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.
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.
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:
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.
Family First Coronavirus Response Act
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.
- 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.
To our Clients and Friends,
During these challenging and unprecedented times, we want to assure you that we are fully prepared to support you and your organizations and assist in making difficult decisions.
We have initiated a plan to monitor, prepare for, and respond to health and safety issues that might impact us. As the Covid19 issues continue to evolve, our priority remains the health and well-being of our employees and clients.
Our attorneys and staff have been given the option to work remotely and we are limiting our business travel and have asked clients and partners, when feasible, to conduct meetings over the phone and via video conferencing.
In addition to encouraging our employees to monitor their health conditions closely, we are following proper protocols outlined by the Centers for Disease Control and Prevention (CDC), World Health Organization (WHO) and our local and federal governments.
We value the relationships we have developed with you and remain focused on providing the best service possible. Please do not hesitate to contact us with any questions regarding the many legal issues you may have to deal with in the coming days. Please refer to the Professionals page on our website for the contact information of our attorneys.
Joseph F. Nicholas, Managing Partner
Steven K. Kelley, a partner with Mazanec, Raskin & Ryder Co., L.P.A., recently presented at the HalfMoon Education Seminar on Engineering Law and Ethics in Toledo, Ohio. Mr. Kelley enlightened students on Professional Liability Law, including claims, defenses, determining damages, and dispute resolution. He also joined DesignPro Insurance Group Risk Manager Eric Pempus in a discussion about Professional and General Liability Insurance for Engineers. The seminar not only educates the public on these topics, but also rewards Ohio professional engineers in attendance 7.0 CPD hours of continuing education credits. HalfMoon Education Inc. is a nonprofit continuing education corporation based in Wisconsin.