Q+A Coronavirus Update for Employers

E-mployment Alert

A lot has happened since our last COVID-19 update (which can be accessed here if you missed it). As you are probably aware, the State of Ohio Department of Health announced yesterday that it was shutting down in-restaurant dining at all bars and restaurants indefinitely. And, effective tonight, movie theaters, fitness centers, gyms, bowling alleys, recreation centers, indoor water parks, and indoor trampoline facilities will be shut down. But, whether you’re a food-service employer or a gym owner, you will likely still feel the effects of this mandate and continued social distancing over the coming weeks, and maybe even months. Here are some guidelines to help you plan for potential issues that may arise.

Q: I have employees who need to miss work because of coronavirus. What should I do?

A: Governor DeWine announced changes to Ohio’s unemployment requirements. While the Governor’s order eased some of the requirements to receive unemployment (the requirement to be available and looking for work) it did not remove all of them. Employees must still have worked for 20 weeks prior to the request (for any employer) and made at least $269 per week. The individual must also be seeking unemployment due to “no fault of their own” which means the employer, or the Government, must have made them stop working. People who have jobs available and are healthy but do not report to work because they are afraid of catching the virus would not be eligible for unemployment. On the other hand, individuals who are not offered paid leave through their job, as well as those who have been quarantined by a medical professional, their employer, or whose employers must temporarily close, will all qualify for unemployment. The typical one-week wait period is also being waived. Therefore, unemployment may be an option—in addition or as an alternative to PTO—for some employees.

Q: I want to offer telework to employees who need to stay home and/or to do my part to engage in social distancing. How do I implement this?

A: First, have a written agreement that addresses your expectations for working from home and has a clause providing for termination of the arrangement. Also consider any modifications that need to be made to your job descriptions. If the employee is hourly, make sure all hours are tracked; this may be harder with employees working from home, so this should be addressed at the outset. You may also have to consider certain privacy concerns and regulatory requirements, such as worker’s comp and OSHA.

Q: What’s all this buzz about paid sick leave and what are my obligations now?

A: A bill has been introduced by the house that would require employers to provide employees with paid sick time. As currently drafted, the bill would require both regular sick time accrual and two weeks’ equivalent in the face of a public health crisis. Importantly, the bill has not passed and employers are not yet required to comply with its terms. We are tracking this legislation and will update our clients in detail if and when it becomes law.

Q: My workload/revenue is down. What should I do with my employees?

A: First, understand the difference between layoff and termination. A layoff is akin to leave—it is a temporary removal of an employee from your active workforce due to a lack of work or shutdown, but the employee stays on your payroll and may still be eligible for certain benefits such as health care and short term disability. A termination is a permanent removal of an employee from your employee roster where all wages and benefits cease. Layoffs are a valuable option for certain employers during this time. The language in your communications to your employees is important, and should be correct, as misstatements can have consequences. When deciding who to layoff, you should carefully consider how you will structure your remaining workforce as the decision will have important impacts on employees’ unemployment eligibility and benefit amounts.

Q: I’m a food-service employer and want to consider in-house delivery to keep cash flowing. What things should I think about before sending drivers out?

A: These employees may not have been tipped employees before the change, but delivery drivers probably qualify for tip-credit. If they are getting tips, they must make $4.35 per hour “free and clear.” If they are not receiving tips, they must make $8.70 per hour free and clear. If you do not have a well-crafted delivery policy you can easily get yourself into trouble under the FLSA. Make sure you understand the requirements of tip credit and adjust hourly rates as necessary. Drivers are also eligible for mileage reimbursements; oftentimes, the biggest issues arise in the proper calculation of these reimbursements. In addition, you’ll want to make sure you obtain appropriate insurance and that the individuals selected for deliveries have a valid license and are insurable under your coverage.