DOL Issues new FAQ on paid FFCRA leave for hybrid school re-opening

Last week, the DOL released some new FFCRA FAQ about employees’ entitlement to paid leave because their child’s school is closed.  Essentially, when the school has adopted a hybrid model and the child is only permitted to attend school a few days/week, then the employee is entitled to paid FFCRA leave on the days when the child must be kept home.  On the other hand, when the parent had the option to send the child to school, but chose to keep the child home to learn remotely out of fear of COVID, the employee is NOT entitled to paid FFCRA leave because it was not the school’s decision; it was the parent’s.

·  My child’s school is operating on an alternate day (or other hybrid-attendance) basis. The school is open each day, but students alternate between days attending school in person and days participating in remote learning. They are permitted to attend school only on their allotted in-person attendance days. May I take paid leave under the FFCRA in these circumstances? (added 08/27/2020)

Yes, you are eligible to take paid leave under the FFCRA on days when your child is not permitted to attend school in person and must instead engage in remote learning, as long as you need the leave to actually care for your child during that time and only if no other suitable person is available to do so. For purposes of the FFCRA and its implementing regulations, the school is effectively “closed” to your child on days that he or she cannot attend in person. You may take paid leave under the FFCRA on each of your child’s remote-learning days.

·  My child’s school is giving me a choice between having my child attend in person or participate in a remote learning program for the fall. I signed up for the remote learning alternative because, for example, I worry that my child might contract COVID-19 and bring it home to the family. Since my child will be at home, may I take paid leave under the FFCRA in these circumstances? (added 08/27/2020)

No, you are not eligible to take paid leave under the FFCRA because your child’s school is not “closed” due to COVID–19 related reasons; it is open for your child to attend. FFCRA leave is not available to take care of a child whose school is open for in-person attendance. If your child is home not because his or her school is closed, but because you have chosen for the child to remain home, you are not entitled to FFCRA paid leave. However, if, because of COVID-19, your child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, you may be eligible to take paid leave to care for him or her. See FAQ 63.

Also, as explained more fully in FAQ 98, if your child’s school is operating on an alternate day (or other hybrid-attendance) basis, you may be eligible to take paid leave under the FFCRA on each of your child’s remote-learning days because the school is effectively “closed” to your child on those days.

·  My child’s school is beginning the school year under a remote learning program out of concern for COVID-19, but has announced it will continue to evaluate local circumstances and make a decision about reopening for in-person attendance later in the school year. May I take paid leave under the FFCRA in these circumstances? (added 08/27/2020)

Yes, you are eligible to take paid leave under the FFCRA while your child’s school remains closed. If your child's school reopens, the availability of paid leave under the FFCRA will depend on the particulars of the school’s operations. See FAQ 98 and 99.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Supreme Court: No Invasion of Privacy to Mandatory Direct Observation of Urine Sample Drug Test

This morning, a divided Ohio Supreme Court held that there is no common-law invasion of privacy claim under Ohio law when an at-will employee consents to or submits without objection to direct observation of a urine sample given for a workplace drug test. Lunsford v. Sterilite of Ohio, L.L.C., Slip Opinion No. 2020-Ohio-4193.  Not only did the employees sign a consent form (which did not mention direct observation collection), but also they did not object when they were later informed that the urine collection would be observed.  The Court’s majority found it irrelevant that the employees believed that they would be fired if they objected to or refused direct observation.

According to the Court’s opinion, the employer selected four employees for a urine drug test under its mandatory drug testing policy.  Only one of them was suspected of being under the influence of illegal drugs at the time.  At the laboratory, the employees signed a consent form to the drug test and releasing the results to the employer.  The consent form did not mention that the urine would be collected while being directly observed by a laboratory employee.  Thereafter, they were informed that the urine collection would be directly observed.  None of them objected.  Two of them submitted urine samples.  Two of them – including the suspected employee – were unable to produce any urine for 2.5 hours despite a good faith effort to do so and were terminated under the employer’s policy.  All of them filed suit against the employer and the laboratory for invasion of privacy.

To be actionable, the invasion of privacy must involve “the unwarranted appropriation or exploitation of one’s personality, the publicizing of one’s private affairs with which the public has no legitimate concern, or the wrongful intrusion into one’s private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.” . . . .

“Intrusion upon seclusion” is based on the “right to be left alone.” People for Ethical Treatment of Animals v. Bobby Berosini, Ltd., 111 Nev. 615, 630, 895 P.2d 1269 (1995). It is “akin to trespass in that it involves intrusion or prying into the plaintiff’s private affairs.” Killilea v. Sears, Roebuck & Co., 27 Ohio App.3d 163, 166, 499 N.E.2d 1291 (10th Dist.1985). “ ‘One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.’ ” Sustin v. Fee, 69 Ohio St.2d 143, 145, 431 N.E.2d 992 (1982), quoting Restatement of the Law 2d, Torts, Section 652B (1977). Whether an invasion of privacy has occurred turns on the particular facts of the case. See Kane v. Quigley, 1 Ohio St.2d 1, 3-4, 203 N.E.2d 338 (1964). However, the right to privacy is not absolute. Earp, 16 Mich.App. at 276, 167 N.W.2d 841.

Direct observation is commonly required only after questions have been raised about a urine sample (i.e., because the urine temperature too low after it was switched with a stored sample, too watery, etc.).  However, by the time the second sample is taken, the illegal drugs may have metabolized and the employees are then forewarned.    In this case, the plaintiffs argued that several federal agencies do not permit witnessed collections until other problems with the sample have occurred.  But, the Court’s majority found that those policies did not apply because this employer was not subject to them and was a private sector employer which could set its own terms and conditions of employment.  The plaintiffs were each free to resign and find other employment if they objected.

The employees attempted to argue that their actions  -- in signing the consent form and submitting to the test without objection after learning how it would be conducted – were not truly voluntary.  The Court disagreed.  According to the Court, the employer

had the right to condition employment on consent to drug testing under the direct-observation method, appellees had the right to refuse to submit to the direct-observation method, and because appellees were at-will employees, Sterilite had the right to terminate their employment for their failure to submit. Because Sterilite had the legal right to terminate appellees’ employment at any time, appellees’ argument that their consent was involuntary because of their fear of termination necessarily fails.

Some of the opinion’s language – focusing on the lack of prior objection from the plaintiffs -- indicates that the Court might consider future challenges if the employees had objected prior to submitting to the drug test, but the logic of the opinion indicates otherwise: 

When an at-will employee consents, without objection, to the collection of the employee’s urine sample under the direct-observation method, the at-will employee has no cause of action for common-law invasion of privacy.

The dissent felt that the employee’s acquiescence to the test under threat of termination was not truly voluntary.  One of the cardinal rules of labor law is to first obey and then grieve.  Nonetheless, the dissent indicates in its first footnote that it would have joined the opinion if the consent form or policy had previously notified the employees that their urine samples would be collected under direct observation.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Supreme Court: Criminal Conviction Is Not Required For Employee To Pursue Civil Claims Based on Alleged Criminal Acts

At the end of July, the Ohio Supreme Court held that Ohio Revised Code §2307.60 (which imposes civil liability for injuries caused by criminal acts) does not require evidence of an underlying criminal conviction.  Buddenberg v. Weisdack, 2020-Ohio-3832.   Similarly, the Court held that a criminal conviction is not required to pursue a civil action under Ohio Revised Code §2921.03 prohibiting unlawful threats and other acts of intimidation against a public servant or witness in the discharge of that person’s duty.  The Court relied on the plain meaning of the statutes and the absence of the word “conviction” in describing the claims.  All of these claims were brought by a former county health district employee against her former employer, supervisors and various county officials.

According to the Court’s opinion, the plaintiff filed a civil rights and anti-discrimination lawsuit in federal court against her former employer county health district, her former supervisor and various County officials.   One of those claims involved a civil claim based on the violation of various criminal statutes involving misconduct towards public officials, including retaliation and intimidation and when public officials violate someone’s civil rights.  The federal court sought guidance on the Court’s view of these Ohio statutes in two certified questions. 

R.C. § 2307.60(A)(1) provides that:

Anyone injured in person or property by a criminal act has, and may recover full damages in, a civil action unless specifically excepted by law, may recover the costs of maintaining the civil action and attorney's fees if authorized by any provision of the Rules of Civil Procedure or another section of the Revised Code or under the common law of this state, and may recover punitive or exemplary damages if authorized by section 2315.21 or another section of the Revised Code.

The Court noted that the Legislature did not explicitly require an underlying criminal conviction, and instead, referred simply to a “criminal act.” The initiation of criminal proceedings may or may not be important and even then does not always result in a criminal prosecution or conviction. Therefore, the plain meaning of the statute did not require a criminal conviction in order to pursue a claim. Further, the rest of the statue creates a rebuttable presumption based on a judgment of conviction, which would be unnecessary if a conviction were always required.

Similarly, R.C. §2921.03(C) provides that:

A person who violates this section is liable in a civil action to any person harmed by the violation for injury, death, or loss to person or property incurred as a result of the commission of the offense and for reasonable attorney's fees, court costs, and other expenses incurred as a result of prosecuting the civil action commenced under this division. A civil action under this division is not the exclusive remedy of a person who incurs injury, death, or loss to person or property as a result of a violation of this section.

The Court likewise found controlling the absence of the word “conviction” from the statute. Therefore, “we are not persuaded by petitioners’ argument that the 'commission of the offense' necessarily means that a formal declaration of criminal guilt has occurred.” As with the other statute, “being the subject of a criminal proceeding is not the equivalent of being convicted of the crimes charged. And the word conviction is not in the statute. Without any clear indication from the legislature in the language of the statute that a conviction is required, we decline to read such intent into the statute.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

DOL Updated FMLA Forms While You Were Not Looking

In case you missed it, last month, the Department of Labor announced that it had updated most of the optional FMLA forms, including the Notice of Eligibility and Medical Certification forms.  The new forms are valid through June 2023.  While employers are not required to use the DOL forms, many do.  Further, 29 C.F.R. §825.306 precludes employers from seeking information from employees or physicians on their own forms which exceeds what is permitted in that regulation or on the optional DOL form.  Accordingly, employers which do not use the DOL form, should ensure that their existing forms do not seek information beyond that permitted by the regulation.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Issues Technical Assistance On Accommodating Lawful Opioid Use

Last week, the EEOC issued two Technical Assistance Documents concerning employee use of opioids, both legally and illegally.  Illegal use of opioids does not constitute a disability under the ADA and need not be accommodated by an employer.  However, prescribed opioids and employees recovering from a prior opioid addiction must usually be reasonably accommodated under the ADA. The first TAD is addressed to employees who have been prescribed opioids or are in treatment for opioid addiction recovery.  It explains their rights and how to engage in the interactive process in order to obtain any necessary reasonable accommodations in order to preserve their employment.  The second TAD is addressed to physicians who may be required to complete medical statements about their patient’s need for a reasonable accommodation.

The TADs discuss possible accommodations, such as time off to attend counseling sessions and group therapy, reassignment, modified work schedules, modified shifts, temporary transfers, unpaid leave, etc.   The TAD recognizes that an employer may preclude an employee from working in a particular position if the opioid use poses a significant risk of substantial harm that cannot be eliminated with a reasonable accommodation based on objective evidence.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.