Accommodating Employees Generally

A “reasonable accommodation” is a modification to the way a job is performed that allows a person with a disability to complete his or her job. 

Under the Americans with Disabilities Act (the “ADA”), employers must provide reasonable accommodations to employees with disabilities.  Similarly, under the Pregnant Workers Fairness Act (the “PWFA”), employers are required to provide reasonable accommodations for employees with limitations related to pregnancy, childbirth, and related medical conditions.

However, employers are not required to make reasonable accommodations if doing so would create an “undue hardship” on the business.  Whether an undue hardship exists is determined on a case-by-case basis and can depend on the nature and cost of the accommodation in relation to the employer’s size and resources.  Courts generally look to several relevant factors in determining whether an accommodation would impose an undue hardship, including:

• The nature and cost of the accommodation;
• The employer’s financial resources;
• The number of persons employed in the workplace; and
• The accommodation’s effect on the employer’s expenses/resources.

Before simply denying an employee’s request for accommodation, though, employers must engage in an “interactive process.”  In other words, even if the employee’s requested accommodation is unreasonable—or even if it would present an undue hardship—the employer is required to engage in an open conversation with the employee to determine whether an alternative accommodation can be identified.

Service Animals in Restaurants

The ADA is broken into several parts. Title I of the ADA requires employers, as noted above, to make certain accommodations for their employees. Title III, on the other hand, requires places of public accommodation to be designed in compliance with accessibility standards. Title III of the ADA explicitly discusses the concept of service animals: it defines service animals as “dogs that are individually trained to do work or perform tasks for people with disabilities,” and members of the public who use a service animal are generally permitted to take their animal into areas of a business where the public is permitted to go.

Whether a disabled employee is entitled to an animal in the workplace, however, presents a more challenging issue.  Unlike Title III, Title I of the ADA (which deals with accommodations for employees) does not expressly discuss service animals.  Legal guidance on the issue is very limited, and the guidance that does exist does not present a one-size-fits-all solution.  It, instead, acknowledges that an employees’ entitlement to accommodation depends on fact-specific circumstances. The use of service animals by restaurant employees thus depends upon whether the request is reasonable and whether it presents an undue hardship on the employer.

In the restaurant setting, employers must be particularly concerned about the cleanliness of their business and the safety of their patrons and workers.  For these reasons, if one employee’s request for a service animal creates an allergy risk for others—and if an employer cannot modify the employee’s workspace to eliminate that risk—the employee might not be entitled to the accommodation.  Rather, the accommodation may be considered unreasonable and may impose an undue hardship on the employer.   

Obligations to New Mothers

Several laws offer protection to new/expecting mothers in the workplace. For example, Title VII of the Civil Rights Act of 1964 protects employees against discrimination and prejudice in the hiring and firing of employees on the basis of pregnancy; the ADA protects employees who suffer from pregnancy-related disabilities; and the PWFA builds on the ADA by protecting employees who have known limitations related to pregnancy and childbirth (which might include post-childbirth recovery, cesarean sections, changes in hormone levels, etc.).  Notably, the PUMP Act—which became law in December of last year—also requires employers to provide employees with an area (other than a bathroom) to express breast milk at work, which must be functional for pumping milk, shielded from view, free from intrusion, and available as needed.

The Ohio Department of Health (the “ODH”) has issued guidance specifically designed to help restaurant owners provide lactation accommodations to breastfeeding employees.  According to the ODH’s guidance, “[r]estaurants have found many creative solutions to accommodate breastfeeding employees,” and “[e]ven small restaurants and fast-food industries with limited space and rigid time schedules can make it work.”

Among other solutions, the ODH suggests that restaurants can effectively accommodate breastfeeding employees by creating a private space (with partitions/privacy screens) in an employee break area or by making an office area available (so long as the office is free from surveillance).

Balancing Employees’ Needs With Patrons’ Safety

While restaurant owners sometimes have obligations to accommodate disabled employees, they also have obligations to the public and to their patrons.  Sometimes, for example, an employee may have a health concern—like an infectious disease—that may prevent the employee from safely handling food and/or interacting with diners.

For this reason, restaurants should consider developing sick worker policies to help prevent the transmission of foodborne illness or communicable diseases. When employees are suffering from certain symptoms (e.g., diarrhea, vomiting, fever), an effective sick worker policy might require employees to self-report their illness to a supervisor and to stay home from work until the symptoms pass.

Although this article identifies a few legal issues that restaurant owners may encounter, it does not constitute legal advice, nor does it anticipate all legal questions that may arise in the workplace. Adequately accommodating employees requires careful compliance with state and federal laws, and employers are advised to seek legal counsel when they develop specific legal concerns.

To seek counsel from our Hospitality & Liquor Law practice group, please reach out to request a consultation or call us at 216-696-1422.

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This information is provided for general informational purposes only and should not be construed as legal advice. Readers should consult with qualified legal counsel regarding their specific circumstances before taking any action based on the information presented.

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Come January 1, 2023 (or sooner), Ohioans will have access to sports betting online, at dedicated gaming facilities, and in the form of lottery sports gaming at bars and restaurants. Although it was initially expected that the OCCC would begin the licensure application process on April 1, 2022, rules governing the various licenses are still being proposed and finalized. The application process is currently expected to open in the summer/fall of 2022, but now is the time for businesses to evaluate whether they may qualify for a license and begin to prepare for the necessary submissions.

As mentioned above, Ohio will recognize three types of licenses to facilitate various sports betting opportunities:

1. Type A Sports Gaming Proprietor – Takes bets through websites and mobile applications.
2. Type B Sports Gaming Proprietor – Operates a dedicated retail sports gaming facility.
3. Type C – Includes two sub-categories:
   1. Type C Sports Gaming Proprietor – Contracts with Sports Gaming Hosts to provide sports gaming through self-service or clerk-operated terminals at approved Type C host facilities.
   2. Type C Sports Gaming Host – Owner of a facility with a D-1, D-2, or D-5 liquor permit (i.e. bars and restaurants) that is approved by the OCCC to host self-service or clerk-operated terminals for sports gaming.

Type A and Type B licenses are limited and have hefty license fees associated with them. Although the same is true for Type C Sports Gaming Proprietors, becoming a Type C Sports Gaming Host is the most attainable and least expensive.

To become a Type C Sports Gaming Host there is a non-refundable license fee of $1,000 (compared to the $100,000 fee for a Type C Sports Gaming Proprietor). The associated license will be valid for a term of 3 years that can be renewed. Because the Type C licenses utilize a different method of “lottery sports gaming”, the Ohio Lottery Commission (“OLC”) has additional oversight and regulatory authority. Accordingly, there will be rules for Type C licenses from both the OCCC and OLC, which are still being proposed and finalized.

Given the lower cost of entry, there are naturally more restrictions under discussion for Type C Sports Gaming Hosts. For example, the current rules impose a limitation of two (2) sports gaming kiosks per licensed facility, with each kiosk being limited to accepting not more than $700 in a calendar week from any individual sports gaming participant. Even with these restrictions, a Type C Sports Gaming Host license still offers a bar/restaurant the opportunity to implement a potential new stream of revenue that has never been available here before, and overall, the implementation of legal sports betting in Ohio will open the door for a multitude of new revenue streams for individuals and businesses alike.

The Ohio Casino Control Commission will be accepting applications for Type-C Sports Gaming Hosts on July 15, 2022. The deadline to submit applications is August 15, 2022.

The attorneys in McCarthy Lebit’s Hospitality and Liquor Law practice group are continuing to stay apprised of developments relating to the rules and application process for sports betting in Ohio. We are available to assist with the upcoming application process, answer any questions, or discuss needs that your business may have.

For more information or to seek counsel from our Hospitality & Liquor Law group, please reach out to request a consultation or call us at 216-696-1422.

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This information is provided for general informational purposes only and should not be construed as legal advice. Readers should consult with qualified legal counsel regarding their specific circumstances before taking any action based on the information presented.

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Following photos and reports that some patios were overcrowded and, therefore, unable to adhere to social distancing guidelines, Governor DeWine acted swiftly this week. He is taking current law enforcement officers from across the state and making them agents of the Ohio Department of Public Safety Investigative Unit (“IOU”). These agents will perform compliance checks on crowded bars and restaurants to ensure that they maintain compliance with Ohio’s mandatory social distancing guidelines for reopening which can be found here: https://coronavirus.ohio.gov/static/publicorders/Directors-Order-Dine-Safe-Ohio.pdf.

If an agent from the IOU determines that an establishment is in violation of the guidelines, a liquor citation may be issued which will result in a hearing before the Liquor Control Commission (“Commission”). The Commission has the authority to suspend or revoke the establishment’s liquor permit.  Should the permit be revoked, the establishment will be unable to obtain a new permit for one year pursuant to the Ohio Administrative Code. Further, a violation of the Director’s Dine Safe Order is a second-degree misdemeanor and, if found guilty, the establishment and/or the owner could be subject to a fine of not more than $750 or not more than 90 days in jail, or both.

Considering the backlash that some bars and restaurants have received based on perceived failures to implement social distancing rules, it is important to be proactive if your business has or intends to reopen. As noted, it is the establishment’s obligation to limit the number of customers so that it can maintain control of its premises. Should a customer become unwilling to adhere to the social distancing guidelines, the establishment may ask the patron to leave and, if the patron refuses to leave, the establishment should contact its local police department. Administrative penalties are entirely avoidable if the proper precautions are taken.

Further, many establishments are seeking ways to expand their outdoor dining facilities. Any expansion of the permit premises must be approved by the Ohio Division of Liquor Control (“DOLC”). The permitholder must file form DLC 4248, Request for Expansion of Permit Premises, with the DOLC. An investigator from the Investigative Unit will inspect the expansion and submit a report to the DOLC. It will then either grant or deny the request or provide further guidance to the permitholder for the Expansion Request to be granted. No alcoholic beverages may be sold in the expanded area until the Expansion Request is granted.

Given the fluidity of the current situation and the complexity of some of these unprecedented challenges, restaurant owners should seek experienced legal counsel who can help advise on the best way to pursue required expansion permits and/or advocate for the business should it receive a liquor citation.

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This information is provided for general informational purposes only and should not be construed as legal advice. Readers should consult with qualified legal counsel regarding their specific circumstances before taking any action based on the information presented.

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What businesses qualify for the Program?

Although SBA loans are typically limited to “small business concerns” that, among other requirements, do not exceed the small business size standard associated with their respective North American Industry Classification System (“NAICS”) designation, the Program expands coverage to any business concern, nonprofit organization, veteran organization, or tribal business employing not more than 500 people. Self-employed individuals are also eligible to receive a Program loan. Franchises that have more than one location are eligible as well, but must have fewer than 500 employees at each site. An applicant must have been operational on or before February 15, 2020, with employees for which it was making payroll or otherwise was paying independent contractors.

What is the maximum loan amount that a business can receive through the Program?

The loan amounts are awarded pursuant to a mathematical formula based on the applicant’s payroll (subject to certain adjustments and limitations), and in all cases, limited to $10,000,000. Program loans will have an interest rate not exceeding 4% and a maximum term of 10 years. The loans will be nonrecourse with no required collateral or personal guaranty. The applicants do not need to show they first sought credit through other means. Most importantly, a portion of these loans may be forgiven if certain conditions are met, as discussed below.

What can the Program loan funds be used for?

Program loans are permitted to cover payroll costs including salary, commission, or similar compensation, but not salary costs in excess of $100,000 annualized on a per employee basis. Loan proceeds may also be used to pay costs to continue health care benefits during periods of paid sick, medical, or family leave, and payments of interest on any mortgage obligation (but not prepayments or payments of principal), rent, and utilities.

How are loans made under the Program different from traditional SBA 7(a) loans?

Unlike traditional SBA 7(a) loans, no personal guarantee will be required to receive funds and no collateral needs to be pledged. Similarly, the CARES Act waives the requirement that a business show that it cannot obtain credit elsewhere. In lieu of these requirements, borrowers must certify that the loan is necessary due to the uncertainty of current economic conditions; that they will use the funds to retain workers, maintain payroll, or make lease, mortgage, and utility payments; and that they are not receiving duplicate funds for the same uses. Payments of principal, interest, and fees will be deferred for at least 6 months, but not more than 1 year. Interest rates are capped at 4%. The SBA will not collect any yearly or guarantee fees for the loan, and all prepayment penalties are waived.

The SBA has no recourse against any borrower or any owner of borrower for non-payment of the loan, except where the borrower has used the loan proceeds for a non-allowable purpose.

A business must seek a Program loan from lenders who must be either SBA Qualified Lenders—those already deemed qualified under section 7(a)—or additional lenders—those insured depository institutions, insured credit unions, and other lenders that the Administrator and Secretary of the Treasury determine are qualified pursuant to paragraph (36) (together, Program Lenders).

SBA is also waiving its credit-elsewhere test, meaning that small businesses with credit available elsewhere are eligible for loans under the Paycheck Protection Program.

Loan applications must be submitted before June 30, 2020.

What due diligence must Program lenders conduct prior to extending loans under the Program?

Prior to the extension of any loan under the Program, the Program lender must evaluate the eligibility of each borrower that applies for a covered loan. Under the Program, a Program lender must consider whether the applicant:

• Was in operation on February 15, 2019 through June 30, 2019; and
• Had employees for whom the borrower paid salaries, including commissions, cash tips or equivalent, and payroll taxes, or paid independent contractors, as reported on Form 1099-MISC

How does a business apply for a loan under the Paycheck Protection Program?

We expect additional guidance from the SBA regarding how to apply for Program loans, including additional resources on the SBA website about how to find a qualified lender. Borrowers who have outstanding SBA loans may also want to contact their existing lenders to inquire about applying for loans under the Program.

Is relief available for businesses with pre-existing SBA loans?

Businesses that received SBA Economic Injury Disaster Loans (“EIDLs”) on or after January 31, 2020, may refinance those EIDLs under the Program. Keep in mind that a business cannot have an EIDL and a Program loan for the same purpose. The SBA EIDL program is separate and distinct from the Paycheck Protection Program, and more information on it can be found here. Further, the SBA will pay the principal, interest, and associated fees on certain pre-existing SBA loans for 6 months.

Are loans made under the Program eligible for forgiveness?

Borrowers may be eligible for a partial loan forgiveness, based on amounts expended for the permissible purposes set forth above. Amounts forgiven will be based on the amount the borrower spends on the permitted uses, starting on the date the loan is granted and extending 8 weeks therefrom. However, amounts eligible for forgiveness will be reduced based on a formula that examines the applicant’s reduction in both the applicant’s number of employees and the applicant’s workforce salary.

How much of a loan is guaranteed under the Program?

For any amount of a Program loan that is not forgiven, the SBA will continue to guarantee such amount for up to 10 years from the date the borrower applied for forgiveness.

The attorneys at McCarthy Lebit remain available to discuss any questions or needs that your business may have. We are continuing to stay apprised of COVID-19 developments and will continue to update our materials accordingly.

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This information is provided for general informational purposes only and should not be construed as legal advice. Readers should consult with qualified legal counsel regarding their specific circumstances before taking any action based on the information presented.

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