Monday, March 23, 2020

Coronavirus Update 3-23-2020: Frequently Asked Questions about Ohio’s “Stay at Home” Order

Effective Monday, March 23, 2020, at 11:59 pm, and continuing through at least April 6, the State of Ohio, via an order of Dr. Amy Acton, Director of the Ohio Department of Health, has closed all non-essential businesses to help combat the spread of COVID-19. Governor DeWine stated that he would reevaluate the April 6 end date as necessary. These closures are mandatory. A copy of the Order is available here.

To help answer your most pressing questions about how this Stay at Home Order impacts your business and your employees, I drafted this FAQ.

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Frequently Asked Questions about Ohio’s Stay at Home Order

Q: What businesses are open and what businesses are closed?

A: All non-essential businesses in Ohio are closed from March 24 through at least April 6.

Q: What are the “essential businesses” that are permitted to remain open?

A: The Stay at Home Order deems the following 26 categories of businesses as “essential.”
  • Healthcare and public health operations, human services operations, essential government functions, and essential infrastructure
  • The critical infrastructure sectors as defined by the Department of Homeland Security
  • Stores that sell groceries and medicine
  • Food, beverage, and licensed marijuana production and agriculture
  • Organizations that provide charitable and social services
  • Religious entities
  • Media
  • First Amendment protected speech
  • Gas stations and businesses needed for transportation
  • Financial and insurance institutions
  • Hardware and supply stores
  • Critical trades
  • Mail, post, shipping, logistics, delivery, and pick-up services
  • Educational institutions
  • Laundry services
  • Restaurants for consumption off-premises
  • Supplies to work from home
  • Supplies for essential businesses and operations
  • Transportation
  • Home-based care and services
  • Residential facilities and services
  • Professional services
  • Manufacture, distribution, and supply chain for critical products and industries
  • Critical labor union functions
  • Hotels and motels
  • Funeral services

Q: We are an “essential business.” What does this mean for us?

A: It means that your physical location is open until further notice, business as usual (as best as can be under the circumstances). Employees who have been diagnosed with coronavirus, who are exhibiting coronavirus-like symptoms, or who have been exposed to coronavirus should remain at home and telework if possible. The State has said that law enforcement should not be stopping people on their way to and from work to confirm the need to travel. Nevertheless, it might not be a bad idea to provide letters to employees documenting the essential nature of the business, just in case. Remember, above all else, despite the essential nature of your business, your employees’ health and safety remain the most important thing.

Q: What social distancing measures must essential businesses follow as a condition to remaining open? 

A: Businesses must take the following proactive measures to ensure compliance with social distancing requirements as a condition to remaining open for business:
  • Designate six-foot distances, with signage, tape, or other means, to ensure six-foot spacing for employees and customers.
  • Have hand sanitizer and other sanitizing products available for employees and customers.
  • Implement separate operating hours for elderly and vulnerable customers.
  • Post online whether a business is open and how best to reach it, and be available to continue services by phone or remotely. 

Q: What other actions must all businesses follow regarding the health and welfare of their employees?

A: The Stay at Home Order requires that businesses follow these protocols in managing their employees through this crisis:
  1. Encourage telework and video conferencing when possible.
  2. Actively encourage sick employees to stay home until they are fever-free for 72 hours, symptoms have improved for 72 hours, and at least seven days have passed since the first symptoms began.
  3. Do not require doctors’ notes to validate illnesses or returns to work.
  4. Ensure that sick leave policies are up to date, flexible, and non-punitive to allow sick employees to stay home or non-sick employees to stay home to care for others who are sick.
  5. Separate employees who appear to have acute respiratory illness and send them home immediately.
  6. Reinforce key health and hygiene messages such as staying home when sick, washing ones hands, and proper cough and sneeze etiquette, including hanging posters and providing protection supplies and no-touch receptacles.
  7. Perform frequent enhanced environmental cleanings.
  8. Be prepared to change business practices if needed to maintain critical operations. 

Q: Are there any instances in which a “non-essential business” can operate?

A: Non-essential businesses can maintain “minimum basic operations.” As long as employees comply with the above social distancing requirements, non-essential businesses can still engage in the minimum necessary activities to maintain the value of the business’s inventory, preserve the condition of the business’s physical plant and equipment, ensure security, process payroll and employee benefits, facilitate employees to be able to continue to work remotely from their residences, or for related functions.

Q: We are a “non-essential business.” How do we handle our employees in response to this Stay at Home Order?

A: There are myriad questions for non-essential businesses to answer to try to remain open and as operational as possible.
  1. Communication is key. Your employees are worried and scared. Talking to them in person, remotely, or by email is crucial so that they understand what is happening to their jobs.

  2. The Stay at Home Order closes physical places of business that are non-essential, but it does not prohibit the employees of those businesses to work remotely from home. 

  3. Wage and hour laws still apply. If employees of non-essential employers are working during the shut-down (i.e., remotely) they must be paid. For hourly workers, this means their regular hourly rate for all hours worked, and time-and-a-half for any overtime after 40 hours worked during the week. For salaried exempt employees, this means their full weekly salary for any week in which they work for even one minute. If employees are not working, then they do not have to be paid, and they would be free to apply for unemployment benefits. It is, however, within a company’s discretion and means to continue paying non-working employees during this shutdown of non-essential businesses.

  4. If you have to cut headcount, you should be furloughing people or laying them off. A furlough is a temporary, short-term layoff with an expectation of recall in the near future. Employees remain on payroll, just with no assigned hours. A layoff is usually of longer duration or permanent and results in the employee’s removal from payroll. This is largely a business decision, not a legal decision. Depending on the terms of an employer’s group health plan, a furlough may permit employees to remain covered. In that case, employers will have to determine how to cover an employee’s share of premiums. A layoff is typically a triggering event for COBRA coverage. If either triggers COBRA, those premiums are typically an employee’s responsibility to pay in full, although employers that are able to do so can choose to pay COBRA premiums for as many months as possible. 

  5. Employees who are not working during this shutdown can apply for unemployment from the state. Employers should encouraging non-working employees to apply for these benefits as soon as possible. This should not hurt the employer’s experience or unemployment rating.

  6. Do not forget about paid sick leave and family leave under the Families First Coronavirus Response Act, which takes effect on April 2, 2020. Employees who have been laid off prior to April 2 will not qualify for this emergency paid leave. It is an open issue whether employees who have been furloughed or ordered by the government to stay at home will qualify. The Act provides up to 80 hours of paid sick leave at 100 percent of an employee’s regular rate of pay to employees “subject to a … State … quarantine or isolation order related to COVID-19.” One could interpret the Stay at Home Order as imposing a “State quarantine or isolation order” because it prohibits employees of a non-essential business from working at the business’s physical location. One could also interpret the Order as not imposing a “State quarantine or isolation order” because it has not required employees of non-essential employers to stay at home, but merely closed the physical locations at which they work. I believe the latter interpretation is more reasonable until the state, local, or federal government imposes a broader stay-at-home or quarantine order. Regardless, the Families First Coronavirus Response Act is a floor, not a ceiling, and employers are always able to offer more paid leave benefits than the law requires if they are able and willing to do so.

Q: We have a labor union. Are there any other issues we need to be thinking about?

A: Yes. If a collective bargaining agreement covers any of your employees, you have additional things to think about, including layoffs, recall, bumping, seniority, and super-seniority. Collective bargaining agreements can also have their own provisions for sick leave, PTO, vacation, and severance. If you are thinking of changing these benefits, you may need to first bargain with the union.

* Photo by Jon Tyson on Unsplash