COVID-19 / Immunity; Civil Liability Relief for Ohio Businesses and Others

Ohio H.B. 606 became law effective September 14, 2020. Equally important, the new law’s protections have been made retroactive to March 9, 2020 – the date of Governor Mike DeWine’s first Executive Order relating to the pandemic. The law provides businesses, schools and health care workers relatively broad and comprehensive civil immunity from liability for injuries allegedly related to COVID-19 exposures. The law is similar to others enacted in a growing number of jurisdictions. Under this new Ohio law, individuals, businesses, schools and health care providers generally cannot be held liable for injuries or deaths caused by the transmission of COVID-19 unless the complaining party can show that the alleged condition resulted from “reckless conduct or intentional misconduct or willful or wanton misconduct.” In this regard and among other defined terms, the new law provides the following: “reckless conduct” means a “heedless indifference to the consequences” of the risk of possibly causing an exposure to the COVID-19 virus.

If you have any questions about this update, you are invited to contact an attorney at Mazanec, Raskin & Ryder Co., L.P.A. for assistance.

Ohio Lawmakers Propose New Police Reform Legislation

By: Ryan Bockmuller

Recently, the Ohio Legislature has introduced a number of police reform bills which, if passed, could materially impact the provision of police services in the State of Ohio.

House Bill 706, introduced by Rep. Erica Crawly (D – Dist. 26) and Rep. Thomas West (D – Dist. 49), seeks to enact R.C. § 109.749 which would require peace officers to complete training on de-escalation techniques, implicit bias, procedural justice, and mental health issues, to require information regarding mental health resources and available support be provided to peace officers annually, and to make an appropriation.  While the Bill has been introduced in the House, it has not yet been put to a vote. The Bill would need to pass both the House and the Senate before being presented to the Governor for signature.  If passed, this Bill would have a limited impact on the day-to-day procedures of police because it only mandates additional training for officers.  When factoring in the current political climate surrounding the need for police reform, it is possible such a bill could resonate with voters in an election year and gain enough support to become law.

House Bill 710, introduced by Rep. Terrence Upchurch (D – Dist. 10) and Rep. Sedrick Denson (D – Dist. 33), would amend numerous sections of R.C. § 109, R.C. § 2933, and R.C. § 5503 to prohibit police officers from “engaging in biased policing and other status-based profiling and to require the attorney general’s office to establish rules regarding such police practices.” This Bill has been introduced in the House and has not yet been put to a vote; however, the Bill is unlikely to pass Ohio’s Republican controlled legislature, as written.  The Bill is likely too intrusive into the operations of many police forces to be practical and enforcement would be a challenge, due to the subjective nature of bias.  Even if passed, it is likely that Governor DeWine, a former prosecutor and attorney general, would veto this Bill due to the challenges presented with enforcement and the stark changes to police procedure that would be required.

House Bill 713, introduced by Thomas West (D – Dist. 49) and Rep. David Leland (D – Dist. 22), would seek to enact R.C. § 109.70 which would prohibit the use of arrest and citation quotas for law enforcement agencies.  The Bill has been introduced in the House and has not yet been put to a vote.  Again, this bill is unlikely to pass Ohio’s Republican controlled legislature as written.  As with HB 710, it is likely too disruptive to the operations of many police forces to be practical, a factor which would likely prevent Governor DeWine, a former prosecutor who understand the needs of law enforcement, from signing the bill into law, even if passed.

House Bill 421, introduced by Rep. Todd Smith (R – Dist. 43) and Rep. Gil Blair (D – Dist. 63), would extend civil and criminal immunity, under R.C. § 2744.01, et seq., to political subdivisions for the acts of hospital police officers acting directly in the discharge of the person’s duties as a police officer and that occurs on the premises of the hospital, or elsewhere, when directly related to the role of being a hospital police officer.  This bill has also narrowed the definition of “emergency call,” as stated in R.C. § 2744.01, to mean “communication from a citizen, police dispatch, or a personal observation by a peace officer only if that communication, dispatch, or personal peace officer observation involves or concerns an inherently dangerous situation that demands an immediate response on the part of a peace officer.” H.B. 421 at p. 2.

The current definition of “emergency call” is “a call to duty, including but not limited to, communications from citizens, police dispatches, and personal observations by peace officers of inherently dangerous situations that demand an immediate response on the part of a peace officer.” R.C. 2744.01(A).  The Bill has passed the Ohio House unanimously with bipartisan support, 94-0, and is now in committee in the Ohio Senate.  Due to unanimous support in the House, this legislation is very likely to pass through the Senate and be signed into law by Governor DeWine.  Even if the Governor did attempt to veto the Bill, the Governor’s veto may be overturned with a three-fifths majority in both houses.

For more information on any of this legislation or how it may impact police departments, please contact Mazanec, Raskin & Ryder, Co. L.P.A. at (440) 248-7906.

Opioid Epidemic; Pharmaceutical Distributor and Insurance Coverage; Ohio First Appellate District

By Cara Wright

On June 24, 2020, the Ohio First District Court of Appeals held in Acuity v. Masters Pharmaceuticals, Inc., 1st Dist. Hamilton No. C-190176, 2020-Ohio-3440 that an insurer has a duty to defend an insured pharmaceutical distributor in lawsuits brought by governmental entities for costs incurred combating the opioid epidemic.

This declaratory judgment action arose from underlying litigation filed by the states of West Virginia, Michigan and Nevada, alleging that the insured – in this case, Masters Pharmaceuticals, Inc.  –  acted negligently in failing to investigate, report and refuse to fill suspicious orders of prescription opioids and that the failures to do so contributed to the opioid epidemic, resulting in increased costs for police patrols, judicial expenditures, person and public-works expenditures, substance-abuse treatment and emergency and medical-care services.

The provision of the particular policy at issue provided that the insurer would pay “sums that the insured becomes legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies.”  The insurer argued that the policy did not require defense of the claims asserted by the states of West Virginia, Michigan and Nevada because they were seeking to recover their own economic losses, and not losses resulting from any ‘bodily injury’.

The First District rejected this argument. Instead, the Court held that while the governmental entities were seeking to recover their own economic losses, some of those losses (e.g., medical expenses and treatment costs) arose “because of” bodily injury.  As a result, the Court found that the claims fell within the terms of the policy and that the insurer owed its insured a duty to defend.

The insurer also argued that its insured knew about the potential harm to individuals from the ingestion of opioids and that, as a result, the claims by the governmental entities were excluded under a policy “loss-in-progress” clause.  The First District rejected this argument, too, finding instead that this policy provision was not an exclusion, but instead was a prerequisite to establishing coverage. In particular, the First District held that, although the insured may have been aware there was a risk that if it filled suspicious orders diversion of its product could contribute to the opioid epidemic; nevertheless, the mere knowledge of this fact was not sufficient to bar coverage under the policy’s “loss-in-progress” provision.  Thus, the insurer was found to have a duty to defend its insured from the claims brought by the governmental entities.

For more information, please feel free to contact Doug Holthus (Columbus, OH) at dholthus@mrrlaw.com or Joseph Nicholas (Cleveland, OH) at jnicholas@mrrlaw.com.

Title VII Protects Homosexual and Transgender Workers

Yesterday, the U.S. Supreme Court ruled that Title VII of the 1964 Civil Rights Act applies to discrimination based on sexual orientation and gender identity. Title VII outlaws discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Until yesterday, federal courts across the country were divided on whether Title VII also protects LGBTQ employees from adverse employment actions based on their sexual orientation and gender identity. The Supreme Court ruled in a 6-to-3 majority that it does.

One of the cases presented to the Supreme Court arose from an appeal from the Sixth Circuit (whose jurisdiction includes Ohio).  In that case, Employer R. G. & G. R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she informed her employer that she planned to “live and work full-time as a woman.” The Sixth Circuit ruled in March 2018 that Title VII’s “discrimination by sex” does include transgender persons.

The Supreme Court arrived at its conclusion in part because Title VII already prohibits employment discrimination based even partially on sex. Discrimination against people for being homosexual or transgender is at least partially based on the person’s sex. It therefore follows that Title VII prohibits firing a person for being homosexual or transgender.

The Supreme Court concludes: “We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.” The Supreme Court’s dissent concedes that LGBTQ employees deserve to be treated fairly in the workplace but argue that the text of Title VII does not protect such employees. They also argue that the Court’s majority opinion legislates new law, violating separation of powers.

Because the Sixth Circuit held in 2018 that Title VII protects transgender employees, Ohio employer policies and practices should already be in compliance with yesterday’s Supreme Court decision.  While Congress has not expressly changed the text of Title VII to include references to sexual orientation or gender identity, employers must ensure that they are not taking any adverse employment action against employees in whole or in part because of their sexual orientation or gender identity.  Employers may wish to update their employment policies to expressly include these characteristics, but at a minimum must ensure that their practices comply with the law.

The full text of the Supreme Court’s opinion is available here.

Continue following Mazanec, Raskin & Ryder for updates on this and other changes in the law. For advice that is specific to your circumstances, please contact one of our attorneys.

This update is not intended to constitute legal advice or form an attorney-client relationship.

New Ohio Tax Law May Alter Municipal Income Tax

HB 197 went into effect on March 27, 2020. This is a new Ohio law that may alter the way municipalities collect income tax as a result of the COVID-19 emergency.

The Ohio Legislative Service Commission stated in its Final Analysis that the new law redefines “principal place of work” as the city where homebound workers live.

This means that many employees whose taxes are normally withheld in the city where they work may be entitled to a refund next fiscal year for the time they spent working from home. The cities where homebound workers live may also be entitled to reimbursement from the cities where the employees normally work.

According to a recent article, the new law will most likely result in mass tax refunds and cities losing significant municipal tax revenue. In Cleveland, for example, more than 85% of the city’s income tax is generated from withholdings collected from employees commuting into the city.

Municipalities may wonder what they can do to avoid mass refunds, class action lawsuits, and other litigation. It is too early to speak in general terms of the consequences of this law. The issues it presents are so complex that no two cases will be alike.

Continue following Mazanec, Raskin & Ryder for updates on this and other changes in the law. For advice that is specific to your circumstances, please contact one of our attorneys.

This update is not intended to constitute legal advice or form an attorney-client relationship.