Ohio’s Stay at Home Order and Its Impact on Employers

In an effort to stay ahead of the Covid-19 pandemic and to diminish its impact on Ohio’s citizens and businesses, Amy Acton, Director of the Ohio Department of Health, issued her now famous “stay at home” order which became effective at midnight on March 23, 2020. Unless your business qualified as an essential business, you were ordered to cease all activities. The purpose, of course, of this order was to require as many Ohioans as possible to remain at home and avoid contact with others in an effort to significantly limit, if not cease, the spread of the Coronavirus. The order contained a definition of who qualified as an essential business. Those who felt that they fit the definition were encouraged to document their determination and the evidence supporting their status as an essential business in Ohio.

For businesses that qualify as an essential business, Section 18 of the stay at home order sets forth special rules for dealing with employees. The order states:

1. That employers should allow as many employees as possible to work from home.
2. The employer should encourage sick employees to stay home until they are free of their symptoms and have been symptom free for at least seven days.
3. Employers are not allowed to require a health provider’s note to validate the illness or return to work status of the employee.
4. The order requires employers to update their sick leave policy to make sure that they are not “punitive” and that they allow sick employees to stay at home to care for themselves, their children or other family members. (Compliance with the CDC guidelines for essential businesses should be sufficient).
5. The order requires employers to separate employees who appear to have acute respiratory illness symptoms from other employees and send them home immediately. They are then required to restrict access to the business to those employees who have been sick.
6. The order requires frequent enhanced environmental cleaning of commonly touched surfaces such as work stations, countertops, railings, door handles and door knobs and that employees be trained on proper social distancing.

The order did not indicate what ramifications there were for an employer that fails to meet these requirements or recommendations.

The stay at home order has now been EXTENDED UNTIL MAY 1, 2020 by a second executive order from the Director of Health issued on April 2, 2020. The second order now requires all essential businesses that offer retail sales to set limits on the number of customers that can enter their facilities at one time.

The new stay at home order also lists several categories of businesses and organizations that qualify as Essential Businesses and Operations. The list includes: grocery stores, pharmacies, gasoline stations, convenience stores, organizations that provide charitable and social services, religious facilities, media outlets (such as newspapers, television and radio), professional services such as accounting and legal, financial institutions such as banks, construction suppliers, hardware stores, building and construction tradesmen and tradeswomen, trades including specialties such as plumbing, electricians, exterminators, cleaning and janitorial staff, and businesses involved in delivering the mail such as the post office and trucking companies and delivery companies. The list is extensive and was clearly written to try and include as many categories as possible to avoid any confusion or misunderstandings.

The new order goes on to establish what is meant by minimum basic operations and defines essential travel for businesses and individuals. The order also explains what is meant by essential activities. Individuals may leave their residence to engage in activities essential to their health and safety such as obtaining medical supplies or medications or visiting a health care professional and going to the grocery store.

Finally, the second stay at home order comments on enforcement of these requirements. The rules set forth in the order may be enforced by state and local law enforcement. Any violation of this order is considered a second degree misdemeanor and can include a fine of not more than $750.00 and no more than ninety days in jail.

All in all, the order, while extensive, offers numerous opportunities for people to leave their home for health reasons and to buy necessities. Because of the far reaching impact of the order and numerous questions that can arise with regards to its applicability to gatherings or activities, it is important that every business obtain a copy of the April 2 stay at home order and read it carefully. It will be interesting to see if there are any additional requirements or changes made in the stay at home order as we near the end of April.

As an added note, the CDC recently modified its guidelines for businesses and employers. It provides instructions to assist critical infrastructure businesses in reducing the transmission among employees and maintaining a healthy business operation. For employees of critical infrastructure businesses, the CDC recommends that if an employee is suffering from symptoms that are consistent with Covid-19 (i.e. fever, cough, shortness of breath), they should notify their supervisor and be allowed to stay home. They should also not return to work until completing their home isolation and have been symptom free for at least seven days. Employees who appear to have symptoms upon arrival at work should be immediately separated from other employees and sent home. If an employee is confirmed to have the Covid-19 infection, the employer should inform fellow employees of the possible exposure, but not specifically identify the affected employee.

If there is evidence of exposure but the employee is asymptomatic, they can still be required to work but the employer should follow certain guidelines. For instance, the employer should measure the employee’s temperature and assess symptoms prior to the start of every work day. There should be regular monitoring of the employee’s condition. The employee should also be required to wear a face mask at all times while in the work force for fourteen days after the last exposure. The employee should follow social distancing and maintain six feet of space between themselves and any other employee. They should also disinfect and clean any workspaces where the employee has been working. If the employee becomes sick during the day, they should be sent home immediately and the surfaces in their work station or work space should be cleaned and disinfected as well.

Many, if not all, of the critical infrastructure businesses identified by the CDC fall within Ohio’s definition of essential businesses as well. Therefore, these guidelines would appear to apply and give employers some leeway at avoiding a shut down just because one employee is concerned about a recent exposure.

Also, remember that an employer cannot require an employee to provide a written statement from their doctor indicating that they are free of any infection. The CDC and the government are concerned that health care providers should not be burdened with additional paperwork involved with this type of confirmation of the illness. Therefore, you will have to rely upon your employees communication to you that their doctor or healthcare provider has told them.