The coronavirus is now a global pandemic. Schools in Ohio and elsewhere are closed. Conferences, sporting events, and all other sorts of public gatherings are being cancelled. To put it mildly, COVID-19 is disrupting businesses. And that means it impacts Ohio employees.
With so much uncertainty surrounding the pandemic, it’s natural to worry not only about job security, but also about safety at work. That in mind, below are some FAQs to help Ohio employees understand their workplace rights during the coronavirus outbreak.
Though we hope this will help answer questions, every situation is different. To protect your rights, you should consult with an experienced Ohio employment law attorney.
What are my rights as an employee during the coronavirus pandemic?
There are several Ohio and federal laws that might protect employees during the coronavirus outbreak. By that we mean protecting both job security and minimizing the risk of infection. Some of these laws include the Occupational Health and Safety Act (OSHA), the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and the Ohio Revised Code. Most recently, and most importantly, is the Families First Coronavirus Response Act, passed by Congress on March 18, 2020. Though employee rights will vary in specific situations, there are a few broad principles.
First, starting on April 1, 2020, employees in many situations cannot be fired because they get the coronavirus.
Second, also as of April 1, 2020, working parents of many employers will be able to take partially paid leave if their child’s school has been closed due to the pandemic.
Third, employers must take reasonable steps to provide a safe workplace. What exactly that requires will vary from workplace to workplace, and from job to job.
And fourth, employers must follow the law regarding the rights of employees with medical conditions. In some instances that means medical leave. In others, it might mean reasonable accommodations. And in others still, it might limit what medical inquiries your boss can make about your health.
Can I be fired if I get coronavirus?
This is the big question. The answer depends mostly on whom the employee works for.
On March 18th, Congress passed a new law providing up to 80 hours of paid sick leave for many employees who get the coronavirus, are under a doctor’s self-quarantine order, or who have virus symptoms and are seeking a diagnosis. Unfortunately, this law excludes employers with more than 500 employees. That means more than half of the Ohio workforce is excluded. What protections do these employees have?
For employees not covered by the Families First Act, the FMLA would protect an employee who is otherwise qualified for leave (based on length of service and size of the employer) if she is hospitalized due to coronavirus. Conversely, for employees who get sick but are not hospitalized, the answer is murkier. For them it may depend on the number of times they need to see a healthcare provider on an outpatient basis.
For its part, the ADA does not usually protect employees with the flu and so it stands to reason the same is true for COVID-19. That said, the ADA and Ohio law ban employers from firing employees because they mistakenly believe an employee has a disability. One might argue that an employer violates the ADA if it fires an employee out of hysteria because it fears the virus causes a disability.
What if I need to miss work because a family member gets coronavirus?
The Families First Act provides protection here too. Until the law sunsets at the end of this year, covered full-time employees are entitled to 80 hours of job-protected paid leave to care for a close family member who gets the virus, is under a mandatory quarantine, or is seeking a diagnosis.
For the millions of Ohio employees not covered by the Act, any protection the employee has in this situation will come from the FMLA. If an employee needs to miss work to care for a sick child, spouse, parent, or grandparent, the FMLA will protect them only if the illness qualifies as a “serious health condition” as defined under that law. Once again, hospitalization will qualify, and anything short of that might or might not.
Can I be fired for missing work to watch my children while Ohio schools are closed for coronavirus?
With schools closed across Ohio, the pandemic has caused a childcare crisis for many employees. Can employees be fired for missing work to care for their children while the schools are closed?
Once more, we look to the newly enacted law for the answer. It protects employees who need leave to care for their children because of the emergency school closures. Employees who have been employed at least 30 days may take up to 12 weeks of protected leave to care for their minor children if the child’s school has been closed due to the pandemic.
This leave is unpaid for the first 10 days, and paid at 2/3 the employee’s normal rate after that. There is a $10,000 total cap on leave payments per employee.
For the many Ohioans not covered by the Families First Act, the answer is potentially yes, employees can be fired for missing work to care for healthy children. As a general rule, employers are not required to offer leave to care for a healthy child. If an employee is out of vacation or other leave, the employer can probably apply its attendance policy, even in these times of emergency.
All the same, Ohio does have a catchall wrongful termination claim for employees fired in violation of Ohio public policy. Although it is far too soon to know how Ohio courts would view such a claim under these circumstances, one might argue that firing employees who choose not to leave their minor children home alone during a global health pandemic would violate several public policies regarding public health and child welfare. As the pandemic develops, our guess is it’s only a matter of time before we start seeing some of these cases.
What does my employer have to do to keep me safe from coronavirus at work?
Watch this short video for information about workplace safety during the pandemic. A further discussion follows the video.
Can I refuse to work or do certain tasks if I’m worried about being exposed?
Only in very limited circumstances. OSHA does permit employees to refuse to work or perform certain tasks when—but only when—they have a reasonable fear they are in imminent danger of death or serious physical harm. This is a very high standard. As things stand now, employees who work in offices or factories likely cannot meet this standard. On the other hand, healthcare workers and others likely to come in contact with people who have the virus might have a stronger argument.
For some, the ADA might offer added protection. Employees with existing medical conditions that make them particularly vulnerable can ask their employers for reasonable accommodations to minimize their risk of exposure. An obvious example is an employee undergoing chemotherapy who asks to work remotely from home on a temporary basis. Whether employers are required to grant such reasonable accommodations depends on the specific situation.
One last protection to consider. Ohio law requires employers to provide a safe workplace. Revised Code section 4101.12 prohibits employers from requiring employees to work in any “place of employment which is not safe” or from failing “to do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees. . . .” If there are specific dangers to the employee from coronavirus (as opposed to the general anxiety and danger affecting us all), employees refusing to do certain tasks might argue they are protected by this Ohio statute. Again, it will be a very fact-specific inquiry.
Does my boss have to provide me a facemask or other protective equipment?
Only for employees in certain jobs.
For employees in nursing homes, hospitals, and other healthcare workers with a high risk of exposure, the answer is likely yes. OSHA requires that employers provide respirators to employees when “necessary to protect the health of such employees.” 29 C.F.R. § 1910.134(a)(2). It also requires providing employees with appropriate personal protective equipment, or PPE. Ohio law somewhat similarly requires employers to “do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees. . . . ” R.C. § 4101.11. If an employee’s ordinary duties put them at high risk of direct exposure to the coronavirus, OSHA and Ohio law require that the employer provide some measure of personal protective equipment. That likely includes either a respirator or mask.
At this stage of the pandemic though, employers are not required to provide a facemask to every employee in every type of job.
Can my employer take my temperature during the pandemic?
The ADA limits when employers can make medical inquiries of current employees. That applies to taking employee temperatures. But employers may make medical inquiries when consistent with business necessity and when the inquiry is job-related. In case of the highly contagious coronavirus, we believe employers can probably meet this standard and take employee temperatures (assuming they are doing so hygienically and via forehead measurement).
Does my employer have to pay me if there is a temporary shutdown?
Probably not. If there is a union contract dealing with temporary shutdowns, employers must follow it. Otherwise, employees need pay hourly employees only for the time actually worked. It’s a little different for salaried employees. For them, employers must pay the full weekly salary if the employee worked any part of a given workweek.
Helping Ohio employees during the pandemic
This is a scary time for everyone. There is much uncertainty. The last thing you need is the added fear about losing your job.
If you have questions about your rights at work during the coronavirus pandemic, contact the experienced Ohio employment law attorneys at Bolek Besser Glesius LLC.