Hi everyone. Below is a series of questions collected in the last couple of days and the responses from Vorys. THANK YOU to Vorys for their assistance in this difficult time.

1. What documentation can be requested for the new leave statute?  The Families First Coronavirus Response Act (“FFCRA”) contains no specific provision for requesting documentation under the paid leave provisions.  Indeed, it appears that such requirements were in the legislation as it was originally introduced, but then removed from that legislation as it went through the process.  Hence, we suggest that employer’s be very hesitant to require certification or documentation for either the newly expanded FMLA leave or the paid sick time leave.

2. Might “health care providers” get exempted from the FFCRA requirements?  Yes, but that is likely not going to extend to all DD providers as a class or even to all types of employees that a DD provider may employ.  The FFCRA uses the FMLA’s existing definition of “health care providers,” and it is limited to doctors, nurse practitioners, clinical social workers, etc.  Moreover, the possible exemption for employers is based on the number of employees, needs to await DOL regulations, and would still require the small employer to show that “compliance with the law would jeopardize the viability of the business as a going concern.”

3. Does the FFCRA apply to employers with 16 employees?  Yes, but see above answer for a possible, narrow, future exemption.

4. Can an employer tell employees who stay home with school age children that they may be replaced?  Not as of yesterday evening, unless the agency has employed the employee for less than 30 days.  The FFCRA, signed into law yesterday evening by the President, provides expanded FMLA leave for the purpose of caring for children who are at home due to closure of their school.  FMLA leave is job-protected.

5. How does a non-profit take advantage of tax credit?  I think the alert answered this, but just in case, the credit is applied against payroll tax (Medicare and Social Security) obligations.  All employers have those.

6. What is the effect of the DeWine executive order on UE compensation for organizations that are self-insured for UE compensation purposes?  We understand the reference to “self-insured” to mean “reimbursing.”  So understood, it is potentially very problematic for reimbursing employers.  The ODJFS Q&A indicates that “reimbursing employees will follow existing charging requirements” under the Ohio code.  Providers who have such arrangements should contact qualified employment law counsel, and any TPA they may work with for UE claims, immediately for further guidance.

7. How do we handle an employee who was exposed to someone who asserts she was exposed to a person with Covid-19?  The ODH guidance on temperature taking also contains some guidance an employer could seemingly rely upon in this situation.  That guidance is here, but we are seeing regulatory and sub-regulatory guidance changing on a daily or even hourly basis.  In any event, the ODH guidance provides that if an employee is exposed to a confirmed case of Covid-19, but is not experiencing symptoms, the employee should be required to stay at home for 14 days from the time they were exposed to confirmed Covid-19.  The scenario in the email appears to be at least two steps removed from the scenario that the ODH is recommending to send someone home, at least for an employer that is not screening the temperatures of its employees.  Moreover, the person appears to be asymptomatic.   Of course, the employer could be very conservative in this situation.  There could be some risk of perceiving the employee as “disabled,” in violation of the ADA, if the employee is sent home, but that risk seems pretty low if the action the employer is taking is only a temporary removal from the workplace.

8. If an employee tests positive for the virus - we have to get a list of everyone they were exposed to, and those people have to be quarantined for 14 days, is this correct?  Yes.

9. What are our obligations if an employee's family member is waiting for a test result?  Should we keep the employee working?   If the employee exhibits signs of a respiratory illness or has a fever, absolutely not.  If the employee is asymptomatic, and the result has not yet been confirmed, the ODH appears to suggest it is ok for the employee to keep working.  See response to question above.  In this scenario, however, the exposure is much closer and the time the employee would need to be out presumably more limited (testing, at least as I understand it, is coming back in a few days).  Accordingly, in this case, it may well be a better (and again more conservative) option to send the employee home until the confirmed test result comes back, given the stage of the epidemic we have entered.

10. If a family member of an employee tests positive, what is our obligation as an employer?   The employee should be sent home.  The period of time the employee should remain at home, and the circumstances under which the employee may return, will depend on whether the employee is exhibiting symptoms.  Employers should refer to the ODH guidance discussed, and linked, in the response to question #7.  The employer may also have the paid sick leave obligations to such an employee.  Please refer to the Vorys alert dated 3/19/20 for additional information on the FFCRA.

11. If a family member of an employee tests positive, what is our obligation as an employer?  See the ODH guidance discussed, and linked, in the response to question #7.  The precise steps will depend on whether the person is exhibiting symptoms or not, but in both cases the employee should be required to go home.  The employer may have the paid sick leave obligations to such an employee.  Please refer to the Vorys alert dated 3/19/20 for additional information on the FFCRA.

12. Guidance on what can be said to media and others?  Refer to email on media. As to what the employer can say to other employees about a co-worker, confidentiality must be maintained.  But, employers can certainly advise co-workers of the fact that someone has tested positive.

13. What documentation is necessary to show an employee is essential/critical?  The situation has not progressed to that point.  We are aware of no order, legislation, or guidance in Ohio that would require an employee to prove to authorities that they are critical or essential in order to move about the community or commute to work.  If any such requirement is imposed in the future, we will certainly be providing another alert regarding same.

As you know, members should not view the foregoing as legal advice.  These questions are complex and novel and may very well be unique in each employer’s situation.  Thus, members are well-advised to contact qualified employment law counsel for advice on situations unique to them.

Please let me know if you have any questions or concerns.

Sincerely,

Nelson

614-206-5936

From the law offices of Vorys, Sater, Seymour and Pease LLP.
 
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