With recent weather happenings leaving much of Ohio covered in varying degrees of snow, ice, and that all-too-familiar gray slush that ensues as it all melts, re-freezes, and melts again, now seems like a good time to discuss the workers’ compensation implications when employees get hurt trying to traverse this sometimes perilous terrain.

In Ohio, the basic rule of workers’ compensation is that it covers injuries sustained both in the course of and arising out of an injured worker’s employment. The question of whether an injury occurs in the course of employment focuses on the time, place, and circumstances of the injury, with benefits limited to those employees engaging in some essential job duty or function when injured. Moreover, for an injury to be considered as having arisen out of the employment, there must be a causal connection between the employee’s injury and his employment. This is a fact specific question that looks at the totality of the circumstances, especially with respect to the following three factors:

  • The proximity of the scene of the accident to the place of employment
  • The degree of control the employer had over the scene of the accident
  • The benefit the employer received from the injured employee’s presence at the scene of the accident

For accidents that happen on the clock and in the building, such as a slip-and-fall on a wet floor due to melted ice and snow, the connection is relatively straightforward. Fault is generally not a part of the equation, so unlike premises liability cases, employees’ injuries are covered even when they occur as the result of “open and obvious” hazards—like a puddle of water with a “wet floor” sign next to it. Note: mops and wet floor signs are still recommended to help prevent injuries in the first place!

When an employee is injured in transit, the analysis is more complicated. For employees whose travel is an intrinsic part of their work duties—such as delivery drivers and traveling salespeople—injuries suffered during work-related trips are typically compensable. For employees who report to a fixed job site each day, on the other hand, Ohio courts have held that injuries sustained while traveling to or from work are generally not compensable. This is true even when the “fixed” workplace changes periodically, as long as the employee’s duties begin when they report to a specific job site designated by their employer. This is known as the “coming and going rule.” Consequently, any time that an employee sustains an injury while traveling, the first question is whether the employee is a fixed-site employee or a non-fixed-site employee. This can be a fuzzy distinction in some cases, often requiring a very fact-specific inquiry regarding the nature of the job and the nature of the travel.

That is not the only inquiry, though, as there are also exceptions to the coming and going rule even when it is clear that the employee is a fixed-site employee.

Under one such exception—the “special hazard” exception—fixed-site employees may be entitled to workers’ compensation benefits for injuries while traveling to or from work if they can establish that the employment created some unique risk that is distinct from what the general public experiences while traveling. Particularly long trips to a job site, rapidly changing job sites within a relatively small timeframe, or even just an extraordinarily dangerous intersection near the entrance to the job site are some examples of such special hazards.

Another exception to the coming and going rule may apply when a fixed-site employee is injured while within the “zone of employment,” even before or after their work shift. This exception is commonly raised in the context of parking lot injuries. Whether on foot or in the car, injuries occurring in the parking lot on or near the employer’s premises may be found to be compensable based on the degree of control the employer has over the parking lot. When an employer owns and maintains the lot where their employees park, injuries due to accidents there are typically found to be within the zone of employment and thus compensable.

Ultimately, despite the multitude of rules and exceptions and abundance of legal terminology on the subject, virtually all injuries while employees are traveling are subject to the same underlying analysis—a case-by-case examination of the “totality of the circumstances” focusing primarily on the degree of control the employer had over the scene of the accident and the benefit the employer derived from the employee being there. Due to the entirely fact-specific nature of this analysis, it is therefore especially important for employers to thoroughly investigate these types of injuries as soon as possible. Obtaining crash reports for motor vehicle accidents, conducting witness interviews, checking cell phone records to verify reported accident times, and even reviewing urgent care records for statements as to where the injury occurred and what the employee was doing when injured can all lead to the discovery of crucial evidence supporting a defense to a workers’ compensation claim based on the “totality of the circumstances.”

According to new guidance from the U.S. Department of Labor, workers who refused jobs that they viewed as unsafe for COVID-19 reasons may now be eligible to collect unemployment benefits. The DOL published this guidance on February 25 in keeping with President Biden’s promise to provide unemployment benefits to workers who chose unemployment over exposure to COVID-19.

The DOL’s action applies to persons who are eligible for Pandemic Unemployment Assistance under the 2020 CARES Act, which includes independent contractors and others who may not otherwise be eligible for state unemployment benefits. These persons are now eligible for unemployment benefits – even if they refused to perform their jobs or refused to accept an open job – if they refused because the work site was not in compliance with COVID-19 health and safety standards. The health and safety standards can include things such as mask wearing, physical distancing and provision of personal protective equipment.

Under the new DOL guidance, unemployed individuals can seek benefits retroactively as far back as February 8, 2020. In order to be eligible, the individuals will have to attest to the unsafe work conditions in writing, and they will have to make that attestation under the penalty of perjury.

President Biden made it clear that his DOL would be active, and more actions from the DOL are a virtual certainty in the weeks and months to come.

As the COVID-19 vaccine becomes available across the country, companies are facing critical decisions as they create policies and/or plan for the transition back to work. Below is a list of questions and best practices Frantz Ward attorneys frequently discuss with clients related to key issues facing returning to the office.

PEOPLE
Back to the Office Health Check

  • Q: Do I legally have a right to ask my employees to take their temperature and screen themselves for COVID symptoms daily?
    • A: Yes, an employer should ask its employees to take their temperature and screen themselves for symptoms prior to coming to work or entering the workplace
  • Q: Do I have the right to ask them whether they have been exposed to anyone who has had the coronavirus?
    • A: Yes. However, the Genetic Information Nondiscrimination Act (GINA) prohibits employers from asking employees medical questions, specifically, about their family members. So, you can ask them if they have been exposed to anyone who has had the coronavirus, but you cannot ask them if their family members have, or had, the coronavirus
  • Q: If I found out they have been exposed, do I have the right to require employees to self-quarantine at home?
    • A: You should prohibit them from entering the workplace while they wait for the isolation period to expire. An employee can telework whilst self-isolating or, if telework is not possible, may take paid or unpaid leave depending on the employer’s policy
  • Q: Can I require that employees get the vaccine?
    • A: Yes. Employees may, however, have a disability or sincerely held religious belief that prevents them from receiving the COVID vaccine. In that case, the employer should engage in the interactive process to see if a reasonable accommodation is possible. Click here to listen to our podcast with more information on this topic

Sick Employees

  • Q: Do employees have to tell us if they have the virus?
    • A: Employers should require employees to tell them that they have the virus. And, employers have the right to ask if employees are experiencing symptoms, as well as the right to send employees home if they are displaying symptoms
  • Q: What if they start to exhibit symptoms, can I ask them to go home?
    • A: As mentioned above, yes. The CDC states that employees who become ill with symptoms of COVID should leave the workplace immediately

Visitors

  • Q: Can I require that visitors wear masks?
    • A: Yes, an employer may require visitors to wear masks and observe infection control practices. However, where a visitor with a disability needs a related reasonable accommodation under the ADA or a religious accommodation under Title VII, the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer’s business under the ADA or Title VII

POLICIES
PPE Protocol

  • Q: Do I have the right to require employees wear a mask while they are not at their desk
    • A: Yes, just as with visitors, an employer may require employees to wear masks and observe infection control practices subject to the ADA and Title VII
  • Q: I see some employees are not wearing their masks over their nose and mouth, can I require them do it that way?
    • A: Yes, subject to the ADA and Title VII
  • Q: Should I provide PPE and sanitizer at the workplace at no cost?
    • A: We would recommend providing PPE and hand sanitizer at the workplace free of charge. If, for whatever reason, PPE is being stolen, misused, or wasted – you may consider restricting access to PPE

Leave of Absence

  • Q: How do I ensure we’re complying with Families First Coronavirus Response Act?
    • A: The Families First Coronavirus Response Act is no longer in effect. However, we expect President Biden to attempt to implement similar leave

Notification

  • Q: Do we need to tell the rest of the staff if one of our employees has COVID?
    • A: You should notify those who may have come into close contact with the employee, without revealing the sick employee’s identity. For example, using a generic descriptor, such as telling employees that “someone at this location” or “someone on the fourth floor” has COVID-19, provides notice, and does not violate the ADA’s prohibition of disclosure of confidential medical information
  • Q: Is this a violation of privacy laws?
    • A: No. However, it would violate the ADA to identify the employee by name as the ADA requires that an employer keep all medical information about employees confidential

Remote Working

  • Q: Can I require that employees work remotely?
    • A: Yes

PLACES
Cleaning and Disinfecting

  • Q: What are the requirements for cleaning and disinfecting employee work areas?
    • A: It is a good idea to frequently disinfect desks, workstations, and high-contact surfaces, and to disinfect common areas daily. In the event of a positive COVID test, you should close that area of the floor or office and perform a deep clean as quickly as possible. Cleaning and disinfecting specifics may vary by city or state
  • Q: What steps need to be taken before employees are back to work?
    • A: All employers should develop a policy outlining what steps it will take to ensure social distancing, clean workspaces, and that ensures that it isolates confirmed COVID cases. Any policy should, generally:
      • Require employees maintain a minimum of six feet distance from each other
      • Require facial coverings in the workplace unless otherwise unsafe or prohibited by law
      • Require that employees perform daily symptom assessment
      • Require that employees stay home if symptomatic
      • Require regular handwashing by employees

Cubicles, Conference Rooms and Cafeteria

  • Q: Can I limit the number of people that go into the cafeteria or conference rooms to promote social distancing?
    • A: Yes. We would recommend limiting such gatherings to 10 people or fewer – or, following more stringent state guidance. An employer can limit those in the cafeteria by, for example, staggering lunch times
  • Q: What am I required to do legally to organize office/cubicle spaces to minimize the spread?
    • A: Legal requirements may vary from state to state. However, an employer generally must ensure a minimum of six feet distance between people, and, if this is not possible, should reorganize the workplace or install barriers

Following President Biden’s January mandate to OSHA to provide clear guidance to protect workers from COVID-19 exposure, OSHA has issued “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.”

OSHA’s new guidance is intended to inform employers and workers of the risks of COVID-19, help identify risks of being exposed to and/or contracting COVID-19, and help determine appropriate control measures to reduce the spread of COVID-19 in the workplace. While neither a new standard nor regulation that creates new legal obligations on behalf of employers, this guidance represents a significant shift in OSHA’s response to the pandemic.

OSHA now clearly states that employers should implement COVID-19 prevention programs specific to their workplaces, recommending specific program elements, including:

  • Assigning a workplace coordinator who will be responsible for COVID-19
  • Identifying where and how workers might be exposed to COVID-19 at work through hazard assessments
  • Identifying a combination of control measures that limit the spread of COVID-19 in the workplace
  • Establishing a communication system that all employees can utilize and understand
  • Adopting non-punitive measures and policies to ensure that workers who are infected or potentially infected are separated and sent home from the workplace
  • Performing enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the facility
  • Making a COVID-19 vaccineor vaccination series available at no cost to eligible employees
  • Continuing to require protective measures despite employees being vaccinated
  • Ensuring that coronavirus policies and procedures are communicated to both English and non-English speaking workers
  • Implement protections from retaliation for workers who raise coronavirus-related concerns

As President Biden continues to make responding to the COVID-19 pandemic a cornerstone of his presidency, employers can likely expect more guidance in the coming weeks.

What do you consider while daydreaming about the end of the pandemic? If it is pondering what actions employees may take while out on FMLA leave, you’re in luck. You need look no further than a case currently pending in federal court in Illinois for an illustrative example.

In Yelp Inc. v. Smith, the company approved an employee’s request for continuous FMLA leave for treatment of a medical condition. During her leave, the employee took a vacation to Thailand. While on the vacation, the employee also sent text messages to a co-worker that contained expletives and threatened physical violence against two other employees.

The company learned about the text messages and investigated. Its investigation included making several efforts, including three phone calls, to contact the employee to discuss the issue. However, the employee refused to answer any questions and hung up on the company’s representative.

As a result of its investigation, the company discharged the employee for violating its zero-tolerance policy for threatening violence (whether at or outside of work). In addition, the company had serious concerns that the employee was dishonest regarding her FMLA leave.  The certification the employee provided indicated she was restricted from sitting and bending, yet she took a vacation to Thailand (and requested the FMLA leave after learning she did not have enough PTO).

After her discharge, the employee sued the company, alleging that the company interfered with her FMLA leave and retaliated against her for taking FMLA leave. The company filed a motion to dismiss the employee’s claims and is awaiting the court’s decision.

Although the case is still pending, it provides several useful insights for employers. First, even when faced with potentially egregious conduct, employers should adequately investigate the potential misconduct before taking action. Here, among other things, the company made multiple attempts to get the employee’s side of the story before making the decision to discharge her. Second, especially when it comes to engaging in or threatening violence, ensure your policies cover a broad range of potential employee conduct. Here, the company’s zero-tolerance policy that prohibited engaging in or threatening violence included off-work conduct.

Yesterday, on his first full day in office, President Biden signed an additional ten Executive Orders, among them one directing the Occupational Safety and Health Administration (OSHA) to take immediate action and issue guidance to employers on protecting workers from COVID-19.

Specifically identifying “healthcare workers and other essential workers, many of whom are people of color and immigrants, [who] have put their lives on the line during the coronavirus disease 2019 (COVID-19) pandemic,” the President’s Executive Order requires that OSHA take the following “swift” actions, among others, to reduce the risk that workers may contract COVID-19 in the workplace:

  • Release guidance within two weeks of the date of his Order directing employers on workplace safety
  • Evaluate and consider whether any emergency temporary standards on COVID-19, including with respect to masks in the workplace, are necessary, and if such standards are determined to be necessary, issue them by March 15, 2021
  • Launch a national program to focus OSHA enforcement efforts related to COVID-19 on violations that put the largest number of workers at serious risk or are contrary to anti-retaliation principles

Emergency COVID-related standards, even if temporary, will likely result in litigation, particularly if the new standards track the one enacted in California, which requires employer-funded testing during work hours, mandates paid leave, and subjects employers to OSHA’s Respiratory Protection standard.

Given the President’s campaign promise to be “the most pro-union president you have ever seen,” employers can also expect other non-COVID-related changes in OSHA guidance from this Administration, including a marked increase in enforcement and inspection activity across the board and the appointment of a safety professional with close ties to organized labor as the Assistant Secretary of Labor to OSHA, having already appointed Jim Frederick (a former United Steelworkers safety official) as Deputy Assistant Secretary on Inauguration Day.

With the Democratic Senatorial wins in Georgia, it is now clear that in addition to Executive Orders and regulatory changes the new President is likely to make legislative changes that employers will need to prepare for. The President-elect’s agenda was clearly articulated in his campaign platform, indicating that he would:

  • Check the abuse of corporate power over labor and hold corporate executives personally accountable for violations of labor law
  • Encourage and incentivize unionization and collective bargaining
  • Ensure that workers are treated with dignity and receive the pay, benefits and workplace protections they deserve

Employers should expect that President-elect Biden will move swiftly in those areas where he is able to initiate changes designed to achieve these goals. Some changes will take more time than others, but clearly a far more employee/union friendly administration will dramatically change the playing field on the labor front.

Those trying to predict the likely focus of the Biden administration need only look to the last several years of the Obama administration, including proposed legislation, such as the “Protecting the Right to Organize Act” (the “PRO Act”) for a clear indication of where changes will be made.  Likely proposals include legislation that would allow for unionization based on card checks, banning of employer captive audience meetings during union representation campaigns, mandatory mediation and interest arbitration for first contract collective bargaining, and potential liability for employers who commit unfair labor practices under the National Labor Relations Act.  Given the results in Georgia, it is likely that the PRO Act or some variation of that Act will be on the new President’s early agenda.

Other pro-employee initiatives will likely take longer.  The current Republican majority on the National Labor Relations Board (the “Board”) will remain in place at least until August of 2021, allowing that majority the opportunity to put in place some of the Trump-era changes they have sought through rulemaking before President-elect Biden will have an opportunity to name a majority of Democratic members to the Board.  While there had been speculation about the possibility of President-elect Biden attempting to replace the current NLRB General Counsel, Peter B. Robb, most commentators believe that such a move could backfire and that it is likely that General Counsel Robb will remain in place for the balance of his term (November 17, 2021), directing the enforcement activity of the Board.

Despite a delay in initiating change at the NLRB, change is coming and it is likely that a reconfigured Board will return to many of the Obama-era standards.  Changes likely to be seen include yet another attempt at defining joint employer responsibility, composition of bargaining units, and utilization of company communication platforms such as e-mail to enhance union organizing  efforts.

In addition to these changes, President-elect Biden’s naming of former Boston Mayor Marty Walsh, a union member for  more than 30 years and former President of the Laborers Union, Local 223, as his Secretary of Labor, sends a clear message that his Department of Labor (“DOL”) will be focused on significant pro-employee changes.  Anticipated changes may include:

  • Minimum Wage – President-elect Biden has called for a $15 federal minimum wage
  • Overtime – The DOL is likely to revive an Obama era overtime rule that had raised the minimum salary requirement for exempt status
  • Worker Classification – President-elect Biden and his DOL are likely to support an aggressive prosecution of employers who violate labor laws, including those who intentionally misclassify employees as independent contractors
  • Gig Workers – Employer classifications of “gig economy” workers as independent contractors has President-elect Biden’s attention as well. He has previously articulated his support for utilizing a strong three prong “ABC Test” to distinguish employees from independent contractors.  The future President has stated that he intends to “work with Congress to establish a federal standard modeled on the ABC Test for all labor, employment and tax laws.”  Companies like Uber and Lyft as well as other gig economy employers will need to watch this area very closely for further developments
  • Enhanced Enforcement of OSHA Requirements. In addition to greater enforcement of existing OSHA guidelines and regulations, employers should expect new guidance and regulations with respect to COVID related protections
  • Expansion of Paid Leave for Employees – The DOL is likely to propose a continuation of paid leave during the COVID pandemic (it expired 12-31-20), as well as a legislative effort to require paid family medical leave
  • Arbitration Agreements – Finally, mandatory arbitration agreements for employees are a likely target of the new administration. President-elect Biden has stated his intention to enact legislation prohibiting employers from requiring their employees to agree to mandatory individual arbitration and forcing employees to relinquish their rights to class action lawsuits or collective litigation.  This, of course, parrots some of the state legislation already in place

As discussed above, the new administration will likely implement an aggressive and targeted labor policy to address each of the items that President-elect Biden has indicated are linchpins in his stated agenda of “limiting the abuse of corporate power, encouraging and incentivizing unionization and collective bargaining, and ensuring that workers are treated with dignity and receive the paid benefits and workplace protections they deserve.”  Employers and their counsel will need to monitor each of these developments closely and perhaps, in the not too distant future, change, yet again, their employee policies and handbooks to reflect a “sea change” in labor policy.

Last week, Ohio House Bill 352 (the “Employment Law Uniformity Act”) was signed into law. The Employment Law Uniformity Act, updates Ohio’s anti-discrimination statute, shortens the relevant statutory periods of limitation, and prevents the simultaneous filing of administrative and judicial actions, among other things. The act also codifies an employer’s affirmative defense for sexual harassment hostile work environment claims and limits individual supervisory liability.

Administrative Filing

Before the Employment Law Uniformity Act, employees could sue their employer without filing a charge with the Ohio Civil Rights Commission (“OCRC”) or Equal Employment Opportunity Commission (“EEOC”). Employees now, generally, must first file a charge with the OCRC, and receive a notice of the right to sue from the OCRC, or request a notice of the right to sue from the OCRC, before suing their employer for discrimination.

Affirmative Defense

The Employment Law Uniformity Act codifies the affirmative defense available to employers when an employee claims that he or she suffered a hostile work environment based on sexual harassment where the hostile work environment was created by a supervisor. To use the affirmative defense, the employer must prove:

  • The employer exercised reasonable care to prevent or promptly correct any sexually harassing behavior.
  • The employee alleging the hostile work environment unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.

This affirmative defense is not available to an employer if the supervisor’s harassment resulted in a tangible employment action against the employee (i.e. firing). This affirmative defense existed previously in common law but has now been codified – meaning employers should continue to require that employees promptly report claims of discrimination and harassment, and should continue to diligently investigate such claims.

Statute of Limitations

The statute of limitations for claims of discrimination is now two years whereas before the statute of limitations could have been as long as six years. This means employees have less time to file a charge or lawsuit claiming discrimination.

Supervisor Liability

In 1999, the Ohio Supreme Court found that supervisors can be individually liable for damages under Ohio’s anti-discrimination laws. The Employment Law Uniformity Act limits this individual supervisory liability. Under the act, a supervisor is only liable for claims of retaliation, “aiding and abetting” in discrimination, or other common law torts.

Takeaways

While the Employment Law Uniformity Act makes it more difficult for a plaintiff to bring a claim of discrimination, it does not eliminate such claims – meaning that employers should continue to enforce their anti-discrimination policies, promptly investigate claims of discrimination, and continue to train employees and supervisors in order to prevent discrimination and harassment from occurring in the workforce.

The transportation industry awaits a decision by the Ninth Circuit in Commissioner for the State of California v. Federal Motor Carrier Safety Administration, Nos. 19-70413, 18-73488, 19-70323 and 19-70329, as to whether the Federal Motor Carrier Safety Administration’s Order in December 2018 that California’s meal and rest break rules are preempted by the Federal Motor Carrier Safety Regulations will stand.

Federal hours of service regulations generally limit truck drivers to 11 hours of driving time within 14 hours of on-duty time and require 10 consecutive hours of rest after that period.  However, California requires that employees be provided 30 minutes of mealtime if they work 5 hours a day, and another 30 minutes of mealtime if they work over 10 hours a day. California also has rest break requirements. Up to December of 2018, the FMCSA had held that its rules do not preempt California’s state laws because they constituted laws of general applicability, not laws aimed at commercial motor vehicle safety. However, the FMCSA reversed course in 2018.

Oral arguments were heard in November 2020. Although the Court seemed persuaded by the Plaintiffs, this question will ultimately turn on Chevron deference provided to agencies to interpret statutes. Whatever the decision, it will have wide-ranging consequences as California has some of the biggest ports in the U.S., the FMCSA also issued a similar order in November 2020 regarding Washington’s meal and rest break laws, and states seem to copy California regulatory schemes.

For more information on this and other similar issues affecting the transportation industry, do not hesitate to contact Klevis Bakiaj or another Frantz Ward Transportation Law attorney.

Originally effective on April 1, 2020, the Families First Coronavirus Response Act (“FFCRA”) required certain employers with fewer than 500 employees to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. The FFCRA specified an effective date through December 31, 2020. While many anticipated that Congress would take action to extend the law’s effective date beyond the end of 2020, this never occurred.

Recently, the DOL issued guidance clarifying that employers are not required to provide additional leave under the FFCRA after December 31, 2020, but they may choose to do so through March 31, 2021, and still receive tax credits for paid sick leave. The DOL supplemented its previously issued Questions and Answer guidance, explaining that employers can voluntarily provide paid leave until the end of March:

Your employer is not required to provide you with FFCRA leave after December 31, 2020, but your employer may voluntarily decide to provide you such leave.  The obligation to provide FFCRA leave applies from the law’s effective date of April 1, 2020, through December 31, 2020.  Any change to extend the requirement to provide leave under the FFCRA would require an amendment to the statute by Congress.  The Consolidated Appropriations Act, 2021, extended employer tax credits for paid sick leave and expanded family and medical leave voluntarily provided to employees until March 31, 2021.  However, this Act did not extend an eligible employee’s entitlement to FFCRA leave beyond December 31, 2020.

Thus, employers have discretion, but not an obligation, to provide additional FFCRA leave (and receive the resultant tax credit) to employees who had not previously exhausted their FFCRA leave entitlement.