Coronavirus Update – Ohio’s Stay at Home Order & The Families First Coronavirus Response Act

Mar 23, 2020

We continue to cope with the impact of COVID-19 on our lives and workplaces. Developments, updates, and new recommendations are occurring daily.

Ohio’s Stay at Home Order. To help combat the spread of COVID-19, the State of Ohio issued an order requiring all persons to stay at home unless engaged in essential work or activity. The order provides some guidance on the types of business and business activities deemed essential, and the safeguards employers should take when continuing essential work activity. The order will take effect on Monday, March 23, 2020 (tonight) at 11:59 p.m., and is currently scheduled to last until April 6, 2020. A copy of the order is available here.

The Families First Coronavirus Response Act – Takes Effect April 2, 2020
We are still waiting for official guidance from the U.S. Secretary of Labor to clarify details and address unanswered questions related to the temporary leave entitlements passed by Congress last week. Below is a current summary of the major provisions:

Emergency Paid Sick Leave – Covered Employers will be required to provide eligible full-time employees with two weeks (up to 80 hours) of paid sick leave for qualifying absences. Part time employees will be entitled to a pro-rata equivalent, based on their average hours worked.
• Emergency Paid Sick Leave for Self. Paid sick leave may be used when the employee is: (1) subject to a Federal, State, or local quarantine or isolation order related to COVID-19; (2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or (3) experiencing symptoms of COVID-19 and seeking a medical diagnosis. Employees taking leave for this purpose will be paid at the employee’s regular rate of pay for the qualifying absences, not to exceed $511 per day ($5,110 in the aggregate).
• Emergency Paid Sick Leave to Care for Others. Employees may also use paid sick leave to care for an individual (it does not have to be a family member) who is: (1) subject to a Federal, State, or local quarantine or isolation order related to COVID-19; or (2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19. Paid sick leave may also be used to care for the employee’s child whose school is closed, or whose childcare provider is unavailable, due to COVID-19 precautions. Employees taking leave for these purposes will be paid two-thirds the employee’s regular rate of pay for the qualifying absences, not to exceed $200 per day ($2,000 in the aggregate).
• Paid sick leave under this program is in addition to any sick leave benefits the employer already provides.
• The employer may not require employees to use other available leave before using paid sick leave under this Act.
• Paid sick leave must be available for immediate use upon the effective date of the Act regardless of the employee’s length of service.
• Employers are prohibited from retaliating against employees who take leave in accordance with the Act.

Expanded FMLA Provisions – Covered Employers will be required to provide paid Emergency FMLA to employees who are unable to work (or telework) because the employee is caring for his/her child (18 years or younger) because the child’s school or place of care has been closed or the childcare provider is unavailable, due to a public health emergency. This is the only qualifying reason for Emergency FMLA.
• Employees are eligible for Emergency FMLA if they have worked for the employer for at least 30 days.
• The first 10 days of Emergency FMLA may be unpaid but the employee may substitute any accrued paid leave benefits available under the employer’s policies.
• After the first 10 days of unpaid FMLA, employees may receive paid Emergency FMLA leave for up to 10 weeks in an amount not less than two-thirds of the employee’s regular rate of pay based on the number of hours the employee would have otherwise worked.
• For employees who work part-time/varying schedules, the employer may average the number of hours the employee typically works per week over a six-month period to determine the amount of leave available.
• In all cases, the paid leave provision is capped at $200 per day and $10,000 in the aggregate.
• Employers that are health care providers or emergency responders may elect to exclude employees from this leave.
• Under traditional FMLA rules only employers with 50 or more employees are covered by the FMLA. Under these Emergency FMLA provisions, all government entities and employers with 500 or fewer employees are Covered Employers under the Act. The Act does provide some relief for small employers with less than 50 employees to seek an exclusion from the paid leave requirements if compliance would “jeopardize the viability of the business as a going concern.”

Tax Credits – The Act also provides for employer tax credits to help offset the costs of providing the mandated benefits. The credits shall be allowed against the tax imposed by section 3111(a) or 3221(a) of the Internal Revenue Code for each calendar quarter in an amount equal to 100% of qualified wages paid to employees, up to established limits.

Employers should note that the payments and requirements under the Act are temporary and will expire on December 31, 2020. Over the next few days and weeks, additional guidance and agency interpretations will be forthcoming. The Act calls for the Secretary of Labor to provide guidance and issue regulations related to the Act, including a model notice for employers to distribute and post.

State Unemployment Benefits
Governor DeWine issued orders providing for increased flexibility and access to unemployment benefits for employees who are out of work due to the virus. For example, Ohio has waived the one (1) week waiting period for COVID-19 related layoffs and modified the work search requirements for laid off workers subject to recall. Visit the Ohio Department of Job and Family Services’ website for additional information and frequently asked questions regarding the Coronavirus and Unemployment Insurance Benefits. To expedite unemployment claims, ODJFS requests that employers provide this special form to affected employees:
http://www.odjfs.state.oh.us/forms/num/JFS00671/pdf/.

Insurance Benefits & Grace Period. Many employers have questions regarding the impact of COVID-19-related layoffs on benefit eligibility and the deferral of premium payments for employer-sponsored health plans.

At a press conference on Friday, March 20, 2020, Lt. Governor Husted advised that the Ohio Department of Insurance (“ODI”) will be issuing an order for insurers in Ohio to allow employers to offer employees a grace period for insurance premiums and to allow employers to continue covering employees even if the employee would otherwise become ineligible for insurance because of a decrease in the hours worked a week.

A copy of the ODI Bulletin 2020-03, Health Insurance Coverage Flexibility for Ohio Employees, is available here.  Employers should contact their insurance carriers/brokers regarding the arrangements that are in place for providing continued coverage to laid-off employees and a grace period for insurance premiums.

Martin Browne, will continue to monitor these situations and provide updates as necessary. Our attorneys are on hand to answer your questions and provide guidance on how to navigate these critical issues. Please contact Shannon Wahl, Randall Comer, Steve McCready, or any attorney in Martin Browne’s Labor & Employment Practice group.