, they never develop symptoms, you wait 10 days after the positive test and they still have no symptoms. Then that's considered safe to return to work. If that individual, however, develops symptoms within the 10 days since their positive test, then you need to use either the symptom-based strategy that we just talked about, or the next test, which is the test-based strategy.
Jennifer Colvin:
So again, for someone, the test-based strategy, someone who had a positive COVID-19 test and has no symptoms, they should be directed to care for themselves at home under self isolation until they have two consecutive negative tests that are collected at least 24 hours apart. And those tests need to be based on respiratory specimens. So I know there are different types of tests circulating in the marketplace right now under the CDC guidance for the test-based strategy.
Jennifer Colvin:
The two consecutive negative tests need to be of respiratory specimens and at least 24 hours apart. And if they have two consecutive negative tests, then that employee would be safe to return to work. So how do you handle coworkers? When someone in the workplace has tested positive. First, you do the contact tracing, which you may do in connection with the health department. But even if the health department doesn't immediately respond, you want to determine who could have potentially been exposed in the workplace.
Jennifer Colvin:
CDC guidance says that employees with close contact may have been exposed. Close contact is being within approximately six feet for a prolonged period of time. So certainly, coworkers with close physical contact, you want to ensure that you identify those people. Exposed employees include any coworker who may have had close contact within the 48 hours prior to the employee who tested positive, showing any symptoms prior to that close contact or prior to the onset of symptoms by that ill employee. So the timeline here is really important.
Jennifer Colvin:
And when you're talking to your ill employee, you want to make sure that you understand when they started having symptoms, so that you can properly back up the timeline for where you're looking for close contact with coworkers. The other thing you want to do, is that in addition to thinking about their workspace, you want to think about, as Todd mentioned, your workflow and maybe some bottlenecks or some common areas in your workplace, to ensure that to the best extent possible you are identifying any other coworker who could have been exposed to the COVID-19 virus.
Jennifer Colvin:
Each assessment is case-by-case based on the work layout of the workspace, activities within the workspace. So each one is going to be an individual analysis. After identifying potentially exposed coworkers, you want to inform the coworkers that they may have been exposed. To the extent possible, you want to maintain confidentiality and not disclose the identity of the sick worker. But again, if they ask a lot of questions or if they refuse to go home, you may have to address that on a case-by-case basis with each individual conversation.
Jennifer Colvin:
Potentially exposed employees who have symptoms of COVID-19 should self isolate at home. Potentially exposed employees who have no symptoms, should remain at home or in a comfortable setting and self isolate for 14 days. And so again, the timeline is really important to identify who needs to isolate. Per the Responsible RestartOhio guidelines, once testing is readily available for individuals, then all employees potentially exposed to COVID-19 should be tested for the virus.
Jennifer Colvin:
But at this point we're not there yet, but that is part of the plan for restarting. I think one key point here is that the timing may differ between employees who are confirmed positive or exposed employees who are showing symptoms, and then employees who may have been exposed but are not showing symptoms. And this can be a little counterintuitive because if an employee shows symptoms and is presumed positive, then you can start using the symptoms-based test and having them return to work 72 hours after cessation of symptoms and days after the onset of symptoms.
Jennifer Colvin:
But an employee who was exposed and never show symptoms, should be required to self isolate at home for 14 days. So it's possible that someone who actually was positive for the virus ends up being safe to return to work, prior to a person who was asked to quarantine and never showed symptoms. So it's important again, the timeline and really understanding who came into contact potentially with the virus. So what do you do with the workplace? Best practice, if it has been less than seven days since the sick employee was in the facility, close off the area that that ill employee used for any prolonged period of time.
Jennifer Colvin:
Best practice is to wait 24 hours prior to disinfecting and sanitizing that area. If you can't wait 24 hours, then wait as long as possible. During the waiting period, increase ventilation and air circulation in the area. And then any individual cleaning that workspace and doing the deep clean should wear appropriate PPE, not only to avoid exposure to the virus but also for whatever cleaning chemicals being used. If it has been seven days or more, since the sick employee used the facility, then additional cleaning and disinfecting is not necessary so continue using your enhanced cleaning procedures that have been in place.
Jennifer Colvin:
I want to touch briefly on the difference for critical infrastructure employees. The guidelines are really markedly different here. So critical infrastructure employees, or have been identified by the Cybersecurity and Infrastructure Security Agency, and there's 16 identified sectors. They're on the web, it's food and beverage, healthcare, emergency services, things that you would probably recognize readily as critical infrastructure. And for critical infrastructure employees who have been exposed to COVID-19, they may continue working. And this is true if they have no symptoms, and the employer and the employee take additional precautions to protect against transmission.
Jennifer Colvin:
Potential exposure includes anyone with a household or a close contact with someone who has COVID-19. So this is true, if you have a critical infrastructure employee, say they have a spouse or another family member who is positive, they can continue working. But they need to make sure they have no symptoms, performing that daily health assessment and continually monitoring throughout the day for symptoms of the virus. And then some additional procedures in terms of abusing employers, making it possible for them to use different tools and materials, not sharing headsets.
Jennifer Colvin:
The employees should be required to wear a face covering while in the workplace, and increasing cleaning and disinfecting of workplaces in any common areas. Thinking about bathrooms, shared equipment, other places where this potentially exposed employee might be transmitting virus, if they're shedding the virus without having symptoms. If a critical infrastructure employee develop symptoms, then that employee should be required to immediately report the onset of symptoms. The employee should be sent home. All surfaces should be disinfected and cleaned in their workspace. And the employer again, should start that process of contact tracing and identifying other coworkers who were in close contact with that employee. So with that, I will turn it over to Jen Whitt, who is going to run through some of the workers' compensation implications. Thank you all.
Jennifer Whitt:
Thanks Jen. Okay. All right, good morning, everyone. Today, I'm going to talk about COVID-19 and workers' compensation claims in Ohio. I'm going to discuss what has happened thus far. Hold on here. Let's get on the next slide correct slide here. Sorry about that. Okay, so workers' compensation claims in Ohio. I'm going to discuss what has happened so far and give you a few tips as to defense of this claims. Specifically, I will discuss filings to date.
Jennifer Whitt:
These numbers are important as many employers are transitioning back to the workplace. We'll review the unscheduled occupational disease statute, which is the legal theory in which COVID-19 claims are being processed. I'll review the actual processing of COVID-19 claims, what's being filed and what evidence the BWC is relying upon and allowing or denying these claims. And give you a few employer tips, what the employer can do to determine whether to contest a COVID-19 claim, and some tips for defending the claim at the hearing table.
Jennifer Whitt:
As of May 8th, 2020, the figures from the Ohio Bureau of Workers' Compensation, there are over 300 state fund and self-insured claims filed. So that's for about a two month period. So far, there've been 70 allowed claims by the BWC and self-insured employers and 55 denied claims. Now in those denied claims, I will tell you that some claimants are filing claims even with a negative COVID-19 test. So take that into consideration as well. And most claims as to be expected, are for healthcare workers and first responders. So, and how to process these claims in any workers' compensation claim, just in general, not COVID-19 claims.
Jennifer Whitt:
The injured worker has to prove that an injury arose out of, and in the course of employment and that a causal relationship existed between the injury and the harm or disability. So usually, things like the flu, cold, communicable diseases are not compensable under workers' compensation, because people are exposed in a variety of ways. We get the flu and we don't really know where we got it from. But for COVID-19 the BWC is processing this, they say, has stated, "If you work in a job that poses a special hazard or risk and contact COVID-19 from work exposure, the BWC could allow your claim."
Jennifer Whitt:
So, the legal theory as to processing these unscheduled occupational disease claims for COVID-19, fall under Revised Code 4123.01 (F). Just a little bit of background, a scheduled occupational disease is in 4123.68. That section of the Ohio Revised Code enumerate several diseases, lead poisoning, mercury poisoning, a whole list of cases. Okay, COVID-19 is not in there. So then you go to the definition of just of occupational disease under the 4123.01 (F). And the Supreme Court has adopted and restated this three part test. And just to summarize the test, number one, "A disease is contracted in the course of employment." Number two, "The disease is peculiar to claimant's employment and results in a hazard." And number three, "The employment creates a risk of contracting the disease in a greater degree and in a different manner than the public generally." So you can see why with this test, the majority of cases are healthcare workers and first responders so far.
Jennifer Whitt:
So now that we know the test and the legal theory that's being applied, let's look at and analyze what the BWC is looking at, and what's being filed as evidence in these COVID-19 claims. So totally different than any other a workers' compensation claim, the BWC actually came up with a COVID 19 questionnaire. There are 12 questions with sub-parts. And basically, the questions are trying to figure out and determine if there is workplace exposure or possibly community exposure. So it's getting to that causal link as to whether this is a compensable workers' compensation claim. So some of the things that they're looking for on this questionnaire, and they're asking... Actually what they're doing, they are actually calling claimants, and they are recording the verbal responses to claimants. In this point, the answers and responses to this questionnaire is actually filed in the claim file.
Jennifer Whitt:
So they're asking about work activities, what is your job? What did you do? They're asking about exposure, how and when exposed? I will say for the work activities and the exposure, when they're asking how you were exposed, some claimants are stating, "Unsure." "I don't know." But yet those claims are still being allowed. So just something to think about. They're asking about symptoms, testing, when they were tested, the results and any ongoing past and future plans for treatment, whether a claimant has traveled. They're inquiring as to claimant's personal life, whether any friends or family had been recently exposed to coronavirus. And in some of these, in some of the responses, we will see that spouses or healthcare workers or providers. So that would be another potential source of exposure. And then whether the claimant has attended any mass gatherings or groups of 10 people or more. So now that we know the legal theory and how the BWC and what they're looking for, and when the BWC is allowing these claims, they're saying, allow for COVID-19 based upon the testing that was done.
Jennifer Whitt:
Sometimes they refer to the medical evidence and then they refer to the questionnaire. So that's how they're allowing them in the BWC order. So as to employer tips, when you get, or if you get a COVID 19 workers' compensation claim, a few things. First, I would contact your attorney. COVID-19 is a new animal. The BWC is using this new questionnaire and these claims have the potential of being quite expensive and costly. First of all, claim volume, you get one claim, you could get five. Claim costs could also increase. You could have COVID-19, but you could have complications so you could have an additional allowance, I mean, down the road. And hopefully this wouldn't be the case, but as we've seen in the news, COVID-19 clearly can turn into a death claim. So I would contact your attorney when you get your first COVID 19 claim, hopefully by then you will already have a process in place.
Jennifer Whitt:
So you need to document and track the claim reporting. This is the time to be very diligent in your workers' compensation claim practices. So there is an extra wrinkle here. Usually if someone is hurt on the job, they can report it right there. This is the type where, as Jen had explained, unfortunately, you don't want these employees around and you may have to call over the phone. So you may have to fill out this incident report over the phone, get creative email, mail the incident report. But what you're looking for, in addition to the incident report, you want to ask similar questions to the BWC. You want to be very clear, where were you exposed? When were you exposed? So I would recommend to having a process in place before you get that first claim filed. You also want to... The third thing to do would be collect information to verify those responses.
Jennifer Whitt:
Sometimes these claims are coming in a little late. And so you want to verify, pull the time cards, did claim at work that day, what were they actually doing? And some of the exposure, on the BWC questionnaires when they're asking, you will have a list of four or five dates where they claim they were exposed. So you want to pull that information as to time cards, what they were doing. Check the job duties, if you have police, fire, EMS, pull the run records. You also want to check all the medical records, obtain those records, see what the history says. See what's in there as to what the possibilities of exposure are. Because the medical facilities are also tracking that and looking at that and asking those same questions. Basically, you're looking for breaks and causation between any workplace exposure versus community exposure.
Jennifer Whitt:
And you may need contrary medical evidence to prove that. So getting that information will only get you ahead of the game, before getting to the hearing table. Just a little quick note, there is some pending legislation for a presumption for COVID-19 cases, which may be refuted by affirmative evidence. But basically saying a presumption that COVID-19 is contracted in the course and arises out of the employee's employment. And this is for police, fire, EMS on one bill. You've got another bill for employees and nursing homes or healthcare providers. And then there's another one for retail food or food processing plants. So just keep that in mind. So everyone stay safe. I will now turn it over to John Cernelich, co-chair of the Calfee's Labor and Employment Department. Take it away, John.
John Cernelich:
Okay. Thank you, Jen. And yeah, this is a new kid on the block when it comes to COVID-19 and worker's compensation. I think Jen shared some valuable tips there. There's going to be a real issue about causation. So I think it's important to follow through and document as appropriate because I think certain employers may be flooded with those claims. Hopefully none of our clients, but that's just a part of the new landscape and something else to be on the lookout for. I'm going to talk a little bit about reductions in force. My hope is of course that no one has to experience these, but you know what? I'm not able to move my screen, Excuse me.
John Cernelich:
For some reason, my slides aren't moving forward, guys. Let me try it again. There we go. So let's talk about reductions in force. And unfortunately, I think this is on the horizon, some people may be experiencing this right now. But when it comes to reps, in lieu of reps, there're some alternative options. Take a look at the list here, hiring freezes, reducing hours, furloughs. Many of our clients have already moved into a furlough kind of stage, where they intend to bring people back hopefully that...
PART 2 OF 4 ENDS [00:46:04]
John Cernelich:
Where they intend to bring people back that hopefully that'll happen, but maybe that will not be able to happen. That would become reductions in force. You know, there's also the possibility of voluntary exits. Most people don't go that route, but some people try to stage this. Think about alternatives or RIFs. If you're going to move forward with the RIF at the first thing to look for is, what have you done before? What's been your custom, what's been your practice. And that's important because we'll talk in a moment about what your selection criteria would be.
John Cernelich:
But typically people will use the same processes, the same criteria they've used in the past, you don't have to do that, but typically people have kind of a tradition customs as to reductions in force, both in terms of the criteria that are used, but also in terms of exit benefits that are applied. You'll be of course, considering which positions you would be reducing out, which locations, how many positions and particularly when you're picking and choosing within a classification or a job title, which personnel.
John Cernelich:
There are some things you should look at when it comes to RIFs preliminarily. If you have a union contract, if you've got a collective bargaining agreement, typically those contracts will spell out the criteria for layoffs. It's typically seniority, most contracts in my experience, don't spell out severance benefits. That would be a subject of what they call effects bargaining, but some do. And so you'll want to take a look if you have a unionized workforce, of course, as to your union contract.
John Cernelich:
And again, if you're doing a deeper dive permanent layoffs, remember that you have to do effects bargaining at minimum, may have to do decisional bargaining. And I'll mention that in a moment. When it comes to individuals, particularly highly compensated people, senior management, you may have individual employment agreements. Those individual employment agreements could have restrictions on terminations. Typically in an executive employment contract, there'll be terminations for cause, typically for cause there's no severance without cause there is severance. So you'll want to take a look at that.
John Cernelich:
Some of those employment agreements provide that in order to get the severance, the employee has to sign a release some do not. If the agreement doesn't provide automatically for release, then you'd have to consider about adding consideration, adding more severance or benefits over and above entitlement in order to get an effective release. And you may have handbooks and personnel policies that spell out a layoff policy and severance benefits. Again, in my experience most do not, but you may have that within your handbook and your policies and you may want to look for that.
John Cernelich:
And even if you that, that doesn't mean you're necessarily bound by that. I mean, most employers will follow that, but handbooks, we purposely disclaim them as being binding as contracts to provide employers flexibility. And this scenario we're all living with right now might be an instance where you might want to deviate from what you've done before. So when we're looking at a reduction in force, the real challenges are discrimination claims. And in particular claims coming from people who were in protected class. And as you know, those are age, race, color, religion, sex, national origin, ancestry, disability.
John Cernelich:
I think in my experience where we get the challenges most frequently in reductions in force situations are age discrimination claims, where the older workers are upset that they were chosen and they suggest that younger workers, perhaps with less seniority should have been let go in lieu of them. We also get, I think, a considerable number of disability claims where people claim that they were chosen for reduction because of their medical conditions. And maybe even because they are accessing the company's health insurance resources. So those are two in particular to keep a particular eye on.
John Cernelich:
When it comes to disparate impact, you kind of want to take a look before you do a reduction in force, what the composition of your workforces just generally in terms of race, age, national origin, sex. And then when you do the proposed RIFs, what would that compliment look like after the RIF? If you see a large deviation in any protected category, you might want to revisit that and you can come up with what criteria you think are reasonable and are valid for your specific workforce. The law isn't really here to second guess your business judgment. You just need a nondiscriminatory reason in order to bit back any kind of discrimination [inaudible 00:05:03].
John Cernelich:
So when it comes to this whole topic, this is really what I want to focus on. You need to develop criteria. Again, seniority, which is in union contracts is typically the most defensible. We kind of talk within our group that this actually may be the best time and the only time to have a union contract, because it's pretty straightforward in a collective bargaining agreement. In nonunion situations, what I'll tell you is in my experience, people use the following criteria. They may not even know they're using it, but most companies do the following.
John Cernelich:
First of all, they look at single classifications, kind of the lone ranger, the onesies. And if there is a director of marketing or a general counsel, or what have you, they may decide that they want to separate that classification, eliminate that job, basically outsource it, or what have you. It may be something that people really want to have within the organizations, but they have to cut back. So these lone rangers, these people who were the only people in the classification, they can be separated.
John Cernelich:
And typically you won't get a challenge there, unless of course, let's say you let that person move into another job. And then that opens up the whole issue of bumping and what have you and we can talk about that. You may be fine with that individual, of course, particularly if they stay at the same salary, but if you displace somebody else in the lower classifications, they may say, why did you do that? But within a classification is really the challenge. Let's say, production workers or customer service reps or clerical workers. How are you going to pick and choose who to let go within a classification?
John Cernelich:
Well, the three criteria that are typically employed are the following in this order. Number one skill set. So what you do is you look within a classification at the skill set of the people, and let's say someone has a particular certification or particular talent. That person is then red circled and in essence saved. So you'll look, I had one customer service reps where one, actually a couple people would make themselves available to stay later to handle calls from the West Coast specific skill set, aptitude, willingness, and that could segregate that person out and have them saved in any reduction scenario.
John Cernelich:
But absent that, what you're typically looking at is relative job performance. And how do you decide relative job performance? My recommendation is you go back and you look at the most recent reviews. Hopefully you've done performance reviews. You look at the most recent reviews, maybe in the last two or three cycles and you lay everybody out and basically take a look at their reviews, their numbers, the metrics, whatever you use, and then rank people using that within a classification. Why do that?
John Cernelich:
Well, I think it's fair. I think it's abundantly fair. If we have to recreate what you did. I think you have this information that you gathered quite frankly, when there wasn't the urgency and if you use more than one review period, it looks like kind of a longer look back period, a more reasoned assessment. So I would recommend that. Some people use things like forced reviews, forced ranking, be careful with that. Particularly if you defer to supervisors, people who may not be as sensitive to these issues.
John Cernelich:
I mean, there's plenty of cases where supervisors have been asked to forced rank a week before a layoff, and they've used it. You can tell from their emails or what have you as the opportunity to let go of that worker, maybe who used FMLA quite a bit and what have you. So you really want to be careful there. And then seniority is usually simply the tie breaker within a classification. It can be classification seniority or company's seniority.
John Cernelich:
When I mentioned being aware of bumping, quite frankly, the concern here is that if you let people move into another classification, you kind of open Pandora's box because if you let one person move and they displace someone in a different classification, then the question is, why don't you let that next person move into another classification? So you start getting a lot of people who were displaced looking not only in their own classification, but within the whole organization saying, I should have had that job. So be very careful with bumping.
John Cernelich:
Some people live at bumping simply to maybe letting, for instance, a supervisor go back to the production floor, letting people go back to the jobs they helped, but you still then get the issue of, okay, how do you pick and choose now, including him or her in the group? Other claims that can come up or retaliation people saying that they took FMLA leave, like I say, and they were targeted. They filed a Wage and Hour complaint. They file an OSHA complaint. Last year, the EEOC got more retaliation claims than they got substantive discrimination claims.
John Cernelich:
So be very careful in terms of choosing people for layoffs regarding possible claims of retaliation. Other hurdles like I said, if you have a labor union, you may have to bargain about the decision itself. For instance, if you decide to relocate work, maybe combined operations and kind of streamline your organization, if you're relocating work and labor costs were a factor there, you have to bargain the decision itself, not just the effects, but the decision. And that's a very important, and you really should talk to us if that's something you're contemplating.
John Cernelich:
But again, with every union, you have to bargain about the effects and that's things like severance, benefit continuation, possible job offers at other facilities, job search, training, that kind of thing. When it comes to ERISA, be careful again, in any reduction scenario, if someone has been using the benefits or their dependent has used benefits, they can argue retaliation under section 510 of ERISA. Getting a release. Most people I think who are on this webinar today are used to utilizing releases. You've got to decide if you want to utilize a release in a reduction scenario.
John Cernelich:
Typically when you're picking and choosing within classifications and you're providing some severance, our clients will use releases, but you need to careful here because you have to, for instance, again, provide a benefit over and above an entitlement for a release to be valid. And it doesn't make sense if for instance, you're closing a whole facility, you may want to provide releases along with benefits, but you don't have to in the sense that everyone is going quite frankly, so you wouldn't get discrimination claims, but particularly if you're picking and choosing between and among people, that's when I think releases make the most.
John Cernelich:
So there's a Balancing Act when you do a release. If you put a release in front of someone, they may bring it to an attorney and that may make an attorney kind of want to review maybe your entire reduction scenario. So take a look at whether you think that releases make sense in your individual situation. So when it comes to releases, there's the Older Worker Benefit Protection Act, and you need to comply with that if you want to get a release of an age claim of those employees, age 40 and above.
John Cernelich:
The OWBPA, if it's a single scenario, you're letting one person go, I think most of you know this, you have to comply with certain requirements, 21-day consideration period, a seven day revocation period. Again, make sure you're giving something over and above entitlement. You can't waiver future claims. You have to specifically reference the ADEA in the release and you have to advise the employee to consult with an attorney. But when you're doing a group termination situation, it's trickier because the OWBPA specifically says, "When you're involved with an exit incentive program or other employment termination program offered to your group or class of employees, you have to do more."
John Cernelich:
And this language is kind of odd exit incentive program. I think it was meant for those early outs. My mother-in-law for instance, took an early out from East Ohio Gas now Dominion, and this kind of thing applied to her. It was an exit incentive trying to see who might want to retire early, or what have you. But this has been contorted a bit. And these additional requirements apply to any employment termination program and a group reduction of two or more is an exit termination program. So you have to comply with the enhanced requirements and what are those?
John Cernelich:
Instead of 21 days to consider the agreements, you have to give the people 45 days and you have to do the following. And this is what's most important and requires quite a bit of planning. You have to identify the decisional unit covered by the program. And that means where are you making the cuts? Is it at one facility? Is it at two facilities? Is it across different States? You have to decide what the unit is that you're looking at in terms of making these RIFs. And then you have to specify the eligibility factors. And that's again, kind of portrait language.
John Cernelich:
What they mean here is that you have to specify how you made the cuts within the decisional unit, what were in essence, the eligibility factors. And that gets back to what I was talking about. Again, typically you would lay out a paragraph that indicates we did this, certain individual jobs were chosen for elimination, but within a classification, for instance, we did it by relative skills, relative gut performance in seniority being a tie breaker. So you would specify that in the document itself, and again, you may have different criteria for different facilities or even within different classifications.
John Cernelich:
You don't want to, I think, do too much of that because it can look like you're gerrymandering, particularly if federal older workers are targeted for reduction, but again, this is absolutely imperative. If you want to get effective age discrimination releases, which I think is what everybody's shooting for. You want to make sure that you comply with the OWBPA information there. And then you have to list the job titles of the people affected and the ages of those people. So usually I list that by classification and you also have to indicate the job titles and ages of the person's not selected.
John Cernelich:
And usually that's an attachment to the agreement. And it's really designed to flush out, just by a glance, particularly by an attorney, if perhaps there was a bias there in terms of age. So again, remember the OWBPA if you're considering releases in connection with a RIF. And let me mention WARN, because we have already had several WARN situations that we've been dealing with. Remember WARN is a federal law, but some States have many WARN Acts and they can be much more demanding than the federal law.
John Cernelich:
New York in particular requires notices when 25 employees are being affected with the closing, California has a law. So if you're looking at RIFs in different States, keep in mind the different State Laws. Ohio really doesn't have one. If you comply with federal law in Ohio, you are fine. Remember WARN requires 60 days advance notice of any plant closing or mass layoff to infected employees, bargaining unit representatives and state and local government officials. Also, there is the state dislocated worker unit. That would be one of those officials that has to get the notice.
John Cernelich:
You are a covered employer and will have to comply with WARN if you employ 100 or more, and that's 100 or more throughout your entire organization. And again, WARN is triggered by a plant closing or a mass layoff. A plant closing is what it appears to be the permanent or temporary shutdown, not of a complete facility, but here's the thing that people miss. Under WARN, you can have a closing if you shut down a facility or operating unit at a single site or within a single site, and more than 50 or 50 or more employees are affected.
John Cernelich:
So let's say that you decided you wanted to close a product line and to displace those employees in a product line or in a department, let's say a word processing department and 50 or more are impacted. You're not closing your whole business, but you're closing that facility or operating unit. So if I were to play family feud and list the top mistakes that people make under WARN, this is number one, that people focus on the numbers when it comes to the whole place being shut down or the mass layoff, but they forget you can have these kinds of micro closings. So keep that in mind, when it comes to WARN responsibilities.
John Cernelich:
A mass layoff is a reduction in force that affects at least 33% of employees excluding part-timers and at least 50 employees. So if you have 210 employees, 33% of that is 70. If you let go of 70 in a 90 day period, then that means that everybody in that window, that 90 day window should have gotten 60 days advance notice of their layoff. So keep in mind it's and one third, or at least 500 employees. Employment losses are terminations the permanent reductions, but they also can be layoffs exceeding six months.
John Cernelich:
So keep in mind if you announce a furlough and it's not going to right now exceed six months, you don't think, but if it does exceed six months, then what would happen is the date those people are initially laid off would be the date that would count in terms of figuring out WARN liability in any 90-day period. So a temporary furlough can turn into a employment loss for purposes of WARN. There's also the same thing when it comes to reduction in hours, if that continues greater than 50% for six months or more, that also would be an employment loss where possibly 60 days advanced notice would have been required prior to the time that reduction began.
John Cernelich:
So here's the thing that also gets lost also on my family feud board, people think of WARN. And when you look at the statute itself, it talks about 30 days, but really if you read the regulations, there's a 90-day aggregation period. So when we're talking for instance about again, mass layoff, 210 employees, these smaller reductions over 90 days will be aggregated together. So on day one, if you lay off 20 and your trigger number is 70, then in the next 90 days, if you lay off again, that 50, that 50th employee will trigger the WARN obligation, which means that you should have given 60 days advanced notice to everybody in that window.
John Cernelich:
The good news, I guess, it's a 90-day kind of hard stop. So quite frankly, if you're doing smaller reductions in force, you may be able to stagger them to avoid WARN obligations. But again, it's important to keep track of numbers of employees during any reductions. So you can recreate where you are in terms of possible WARN obligations. There are a couple exceptions to WARN a faltering business exception. It only applies in a plant closing context, in an order to avoid having to give the notice you have to have been actively seeking capital or business at the time notice was required.
John Cernelich:
And that that capital would have caused you to avoid the reductions. This is a very narrow exception. It's not one that people typically should count on. It comes into play sometimes, but again, you have to be seeking capital that would have avoided the downsizing. So when you hear faltering business, people say, "Oh, that's us." No, you have to be in motion in terms of trying to gain financial resources to avoid again, the closing of the mass layoff.
John Cernelich:
The one that we've seen of course with COVID-19 is unforeseeable business circumstances. So for instance, I had one client that literally got a text saying, or an email saying that all of its supporters are being pulled. They had to have a WARN size reduction in force. We still gave notices, but we indicated in the notices that there was an unforeseen business circumstance with this reduction in business, you still have to give notice even if it's fewer than 60 days. And there's a natural disaster exception as well. The language there doesn't really lend itself to pandemics, but I think some people are going to apply that. If you don't give the notice again, if-
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John Cernelich:
If you don't give the notice, again, if you're in a situation you can't give 60 days notice and you could still give 30 days, you need to do that. And so the liability would be those 30 days that that argument would be perhaps by plaintiff's attorneys, that you should've given the full 60, but you give as much as you can perfectly with the unforeseeable business circumstances. Here are the possible penalties here, including civil penalties up to 500 days for not giving the notices to the state and government entities and officials.
John Cernelich:
So if you're facing larger reductions, please, I will tell you having gone through this in 2008 and 2009, work with council, because any kind of flow charts and things at any kind of strategy memos that you are working on could be protected by the attorney-client privilege. I think the people who spend the time upfront planning these things really are the ones who successfully navigate against all of these discrimination claims or any worn challenges that we've seen. So this is an area of really where a stitch in time saves nine. And we would encourage you to work with us if you're planning any reduction in force.
John Cernelich:
So at this time, let's turn it over, Todd. If you want to answer some of the questions that came in as to your area about the reopening.
Todd Palmer:
Yes. And I've been typing out answers to a lot of these questions as other folks have been speaking. The advantage of going first, I get to do something with my time. But yes, there's been some very good questions, certainly myself, certainly for Jen Colvin. Probably certainly one of the toughest involves an employer. It's the issue of employees who need to continue to be home for childcare purposes and especially for an employer who is not covered by the FFCRA and it's extended family medical leave provisions. And so the question is as to that employee, at what point can the employer, return to enforcing normal stricter attendance policies. And again, that's a very good question and I wish I had a solid black letter law answer to that, but I think the answer is that because we're outside of an FFCRA mandate, I think the first step is defaulting to the employer's policy on absences.
Todd Palmer:
And of course, absence policies are as the CDC is telling the employers. Absence policies need to be relaxed and especially point systems. We should be very careful with assessing points for employees who are out because of COVID. But I think the other part of the answer to this question is caution based just on... I don't know if it's social media pressure or maybe traditional media question, but if you're the employer who is mandating return to work by employees who need to be home to care for children, and especially if the person is able to work from home, if you start pointing them or disciplining them for not being at work, you're going to have a Peggy Gallek walking up your front driveway. It's going to be the I team on Fox 8 news.
Todd Palmer:
If it's not damaged, you're going to get roasted on social media. There is a lot of public sympathy out there right now. It's a very different environment than we've faced in fashion, in as long as I've been doing this job, I've never seen anything like this. So that's a long-winded way of saying, well, from a purely legal perspective yes and especially because we're outside FFCRA. Yes, you could be mandating those employees return to work and enforcing discipline, but I think as a matter of prudence, I would really, really advise against that. I know there have been some very good questions for, for Jen Colvin and Jen I'll throw this one to you. There's been some comments about, you've mentioned a 10 day scenario when an employee has potentially been exposed. And especially as past CDC guidance has said 14 days. Where are you getting your 10 days from?
Jennifer Colvin:
Right. So, I'd say the most questions were about the difference between the 14 days self isolation and the 10 day period. And so just to clarify, first off the CDC changed their guidance on May 6th. So this happens all the time and it's really ever evolving as they learn more about the virus. But the 14 day self isolation period is for someone in a general business environment who has been exposed, close contact for long exposure within six feet, and has no symptoms. That person should be sent home and asked to self quarantine for 14 days. The 10 day period is for someone who either had symptoms and is a presumed positive, or has no symptoms, but a positive test. This period actually used to be seven days, and what they've discovered is that someone may shed virus longer than initially expected.
Jennifer Colvin:
So someone who experiences symptoms of the COVID virus should go home and self isolate. They may only return to work after both of these are present. They're 72 hours away from symptoms, so no symptoms, no fever for 72 hours unmedicated. And the date they want to return to work is at least 10 days after the first onset of symptoms and it used to be seven days, so this is a change. So as for someone who got sick on May 1st and had a fever, but their fever only lasted two days. And as of May 2nd, their fever went away. So May 3rd, 4th, and 5th, they are fever free and medication free, then they can return now 10 days after the first onset of symptoms or May 11. It used to be that they could return May 8th.
Jennifer Colvin:
So that's why I think when you're talking to individuals who have symptoms or become ill, it's really important to get that timeline from them to really be clear, when are we talking about the onset of symptoms? When were you in our building? What were you doing? Who were you in contact with? And to understand exactly how other people may have been exposed, how the virus may be spreading. But yeah, that 14 day period is for someone exposed with no symptoms. And that person may never develop the virus, they may never have a positive test, they may never have symptoms. After 14 days, they're considered safe to return to work. Someone who was exposed or has a positive test but no symptoms, 10 days after the positive test, if they still have no symptoms and that person is considered safe to return to work.
Jennifer Colvin:
And I think the difference there is between the exposure date and the test date, because the virus may develop and you may test positive within those few days after exposure, but you may not test positive. You may test negative the day you're exposed, right. And it takes a while for that virus level to replicate in your system and to be able to test positive. So that's where I'm seeing the difference on the CDC guidance. I hope that helps a little bit. I got a lot of questions on that one.
Todd Palmer:
We just had another very good question come in. What if our staff are all remotely successfully, what should trigger having the staff return to the office, given the relative risks? I'll take that one and I'll use my own law firm's experience with that as a reference point. We have, just starting this week, started a return to work at the office protocol. And since middle of March, everyone's been working from home and it's been going well and so where we are not at it... They may have split squads and massive social distancing and lots of good protocols, but it remains entirely voluntary. I guess the trigger point in terms of why we decided to do this is first of all, the state of Ohio Order permits office environments to reopen.
Todd Palmer:
And secondly, we want it to make the resources of at the office. It's a different work experience working from home versus working at the office. We wanted to make the in-office environment available to those who wanted it. But there's no hard black letter law that says, "Oh, office environments must open now." It's really going to come down to your own assessment of your company and its operations in your workforce and what makes sense for you.
Todd Palmer:
Let's see. We've got another question here. Jen Colvin, I think this might be for you. If an employee is sent home for positive test or symptoms, what is the employer's responsibility for wages? If an exposed employee needs to be sent home in quarantine, what is the employer's obligation for wage payments?
Jennifer Colvin:
Sure. I think the first thing to remember is what Todd mentioned, that all governments and agencies are urging employers to be flexible right now. So on that backdrop, I think one item to think about is whether the worker qualifies for under the FFCRA, for the emergency paid sick leave. So someone directed to quarantine, I think may qualify for that emergency paid sick leave. Now I got another question about what if they refuse to go see a doctor? Well then maybe they don't because usually it's quarantining under the CDC guidelines in accordance with a medical directive. Well, if they won't go see a doctor, then maybe they don't qualify for that pay, but I think that's an avenue to pursue.
Jennifer Colvin:
Otherwise, then I think the question mentioned that PTO policy. Yeah, you would look at your PTO policy and maybe allow someone to take PTO. Is there a possibility of that person working from home? Most of us now have been working from home at least somewhat successfully and a lot of businesses for a period of time. So if work from home is an option, then that's a way to allow the person to work. You would continue to pay them as you have been during the stay at home orders.
Jennifer Colvin:
And finally, if none of those work, if this is a food service worker, they don't qualify for leave, they have no PTO, then I think at that point, you may want to look at an unpaid leave. And again, we're looking to be flexible, it's going to be a case by case basis for every employer and every employee. But an unpaid leave in a lot of circumstances even before COVID-19 was considered a reasonable thing for employers to assess and to look at when unexpected situations arose, either in the disability or illness context and otherwise.
Todd Palmer:
Good, thank you. Here's one about gatherings of 10 or more people in the workplace. Given that the Ohio Order prohibits gatherings of 10 or more people, even in the workplace, what about a meeting with more than 10 persons at work? Would that be permissible if there was social distancing and I guess even if all 10 persons wore masks. Yeah, my quick answer to that is do a Zoom call or a conference call. Unless there's some absolutely just dire, hair on fire kind of reason that all 10 of these people need to be in one space together for a meeting. Yeah, I would try to push that on to a different medium other than face-to-face. Let me see-
Jennifer Colvin:
I think there's one on the bottom, Todd, that my be pretty critical about the face masks, face guards and if that would potentially cause another safety concern such as fogging.
Todd Palmer:
Yes. And that's a good question. And that is covered by one of the exceptions in the Stay Safe Ohio Order. It's an exception to wearing a facial coverings at all time while at work. I think that would probably... It's exception D, it's 8D of the Ohio Order. Facial coverings are in violation of the business's documented safety policies, I think that would be within that exception. Likewise, a different exception, item F, "there is a functional reason for an employee not to wear a facial covering in the workplace." Yeah, I would think that the fogging of glasses certainly would fit that exception, having I've experienced that problem myself. Unfortunately, I'm not working with anything that's going to cut off a finger tip, but yeah, the eyeglass fogging is a problem.
John Cernelich:
So you hear, Todd, there's a question about an employee who's scheduled to come back to work and she is pregnant.
Todd Palmer:
You are welcome to the dive on that one.
John Cernelich:
Yeah, folks, I mean, in that situation, I don't know if the employee has expressed any misgivings herself, but if the employee hasn't expressed any and she hasn't presented a doctor slip or anything, then I think she can return to work. If she does express some misgivings, you can simply talk to her and come up with an understood... with the situation. But you can ask for a physician's assessment as to her fitness for work, whether her returning to work would in essence create any issues, harm to her, or harm to her baby. And then again, there could be an accommodation that was suggested in terms of her workspace or in terms of her schedule or anything like that. The questioner said, "Well, I know there isn't a per se obligation to accommodate a pregnant woman," but this gets into more of medical restrictions given her pregnancy status. So it's more akin, although it's not a disability of course, it's more akin to accommodating a person with a medical condition.
John Cernelich:
So I would talk to her and if there's any misgivings, you can ask her for a physician's assessment. You may want to provide a copy of her job description if that will help a physician better assess her fitness for work while pregnant.
Todd Palmer:
We've got another open question here, and it's addressed to Jen Colvin, which is the questioner states, "I believe in another seminar I attended, we were told we could not force an employee to see a doctor if they displayed symptoms, rather just encourage them to do so." And the question is, "is that accurate?"
Jennifer Colvin:
I don't think you can really force employees to do something that they don't want to do. You can prohibit them from coming to your workplace. So if they display symptoms of the COVID-19 virus and your return to work plan for habits, people from coming on your premises who display COVID-19 symptoms, then you can require that they quarantine self isolate for the recommended period of time. Again, if they have been exposed and they're showing symptoms, you can send them home if they have symptoms and that's part of the health assessment, when we talk about people appearing for work, the temperature, the questionnaire, and also you're allowed to look them over at that point, if someone is really coughing, it looks like they're having respiratory symptoms, you can refuse them entry to your workplace until they meet the symptoms test. So 72 hours after a fever or respiratory symptoms and 10 days after symptoms of the virus.
Jennifer Colvin:
Now, like I mentioned, in one of the other answers, if they refuse to go to a doctor to get any type of medical advice, and again, the guidance right now is to call your doctor first before showing up. And if they refuse to consult their medical provider, then they may not qualify for some of the paid emergency sick leave, which does require an order either of a state government agency or a medical provider that you quarantine. I think that's pretty easy to get at this point under the CDC guidelines, if someone calls their doctor and says, they're having difficulty breathing and they're coughing, I don't think medical providers at this point are going to give them a hard time about providing them a note that they should isolate in accordance with CDC guidelines that would then qualify them for the emergency paid sick leave where it's available under the FFCRA and employers can take the payroll tax credit for that type of benefit.
Jennifer Colvin:
So it all seems to work together better when they do, but if they refuse to it may just hinder their receipt of benefits. The employer though can still require they not be at the workplace in accordance with your return to work plan.
John Cernelich:
Okay. Well, thank you, Jen. And well that I think wraps it up. I think we've moved through all of the questions here that we got. So thank you very much for your questions. Thank you. We're able to see as speakers, this is all new to us, but we can see the participants and we can see where we have drop-offs and everybody's hung with us, so we really appreciate that. Thanks very much and we look forward to being able to see you all again soon and to work directly with you. If you have any questions about what we covered, please reach out to us. And again, particularly in the reductions in force, which unfortunately may be on a lot of people's plate. We very much appreciate being a resource because we don't want you to go through the difficult scenario of reductions in force and then on the other side faced a lot of expensive and time consuming lawsuits, so we're anxious to work with you.
John Cernelich:
And as you are dealing with employees, of course right now, given the Coronavirus, we absolutely want to be able to provide you some guidance to help keep everyone safe. So thank you for attending today, and we will see you all soon. Thanks.
Jennifer Colvin:
Thank you.
Todd Palmer:
Thank you all.