by Pamela Leist | May 5, 2020 | COVID-19 (Coronavirus), General, Labor and Employment, School Management
On
April 30th, 2020, the Ohio Department of Health Director, Dr. Amy Acton, issued
two revised orders that will impact school operations at least in the short
term. These orders will cover school operations through June 30th at a minimum.
It’s a wrap
– concluding school operations for 2019-2020.
The first order directs schools to remain
closed to students through June 30th, 2020. However, the Director clarifies
that the order does not prohibit administrators, teachers, staff, vendors, or
contractors from showing up for work. Rather, administrators are tasked with
determining who will have access to the buildings and are encouraged to promote
practices such as social distancing and frequent hand washing. The order
encourages administrators to consider remote work options when possible.
The
order also specifically excludes a number of activities and events that may
occur at schools, such as voting, food services, health services, and
charitable works, as well as “targeted” and other educational programs and
activities. While schools have the discretion to determine what types of
programs and services may be provided, it should do so with caution and only
after consulting with the local health department and legal counsel. Further, a
school district must obtain written approval from the local department of
health before the activities may be held and then must submit a copy of the
written approval to both the Ohio Department of Health and the Ohio Department
of Education.
Schools
are expected to follow the social distancing guidelines published by the Ohio
Department of Health while conducting activities. Local law enforcement and
other officials who are tasked with enforcing the order are also directed and
encouraged to contact local health departments with questions and for opinions
about implementation.
Because
there are many practical and legal implications as you determine what
operations will resume, it is very important to consult with your
administrators, local health departments, and legal counsel as you make plans. Click here to review the order.
Business
as Usual? Not so fast!
The second order, which will remain in effect
through May 29th, 2020, addresses how residents and the majority of businesses
will operate during much of May. The stay-at-home requirement remains for
residents, although they are permitted to engage in business activities
authorized by the order. Individuals who are returning to the state are
encouraged to self-quarantine for fourteen days.
The
order allows most businesses to resume operations as long as they meet
workplace safety standards. These standards changed several times, but as of
May 1st included the following:
- Employees
must wear face masks or “face coverings” at all times unless an exception
applies; it is recommended that visitors do as well.
- Employers
and employees will conduct daily health assessments to determine if someone is
“fit for duty.”
- Employees
who report for work will maintain social distancing (people will stay 6 feet
apart) and will also sanitize and wash hands regularly.
- Worksites
will be cleaned throughout the workday (for high touch surfaces), as well as at
the close of each day or between shifts.
- To
meet social distancing guidelines, buildings will limit the number of visitors
and employees to 50% of the building capacity established by the fire code.
There
are specific rules about face coverings and masks, including when employees are
not required to wear them in the workplace. The exceptions include the
following:
- Masks/coverings
are prohibited by law or regulation.
- Masks/coverings
are in violation of a documented industry standard.
- Masks/coverings
are not “advisable” for health reasons.
- Masks/coverings
violate a business’s documented safety policy.
- Employees
are working alone in an area and coverings are therefore not necessary.
- There
is a practical/functional reason why an employee should not wear a covering or
mask.
At
a minimum, facial masks or coverings should be made of cloth and should cover
an individual’s mouth, nose, and chin. An employer must be able to provide
written justification for any exception if requested to do so.
Employers
are expected to “immediately report” when any employee is diagnosed with COVID-19
and will work with the local department to identify others who may have been
exposed. They are also expected to send employees home when they show signs of
the illness. When possible, a building site will be closed until it can be
professionally cleaned. Buildings may be reopened in consultation with the
local health department.
Paragraph
20 of the order contains a more specific list of steps that businesses are
expected to comply with as operations resume, broken down by type of business.
The order specifies requirements for manufacturing, construction, consumer
retail and services, and general office environment. Of course, schools are
governed by the separate order summarized above.
Finally,
the order includes a list of businesses that must remain closed for the time
being, including schools (at least as to student attendance), most childcare
services, beauty salons, entertainment and recreation facilities, and
restaurants/bars. These businesses may only engage in minimum basic operations
as defined by the businesses.
Click here to review the order.
Possible
Challenge to Orders Being Proposed in the House
State Rep. John Becker
of Clermont County plans to introduce a bill that would repeal the current
health orders, and make any future orders issued by the Director of Health
advisory unless and until those orders are approved by the General Assembly.
The bill would focus on speeding up Ohio’s return to normal business
operations. Stay tuned for more information about this and other efforts to change
the state’s direction.
We Can Help!
Many challenges and opportunities continue to present themselves during this pandemic – it is critical that you rely on credible sources of information to remain up-to-date. It is also important for you to consider your district’s specific needs as you develop plans, and remember that there is no “one size fits all” approach. Make sure you discuss your details and situation with legal counsel to determine how you can effectively implement these and other orders that arise.
by Ryan LaFlamme | Mar 27, 2020 | COVID-19 (Coronavirus), General, Labor and Employment, Unemployment
Districts should expect to see a rise in unemployment claims due to the current pandemic. Ohio received 187,000 claims during the week of March 15-21. Substitutes, in particular, are likely to make claims during this time.
Governor DeWine has issued an order (EO 2020-03D) to ease the process of obtaining unemployment benefits. Employees who are ordered to stay home or isolated by an employer or public health authority, whether infected or not, will qualify for benefits so long as the employee is otherwise eligible. The basic requirements for eligibility for benefits are that a claimant has worked a sufficient number of hours and has earned a sufficient amount of pay during a period referred to as the “base period.” The base period is the first four of the last five completed calendar quarters at the time the claim is filed. (Claims filed in March would be calculated on the four quarters beginning October 1, 2018, through September 30, 2019.) Individuals must have at least 20 weeks of employment and an average weekly wage of $269 during the base period of the claim.
ODJFS issued a mass-layoff number (2000180) that employees can use to expedite the handling of their claim. Employees subject to RIF due to COVID-19 can use this form and reference number. http://www.odjfs.state.oh.us/forms/num/JFS00671/pdf/.
Substitute employees may file claims for lack of work due to the ordered shutdown of the school to students. Outside of the context of a shutdown, districts may attempt to challenge lack of work claims by substitutes, due to the nature of the assignment not having guaranteed hours or days of work per year. Many substitutes pick and choose their own assignments. Those arguments will not be applicable, where, as here, there are no assignments for the substitute to choose from. Therefore, such employees are much more likely to receive benefits under these circumstances.
Additional benefits of the order are that certain benefit recipients will not be subject to the work search requirement during the period of the emergency. All claimants, however, will continue to be required to be “able and available for work,” in order to receive benefits.
Finally, penalties against employers for failing to provide reports or make payments during the emergency declaration period.
The merits of each claim are fact dependent and may be subject to challenge even in light of the order. Please do not hesitate to contact an attorney at Ennis Britton to discuss your particular claim.
by Robert McBride | Mar 26, 2020 | Labor and Employment, School Finance, School Management, Unemployment
Many public employers are considering staffing adjustments in light of the coronavirus and its impact on available work. For those employees not covered under contracts that must be paid in the case of an “epidemic or other public calamity” pursuant to RC 3319.08(B) and 3319.081(G), layoffs are being contemplated. In order to have all the information on the financial impact of such a decision, the public employer should consider whether it is a “contributory employer” or a “reimbursing employer.”
Generally speaking, public employers are reimbursing employers. Essentially, reimbursing employers are self-insured and will be billed dollar-for-dollar by the Ohio Department of Jobs and Family Services for claims paid. Public entity employers who have elected to become a contributory employer have paid unemployment tax. Contributory employers will have their claims mutualized with other employers in the state and will not have to reimburse on a dollar-for-dollar basis. Determining if the public entity is a contributory employer or a reimbursing employer will be necessary to determine how much will be saved via staffing reductions.
The Coronavirus Aid, Relief, and
Economic Security Act (the CARES Act) provides that reimbursing employers may
be reimbursed for one-half of the amounts paid into a state unemployment trust
fund between March 13, 2020, and December 31, 2020.
If you have any questions regarding unemployment compensation issues, please reach out to any of the Ennis Britton lawyers.
by John E. Britton | Feb 3, 2020 | General, Labor and Employment, Unemployment, Workers’ Compensation
Generally,
employees in Ohio are eligible to receive unemployment benefits if they are
laid off from their place of employment. However, under Ohio law, if you are an
“independent contractor,” you are precluded from receiving those benefits. The
Eleventh District Court of Appeals recently held that a truck driver was an
independent contractor as opposed to an employee and therefore, was not
entitled to unemployment compensation.
In Marcus
Roach Express, L.L.C. v. Dir., Ohio Dept. of Job & Family Serv.,
2019-Ohio-5414, a truck driver claimed that he was an employee and entitled to
receive unemployment benefits. The Ohio Department of Job & Family Services
(“ODJFS”) initially issued a determination allowing him to receive benefits,
which the employer appealed to the court.
At issue in
the appeal was whether the truck driver was really an independent contractor,
rather than an “employee” separated from his job due to a lack of work. In
making the determination of employee versus independent contractor, the
Unemployment Review Commission will generally look to the list of twenty
factors outlined in Ohio Adm. Code 4141-3-05(B). Though these factors may be
used by the Commission, they are not necessarily determinative of whether the
individual was or was not “subject to direction and control” over their
services — the primary metric in the analysis of deciding independent
contractor status.
In this
case, the truck driver’s agreement actually stated that he was an independent
contractor and not an employee of the company. Though this fact supports a
finding that he was an independent contractor, the court looked to the totality
of the circumstances in order to determine whether the employer actually had
the right to control the driver’s work.
ODJFS
argued that “control” existed because the employer paid the driver weekly,
approved his time-off requests, owned the delivery truck and paid for its
repairs, required him to turn in logbooks, and continued a working relationship
with the individual for eight years.
The court,
however, noted that the driver was paid based on how many loads he accepted as
opposed to the number of hours he worked. Additionally, the claimant was able
to decide which routes he wanted and was able to set his own schedule, all of
which led the court to conclude that the company did not exercise nor retain a
right to control the individual’s work. Therefore, the driver was considered to
be an independent contractor and was not eligible to receive unemployment
benefits.
This case
should remind us that in the service-oriented nature of public education, there
are limited opportunities to truly employ “independent contractors” for daily
operations of districts. In teaching, feeding, counseling, transporting,
and operating buildings, districts maintain control of personnel in the
delivery of those services — and for good reason. The factors for establishing
a true independent contractor are important to know, particularly when
attempting to defeat a claim for unemployment. While this case is
instructive, should you want to question a request for unemployment
compensation on this basis, it is advisable to contact an Ennis Britton
attorney to review your realistic options.
by Erin Wessendorf-Wortman | Jan 3, 2020 | Board Policy & Representation, General, Labor and Employment, School Management
Like students, teachers do not shed their constitutional right to free speech while at school. However, their rights are not without limits as the Sixth Circuit demonstrated recently when it issued a ruling upholding termination of a teacher. In Sensabaugh v. Halliburton, the District’s head football coach posted concerns on Facebook about the conditions he found when visiting an elementary school (a visit unrelated to his job). One of these posts included photos of a classroom and one included the faces of several students. District officials tried to contact Sensabaugh in an effort to explain their concern that this post could violate school policy as well as FERPA. However, they were unable to get in contact with him.
Meanwhile, Sensabaugh posted a separate entry on Facebook discussing his concerns with prisoners working at the high school. Again, school administration reached out to Sensabaugh to discuss their concerns over the posts. During their conversation, the administration informed Sensabaugh that he did not need to delete the post, but instead asked him to remove only the picture of the students accompanying the post. Sensabaugh yelled at members of the administration and informed them that he would not take the post down.
Following the conversation, administration drafted a “Letter of Guidance” which addressed Sensabaugh’s failure to remove the photos from Facebook, his conduct during the phone call, and other previous misconduct. This letter stated that the administration was not requiring Sensabaugh to remove his comments from his posts but directed him to remove the picture displaying the minor students. The letter clearly stated that failure to follow its directives could lead to discipline up to and including termination. Finally, Sensabaugh agreed to remove the photos from Facebook.
Following the Letter of Guidance, Sensabaugh’s behavior and actions continued to cause problems in the District. This led the administration to issue a Letter of Reprimand which placed Sensabaugh on administrative leave pending investigation. It was alleged that Sensabaugh accused the Athletic Director of coming to work under the influence of prescription pills, as well as threatening a football player and athletic trainer. The administration hired an independent law firm to investigate the alleged misconduct.
The investigator’s report concluded that Sensabaugh had engaged in unprofessional, insubordinate, threatening, and retaliatory behavior towards supervisors, students, and staff. It concluded that Sensabaugh’s actions had intimidated and undermined his coworkers and supervisors. The investigators went on to conclude that Sensabaugh’s repeated, belligerent, and confrontational speech to coworkers made it inconceivable for them to maintain an ongoing employment relationship. As a result, the investigator recommended that Sensabaugh’s employment with the district be terminated.
Administration notified Sensabaugh that the independent investigator had submitted their findings and recommended his termination. Sensabaugh was offered the opportunity to provide any statement or evidence in support of a less severe punishment. However, Sensabaugh never responded. The District then terminated Sensabaugh’s employment.
Sensabaugh sued, arguing that the District retaliated against him for exercising his First Amendment right to free speech. In order for a teacher to prevail on a First Amendment retaliation claim, he must show that: 1) he engaged in protected conduct; 2) an adverse action was taken against him that would deter a person of ordinary firmness from continuing to engage in that conduct; and 3) that the adverse action was motivated at least in part by the protected conduct. Bell v. Johnson, 308 F.3d 594, 602 (6th Cir. 2002).
The Sixth Circuit Court of Appeals first determined that the Letter of Guidance was not an adverse action. The letter did not impose any discipline, but instead simply imposed directives that Sensabaugh needed to follow in order to avoid discipline. Likewise, the Court also found that the Letter of Reprimand was not an adverse action. Though the letter resulted in paid administrative leave, this still did not result in an adverse action. Ehrlich v. Kovack, 710 F.App’x 646, 650 (6th Cir. 2017).
There is no dispute that the termination was an adverse action. However, Sensabaugh must show that the Facebook posts were a substantial or motivating factor in the adverse employment action. Though the Letter of Guidance, Letter of Reprimand, and termination came within six months after the Facebook posts, temporal proximity alone is rarely, if ever, sufficient to establish the causation requirement. Here, there was no other indication to demonstrate that Sensabaugh was terminated because of his Facebook posts. The court noted that at no time leading up to the termination did the administration ask or require Sensabaugh to remove the Facebook posts. Instead, the letters acknowledged Sensabaugh’s right to comment on public concerns. He was asked to remove the content from his posts that violated FERPA. Additionally, the independent investigation substantiated other allegations of misconduct that supported termination.
Ultimately, the court determined that when deciding to end Sensabaugh’s employment, the District relied on several instances of misconduct which were unrebutted by Sensabaugh. There was no indication that the viewpoints expressed in his Facebook posts (other than the FERPA-protected images of students) played any part in the District’s decision to terminate. Therefore, the District did not violate his constitutional rights.
Sensabaugh v. Halliburton, 937 F.3d 621 (6th Cir.2019)
by Robert McBride | Nov 4, 2019 | Board Policy & Representation, General, Labor and Employment, School Management
Under Title VII of the Civil Rights Act of 1964, employers may not discriminate against employees on the basis of several protected classes, including sex. Thus, courts and administrative agencies have interpreted Title VII to prohibit an employer from engaging in discrimination related to pregnancy, childbirth or maternity/paternal leave. Employers must treat a woman who is disabled due to pregnancy, childbirth, or related medical conditions in a similar manner to other disabled employees. However, any additional benefits provided to male or female parents, whether discretionary or mandated by statutes such as the Family and Medical Leave Act, must be made available in a non-discriminatory fashion.
The Equal Employment Opportunity Commission (“EEOC”) has stressed the importance of employers clearly explaining the types of leave available to all employees. Employers should distinguish between leave related to the physical limitations due to pregnancy or childbirth and leave related to bonding with or providing care for a child. An employer may limit leave related to the physical conditions of pregnancy or childbirth to the women affected by these conditions. However, if an employer extends leave to new mothers beyond the recuperation period of childbirth in order to care or bond with the baby, an equivalent amount of leave must be available to fathers for the same purpose.
This guidance was put into practice in 2017 when a class of male employees filed a lawsuit against JP Morgan Chase (“Chase”). A group of male employees alleged that Chase’s parental leave provisions were discriminatory in violation of Title VII. Chase allowed a parent to take 16 weeks of paid parental leave if they were the primary caregiver to the child. Chase automatically granted this additional leave to women. When male employees applied for this leave, however, they were required to prove that their partner had returned to work or was incapable of caring for the child. If the male employees could not make this showing, Chase provided a mere 2 weeks of paid leave. In May of 2019, Chase ultimately agreed to settle the dispute for $5 million and agreed to maintain a gender-neutral leave policy moving forward.
If your district offers maternity leave strictly to women who are disabled due to pregnancy, childbirth or related conditions, you do not need to offer the same kind of leave to men. However, if your district offers additional leave to allow the mother to bond or care for the child, then the father is entitled to the same leave as the mother would be. Lastly, regardless of the district’s parental leave policy, it is important that all districts ensure that they do not discriminate hen determining who is eligible for parental leave.
You can review guidance on this topic from the EEOC. EEOC Enforcement Guidance on Pregnancy Discrimination and Related Issues, Number 915.003, (June 25, 2015). Click here to access it.
