COVID-19 Small Business Resource

The rapid, worldwide spread of COVID-19 has created a global pandemic that has affected the entire world, including small businesses.  Mazanec, Raskin & Ryder Co., L.P.A. (MR&R) has put together this reference to help your small business survive the crisis.

SBA Disaster Loans

  • The U.S. Small Business Administration (SBA) has declared Ohio an eligible disaster area.
  • Low-interest “disaster loans” are available to eligible small businesses.
  • Offers up to $2 million to assist businesses with loss of revenue due to the COVID-19 pandemic.
  • SBA disaster loans can be used to:
    • Pay fixed debts;
    • Maintain payroll;
    • Maintain accounts payable; and
    • Pay other bills that are not able to be paid
  • Loan interest rate: 3.75%.
  • Long term repayment plans are available – maximum of 30 years.
    • Loan terms are determined on a case-by-case basis.
  • The loan application is available for download to print in paper form or can be submitted online at the SBA website.
  • For further information:

The CARES Act

  • On March 25, 2020, the U.S. Senate passed a COVID-19 stimulus bill which will:
  • Inject approximately $2 trillion into the U.S. economy.
  • While not yet passed through the House, leaders have indicated they are interested and will approve the plan quickly.
  • President Donald Trump has indicated that he would “absolutely” sign the bill once it passes through the House.
    • Available assistance to businesses with 500 or fewer employees:
      • $350 billion dedicated to the prevention of layoffs and closures of businesses.
      • Businesses that maintain a payroll during the COVID-19 crisis are able to receive cash flow assistance for a period of up to 8 weeks.
        • Able to utilize the loan for payroll, mortgages/rent, and utilities.
        • The loan amount would be forgiven under certain circumstances.
  • MR&R’s website will continue to provide updates on this bill as they are announced.

The Families First Coronavirus Response Act (FFCRA)

  • Businesses of 500 or fewer employees:
    • Paid Sick Leave (Division E):
      • Full time employees – 2 weeks or 80 hours of paid sick leave.
      • Part time employees – an equivalent of the number of hours worked over an average two-week period.
      • Pay:
        • Employee’s regular pay rate or $511.00 per day, whichever is the lesser amount, if:
          • A government quarantine order has been enacted;
          • The employee has been advised by a medical professional to “self-quarantine”; or
          • The employee is experiencing any symptoms of COVID-19 and is also actively seeking a medical diagnosis.
      • Employers cannot:
        • Require employees to find replacement work to cover the missed time; or
        • Require the use of other paid leave that may or may not be already provided as a benefit by the employer.
      • This benefit is only to be used when an employee cannot work, including working remotely/virtually, due to any circumstances related to COVID-19.
      • This benefit is in effect only until December 31, 2020, unless otherwise amended by future legislation.
    • Expansion of Family Medical Leave (FMLA) benefits (Division E):
      • Qualifications:
        • Employees who cannot work due to:
          • Need to care for an individual subject to a quarantine order;
          • Need to care for a child whose school or child care center has closed; or
          • Experience a similar condition as described by the Secretary of Health and Human Services.
      • Leave is a paid benefit (traditional FMLA is not).
        • Benefits are not paid for the first 10 days:
          • Employees may opt to utilize other paid leave provided as a benefit from the employer.
        • Pay:
          • No less than two-thirds of the employee’s regular rate of pay or $200.00 per day, whichever is less.
    • If any of these benefits are paid out by an employer, the employer is eligible for a 100% quarterly tax credit in the total amount of the benefits that are paid out.
      • Health insurance costs are included toward the credit.
    • If the business is owed a refund, it will be issued as soon as possible.
    • Each business with 500 or fewer employees must post this notice.

Ohio COVID-19 Resources

  • Unemployment benefits:
    • Employees are eligible if:
      • They have been employed for at least 20 weeks; and
      • Earned an average weekly wage of $269 during that period.
    • The state of Ohio is asking that employers distribute this form to their employees who are laid off for any reason due to COVID-19 in order to expedite their claims.
    • All WARNS notices and inquiries are to be emailed to rapdresp@jfs.ohio.gov until further notice.
    • Unemployment taxes:
      • During the emergency declaration period, a business’ unemployment tax charges will be mutualized.
        • Reimbursement to employers will follow the existing charging requirements as set forth in ORC 4141.
    • Unemployment benefits paid to an employee can be charged to a mutual account.
    • Any penalties for late reporting and payments will be waived.
    • Former employees can be paid a Supplemental Unemployment Benefit.
      • Requirements:
        • The arrangement being made must be documented on letterhead containing the businesses contact information.
        • An email address for the contact person must be provided.
        • There must be a citation of legal authority to verify the benefits are not subject to the unemployment tax.
      • Submit this information to UCTech@jfs.ohio.gov.
        • Subject line: SUB Plan.

Liquor buyback

  • Initiated by the Ohio Department of Commerce’s Division of Liquor Control to provide economic assistance to bar and restaurant owners during the COVID-19 pandemic.
  • This program will allow a bar or restaurant to:
    • Return unopened high proof liquor products purchased within the past 30 days
  • Also applies to those businesses that may have obtained a temporary permit (F2) for an event if:
    • The event was scheduled between March 12, 2020 and April 6, 2020; and
    • The event is now cancelled.
  • Questions regarding this buyback program can be directed to the Liquor Enterprise Service Center at:

 Goods Haulers

Ohio Workers’ Compensation Premiums

  • The Ohio Bureau of Workers’ Compensation (BWC) is allowing:
    • Employers to defer premium payments for the months of:
      • March;
      • April; and
      • May.
    • This deferment will last until June 1, 2020.
    • Please visit bwc.ohio.gov for further information.

Health Insurance Premiums

 Small Business Banking

 Additional information

  • Ohio’s resources regarding COVID-19:
  • Also check with your local Chamber of Commerce and Trade Associations for additional resources specific to your locale or industry.

COVID-19 has thrown the whole world a curveball.  With the help of MR&R, your business can weather the storm.  Please contact us at any time with any questions!

This document is not intended to provide legal advice, and is merely intended to be informational.  If you have specific questions, please contact legal counsel.

FFCRA Flow Chart

MRR received numerous questions concerning employers’ implementation of the FFCRA that becomes effective this Wednesday, April 1st. MRR prepared the following “flow chart” to assist employers in their understanding of the new laws, including when employees become eligible for FMLA and/or emergency sick leave pay. Please contact us at info@mrrlaw.com if you have any questions about the FFCRA or other COVID-19 issues.

 

Click here to download FFCRA Flow Chart (PDF)

Click here to download FFCRA Flow Chart PowerPoint (PPT)

 

This update is not intended to constitute legal advice or form an attorney-client relationship.  If you have any questions, we encourage you to contact an attorney at Mazanec, Raskin & Ryder to help address your specific circumstances.

Department of Labor Sheds Some Light on Employers’ Obligations Under the FFCRA

Last week, the US Department of Labor released responses to 59 frequently asked questions relating to employer responsibilities under the Families First Coronavirus Response Act (FFCRA).  The FFCRA requires most employers with less than 500 employees, as well as most public employers, to provide eligible employees with emergency paid sick leave and paid family leave beginning April 1, 2020.  The following is a summary of highlights from the March 26, 2020 release:

Determining whether an employer is over the 500-employee threshold: In determining whether an employer “employs” over 500 employees, one should count all full and part-time employees within the United States, the District of Columbia, or any US territory.  This includes employees on leave, temporary employees (even if on another employer’s payroll), and day laborers. It does not include those who are considered independent contractors under the Fair Labor Standards Act (FLSA). If two or more entities meet the integrated employer test under the FMLA, employees of all entities making up the integrated employer will count toward the total.

Who is an emergency responder? An emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of COVID-19 patients, or whose services are otherwise needed to limit the spread of COVID-19.

Some examples include, but are not limited to, law enforcement, correctional institution personnel, fire fighters, EMS personnel, physicians, nurses, public health personnel, paramedics, 911 operators, and public works personnel.

Definition of “unable to work”: An employee is “unable to work” if his or her employer has work for him or her to do and one of the COVID-19 qualifying reasons set forth in the FFCRA prevents him or her from being able to perform that work, either under normal circumstances or by means of telework.  All telework must be paid normal wages and is not compensated under the paid leave provisions of the FFCRA.

Continuation of health insurance: An employer who provides group health coverage must continue to provide such coverage to employees while they are on paid sick leave or expanded family and medical leave.

Paid sick leave or expanded family medical leave in the event that an employer closes a worksite or after employee furlough: If an employer closes a work site either because it was required to close pursuant to federal, state, or local directive, or because of lack of business, it is not required to provide paid sick leave or expanded family medical leave. An employee is not entitled to paid sick leave or expanded family medical leave in the event that he or she is furloughed.

Intermittent leave: An employee may take intermittent leave while teleworking, if the employer allows teleworking. While teleworking, an employee may take leave in any increment upon which the employee and employer can agree.

If an employee is not teleworking, paid sick leave taken for qualifying reasons related to COVID-19 (with the exception of caring for a child out of school or without child care) must be taken in full-day increments and cannot be taken intermittently under certain circumstances.

What if an employee has already taken FMLA leave this year? If an employee has already taken FMLA leave in the past 12 months, that amount of leave taken counts against the amount of leave available under the Emergency Paid Sick Leave Act for COVID-19 related reasons. In other words, employees are not entitled to 12 weeks of FMLA under this new law in addition to the 12 weeks of FMLA leave available for the other FMLA qualifying events.

Exception for small businesses with fewer than 50 employees: An employer with fewer than 50 employees is exempt from child-care related paid sick leave and expanded family medical leave requirements if an authorized officer of the business has determined that:

  • Provision of sick pay or leave would result in the business’ expenses and financial obligations exceeding available business revenues and cause the business to cease operating at minimal capacity.
  • The absence of the employees requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of the person’s specialized skills, knowledge, or responsibilities.
  • There are not sufficient workers available to perform the labor or services provided by the employee requesting leave and the labor or services are needed for the business to operate at minimum capacity.

A small business must document why an authorized officer has determined that the business fits one or more of the above criteria, though the documentation only need be supplied to the Department of Labor if the Department requests it.

In addition, The DOL issued a Field Assistance Bulletin on March 24, 2020 confirming that the DOL will not bring enforcement actions against employers for violations of the FFCRA that occur through April 17, 2020, provided that the employer has made a reasonable, good faith effort to comply with the FFCRA.

A full list of the Department of Labor’s March 26, 2020 FAQs can be found at the following web address:  https://www.dol.gov/agencies/whd/pandemic/ffcra-questions. Should you have any questions relating to the FFCRA or need any other employment law assistance, one of our attorneys would be happy to assist.

 

This document is not intended to provide legal advice, and is merely intended to be informational. If you have specific questions, please contact legal counsel.

RIGHT TO INDEMNIFICATION UNDER R.C. 2744.07(A)(2) MAY BE ASSERTED ONLY BY AN EMPLOYEE OF A POLITICAL SUBDIVISION

Recently, the Ohio Supreme Court determined in Ayers v. The City of Cleveland, 2020-Ohio-1047, that the right to indemnification under R.C. 2744.07(A)(2) may only be asserted by an employee of a political subdivision.

This is an important decision because it thwarts the plaintiff bar’s recent tactic to seek indemnification directly from a political subdivision to satisfy jury awards by effectively circumventing established immunity.  The Supreme Court made clear that the legislature did not intend to protect plaintiffs/judgment creditors or create an exception to political subdivision immunity that is not expressly in the Political Subdivision Tort Liability Act.

David Ayers was released from prison after prevailing on a federal habeas corpus claim.  He then filed a civil rights violation claim against the City of Cleveland and two police detectives.  The trial court dismissed all claims against the City of Cleveland.  Ayers obtained a large judgment against the detectives.  The detectives offered to assign any indemnification claim to Ayers in exchange for an agreement by Ayers to forgo collection efforts against the detectives personally.  Ayers rejected each offer.

Ayers brought a claim in state court against the City of Cleveland and the attorney who represented both Cleveland and the detectives for statutory indemnification pursuant to R.C. 2744.07(A)(2) among other claims.  The trial court granted summary judgment in favor of Ayers concluding that R.C. 2744.07(A)(2) required Cleveland to indemnify the officers and pay the judgment.  The Eighth District Court of Appeals reversed by concluding that Ayers, as a judgement creditor, did not have standing to bring a private cause of action against the city to enforce the city’s obligations to its employees.

The Ohio Supreme Court accepted jurisdiction over Ayers’s only proposition of law “R.C. 2744.07(A)(2) reflects the legislature’s intent to permit a judgment creditor to proceed directly against an indemnitor.”  Upon the Ohio Supreme Court’s acceptance of this case, Mazanec, Raskin & Ryder was retained by the Ohio Association of Civil Trial Attorneys to write an amicus or “friend of the court” brief in support of the City of Cleveland’s position.  MRR Partner Frank Scialdone wrote the amicus brief.

In its decision and in accord with MRR’s arguments as amicus, the Ohio Supreme Court focused on the issue of whether a judgment creditor may proceed directly against a political subdivision under R.C. 2744.07(A)(2).  R.C. 2744.07(A)(2) provides that a political subdivision “shall indemnify and hold harmless an employee” thus, “the right of indemnification is personal to the employee.  Therefore, the Ohio Supreme Court held that “the unambiguous language of the statute, which serves only to indemnify an employee and does not vest any rights in third parties connected to the employee,” concluding that R.C. 2744.07(A)(2) does not permit a judgment creditor to proceed directly against an indemnitor.

This decision comports with the general shield from liability afforded political subdivisions for the acts of their employees and exceptions to that general rule must be specifically set forth in the statute.  R.C. 2744.02(A)(2) provides for a political subdivision to indemnify only employees of the political subdivision.  Because the statute does not specifically provide for a third party to enforce an employee’s right of indemnification, the Ohio Supreme Court held that under R.C. 2744.07(A)(2), indemnification by a political subdivision is a personal right of a particular employee.  Thus, based on the plain language of that statute, the personal right of indemnification may be asserted only by the employee and it may not be asserted by a judgment creditor.

This update is not intended to constitute legal advice or form an attorney-client relationship.  If you have any questions, we encourage you to contact an attorney at Mazanec, Raskin & Ryder to help address your specific circumstances.

 

Coronavirus Legal Alert – March 27, 2020

Ohio House Introduces Bill to Require Insurance Companies to Cover Business Interruption Losses for Small Businesses

On March 24, 2020, members of the Ohio House of Representatives introduced H.B. No. 589 to require that certain insurance cover pandemic losses.  The Bill is designed to “require insurers offering business interruption insurance to cover losses attributable to viruses and pandemics and to declare an emergency.” The proposed legislation seeks to eliminate any current impediments to coverage, such as exclusions for virus and pandemic related losses, under policies “insuring against loss or damage to property, which includes the loss of use and occupancy and business interruption.”  If passed, it would require insurers to provide such coverage under existing business insurance policies, up to policy limits, for business interruption losses that occur during the entire time of the state of emergency declared by Governor DeWine on March 8, 2020.

The proposed law is focused on providing relief to small businesses suffering from the effects of the coronavirus emergency, because it applies only to businesses operating in Ohio that have 100 or fewer employees.  The Bill also creates a process for insurers that must provide such coverage to later seek reimbursement of loss payouts from the Superintendent of Insurance from a special fund to be created from specific assessments imposed on insurance companies that issue business interruption coverage.

There are still several steps in the legislative process before this proposal could become law.  If passed and signed by Governor DeWine it would become effective immediately.  We will provide updates as they become available.

To best serve our public and private sector clients, Mazanec, Raskin & Ryder Co., LPA established a Coronavirus Legal Team to help all our clients address the wide variety of challenges and issues they face in the current crisis.  For assistance in addressing these concerns or in developing other plans to protect your business, please contact MRR Partners George Pilat or David Smith (Cleveland), or Stacy Pollock (Columbus), and they will involve the appropriate members of the MRR Team.

 

FFCRA Effective 1 Day Earlier Than Anticipated

The Families First Coronavirus Response Act (FFCRA), which provides paid sick leave to many employees and amends the FMLA to provide paid leave related to the COVID-19 public health emergency under certain circumstances, was to take effect no later than 15 days after the date of the enactment of the FFCRA.  While 15 days after the enactment is April 2, 2020, the Department of Labor announced that the law’s effective date is April 1, 2020.  Employers with questions about this law or in need of assistance with policies to implement this law in their workplace should contact David Smith at dsmith@mrrlaw.com or Stacy Pollock at spollock@mrrlaw.com.

Ohio Takes Sweeping Legislative Action to Address COVID-19 Emergency

The Ohio General Assembly is working quickly to pass legislation addressing different aspects of the current COVID-19 crisis.  Late yesterday, Amended Substitute House Bill 197 was passed, implementing a number of important changes.  These provisions will go into effect immediately after Governor DeWine signs the bill.  Highlights of some of those changes are described below.

 

Exempting Schools as Food Processing Establishments

Authorizes the Director of Agriculture, during the period of emergency declared by Executive Order 2020-01D, but not beyond December 1, 2020, to exempt a school as a food processing establishment under R.C. § 3715.021 if the school or entity has been issued a food service operation license under Chapter 3717 and is transporting food only for purposes of the U.S.D.A.’s Seamless Summer Option Program or the Summer Food Service Program.  Authorizes the same exemption on otherwise similar terms for other entities, provided that the entity is transporting food only for purposes of the Summer Food Service Program.

 

Extending Deadlines for Actions by State Agencies and License Holders

Extending the deadlines for “state agencies” to take actions otherwise required to be taken during the period of emergency declared by Executive Order 2020-01D to the earlier of 90 days after the emergency ends or December 1, 2020.

Extending the deadlines for persons required to take action during the period of emergency declared by Executive Order 2020-01D (but in no case beyond December 1, 2020) to maintain the validity of a “license” to the earlier of 90 days after the emergency ends or December 1, 2020.  Prohibits agencies from taking disciplinary action against license holders if the action is based on the authorized delay.

 

Open Meetings

Notwithstanding any conflicting provision of the Revised Code, authorizes public bodies, for the period of emergency declared by Executive Order 2020-01D (but in no case beyond December 1, 2020), to hold and attend meetings and conduct and attend hearings via teleconference, video conference and other similar technology.  Grants resolutions, rules and formal actions of the public body the same effect as if they had occurred during an open meeting or hearing. Requires public bodies to make provisions for meeting attendance (and hearing attendance if the public is otherwise permitted to attend the hearing) commensurate with the method in which the meeting is conducted (e.g., livestreaming by internet, public access television, call-in information for teleconference, etc.).  The public must be able to observe and hear the discussions and deliberations of all members of the public body, whether that member is attending in person or electronically.  Requires public bodies conducting electronic hearings to establish, with widely-available electronic equipment, means by which that public body may converse with witnesses, and receive documentary testimony and physical evidence.

 

Authorizing Re-Hire of Public Servants Without Forfeiture of Retirement Benefits

During the period of emergency declared by Executive Order 2020-01D (but in no case beyond December 1, 2020), a PERS retirant or other system retirant who is employed by the Department of Rehabilitation and Correction, the Department of Youth Services, the Department of Mental Health and Addiction Services, Department of Veteran’s Services, or the Department of Developmental Disabilities shall not be required to forfeit the retirant’s retirement allowance as described in division (B)(4) of R.C. § 145.38.

 

K-12 School Testing, Accountability and Hours

 Authorizing the board of education of a school district, the governing authority of a community school established under Chapter 3314 that is not an internet- or computer-based community school, the governing body of a STEM school established under Chapter 3326, or the governing authority of a chartered non-public school to do either of the following to make up days or hours that the schools were ordered closed due to the COVID emergency.

  • If an entity adopted a plan under § 3313.482 to require students to access and complete classroom lessons posted on the entity’s website, the entity may amend that plan to provide for making up any number of hours that the schools were ordered closed due to the COVID emergency.
  • If an entity did not adopt a plan under § 3313.482, the entity may adopt a plan.

 

Authorizing Electronic and Telehealth Delivery of Services by Certain Professionals to Students Participating in Autism Scholarship Program, Jon Peterson Special Needs Scholarship Program, or who were otherwise receiving those professional services.  

Authorizing, for the period of emergency declared by Executive Order 2020-01D (but in no case beyond December 1, 2020), professionals licensed by the Ohio Speech and Hearing Professionals Board; the Ohio Occupational Therapy, Physical Therapy, and Athletic Trainers Board, the State Board of Psychology; Counselor, Social Worker and Marriage and Family Therapist Board; State Board of Education (with respect to intervention therapists), to continue to provide licensed services by electronic delivery or telehealth communication to any student participating in the Autism Scholarship Program or the Jon Peterson Special Needs Scholarship Program, or to any student enrolled in a public or private school who was receiving those services before the Director of Health’s Order, regardless of the method of delivery.  Prohibits licensing boards from taking actions against a professional who provides services in accordance with this section.

 

Relieving Schools from Administering Assessments during 2019-2020 School Year

Relieving (for the 2019-2020 school year only) city, exempted village, local, joint vocational, or municipal school districts, any community school established under R.C. Chapter 3314, any STEM school established under R.C. Chapter 3326, any chartered non-public school, the State School for the Deaf and the State School for the Blind from obligations under R.C. §§ 3301.0710 to 331.0712, § 3313.903, § 3314.017 to administer assessments. Clarifying that students may not be deemed ineligible to renew scholarships for the 2020-2021 school year under the Educational Choice Scholarship Program, the Jon Peterson Special Needs Scholarship Program, or the Pilot Scholarship Program based solely on the student not having been administered an assessment during the 2019-2020 school year. Prohibiting the Department of Education from excluding any student to whom an assessment was not administered from counting in the district or school’s enrollment for the 2020-2021 school year.  Prohibits holding back 3rd grade students based solely on that student’s reading performance in the 2019-2020 school year unless the student’s principal and reading teacher agree that the student is reading below grade level and not prepared to be promoted to 4th grade.  Requiring an award of high school diplomas to students enrolled in 12th grade (or otherwise on track to graduate during the 2019-2020 school year) who had not completed by March 17, 2020 requirements for a high school diploma, if that student’s principal, in consultation with teachers and counselors, determines that the student has successfully completed the curriculum as of the date the school was closed by the Director of Health’s order; however, no school or district may award a diploma under this section after September 30, 2020.  Instructs schools and districts to continue to provide ways to engage students between March 17, 2020 and the end of the school year.  Authorizes the Superintendent of Public Instruction, for the duration of the emergency (but in no case beyond December 1, 2020), to waive or extend any deadlines for actions required of the State Board of Education, the Department of Education or any person licensed or regulated by them to ensure prioritization of student, family and community safety while continuing to ensure the efficient operations of schools.

 

Unemployment Compensation Changes

Eliminates, during the period of emergency (but in no case after December 1, 2020), the unemployment compensation benefits waiting period.  Allows Director of Job and Family Services to waive requirements that benefit recipient be actively seeking suitable work.  Notwithstanding R.C. § 4141.29(D)(2), allows for unemployment compensation applications from employees who are unemployed or unable to return to return to work because of an isolation or quarantine order issued by the individual’s employer, governor, board of health, health commissioner or Director of Health.

 

Tolling Statutes of Limitation

Tolling (with retroactive effect) criminal, civil and administrative periods of limitation that expire between March 9, 2020 and July 30, 2020, but only until the earlier of the date the emergency ends or July 30, 2020.  This section applies not only to the commencement of actions, but also tolls certain other time limitations and deadlines associated with criminal, civil and administrative matters.

 

Addressing Work-from-Home Impacts on Municipal Income Taxes

During the period of the emergency, and for thirty days after, any day on which an employee performs personal services at a location to which the employee is required to report because of the emergency declaration, including that employee’s home, shall be considered as having been performed at the employee’s principal place of work.

 

Extending State, Municipal and School District Tax Filing Deadlines

Authorizes the Tax Commissioner to grant, during the period of emergency, extensions of time within which to file any report required by law and clarifies that no penalties or interest will accrue during those extensions for failing to file or pay taxes or fees.  If the Tax Commissioner extends the state income tax deadline for all taxpayers, taxpayers shall automatically receive a commensurate extension to file municipal net profit tax returns.

 

These updates are not intended to constitute legal advice or form an attorney-client relationship. If you have any questions, we encourage you to contact an attorney at Mazanac, Raskin & Ryder to help you address your specific circumstances.

FFCRA Required Notice

Each covered employer must post a Notice of the Families First Coronavirus Response Act (FFCRA) requirements in a conspicuous place on its premises immediately.  Since most employers’ workforce is teleworking, employers may satisfy this requirement by emailing or direct mailing this notice to employees, or posting this notice on an employee information internal or external website.  Here is the required Notice:

https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

House Bill seeks to amend open meeting procedures during a state of emergency

INTRODUCTION OF HOUSE BILL TO ALLOW PUBLIC BODIES TO MEET REMOTELY DURING STATES OF EMERGENCY

House Bill 557 was introduced in the Ohio House of Representatives on March 16, 2020 to enact Ohio Revised Code Section 121.221, which provides an exception to the “in-person” attendance requirement of Section 121.22(C), to permit public bodies to meet remotely during states of emergency. The Bill seeks to amend the open meeting procedures to allow members of a public body to meet remotely, either through teleconference or video conference, for purposes of determining whether a quorum is present. Passage of this Bill would allow public bodies to conduct their open meetings during states of emergency, such as the current COVID-19 response state of emergency. Currently, and prior to this Bill, public bodies are not permitted to conduct public meeting remotely, instead requiring personal attendance at meetings.

Importantly, this Bill requires that the public body make provisions for public attendance at a location involved in the teleconference or video conference. While this portion of the Bill is not further defined, it likely requires that the public be provided an opportunity to attend any teleconference or video conference in the same manner as the members of the public body.

The Bill makes it so that it would be effective immediately upon the Governor’s signature. A copy of HB 557 language can be viewed using the following link: https://www.legislature.ohio.gov/legislation/legislation-documents?id=GA133-HB-557

We anticipate that a vote on this Bill will occur this week following debate and comments. Watch for further updates following any voting by the House of Representatives. If you have any questions regarding HB 557 and its effect on open meeting for public bodies please contact one of our attorneys.

Feds Mandate Paid Leave Amid COVID-19 Pandemic

 

Family First Coronavirus Response Act

 

FMLA

Applies to all private employers with fewer than 500 employees and all public employers.

Qualifying need for leave

      • Adds a new qualifying reason for taking FMLA—“because of a qualifying need related to a public health emergency” through December 31, 2020.
      • “Qualifying need for leave” means the employee is unable to work or telework due to a need for leave to care for the son or daughter under 18 if such employee of the school or place of care has been closed, or if the child care provider of such son or daughter is unavailable, due to public health emergency.
      • Makes more employees eligible for the new “public health emergency” qualifier by allowing employees who have only been employed for 30 calendar days to be eligible for this particular leave (rather than having been employed for 12 months).
      • This Act gives the Secretary of Labor the authority to issue Regulations to exclude from the requirements of this Act private employers with fewer than 50 employees “when the imposition of such requirements would jeopardize the viability of the business as a going concern.” In other words, employers with fewer than 50 employees who would not have their business operations jeopardized by offering this leave will be required to provide this leave.  What is meant by “jeopardize the viability of the business as a going concern” is not defined in the Act and will have to be explained in Regulations at a later date.
      • Private employers with 50-499 employees and all public employers must comply with this Act regardless of whether “the imposition of these requirements would jeopardize the viability of the business as a going concern.”
      • Employees who need this leave are required to give employers as much notice as is practicable.

Paid versus unpaid leave under FMLA

      • The first 10 days for which an employee takes leave under the qualifying reason listed above may consist of unpaid leave, although the employee can use paid leave (vacation, personal, vacation, etc).
      • The employer shall provide paid leave for each day of leave that the employee takes after the initial 10 days.
      • Paid leave shall not exceed $200 a day, or $10,000 in the aggregate.
      • When calculated how much paid leave is owed, employers are to provide an amount that is not less than 2/3rds of the employees’ regular rate of pay (not base rate of pay, as distinguished in the FLSA). Employees must be paid for the number of hours that the employee would normally be scheduled to work.

Restoration to Position

      • Employees are entitled to the same reinstatement rights under this Act as they would be entitled to under other FMLA-qualifying reasons for leave. That is, an employee must be reinstated to his or her former position or an equivalent position (ie. a virtually identical position).
      • The restoration to position provision of the Act does not apply to employers who have fewer than 25 employees if, the employee takes leave as described above, but the position the employee held when the leave started does not exist due to economic conditions or other operating conditions of the employer that affect employment and are caused by the public health emergency.
      • The employer is required to make reasonable efforts to return the employee to an equivalent position with equivalent benefits, pay and other terms and conditions of employment.
      • If the reasonable efforts cannot return the employee to an equivalent position, then the employer must contact the employee within one year if an equivalent position becomes available (similar to a recall list).
        • The one year clock starts on the earlier of the date on which the qualifying need related to a public health emergency concludes, or the date that is 12 weeks after date on which the employee’s FMLA leave for this public health emergency commences.

Special rule for health care providers and emergency responders

      • An employer of a health care provider or emergency responder may elect to exclude such employee from the application of provisions of these changes to the FMLA.
EMERGENCY PAID SICK LEAVE

Applies to all private employers with fewer than 500 employees and all public employers.

Employees’ eligibility for paid sick leave

      • Employees are eligible for paid sick leave under this Act regardless of the length of their employment.
      • The DOL is directed to issue additional guidelines on the calculation of paid sick time within 15 days of the enactment of the Act. However, given the language of the Act as currently written, we advise employers to provide this paid sick leave in addition to sick leave that was available to the employee prior to the enactment of this Act.
      • An employer is required to provide each employee paid sick time at the employee’s full regular rate of pay, to the extent the employee is unable to work or telework due to a need for leave because:
        • The employee is subject to a federal, state, or local quarantine or isolation because of COVID-19;
        • The employee has been advised by a health care provider to self-quarantine because of COVID-19; or
        • The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis.
      • An employer is required to provide each employee paid sick time at 2/3rds of the employee’s regular rate of pay, to the extent the employee is unable to work or telework due to a need for leave because:
        • The employee is caring for an individual who is subject to a quarantine/isolation or has been advised by a health care provider to self-quarantine because of a COVID-19; or
        • The employee is caring for his/her son or daughter because the school or place of care of the son/daughter has been closed or the day care provider of the son or daughter is unavailable because of COVID-19 precautions.

Special rule for health care providers and emergency responders

      • An employer of a health care provider or emergency responder may elect to exclude those employees from the application of this Emergency Paid Sick Leave Act.

Availability of paid sick leave

      • Full-time employees are entitled to up to 80 hours of paid sick leave.
      • Part-time employees are entitled to the number of hours equal to the number of hours that such employee works, on average, over a 2-week period.
      • Paid sick leave is based on the employee’s regular compensation but is capped at $511 per day (or $5,100 in the aggregate) for employees who fall in the first three categories above and is capped at $200 (or $2,000 in the aggregate) per day for those in the two care-related categories above.
      • Paid sick time given under this Act does not carry over from one year to the next.
      • Paid sick leave shall terminate when the need upon the termination of the need for sick leave.
      • An employer may not require, as a condition of providing sick leave under this Act, that the employee who will use the sick leave find a replacement employee to cover the hours during which the employee is using paid sick time.
      • An employee is permitted to use the sick leave time granted under this Act prior to using other paid leave. In other words, an employer may not require an employee to use other paid leave prior to using the sick leave available under this Act.
      • After the first work day that an employee receives paid sick time under this Act, an employer may require the employee to follow reasonable notice procedures in order to continue to receive paid sick time.

Miscellaneous

      • Employers are required to post a Notice of this available leave which will be provided by the Secretary of Labor not more than 7 days after the enactment of this Act.
      • Employers are prohibited from discharging, disciplining or discriminating against employees who take leave available to them under this Act or who has filed a complaint related to this Act, or will/has testified in a proceeding related to the enforcement of this Act.
      • Failure to provide leave as set forth in this Act is a violation of the FLSA. An employer in violation of this Act is subject to the same penalties as they would be subject to under the FLSA (double-damages, attorney fees, etc.)
      • The requirements under this Act expire December 31, 2020.

This Act takes effect no later than 15 days after enacted.
Thus, this Act will become effective no later than April 2, 2020.

 
Stacy V. Pollock
Email: spollock@mrrlaw.com
Direct Dial: (614) 324-0163