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 for FFCRA Flow Chart

 

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.