November 2020 Volume 2

OPERATIONS & MANAGEMENT

cannot know what they do. Do they follow the safety guidelines? Do they wear masks? Do they attend crowded events? Now, I wouldn’t lead with this fact in talking to other employees - but I mention it because I think it’s important to remember what is, and is not, within an employer’s control. Your best response is to have a policy about employee safety specific to COVID, including having employees not come to work if they are sick and specific requirements in the workplace (e.g., social distancing, no large meetings, etc.). Protection, if any, is at the state level. In Ohio, for example, there is legislation barring all civil actions which are based “in whole or in part” on “injury, death, or loss to person or property” caused by “exposure to, or the transmission or contraction of” COVID-19.The sole limitation is that the legislation’s immunizing effect does not apply where the exposure to, or transmission or contraction of, the disease was caused by “reckless conduct or intentional misconduct or willful or wanton misconduct. . . .” For more information, see: https://www.beneschlaw.com/resources/ohio-governor-mike dewine-signs-legislation-granting-broad-immunity-from-lawsuits relating-to-covid-19-transmission.html 2. What about making employees sign release agreements? I would say no. First, such releases may not be enforceable -- what is the consideration for the release? Can you legitimately release future claims? Second, workplace injuries should fall under the workers’ compensation system. Now, I understand that this presents its own set of issues for employers, but it is a potential bar to other civil actions. Finally, requiring employees to sign a release in the middle of a pandemic can hurt employee morale and lead to the suspicion that you, as the employer, are not taking reasonable steps to keep your employees safe. 3. Any expected new legislation? On the federal level, and with the election, I don’t think anyone can predict. Some states are enacting new and/or additional sick leave laws (e.g., California and New York). And, as earlier mentioned, the FFCRA expires on December 31, 2020. As that deadline approaches, I would not be surprised if some in Congress advocate for extending the FFCRA. ■ Employer Liability/Obligations: 1. Any updates as to employer liability?

4. What about temperature checks? Should they continue? Are there any specific requirements? I would say yes, temperature checks should continue. I understand that somemembers have set up and assembled their own temperature check stations. There is no “one size fits all” in terms of how you take and/or monitor employee temperatures -- so long as you provide for the safety of those involved in the checks. Practically, I also think you should do some spot checks tomake sure that your thermometer is accurately measuring temperatures -- i.e., not registering the exact same temperature for all employees or registering obviously wrong temperatures. 5. Any other generally accepted safety checks? Requiring masks and maintaining six feet of separation between employees whenever possible. But, if you mean safety screens upon coming to work, I would say -- only a review of the COVID symptoms listed on the CDC website and inquiry as to whether that employee is experiencing any. You are permitted to do COVID testing to see whether an individual tests positive, but practically, either the lack of available testing or the delayed results make this option limited if not meaningless. You cannot test for COVID antibodies -- that is a prohibited medical test. Employee Travel: 1. Can we require employees to travel for work? Yes. If travel is part of an employee’s job and there are no state/ local prohibitions, the travel industry is up and running with safety precautions. But: (a) I would set up some mechanism for employees to bring any travel-related concerns so you can hear and address them, if possible; and (b) some states have quarantine requirements upon return. 2. What about employee vacations to “hotspots”? I am generally opposed to prohibiting employees from personal travel and vacation -- and it’s for practical reasons. I can’t believe you can or will know everyone’s plans so any policy or practice just can’t be applied to everyone. Plus, you have significant morale issues. But, I do think you can inquire as to an employee’s personal travel plans, and require quarantine upon return -- if the requirement is applied to all. For example, Ohio has a travel advisory to certain states (updated weekly). You could use that as a basis for your quarantine policy, i.e., if you travel to a restricted area you must quarantine upon return. The challenge here is that you’ll likely end up impacting certain groups of your employees more negatively. Exempt office workers likely will be able to work remotely during any quarantine, but non-exempt production workers likely can’t. For those employees, you could allow them to use other paid time off or provide the time off unpaid. But, given the potential negative impact, uniform enforcement and advance notice are essential. 3. What about other employees who are concerned when co workers travel? The reality is that, once employees step outside your facilities, you

Johanna Fabrizio Parker is a partner in Benesch's labor and employment group. Her practice involves representing and counseling management clients in a wide range of complex employment matters, including claims of discrimination, harassment, and retaliation brought under federal and state law, as well as wage and hour claims, and matters involving noncompetition agreements and trade secrets. She can be reached at jparker@beneschlaw.com.

FIA MAGAZINE | NOVEMBER 2020 17