Client Alert: Best Business Practices During the COVID-19 Outbreak

Originally published in Y&D's March 19, 2020, Client Alert.

During the COVID-19 outbreak there are important considerations for employers and businesses.

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IN THE WORKPLACE – The CDC has issued recommendations to limit the spread of the virus in the workplace, which can be found here. Generally, employers have a duty to take reasonable care of employees’ safety and not expose employees to unnecessary risk. It is important to consider balancing business needs with the emergency order and CDC Guidance.

During the emergency declaration period issued by Governor Mike DeWine, Ohio has expanded unemployment benefits. Employer penalties for late reporting and payment will be waived for the next quarter. The charges during the emergency declaration will be mutualized for contributory employers to avoid increasing premiums, and reimbursing employers will follow existing charging requirements.

As companies make the decision to allow employees to work remotely, the attorneys at Yourkvitch & Dibo are also available to draft and review any employment policies relating to remote work and confidentiality. Each organization will need to make its own decision about how to continue doing business during this time. Here are some laws to keep in mind:

Families First Coronavirus Response Act – On March 18, the Families First Coronavirus Response Act was signed into law. This Act amends and expands the Family Medical Leave Act and requires private employers to provide paid sick leave to employees. More information will be provided about this in a separate Client Notice.

The Americans with Disabilities Act – Employers should be mindful of the ADA when assessing whether an employee poses a direct threat to others.

o Employers should notify employees of possible exposure in the workplace but should keep the identity of infected individuals confidential.

o If an employee is exhibiting symptoms of COVID-19, the employer can generally take action to remove the employee from the workplace.

o Governor DeWine has issued a recommendation that employers should begin taking employees’ temperatures as they arrive to work. If you are considering adopting screening measures, we are available to discuss the legal issues.

The Occupational Health and Safety Act – Employers have an obligation under the Occupational Health and Safety Act (OSHA) to provide “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

o Recordkeeping Requirements mandate that employers record certain work-related injuries and illnesses. COVID-19 may be a recordable illness if the worker is infected as a result of performing their work-related duties. Accordingly, keep in mind how you can help promote safe practices in your workplace.

o Personal Protective Equipment, including respirators and face masks, is required under OSHA “when such equipment is necessary to protect the health of such employee.” The CDC is not currently recommending the use of respirators or surgical masks by the general public, and as such employers have discretion as to whether to allow them in the workplace.

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BUSINESS – COVID-19 has also brought disruptions to the normal course of business:

Construction and Service Contracts:

Force Majeure – Contracts typically include “force majeure” provisions, which define the rights and responsibilities of parties in the event that one or both parties are unable to perform their obligations under a contract due to unforeseeable circumstances outside of the parties’ control. o Contracts should be reviewed to determine whether there is a right to cancel or curtail the contract to accommodate health and safety concerns brought on by the COVID-19 outbreak. o Whether the COVID-19 outbreak will constitute a force majeure event will depend on the nature of the contract and the specific provisions.

Commercial Leases:

Go-Dark Provisions – Typically, commercial leases require the tenant to continually operate its business while leasing the space. This may be cause for concern if a business must shut down during the COVID-19 pandemic. Does your lease have a go-dark provision? A go-dark provision allows the tenant to close operations without the landlord’s consent as long as the tenant continues to pay rent, but these provisions are relatively uncommon and undesirable to landlords. Taking time to review your lease can help you avoid unexpected charges at this time.

One-Time Liquor Buyback:

The Ohio Department of Commerce is offering a one-time liquor buyback option to bars and restaurants to aid establishments that have stocked up on high-proof liquor in preparation for the St. Patrick’s Day holiday or March Madness, for which they now have no use due to the order requiring closure to in-house patrons. Bars and restaurants may return unopened, high-proof liquor products obtained within the last 30 days to the agency where they purchased the product.

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AT HOME – In any health emergency, each one of us should have someone who will make healthcare decisions for us if we cannot. The Healthcare Power of Attorney names your choice of Agent – a loved one or friend who knows you and your health, who will advocate for you and make crucial decisions in line with your wishes. Our attorneys can help you name your Agent, draft appropriate documents, or even help you fill in hospital-provided documents.

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The attorneys at Yourkvitch & Dibo can assist with any questions and issues that may arise as the COVID-19 situation develops.

Additional Resources · COVID-19 and Unemployment Benefits · OSHA Guidance to Workplaces Preparing for COVID-19 · Department of Labor COVID-19 Resource Center