James McWeenyPeter Zawadski

March 10, 2020

COVID-19, also known as coronavirus, (a new respiratory virus strain), is spreading rapidly.  In the span of just a few short months, the virus has spread around the globe to our doorstep here in Ohio.  On March 9, 2020, the Ohio Department of Health announced three positive cases of COVID-19 in Cuyahoga County.  This number is expected to rise.  For now, COVID-19 is here to stay.

Ohio school districts are on the front lines of the COVID-19 fight. School districts must be proactive and timely prepare for the spread and impact of COVID-19.  Preparation should include prospective consideration of and planning for how best to address various COVID-19 challenges that are likely to arise in schools.  For example, school districts should:

  • Review, become familiar with, ask questions about, and be ready to implement school safety/emergency management plans.  These plans establish procedures for determining when to close a school; how to communicate information to families, students, and staff about school closings; and decontamination of school facilities.
  • Contact the district’s local health department and county emergency management agencies to establish or refresh connections with those armed with facts.  These agencies can help ensure that the district’s safety plan is current, effective, and suited to respond to COVID-19 in schools.
  • Learn and share with students, staff, and families – in visible and easily understandable language – precautionary measures called for by the Centers for Disease Control and Prevention, the Ohio Department of Health, and local health departments.
  • Prepare for staff and student absences as well as school closings.  The Ohio Department of Education recently announced that, when dealing with COVID-19-related absences and school closings, district leaders should work with local health departments to make decisions that prioritize the health and safety of students and the community.  This means that anyone (students or staff) with COVID-19 symptoms should stay home and receive testing and treatment.  According to the Ohio Department of Education, instructional time, student testing, and other related issues will be addressed down the road when it is safe.
  • Review and if necessary revise impacted district policies, including non-discrimination and student/employee absence policies (such as those rewarding “perfect attendance”).
  • Assess existing collective bargaining agreements, particularly terms affecting employee absence, and evaluate the ongoing need for contract amendments, understandings, or other contract “work-arounds” that are necessary in the wake of COVID-19.
  • In conjunction with local health departments, plan for and implement protocols for students and staff who – in light of the upcoming spring break – are returning to school from international and national travel as well as students and staff who attend school with COVID-19 symptoms and/or attended school before testing positive for COVID-19.
  • Request that parents and staff members proactively report any potential exposure (e.g., contact with an individual who has tested positive) so that appropriate measures can be taken.  Set up a system to review information received and make decisions regarding the impact of this information.

Now more than ever, Ohio school districts are tasked with actively monitoring, preparing for, and responding to COVID-19.  Legal counsel can help.  Contact your attorneys to help navigate the many different challenges presented by the novel COVID-19.

James McWeeney is an associate at Walter | Haverfield who focuses his practice on education law, labor and employment and litigation. He can be reached at jmcweeney@walterhav.com or at 216-928-2959.

Peter Zawadski is an associate at Walter | Haverfield who focuses his practice on education law as well as labor and employment matters. He can be reached at pzawadski@walterhav.com and at 216-928-2920.

 

 

Rina RussoMax RiekerMarch 10, 2020

As COVID-19 (coronavirus) spreads into Ohio, it’s important for employers to be prepared in their response to employees who are sick and be ready for the impact of the virus on the workplace.

According to the Centers for Disease Control and Prevention (“CDC”), typical COVID-19 symptoms include fever, cough, and shortness of breath, which seem to present within 2-14 days after exposure. The potentially long incubation period makes prompt detection more difficult.  The illness is spread both by close person-to-person contact and through touching surfaces or objects that have the virus on them and then touching one’s own eyes, nose, or mouth.

At this time, there are now several confirmed cases in Northeast Ohio. Additional testing of individuals may also reveal more cases in Ohio and around the country. The only way to conclusively determine whether a particular respiratory illness is COVID-19 is through laboratory testing.

WHAT SHOULD EMPLOYERS DO?

Send Sick Employees Home

If an employer observes an employee exhibiting the symptoms of COVID-19, the employer should immediately separate and send the employee home. At this point, there is no way for an employer to reliably or independently verify that an employee has COVID-19 without obtaining a positive laboratory test result.

According to the Equal Employment Opportunity Commission (“EEOC”) pandemic guidance, taking an employee’s temperature is considered a “medical examination” under the Americans with Disabilities Act (“ADA”). Further, as a high temperature is not present in all individuals infected with COVID-19, requiring employees to submit to a temperature check is not advised at this time. Instead, all employees exhibiting symptoms of respiratory illness should be sent home.

Affected employees should be permitted to use applicable paid or unpaid time off in accordance with the employer’s policies and any collective bargaining agreement that may be in place.  Employers should also evaluate other possible paid or unpaid leave time available to sick employees pursuant to applicable federal, state, or local laws, subject to the requirements of the Fair Labor Standards Act (FLSA). Generally, non-exempt employees must only be paid for hours worked. However, exempt employees must be paid for an entire workweek for which they perform any work for their employer.

Encourage Good Hygiene and Enforce Workplace Cleaning

 Employers should remind employees to practice respiratory etiquette by coughing or sneezing into an elbow, hand, or tissue.  Employees should be reminded to thoroughly wash their hands and avoid touching their eyes, noses, or mouths.

Employers should continue vigilant workplace cleaning and disinfecting practices to eliminate viruses and other bacteria from surfaces and objects.

 Practice Social Distancing When Possible

As medical experts promote social distancing in an effort to stop the spread of COVID-19, employers should consider whether employees can work remotely. While this may not be an option for all employees, employers should consider whether in-person meetings can take place remotely by phone or video conference. Employees that can perform their job duties remotely should do so. Where employees cannot perform their job duties remotely, employers can consider staggered shifts to limit close contact between employees.

Limit Business Travel

Employers should consider limiting, restricting, or postponing all non-essential business travel to affected countries. Employers should regularly consult the CDC Travel Health Notices and the State Department Travel Advisories to determine what travel should be avoided.

Have a Response Plan Ready

Employers need to be ready to implement a response plan should an outbreak be identified in their area. This plan must include communicating with all employees should an employee become ill with COVID-19, while keeping the employee’s identity confidential. All employees who worked closely with an infected employee should be sent home and kept from returning to work for a 14-day period to prevent spread of the infection. Employers should be ready to institute remote work or altered work schedules to ensure uninterrupted business operations to the extent possible.

Rina Russo is a partner with Walter | Haverfield who focuses her practice on labor and employment law. She can be reached at 216-928-2928 or at rrusso@walterhav.com.

Max Rieker is an associate at Walter |Haverfield who focuses his practice on labor and employment law. He can be reached at mrieker@walterhav.com or at 216-928-2972.

Kathryn PerricoChristina Peer

March 13, 2020

In a press conference on March 12th, 2020, Governor Mike DeWine directed that, in order to prevent the spread of coronavirus (COVID-19), all elementary and secondary schools, including public, private, and charter schools, close for a three-week period beginning at the end of the school day on March 16th, 2020. We understand that many of you may be proactively closing in advance of this deadline, and we want to take the earliest opportunity to share with you general guidelines regarding the provision of continued services and educational opportunities to students with disabilities following the March 12th, 2020 release of the U.S. Department of Education’s (DOE) question and answer document that addresses how to provide services to children with disabilities during a COVID-19 outbreak.

While it is important to note that neither the IDEA, Section 504 of the Rehabilitation Act of 1973, or Title II of the Americans with Disabilities Act specifically address requirements for the provision of services to students with disabilities during extended and unexpected school closures, it is equally important to remember that students with disabilities do not automatically lose their rights, or have those rights suspended, during an extended closure.  During the press conference, Governor DeWine stated that school districts will have the ability to make local decisions regarding whether, and to what extent, programming may be provided electronically/remotely to students. Once a district determines that it is providing distance learning services to regular education students, it must provide commensurate services to students with disabilities. In the event that a district is providing no services to any students during the closure, per the March 12th DOE guidance, it remains obligated, once school resumes, to convene the IEP team to determine “whether compensatory services are needed under applicable standards and requirements.” The Ohio Department of Education’s Office for Exceptional Children (ODE/OEC) has not yet issued guidance regarding this issue.

Because districts are required to provide commensurate services, once a district determines it is providing distance learning services to all students during an extended break, district staff and IEP teams must make determinations regarding appropriate services to be delivered to students with disabilities that will allow them to continue to access the curriculum and make progress on IEP goals in a fashion commensurate to the opportunities being provided to non-disabled students. Service providers should carefully document services provided during this time. Where this is not possible through distance learning, teams should make individualized determinations, in concert with the department of health and individual health care providers as appropriate, about whether direct services are viable, and to what extent. Where direct services and distance learning are both inappropriate, teams should reconvene after school reopens to determine what level of compensatory services may be required to meet the FAPE requirement.

At this point, neither the DOE nor ODE/OEC has provided any relief from adherence to the IDEA’s mandated timelines for the completion of IEP annual reviews and evaluations. Districts are urged to remember that remote meetings are acceptable if properly noticed through the formal meeting invitation. Every effort should be made to adhere to applicable deadlines, including deadlines for IEP annual reviews. Staff should be reminded to document all attempts to obtain parent participation in the annual review meeting. In the event an evaluation of a student with a disability is underway or coming due, teams should assess whether the evaluation can safely continue in light of the COVID-19-related closure. If completion is not feasible, the team can consider conducting a records review, in order to adhere to deadlines, followed by completion of the evaluation, as indicated in the planning form, upon the resumption of school. For initial evaluations, districts are encouraged to consult with counsel as the specific facts of each case will guide the appropriate course of action. Importantly, all decisions made regarding IEPs and evaluations must be documented in a prior written notice.  Prior written notices should be comprehensive and include details regarding the decision and the basis for the decision – including documenting all attempts to include parents in the process.

It is also worth noting that DOE guidance allows for the use of IDEA part B funds for activities that directly relate to providing, and ensuring the continuity of, special education and related services to children with disabilities, such as dissemination of COVID-19 information or the development of emergency plans for students with disabilities during the closure or in relation to the outbreak. Situations involving students in outside placements that may not be subject to the mandated closure, or whose particular health conditions require that they remain excluded from school once it resumes are also important to consider, but given the nuances of such situations, consultation with counsel is suggested.

As indicated in prior alerts, we will keep clients informed as guidance is updated from the U.S. Department Of Education, Ohio Governor’s Office, Ohio Attorney General’s Office, Ohio Department of Health, Ohio Department of Education, and other government entities. As always, feel free to contact any Walter | Haverfield attorney if we can be of assistance.

Kathryn Perrico is a partner at Walter | Haverfield who focuses her practice on education law. She can be reached at kperrico@walterhav.com or at 216-928-2948.

Christina Peer is chair of the Education Law group at Walter | Haverfield. She can be reached at cpeer@walterhav.com or at 216-928-2918.

Updated: March 18, 2020

Dear Clients, Friends and Partners:

At Walter | Haverfield, we take the health and safety of ourselves and those around us very seriously. In light of the COVID-19 pandemic, we want to reassure you that we are monitoring the situation closely, following our critical response plan and working diligently to safely continue our service to you without disruption.
For the past several weeks, we have followed a plan that includes strict protocols about travel, teleworking and proper health and sanitation measures. While our main office will have minimal staffing to maintain operations, many of our attorneys and a majority of our staff will be working remotely by Monday, March 23.
For legal guidance related to this situation, we encourage you to visit our dedicated COVID-19 page on our website. It contains updated information and resources for businesses, employers, government entities and school districts.
As we remain vigilant, we stand ready and equipped to face the challenges ahead of us and lead our profession, just as we have done for our clients and the greater community for the past 87 years.
We look forward to maintaining our strong working relationship with you during this time and keeping in close contact via phone, email or video conference. Should you have any questions or concerns, please feel free to reach out to me or your Walter | Haverfield lawyer at any time.

 

Ralph Cascarilla

Managing Partner

Walter | Haverfield

This will be updated accordingly as the situation changes.

Megan Greulich

March 12, 2020

Ohio’s Open Meetings Act and COVID-19

With many questions circulating regarding the application of Ohio’s Open Meetings Act (OMA) in light of Governor Mike DeWine’s recent guidance on COVID-19 and mass gatherings, Ohio Attorney General Dave Yost hosted a Facebook Live video this afternoon to help shed some light on the situation.

Yost referenced Ohio Revised Code (R.C.) 5502.24, which provides certain alternate arrangements for conducting public affairs when they are imprudent, inexpedient, or impossible due to an emergency. The provision also provides that “such powers and functions may be exercised in the light of the exigencies of the emergency without regard to or compliance with time-consuming procedures and formalities prescribed by law pertaining thereto, and all acts of that body and officers shall be as valid and binding as if performed within the territorial limits of their political subdivision.”

As a result of the Governor’s declaration of a state of emergency, Yost made it clear that while R.C. 5502.24 does not allow for suspension of OMA requirements, it does allow for public bodies to adjust practices with regard to items such as meeting notices. In regard to board meetings, Yost reinforced that board members of public bodies still must meet in person in order to deliberate, vote, and be counted for quorum. He did, however, note that there is no requirement that boards of education allow the public to be physically present at such meetings. Yost stated that electronic access to a board meeting, such as a live feed, would be sufficient to serve as appropriate access by the public to an open meeting of a board of education.

Each year, the Ohio Attorney General’s Office (AG) releases a revised version of its Ohio Sunshine Laws Manual (commonly referred to as the “Yellow Book”) prior to Sunshine Week. In light of the increase in questions surrounding OMA and COVID-19, the AG released the revised 2020 Yellow Book on Thursday, March 12, 2020. Pages 108-109 address OMA issues related to these questions. The Yellow Book is available for download on the AG’s website here.

School Closures

In light of COVID-19 guidance, Governor DeWine announced during his afternoon press conference that schools will be closed for an extended spring break beginning at close of the school day on Monday, March 16, 2020 and extending for three (3) weeks until April 3, 2020. During this period, DeWine noted that local boards of education will have the ability to make local decisions with regard to both the extent to which building access may be allowed for certain individuals and the extent to which programming may be provided electronically/remotely to students.

In addition to these announcements, Governor DeWine also noted that his office and the Ohio Department of Education will be working together to ensure that any deadlines and requirements that may be missed as a result of the closure or other COVID-19-related precautions will be addressed and waived where possible. This includes any state testing requirements. Additional guidance with regard to precautions to slow the spread of COVID-19 are available on the Ohio Department of Health’s website.

We will keep clients informed as guidance is updated from the U.S. Department of Education, Ohio Governor’s Office, Ohio Attorney General’s Office, Ohio Department of Health, Ohio Department of Education, and other government entities. As always, feel free to contact any Walter | Haverfield attorney if we can be of assistance.

Megan Greulich is an associate at Walter | Haverfield who focuses her practice on education law. She can be reached at mgreulich@walterhav.com or at 614-246-2263.

 

John NealMarch 16, 2020 

In conjunction with the Ohio Governor’s Office, the Ohio Department of Health ordered the stoppage of on-premises food and alcohol service effective 9:00pm EST March 15, 2020. The move is designed to combat the spread of the coronavirus (COVID-19). Many states have followed suit.

The Ohio Order specifically exempts carry-out and delivery of food and alcohol (meaning beer and wine only).  The Governor has encouraged the use of carry-out and delivery as options, and for the public to continue to use local restaurants. From a moral perspective, restaurants that stay open to help ensure the public has access to food are to be commended, especially considering that most operations will lose money doing so.

Of course, nothing that has been issued to date grants any protection or immunity to restaurants for continuing operations, and as such, the general principles of liability and negligence will apply to how a food service operation interacts with the public.

National and state agencies have issued guidance, and in some cases, orders, with regard to managing the coronavirus outbreak.  Although most people have seen them, restaurants that are going to maintain an operable kitchen must remember to advise its employees, preferably in documented writing, that they must:

  • Wash hands often with water and soap (20 seconds or longer) – Employees should be required to do this at regular intervals.
  • Dry hands with a clean towel or air dry your hands – Restaurants should ensure that clean, disposable papers towels are available and direct employees that they be used.
  • Cover your mouth with a tissue or sleeve when coughing or sneezing (and excessive sneezing or coughing should probably result in an employee being sent home).
  • Avoid touching your eyes, nose, mouth with unwashed hands or after touching surfaces – Employees should be advised not to do these actions, and immediately directed to clean their hands if they inadvertently do.
  • Clean and disinfect “high-touch” surfaces often – The restaurant should wipe down with disinfectant such surfaces at regular intervals, and if possible, have appropriate hand sanitizers on site and used by employees frequently.
  • Continue to strictly comply with all existing regulations of the health department relative to operating a food service licensed business.

Not only should these procedures be advised, management should monitor and enforce them.

Understand, of course, that an employer can (and should) require an employee to go home and stay home if the employee has symptoms of coronavirus (or, quite frankly, is sick in any fashion).

In her March 15th order, Dr. Amy Acton, director of the Ohio Department of Health, found that coronavirus is “spread between individuals who are in close contact with each other (within about six feet) through respiratory droplets produced when an infected person coughs or sneezes.  It may be possible that individuals can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose or eyes.”   She also cited research to “confirm that COVID-19 is spread simply through breathing, even without coughing.”  That last finding is alarming.

This leads to one of the most significant pronouncements of the March 15th Order regarding “social distancing.”

Physical Premises Restrictions

Per the March 15th Order, “Lines for carry-out in these establishments must have an environment where patrons and staff maintain social distancing (six feet away from other people) whenever possible.”

Because of this and the general nature of the spread of coronavirus, a restaurant should devise carry-out and delivery programs designed to prevent the spread of coronavirus.

If possible, a restaurant still selling carry-out foods would be well-served to consider whether the delivery of that food and alcohol can be accomplished on a porch, patio, or outdoor open space on premises.  In this way, a restaurant can avoid having possible exposure to the indoors and kitchen area, it will serve as a buffer between the customer and employees, and it will prevent general congregating indoors.

In the event that a premise simply is not physically situated to allow for this kind of service, then a restaurant should consider utilizing the smallest indoor area closest to the door, confined in some fashion to keep patrons from sitting or congregating in the restaurant.

Although difficult in practice, the Director’s Order requires that patrons and staff stay six feet away from each other.  As such, employees should actively ask people in line to stay at least six feet away from each other while waiting, and a sign to that effect is advisable.  If a staging area can be situated where customers can pick up their own orders, this would be ideal.

Delivery

Like the restrictions for carry-out, delivery should be designed to minimize any contact between employee and customer. Again, payment should be made in advance over the phone, and other than handing the order to the customer, there should be no contact between persons. (The employee may even ask the customer if she wants the order left on the doorstep as opposed to handing it to her.)

In addition to these considerations about contact, restaurants should remember:

  • Food can be delivered by employees or third-party services, but beer and wine cannot be delivered using third party services unless they have an H-class permit. Not a lot of third parties have that licensing.
  • An employee must be 18 years old to deliver or sell carry-out alcohol.
  • The restaurant should consult with its insurance agent and/or carrier to ensure that employees making deliveries are covered under liability insurance coverage (or, more to the point, that any significant increase in delivery is covered).

General Terms of Carry-Out and Delivery Business

Patrons should be advised when placing an order:

  • No person showing any symptoms of illness will be served, even carryout – If you’re sick, send someone else to pick up your order.
  • Credit card payments in advance over the phone will be the only payment method allowed. This will eliminate the contact involved in the exchange of cash between employee and customer.  Other than possibly handing the bag of food over to the customer, there should be no contact or exchange of items between employee and customer.   If a customer has to pay on site and the restaurant decides to accept that, then the employee should manually type in the card authorization numbers.
  • Due to the increased contact that would result from a dispute about an order and the possibility of contaminated food coming back to the restaurant, the restaurant should advise that all sales are final, no returns or exchanges.
  • Restaurants can and should increase their prices and are entitled to up-charge for what they are doing due to all the risk, extra procedures, increased costs, and inability to generate revenue from full kitchen use by on-premises dining. Rules of reasonableness must apply, and increased prices should be uniform to all customers.  Remember to change your 30-day price list for beer and wine at your earliest opportunity.

Other Considerations

Wine.  Remember that Ohio law defines 42 proof and below spirits as “wine”, and therefore you are allowed to sell those at carry-out and delivery.  This includes such items as Baileys, and some popular low-proof whiskeys and vodkas.  You can never sell spirituous liquor (above 42 proof) at carry-out or delivery.

Wage and Hour considerations.  Remember, as always, to keep close track of employee time with delivery work, and to pay proper compensation and any overtime.

Mileage Reimbursement for employees.   A restaurant does not have to reimburse employees for mileage driven while making deliveries PROVIDED that the employee is making sufficiently more than the minimum wage to offset the driving costs.  Remember that mandatory expenditures that an employee incurs as part of his/her job cannot cause the employee to make less than the minimum wage.  So if an employee is right at the minimum wage, then yes, the employer must reimburse.  If the wage is high enough to cover the cost of mileage incurred, then no.  Although not the required amount, the IRS standard reimbursement rate is 57.5 cents per mile.   This may be hard to determine on an employee-by-employee basis, so instituting a standard amount per delivery can suffice.

Insurance.  Every restaurant should review whether they have a business interruption or other income loss covered claim as a result of the coronavirus and its related events. In many cases, there will not be a claim for business interruption because it is not caused by “physical loss or physical damage,” or there may be a pandemic exclusion.  Regardless, the easiest initial approach is for the restaurant to request a coverage review from its broker as a result of coronavirus, and then each policy must be reviewed as to its own particulars. Coverage reviews from brokers are generally free, and are an excellent starting point for an insurance analysis.

John Neal is chair of the Walter | Haverfield Hospitality and Liquor Control group. He can be reached at jneal@walterhav.com or at 216-619-7866.

 

Updated: March 24, 2020

Cuyahoga County:

Cuyahoga County Court of Common Pleas

  • Court remains open but with limited number of judges and staff through at least Friday, April 10, 2020
  • Anyone seeking to enter the building must enter on the Ontario St. side and be subject to a forehead temperature scan as well as a series of health-related questions
  • Criminal arraignments may be held by video
  • Civil proceedings may be conducted via telephone at the discretion of each individual judge
  • All foreclosure cases are stayed for a period of 60 days
  • Civil and criminal jury trials are suspended until at least April 10, 2020, unless a person’s constitutional right to a speedy trial is at stake

Cuyahoga County Probate Court

  • All scheduled in-person hearings are canceled. Hearings may be conducted by video or telephone conference, upon the discretion of the judge or magistrate assigned to the case.
  • All requirements due from March 16, 2020 until April 16, 2020 have been extended by 60 days
  • Any requirements due after April 16, 2020 are still due on their original date
  • Requirements that are currently overdue by 60 or more days cannot be extended and must still be filed via e-file or regular mail
  • Extensions to case requirements include, but are not limited to, Accounts, Inventories, Guardian’s Reports, Commissioner’s Reports, Reports of Distribution, Certificates of Service, and Verifications of Receipt and Deposit. Many of these items are already available to E-File. Check the Court’s E-File pages for updates and additional available filings.
  • Beginning March 20, 2020, only the rear garage entrance to the Old Courthouse building will be open (North entrance of the building by the parking deck)
  • Individuals will be subjected to screening prior to entering the building. Individuals who do not pass screening will be given information on how to contact the Court.
  • The issuance of in-person marriage licenses is suspended for at least two weeks.
  • Satellite locations are closed until further notice.
  • Marriage Licenses will be issued by online video call for those applicants with an immediate need.

United States District Court for the Northern District of Ohio

  • All courthouses of the U.S. District Court for the Northern District of Ohio are closed until May 1, 2020. Only authorized persons who have official business or persons authorized by a presiding judge, including credentialed media, may enter the courthouse property.
  • All employees of the District Court are directed to telework through May 1, 2020, except when directed by their supervisors/judges to report to the courthouse to perform essential functions.
  • The Clerk’s Office intake windows will be closed.
  • Electronic filings may still be made through the CM/ECF system. For those without access to CM/ECF, documents may be submitted by email to: EmergencyFiling@ohnd.uscourts.gov.
  • Civil:
    • No jury trial will begin before May 1, 2020. Any trial dates currently scheduled during that period are vacated.
    • All scheduled civil matters will be conducted by telephone or videoconference unless otherwise canceled by the assigned judge. This applies to motion hearings, case management conferences, pretrial conferences, settlement conferences and Alternative Dispute Resolution (ADR) proceedings.
  • Criminal:
    • No jury trial will begin before May 1, 2020. Any trial dates currently scheduled during that period are vacated.
    • Initial appearances, arraignments, and detention hearings will proceed and will be conducted by telephone or videoconference where practicable.
    • Criminal pretrials with defense counsel and U.S. attorneys may proceed, but by telephone only.
    • Criminal sentencings are postponed and will not proceed unless the defendant is in custody and (a) the presiding judge determines that an imposed sentence would be equal to or less than the time in which the defendant has been in pretrial custody; or (b) where the presiding judge determines that there is a liberty interest, public safety, or other case-specific compelling reason that makes an immediate sentencing necessary.
    • Change of plea hearings will not proceed. To the extent possible and with the agreement of the defendant, after filing a notice to enter an open guilty plea or plea agreement signed by the defendant and/or defense counsel, the taking of the plea of guilty and the sentencing shall be consolidated for a date after the presentence report has been prepared.
    • All grand jury proceedings are suspended until May 1, 2020, unless absolutely necessary and with the approval of the Chief Judge.
    • All in-person re-entry court sessions are suspended until May 1, 2020.
    • All petty offense (CVB) proceedings are suspended until May 1, 2020.
    • Consistent with recently implemented procedures, all detainees, upon arrival at a courthouse and before appearance in court, will undergo screening for fever and other symptoms of COVID-19 contamination. Such screening will be administered by and/or at the direction of the United States Marshals Service (USMS) or its agencies or designees. The presiding judge must be notified if the detainee exhibits risk factors and will have the discretion to order the detainee returned to the facility from which they came.


Lorain County:

Lorain County Court of Common Pleas

  • Closed to the general public but will maintain essential court functions and operations
  • Conducting non-essential proceedings by remote video or telephone conference.
  • All criminal matters, including pretrial hearings are ordered to be continued. If an in-person hearing is required, all necessary social distancing preventative measures are to be observed.
  • All in-person civil proceedings and pending civil and criminal jury trials are suspended until at least April 13, 2020
  • Mediation department matters and hearings are suspended until at least April 13, 2020

Lorain County Probate Court

  • No persons allowed to enter the office, including attorneys
  • Automatic extension of 60 days for: filing of all Inventories, Accounts, Guardian Reports, Statements of Expert Evaluation, Annual Guardian Plans, and Compliance with Guardianship Education.
  • Pre-trials and hearings will be conducted by teleconference or videoconference unless otherwise noted.
  • Civil commitment cases brought under R.C. 5122.01, et seq. will be heard by the Judge or Magistrate via teleconference or videoconference.


Franklin County:

Franklin County Court of Common Pleas

  • Civil and criminal matters scheduled between March 16, 2020 and April 13, 2020 for a jury trial, hearing or disposition will be moved to a future date.
  • Monday March 16, 2020 through April 13, 2020, citizens summoned for petit jury duty are not required to report for jury service.
  • March 16, 2020 through April 13, 2020 the General Division’s hours of operation will be from 8:00am – 3:00pm.

Franklin County Probate Court

  • Remains open to public and will be providing all essential services. However, to protect public health, citizens are discouraged from visiting the Franklin County Court complex for matters that are not essential or time sensitive.
  • Non e-filing cases documents should be filed by mail or by dropping them off at the court (22nd floor lobby drop boxes).
  • Money orders or attorney’s check for paper filed cases
  • Duty magistrate desk closed until further notice

United States Court of Appeals for the Sixth Circuit

  • Unless parties are otherwise directed, oral arguments scheduled to take place March 17-20 have been postponed.
  • The Court will continue to otherwise operate in the normal course with Clerk’s Office staff available in the office and seamlessly via telework.
  • The requirement that non-prisoner pro se litigants file exclusively in paper format is temporarily suspended effective March 16, 2020, until April 17, 2020.
  • During this limited time, non-prisoner pro se litigants may e-mail documents in PDF format to: CA06_Temporary_Pro_Se_Efiling@ca6.uscourts.gov.

United States District Court – Southern District of Ohio

  • The Joseph P. Kinneary Courthouse (Columbus), the Potter Stewart Courthouse (Cincinnati) and the Walter H. Rice Courthouse (Dayton) will be closed to the public for a period of fourteen days (14) beginning March 23, 2020
  • Sentencings will include only those defendants who are in custody. Defendants who are on bond pending sentencing will be subject to the extension period of this Order. Family members of the defendants may enter the courthouse to observe said sentencing hearings. Family is meant to include immediate family, spouses, or significant others. Consistent with public health and safety, the press may also attend public sentencing hearings.
  • All criminal and civil hearings and trial dates in those courthouses scheduled to proceed during the period of this fourteen-day continuance are continued pending further order of the Court. The Court may proceed with video/telephonic conferences as appropriate and at the discretion of individual judges. Scheduling orders in cases may need to be amended as appropriate on a case by case basis.
  • With regard to criminal matters, due to the public health concerns referenced above, the time period of the continuances implemented by this General Order will be excluded under the Speedy Trial Act, as the Court specifically finds that the ends of justice served by ordering the continuances outweigh the best interests of the public and any defendant’s right to a speedy trial, pursuant to 18 U.S.C. § 316l(h)(7)(A).
  • All initial appearances, detention hearings and arraignments will take place in the same proceeding and will be conducted via Video Teleconferencing Capability (VTC). The defendant will appear via VTC from the interview room located in the United States Marshal Service Office. Pretrial Services will arrange to meet with the defendant, in person, by video, or by phone, prior to the initial appearance so that the Pretrial Services Officer will be able to make an oral recommendation to the Court regarding bond. Defense counsel will also arrange to meet with the defendant, in person, by video, or by phone, prior to the initial appearance. The judicial officer, Assistant U.S. Attorney and defense counsel will convene in the duty judge’s courtroom for the proceedings. Courtsmart will be utilized to record the proceeding. Additionally, the presence of a CSO will not be necessary. At the discretion of the duty judge, these proceedings may take place remotely thereby enabling all parties to appear by VTC. The criminal docket will occur at a time designated by the duty judge that allows Pretrial Services and defense counsel sufficient time to meet with the defendant.
  • All Grand Jury proceedings are subject to this continuance except those that are 30-day cases or may be subject to the statute of limitations
  • Individual judges may conduct emergency matters in the Columbus, Cincinnati and Dayton courthouses if necessary after considering the above public health situation. Those required to attend these matters shall be limited to the litigants and their counsel. This Order does not affect the court’s consideration of civil and criminal motions that can be resolved without in-court appearance.
  • Attorneys are encouraged to continue to file documents with the Court electronically through CM/ECF. Staff in each of the Clerk’s offices will be available by telephone, mail will be received, and new filings will be processed. The Court’s intake window, however, will be closed. Those wishing to make in¬ person filings, such as pro se parties, will be directed to leave such materials at drop boxes positioned at or near the entrances to the aforementioned courthouses.
  • All probation and pretrial offices will be closed to the public but will continue to conduct business. Drug testing will continue as directed by Probation and Pretrial. A probation or pretrial services duty officer at each seat of court will answer questions telephonically.
  • The Court will amend or vacate this General Order no later than April 6, 2020.

Lisa Wososzynek

March 13, 2020

Ohio schools are actively instituting Governor Mike DeWine’s mandatory three-week closure of all elementary and secondary schools, including public, private, and charter schools, in an attempt to battle the spread of the novel coronavirus (COVID-19). This comes at the same time that schools across the state were gearing up for spring testing season, in compliance with the Elementary and Secondary Education Act of 1965 (ESEA). While there have not been any definitive decisions released yet by the Ohio Department of Education (ODE) regarding how the school closures will impact student testing, the U.S. Department of Education (DOE) released guidance on March 12th, 2020. The guidance sheds some light on what’s to come and hopefully provides a little relief to districts that are concerned about their ability to meet testing requirements. It also addresses the potential impact of attendance performance ratings.

Generally, assessment requirements and accountability measures impact Academic Achievement indicators used to rate each school district’s performance (School Report Cards). Traditionally, the DOE does not grant statewide waivers of assessment requirements, such as the required 95% assessment participation rate or chronic absenteeism, due to the valuable information these assessments provide. However, due to the potential impact of COVID-19, the DOE  stated in its March 12th guidance that if it becomes “not feasible” for a state to administer assessments (in part or full), it will consider targeted one-year waivers of assessment requirements. The guidance also addresses the option for a state to consider whether it is possible to adjust or extend the testing window to accommodate as many students as possible, and it acknowledges the potential impact that COVID-19 may have on other ESEA requirements, such as fiscal allocation of funds.  The DOE indicated that it will continue to address these issues as developments occur.

As for the ODE, it has communicated that its priority is to keep our students and communities safe, and “any concerns about the administration of state assessments can and will be addressed, if necessary, after student health and safety have been assured.” Prior to the mandated closure by Governor DeWine, the ODE had taken the position that spring test administration remained on schedule; with the mandated closure of schools now in place, and subject to possible extension, we also expect further clarifications from the ODE in the coming weeks, including potential adjustments to the testing time frame and/or its intent to seek a waiver from the DOE for certain testing requirements.

We will continue to update you on ESEA-related issues as more information is released from federal and state agencies so that we can all adjust to this, hopefully temporary, “new normal.”

Susan Keating Anderson is a partner at Walter | Haverfield who focuses her practice on education law. She can be reached at sanderson@walterhav.com or at 216-928-2936.

Lisa Woloszynek is an associate at Walter | Haverfield who focuses her practice on education law. She can be reached at lwoloszynek@walterhav.com and at 216-619-7835.

 

Rina RussoMax RiekerMarch 15, 2020

The coronavirus (COVID-19) crisis is evolving on a daily basis. On March 11, 2020, the World Health Organization (WHO) has declared the outbreak a pandemic. Government agencies, businesses, and employers are all struggling to react as effectively as possible.

This guidance is based on currently known information surrounding COVID-19 and is subject to change should additional information develop. To date, the virus has manifested as a mild to severe fever, cough, sore throat, and difficulty breathing. Click here for guidance on symptoms from the Centers for Disease Control and Prevention (CDC). Symptoms generally appear between two and 14 days from exposure. Mortality rates have been higher among older adults – particularly those with certain preexisting conditions such as heart and respiratory illnesses.  COVID-19 is highly contagious and is believed to be spread both person-to-person and through touching surfaces which have the virus on them.

In Ohio, as well as other states, public health authorities have indicated that there is now “community spread” of COVID-19. According to the CDC, “community spread” means that individuals in an area have been infected with the virus that have no relevant travel history or contacts with a person known to be infected with COVID-19. Due to a certain number of community spread cases being identified in Ohio, public health experts believe that at least 1% of Ohio’s population is already infected with the virus. Furthermore, Ohio public health officials indicated that the number of confirmed cases is likely to double every six days until the crisis is abated.

Any employer’s first concern should be with keeping its employees safe during the pandemic.  This client alert attempts to address many of the basic questions employers may have. However, this information will likely change with the passage of additional federal, state, and local laws aimed at addressing the crisis, and will be updated from time to time on our website.

WHAT DOES OSHA RECOMMEND?

The Occupational Safety and Health Administration (OSHA) recently released COVID-19 guidance. Here are a few simple rules of thumb that public health officials are recommending to further workplace safety:

  • If you have not done so already, reinforce basic handwashing, sneezing, and coughing etiquette with employees.
  • Provide alcohol-based hand sanitizer in the workplace, if possible.
  • Take steps to regularly clean frequently touched surfaces.
  • Practice social distancing in the workplace.
  • Keep symptomatic employees out of the workplace.
  • Limit employee travel.
  • Do not plan or attend in-person meetings or events with a significant number of participants.
  • Permit employees to work from home to the extent possible and practicable.

CAN WE RESTRICT OR PROHIBIT BUSINESS TRAVEL TO AFFECTED COUNTRIES OR AREAS?

Employers can limit or prohibit business travel to affected countries or areas. Employers should regularly consult the CDC Travel Health Notices and the State Department Travel Advisories to determine what travel should be avoided.

CAN WE PROHIBIT EMPLOYEES FROM TRAVELING FOR PERSONAL REASONS?

If personal travel is to a “high risk” country or area per CDC guidance, the employer may advise the employee about the risks of travel, and a possible 14-day quarantine upon return.  Additionally, while the employer cannot prohibit the travel, the employer may deny time off for an employee’s personal travel, as long as the denial is based on the high risk destination, the business cost of any resulting quarantine thereafter, or other legitimate business reasons, and not on the national origin of the employee or other discriminatory reason.

 CAN WE REQUIRE EMPLOYEES TO WORK FROM HOME?

Generally, yes, employers can require employees to work from home. Employers can and should determine what employees can perform their essential job duties from home. When requiring employees to work from home, employers should be careful not to base their decisions on any potentially discriminatory reason, such as age or disability. For example, employers should not require that only employees over the age of 60 work from home, even though COVID-19 is known to affect the over 60 population more severely.

WHAT ABOUT EMPLOYEES THAT CANNOT WORK FROM HOME?

Certain employees may not be able to work from home as their job duties require on-site attendance. For those employees, and in order to assist in the effort to slow the spread of COVID-19, employers can require employees to take the advice of public health officials and require employees to stay at least six (6) feet apart while at work, to the extent possible.  Additionally, employers may consider implementing staggered shifts so employee contact is kept at a minimum.

Employers should also encourage employees to frequently wash their hands, provide alcohol-based hand sanitizer and disinfectant wipes, amp up environmental cleaning, regularly clean and disinfect frequently touched surfaces and objects. Employers should aim to not plan or require in-person attendance at meetings or events with a significant number of participants.

CAN AN EMPLOYER REQUIRE A SICK EMPLOYEE TO STAY HOME?

Yes. If an employee has symptoms of COVID-19 or an employer is aware that an employee has contracted COVID-19, the employer can send the employee home and require that the employee stay home until recovered. During previous infectious disease crises, the Equal Employment Opportunity Commission (EEOC) has expressed that requiring employees to go home is not disability-related if an employee was symptomatic.

CAN AN EMPLOYER TAKE AN EMPLOYEE’S TEMPERATURE AT THE WORKPLACE?

As a practical matter, a person may be infected with COVID-19 and not have a fever. Thus, taking an employee’s temperature is not necessarily a reliable indicator of whether he or she poses a risk to the workforce. That being said, there are legal restrictions to taking an employee’s temperature in the workplace. The EEOC considers this a medical examination under the Americans with Disabilities Act. The law prohibits an employer from requiring a medical examination and making a disability-related inquiry unless (1) the examination is job-related and consistent with business necessity, or (2) the employer has a reasonable belief that the employee poses a direct threat to the health or safety of the employee or others and cannot otherwise be eliminated or reduced through a reasonable accommodation.

According to the EEOC’s prior guidance with regards to pandemic influenza (which it recently referred employers to with regards to the COVID-19 pandemic), if the virus becomes widespread in the employer’s community or when symptoms become more severe than the seasonal flu or the flu during the H1N1 pandemic of 2009, such temperature checks may be permissible.

In any event, employers can encourage employees to monitor their own temperature to ensure they are exhibiting no symptoms of COVID-19 prior to reporting to work.

WHAT DO WE DO IF AN EMPLOYEE TESTS POSITIVE FOR COVID-19?

The most important thing an employer can do if an employee has tested positive is to make sure the employee is separated from the workforce and remains home until recovered. All other employees who were exposed to the infected employee for at least 14 days prior to symptom manifestation should likewise be sent home for at least the full incubation period. Some inquiry may be required in order to properly identify individual employees at risk. During such inquiry, employers should not identify the infected employee or employees.

WHAT IF WE SUSPECT THAT AN EMPLOYEE HAS BEEN EXPOSED TO COVID-19?

If you reasonably suspect that an employee has COVID-19, but have no such confirmation, you may ask an employee about potential exposure as exposure is not a medical condition. If the employee admits to being exposed, you may require the employee to go home and not report back to work for a period of 14 days.

If an employee is displaying respiratory symptoms of COVID-19 or admits to having such symptoms, employers should separate the employee from others immediately and send the employee home.

CAN WE REQUIRE MEDICAL CERTIFICATION BEFORE AN EMPLOYEE RETURNS TO WORK AFTER BEING DIAGNOSED WITH COVID-19?

Yes, generally employers can ask for a return to work statement from a medical provider before having the employee return to work, as long as it is the employer’s practice to require such a statement. Certain state and local laws may prohibit such a request based on the number of days absent.

 IF AN EMPLOYEE IS SENT HOME OR DOES NOT WORK BECAUSE OF COVID-19, DO WE STILL HAVE TO PAY THEM?

For hourly workers under the Fair Labor Standards Act (FLSA), the general answer is “no.”  Employers are only required to compensate employees for hours worked. However, salaried workers may be required to be paid for the entire week for any workweek in which they perform any work for their employer. If the exempt employee does not perform any work for his/her employer during a particular workweek, the employer does not have to pay the employee his/her salary for that workweek.

Employers may be required to compensate employees for accrued sick leave, vacation leave, or other paid time off pursuant to established policy.

Be mindful of employment contract and collective bargaining agreement (CBA) provisions dealing with wage obligations and their interaction with various time away from work designations. If an employee is under contract or subject to a CBA, those contractual provisions may control.

Additionally, it is expected that United States Congress will pass a new law requiring paid sick leave for various reasons related to the COVID-19 pandemic. We will update our guidance on this issue once such law is in effect.

WHAT ABOUT THE FAMILY AND MEDICAL LEAVE ACT?

Contracting COVID-19 may be an FMLA-qualifying event if the time off otherwise qualifies under the statute. The basic precepts of the FMLA are unchanged as a result of the outbreak. Employers and employees must still go through the standard FMLA procedures and analysis.

Employees are not legally entitled to avail themselves of FMLA leave in an effort to stay home to avoid contracting a communicable disease. However, given the unusual nature of the COVID-19 situation, employers may be well-served to create certain paid or unpaid time off from the workplace that will not result in job loss or adverse action, regardless of FMLA or other state or local leave laws.

Rina Russo is a partner at Walter | Haverfield who focuses her practice on labor and employment law. She can be reached at rrusso@walterhav.com or at 216-928-2928 .

Max Rieker is an associate at Walter |Haverfield who focuses his practice on labor and employment law. He can be reached at mrieker@walterhav.com or at 216-928-2972. 

Megan Greulich

March 16, 2020 

On Friday, March 13, Ohio Attorney General Dave Yost (Yost) released a letter to local officials regarding the applicability of Ohio’s Open Meetings Act (OMA) during the COVID-19 pandemic. In his letter, Yost stated that “under this very limited fact pattern, there may be a basis for local public bodies to use electronic means to meet and comply with the law.”

During prior communications, Yost noted that OMA does not contain an exception to the “in person” requirement for public officials during a declared emergency, but his most recent letter highlights the Order issued by Dr. Amy Acton Director of the Ohio Department of Health (ODH), which gives ODH “ultimate authority in matters of quarantine and isolation.” The Order prohibits mass gatherings and recommends social distancing, which is defined as staying approximately six feet away from other people. Yost’s letter also highlights recommendations from recent press conferences held by Dr. Acton and Ohio Governor Mike DeWine at which Ohioans were urged to stay home and avoid unnecessary contact with each other to the extent possible. Additionally, the United States Centers for Disease Control also issued recent guidance with regard to the COVID-19 pandemic suggesting use of videoconferencing for meetings when possible. As a result of the Order and subsequent recommendations, Yost notes that a public body’s ability to comply with terms of the Order and OMA may be compromised and because the business of government must continue, the two must be reconciled.

To that effect, Yost’s letter provides that in this limited circumstance, it is reasonable to read OMA’s “in person” requirement to permit a member of a public body to appear at a public meeting via teleconference or telephone. Yost notes that even though this interpretation is reasonable and applicable in this specific situation, all other OMA requirements still must be met. For instance, regardless of whether a meeting of a public body occurs in person or electronically, quorum must be met for a meeting to occur. Additionally, Yost recommends that a public body cease discussions and deliberations if a member appearing electronically inadvertently is disconnected, until such member can reconnect.

Yost also addressed the openness of public meetings with regard to provision of access to the public. In doing so, he reiterated the guidance provided earlier in the week, stating that OMA does not specifically define how a meeting must be made open to the public, and in complying with Dr. Acton’s Order, it is OMA-compliant to provide such public access via live-streaming through internet or television. Public bodies should note that where a public body is meeting electronically and access to the public is provided electronically, the public body must ensure that the public is able to hear all discussions and deliberations of all members, even those attending via telephone or other electronic means. Public bodies should keep in mind that even in light of this new guidance, all notice, executive session, and meeting minute OMA requirements still apply.

Yost noted that the above-described practices likely satisfy OMA requirements in light of Ohio Revised Code (RC) 5502.24(B), which was addressed in our March 12 client alert. Yost notes that during this declared emergency, certain OMA requirements are likely to fall into the category of “imprudent, inexpedient, or impossible” allowing governing bodies to “dispense with legal requirements that qualify as ‘time-consuming procedures and formalities.’” In closing, however, Yost cautioned against using such procedures and relying upon his guidance to enact changes unrelated to the instant emergency that could be reserved for a later date when the normal operations of government resume. In implementing this guidance, it is important for public officials to seek legal advice to ensure any actions that deviate from the normal operation of government are fully vetted for legal compliance in advance of such action.

To that end, please feel free to reach out to any Walter | Haverfield attorney if we can be of assistance. We will continue to keep clients informed as guidance is updated from the U.S. Department Of Education, Ohio Governor’s Office, Ohio Attorney General’s Office, Ohio Department of Health, Ohio Department of Education, and other government entities.

Megan Greulich is an associate at Walter | Haverfield who focuses her practice on education law. She can be reached at mgreulich@walterhav.com or at 614-246-2263.

 

 

Christina PeerMarch 16, 2020 

On March 14, 2020, the Ohio Department of Education (ODE) issued a Frequently Asked Questions (FAQ) document designed to “help school and district leaders think through important local-level decisions.”  The FAQ document indicates it was developed in partnership with Ohio’s education associations as well as some of Ohio’s most trusted and innovative district leaders.  The FAQ document will be updated on a regular basis as events unfold.

The FAQ document seeks to answer a number of questions that arose in the wake of Governor Mike DeWine’s announcement that schools would be on an “extended spring break” for the next three weeks.  Questions immediately arose regarding what this “extended spring break” meant with respect to school operations.  The FAQ document provides guidance from the Ohio Department of Health (ODH) indicating that the “closure does not include administrators, teachers, staff, vendors or contractors of a school.”  Additionally, per ODH, “[t]he administration of each school shall determine the appropriate level of access to the school during the closure.”  Moreover, the FAQ document notes that the term “closure” reflects the concept “closed to students.”  This distinction is critical as schools determine how to proceed in the wake of this unprecedented situation.

The FAQ document makes clear Governor DeWine’s intention that schools will continue to provide educational opportunities, through alternate means, throughout the closure.  It urges school leaders, boards of education and union leadership to “work in partnership to maintain continuity of educational services as much as practicable during this unprecedented health crisis.”  Options covered in the FAQ document include the expanded use of “blizzard bags” and online learning.  Further, all students will be counted as “in attendance” for EMIS purposes for all non-spring break days during the closure.

The FAQ document makes clear that teachers, and other district personnel, are expected to continue working during the closure.  District leaders are urged to be “flexible” regarding how work is being completed, recognizing that some employees might have child-care issues or health-related issues that require additional flexibility.  For hourly employees, the FAQ document indicates that these individuals should “continue to report to school and partner with their schools and be paid consistent with Collective Bargaining Agreements or employee contracts.”  Employees are also urged to “be flexible in the manner in which they contribute to the continuity of operations.”

Not surprisingly, the FAQ document cannot answer all of the questions that have arisen due to the closure.  However, the Ohio Department of Education (ODE) has affirmed its commitment to work with the Ohio General Assembly and/or federal agencies regarding numerous important issues including:

  • State testing and the impact on state report cards;
  • Minimum instructional hours required by state law; and
  • Compliance with timelines for students with disabilities (e.g., completion of evaluations, IEP annual reviews, etc.).

At this juncture, there is no definitive guidance regarding these issues.  With respect to teacher evaluations, school districts and unions are urged to develop a Memorandum of Understanding regarding timelines set forth in Collective Bargaining Agreements.  No guidance was provided regarding statutory time frames.

School districts should continue to closely monitor developments and consult legal counsel as needed.

Susan Keating Anderson is a partner at Walter | Haverfield who focuses her practice on education law. She can be reached at sanderson@walterhav.com or at 216-928-2936.

Christina Peer is chair of the Education Law group at Walter | Haverfield. She can be reached at cpeer@walterhav.com or at 216-928-2918.

 

Eric Johnson

March 16, 2020 

Through Executive Order on March 15, 2020, Governor Michael DeWine announced an expansion of Ohio’s unemployment benefits to address the evolving COVID-19 situation.  Announced in conjunction with the state’s shutdown of bars and restaurants impacting hundreds of thousands of employees, the Governor’s Executive Order specifically addressed the following issues:

Layoff Due to Lack of Work. 

So long as other eligibility requirements are satisfied, employees who are laid off due to lack of work from the coronavirus’ impact on bar and restaurant operations will be eligible for unemployment insurance benefits.

Waiver of Waiting Period.

The Governor indicated that the normal one-week waiting period prior to the receipt of unemployment benefits will be waived.

Eligibility Based on Self-Quarantine.

In most cases, an asymptomatic employee who determines to self-quarantine would not be eligible for unemployment benefits.  Under Ohio law, unemployment benefits are available to individuals who are totally or partially unemployed due to no fault of their own.  In this example, the individual is choosing not to work and, therefore, would be ineligible.  However, the facts of each circumstance are important to determine eligibility.   For example, eligibility may depend upon specific facts such as whether the self-quarantine was truly the employee’s choice or whether an employee was permitted to work remotely.

Eligibility Based on Mandatory Quarantine.

Unlike the situation of voluntary self-quarantine above, if an employee is in mandatory quarantine – through the employer’s requirement or through a public health organization determination – because of a suspicion of having the coronavirus, the employee will be considered unemployed.  In these situations, the employee need not be actively seeking work in order to qualify for benefits.

Impact Upon Employers.

In the executive order, Governor DeWine allows unemployment benefit charges incurred following a coronavirus-related business shutdown to be mutualized for contributory employers.  Reimbursing employers will follow existing charging requirements under Ohio Revised Code 4141.  In addition, the Ohio Department of Job and Family Services will waive penalties for late reporting and payments during Ohio’s emergency declaration period.

Eric Johnson is chair of the Labor and Employment Law group at Walter |Haverfield. He can be reached at ejohnson@walterhav.com or at 216-928-2890. 

Kevin SoucekJamie PingorMarch 17, 2020 

In the world of intellectual property, it is essentially business as usual as many examiners at the United States Patent & Trademark Office (USPTO) have been tele-working for years. Although, their tele-working set-up has not been without some changes.

As of March 16, 2020, the USPTO will remain open for business and continue without interruption, unless otherwise noted or mandated by the government. As a result, currently no patent or trademark deadlines will be extended. Although, the USPTO is waiving petition fees in certain situations for customers impacted by COVID-19 (coronavirus).

However, out of an abundance of caution for the health and safety of the public and their employees, the USPTO has restricted local visitation access to its facilities for the foreseeable future. Consequently, until further notice, all in-person meetings, including patent and trademark prosecution interviews, Patent Trial and Appeal Board (PTAB) oral hearings, and Trademark Trial and Appeal Board (TTAB) oral hearings scheduled to take place at the USPTO offices after Friday, March 13, 2020 will be conducted remotely by telephone or video conference.

On a separate note, the European Union Intellectual Property Office has reported that it has extended its deadlines until May 1, 2020 for deadlines that are due between March 9, 2020 and April 30, 2020. Also, the European Patent Office has granted an extension of all deadlines until April 17, 2020.

Please know that during this time we are closely monitoring the USPTO as well as patent and trademark offices worldwide and will attend to any specific matters in the timeliest and most effective manner. We will keep you updated as events occur. However, if you have any questions, or should certain legal-related issues arise, please do not hesitate to contact us.

Kevin Soucek is an associate at Walter | Haverfield who focuses his practice on intellectual property. He can be reached at ksoucek@walterhav.com or at 216-619-7885.

Jamie Pingor is a partner at Walter | Haverfield and chair of the Intellectual Property team. He can be reached at jpingor@walterhav.com or at 216-928-2984.

 

 

Updated March 30, 2020

In response to Covid-19 (coronavirus), the Secretary of Treasury released guidance on March 20, 2020 providing for an extension to file tax returns for 90 days aligning the due date with the previously extended due date for tax payments. In addition, the IRS and Treasury expanded the earlier guidance permitting unlimited tax deferral, interest and penalty free, for individuals and business for the 90-day extended period.

On Friday, March 27, 2020, Tax Commissioner, Jeff McClain, announced that Ohio will be following the federal government guidance in extending from April 15 to July 15 the deadline to file and pay Ohio state tax. No interest and penalties will be charged against any tax-due payments during the extended period. This delay will apply to the Ohio individual income tax, the school district income tax, the pass-through entity tax and some municipal net profits tax.

The announcement did not include information regarding any other taxes such as sales and use taxes, commercial activity taxes, withholding taxes.

We will continue to monitor the development and will keep you posted.

Sebastian Pascu is an associate at Walter | Haverfield who focuses his practice on Tax & Wealth Management. He can be reached at spascu@walterhav.com or at 216-619-7870. 

Rina RussoUpdated: March 25, 2020

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (“FFCRA”) into law. The FFCRA contains two main provisions that address employee leaves – the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and the Emergency Paid Sick Leave Act (“EPSLA”).  Both of these provisions go into effect on April 1, 2020 and are expected to remain in place until December 31, 2020.  The provisions of the EFMLEA and EPSLA apply to employers with less than 500 employees.

 

The Emergency Family and Medical Leave Expansion Act (EFMLEA)

The Basics 

The EFMLEA expands the existing Family and Medical Leave Act (“FMLA”), but has several different provisions and requirements than the FMLA in response to the COVID-19 pandemic.  Under the EFMLEA, employers with less than 500 employees are required to provide up to twelve (12) weeks of job-protected leave to an employee who cannot work or telework due to the need to care for a child under the age of 18 when the child’s school or day care is closed or the child’s caregiver is unavailable due to the COVID-19 public health emergency.

Partially Paid Leave

Unlike the FMLA, the leave is partially paid.  While the first ten (10) days of the leave can be unpaid (subject to other paid leave availability and paid leave under EPSLA discussed below), thereafter, the leave is paid at a rate of 2/3 of the employee’s regular rate of pay, up to a cap of $200 per day, and $10,000.00 in total.  During the first ten days of unpaid leave, employees are permitted (but not required) to use available paid time off to cover some or all of the unpaid period.  Additionally, employees may also utilize the ten (10) days of paid sick leave under the EPSLA to obtain pay for the first 10 days of the EFMLEA leave, provided that the employee qualifies for leave under EPSLA.  Also unlike the FMLA, employees are eligible for this partially paid leave after working for their employer for thirty (30) days.

Job-Protected Leave

Similar to the FMLA, an employer is required to return the employee to his/her position following the end of the leave.  Employers with less than twenty-five (25) employees are exempted from this requirement, but only if the employee’s position no longer exists due to economic or operating conditions due to the COVID-19 health emergency and the employer makes reasonable efforts to restore the employee to an equivalent position with equivalent pay, benefits, and employment terms/conditions for a one-year period following the end of the leave.

Tax Credit

 Employers can receive a refundable tax credit equal to 100% of the qualified family leave wages they pay for each calendar quarter pursuant to the EFMLEA. The tax credit is allowed against the employer portion of Social Security taxes.

 

The Emergency Paid Sick Leave Act (EPSLA)

The Basics

The EPSLA provides employees of employers with less than 500 employees up to ten (10) days of paid sick leave when the employee cannot work or work remotely for one of the following reasons:

  1. The employee is subject to federal, state, or local quarantine or isolation order;
  2. The employee has been advised by a health care provider to self-quarantine;
  3. The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  4. The employee is caring for a person subject to a federal, state, or local quarantine or isolation order or who has been advised by a health care provider to self-quarantine;
  5. The employee is caring for a son or daughter of the employee whose school or day care is closed or the childcare provider is unavailable due to the COVID-19 public health emergency;
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, the Secretary of the Treasury, and/or the Secretary of Labor.         

Paid Leave

Employers with less than 500 employees must provide full-time employees with up to eighty (80) hours of paid leave for a qualifying reason. Employees who work a part-time or an irregular schedule are to be paid based on the average number of hours the employee worked for the six months prior to taking the leave. However, part-time employees who have worked for less than six months are to be paid based on the average number of hours the employee would normally be scheduled to work over a two-week period.  The paid leave is to be paid at the employee’s regular rate of pay up to a limit of $511 per day and $5,110.00 in total for the employee’s own use of the leave (numbers 1-3 above).  The paid leave is to be paid at 2/3 the employee’s regular rate of pay up to a limit of $200 per day and $2,000.00 in total to care for others and for any other substantially similar condition (numbers 4-6 above).

Can Be Used In Conjunction With EFMLEA

Employees qualifying for both EFMLEA and EPSLA can use the paid leave under the EPSLA to cover the unpaid 10-day period under the EFMLEA, provided that the employee is eligible for both leaves.

Tax Credit

Employers can receive a refundable tax credit equal to 100% of the qualified sick leave wages they pay for each calendar quarter pursuant to the EPSLA. The tax credit is allowed against the employer portion of Social Security taxes.

Please keep in mind that many details, such as how need for the leave will be documented and possible exemptions via regulations for certain health care workers and small businesses, as well as other matters, have not been finalized.  Expect that additional nuances and clarifications will be forthcoming in the days and weeks ahead.

“Although a previous version of this client alert reported that the effective date was April 2, 2020, which was based on the statute providing that it would go into effect not later than fifteen (15) days following the enactment of the FFCRA,  the United States Department of Labor (DOL) has since announced that the statute will become effective April 1, 2020.  However, on March 24, 2020, the DOL issued a Non-Enforcement Bulletin, indicating that it would not seek an enforcement action against employers who do not comply through April 17, 2020, as long as the employer acts “reasonably” and in “good faith.”

Rina Russo is a partner at Walter | Haverfield who focuses her practice on labor and employment law. She can be reached at rrusso@walterhav.com or at 216-928-2928.

Kathryn PerricoLisa Wososzynek

March 19, 2020

As we all continue to navigate the ever-evolving landscape of the COVID-19 crisis and review the various guidance documents from federal, state, and local officials, several guiding principles have begun to emerge in relation to the provision of services to students with disabilities.  First, students with disabilities are entitled to commensurate distance learning opportunities as those being provided to their typical peers.  Second, decisions relating to evaluations of and services for students with disabilities must be individualized; and third, documentation of decisions and the rationale for those decisions will be critical in establishing that a district did not discriminate and did the best it could under the circumstances to satisfy the obligation to provide a free, appropriate, public education to students with disabilities.

While districts are encouraged to continue to communicate with all families about the educational services being provided during the restriction on student attendance, documentation about specific decisions relating to students with disabilities should occur through the use of the Prior Written Notice form (“PR-01” or “Notice”).  PR-01s must be issued by districts when they are proposing or refusing to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child. But there is no regulation restricting when PR-01s may be issued, and many of the individual decisions districts are now making will fall into this discretionary category, but are nevertheless highly recommended.  Even where the PR-01 itself may arguably not be mandatory, the content of the Notice must still include the following:

  • A description of the action proposed or refused by the school district
  • An explanation of why the school district proposes or refuses to take the action
  • A description of each evaluation procedure, assessment, record, or report the school district used as a basis for the proposed or refused action.
  • A statement that the parents of a child with a disability have protection under the procedural safeguards.  SeeA.C. 3301-51-05(H)(2).

As always, as teams prepare these PR-01s, remember to include thorough descriptions of the considerations and circumstances and avoid “boilerplate” responses.

Although recent guidance from the Office for Civil Rights suggests that certain blanket rules may be applied to the evaluation of students with disabilities, districts are encouraged to still make individualized decisions regarding whether and how to proceed with evaluations during this period of restriction on school attendance.  Some factors to consider are:

  • Is there another available means to gather similar information? Is there available data from tiered interventions and classroom performance? Are there any means to gather academic performance data through available online platforms (e.g. curriculum based assessments, progress monitoring tools, etc.)?
  • Are there available assessment results? Historical data? Have assessments such as cognition been administered in the past? Were the results consistent?
  • Is an observation truly necessary to determine special education eligibility and identify the student’s needs? Can an observation be conducted in the current learning setting and still provide pertinent information to the evaluation? Is there a way to observe through the online learning platform? Are teachers able to provide you observation information from recent classroom instruction (even though it will likely not be systematic observation data)? Can you gather similar information through interviews or rating scales?

As teams navigate these considerations, be sure to include parents in the team discussions and decision making and avoid unilateral decisions made by limited team members. While Ohio’s Operating Standards do not require parental consent for teams to conduct records reviews, parents should be involved in discussions regarding whether a record review will be used (in part or in whole) to complete the evaluation. Parental participation is an ongoing requirement and should be documented in the PR-01.

The Ohio Department of Education’s Office for Exceptional Children has issued new guidance which is available here. This guidance covers a wide array of topics.  We will provide a further alert to clients as soon as possible.

Kathryn Perrico is a partner at Walter | Haverfield who focuses her practice on education law. She can be reached at kperrico@walterhav.com or at 216-928-2948.

Lisa Woloszynek is an associate at Walter | Haverfield who focuses her practice on education law. She can be reached at lwoloszynek@walterhav.com and at 216-619-7835.

Rick AmburgyMarch 23, 2020

Ohio Governor Mike DeWine’s “Stay At Home” Order, which lasts until Monday, April 6, 2020, has shut down all Ohio non-essential businesses in a further attempt to control the spread of COVID-19 (coronavirus).  What does this mean for Ohio’s owners, design professionals, contractors, subcontractors, and suppliers?  First, most construction in Ohio is not shutting down, but businesses that choose to remain open must implement the necessary steps to ensure the safety of employees, contractors, and other invitees to the project site.

Section 9 of the Order identifies “Essential Infrastructure” as an exemption to shutting down non-essential businesses. Specifically, “individuals may leave their residence to provide any services or perform any work necessary to offer, provision, operate, maintain and repair Essential Infrastructure.” This includes, among other things, general construction, construction required in response to this public health emergency, hospital construction, construction of long-term care facilities, public works construction, school construction, essential business construction, and housing construction.  The Order also states that the Essential Infrastructure exemption “shall be construed broadly to avoid any impacts to essential infrastructure” as the same may be “broadly defined.” Further, the Order includes critical trades as Essential Businesses and Operations, which include, among others, building and construction tradesmen and tradeswomen, plumbers, electricians, operating engineers, HVAC contractors, and painters.

Owners, design professionals, contractors, subcontractors, and suppliers who choose to continue construction operations during the shutdown must proceed with caution.  Safety measures must be both documented and implemented in order to protect against the spread of COVID-19. Where possible, remote and virtual work as well as meeting capabilities must be utilized, and all parties must continue to follow the recommendations of the Centers for Disease Control and Prevention (CDC), Occupational Safety and Health Administration (OSHA), and the Ohio Department of Health, which include, among other recommendations:

  • Social distancing of at least six feet between individuals performing work at the project site
  • Frequent disinfecting and cleaning of all surfaces and equipment
  • Keeping only the required staff necessary to perform the work in accordance with the project schedule
  • Discontinuing use of community drinks or food
  • Discouraging hand-shaking and other contact greetings
  • Instructing workers to clean their hands often with an alcohol-based hand sanitizer that contains at least 60-95% alcohol, or wash their hands with soap and water for at least 20 seconds. Soap and water should be used preferentially if hands are visibly dirty
  • Providing soap and water and/or alcohol-based hand sanitizers to workers
  • Discouraging congregation at lunch or breaks
  • Discouraging the sharing of tools
  • Prohibiting the sharing of personal protection equipment (PPE)
  • Utilizing disposable gloves where appropriate
  • Conducting routine environmental cleaning
  • Encouraging workers to take temperatures at each project site
  • Requiring any workers exhibiting any symptoms to leave the project site and/or to stay home if sick
  • Requiring respiratory etiquette, including covering coughs and sneezes
  • Maintaining records, updates, and communications in connection with the processes and procedures implemented to comply with the foregoing regulations

Each party should read and understand their construction agreement, especially those provisions relating to notification and documentation requirements and entitlements to additional time or monies.  The success of every project depends upon the prompt and transparent communication and cooperation among owners, contractors, subcontractors, design professionals, and suppliers.  Every party must work together to ensure the safety of the project and to address the potential time delays and costs associated with the ongoing fight against the spread of COVID-19.

Rick Amburgey is an associate at Walter | Haverfield who focuses his practice on construction law, financial services and commercial real estate. He can be reached at ramburgey@walterhav.com or at 216-619-7843.

Darrell ClayMarch 23, 2020 

During a press conference on Sunday, March 22, 2020, Ohio Governor Michael DeWine disclosed that Ohio would join California, Illinois, Connecticut, New York, and a number of other major cities in issuing a so-called “shelter in place” or “stay at home” Order. This is the latest measure in Ohio’s aggressive attempt to control the spread of COVID-19 (coronavirus) by implementing social distancing.

The Order, issued by Ohio Department of Health Director Dr. Amy Acton, pursuant to her authority under R.C. 3701.13, broadly provides that “all individuals currently living within the State of Ohio are ordered to stay at home or at their place of residence except as allowed in this Order.” (Persons experiencing homelessness are expressly exempt, but are urged to locate shelter.)  Furthermore, other than those who are home-based, all non-essential businesses and operations must cease, except for Minimum Basic Operations (discussed below). Additionally, “all public and private gatherings of any number of people occurring outside a single household or living unit are prohibited” unless expressly authorized by the Order. Lastly, the Order closes all places of public amusement:

All places of public amusement, whether indoors or outdoors, including, but not limited to, locations with amusement rides, carnivals, amusement parks, water parks, aquariums, zoos, museums, arcades, fairs, children’s play centers, playgrounds, funplexes, theme parks, bowling alleys, movie and other theaters, concert and music halls, and country clubs or social clubs shall be closed.

The only exceptions to the Order’s prohibitions are for individuals engaged in Essential Activities, Essential Governmental Functions, and Essential Businesses and Operations. The Order takes effect at 11:59 p.m. on Monday, March 23, 2020, and continues until at least April 6, 2020 or until Dr. Acton orders otherwise.

Individuals may leave their home for a broad range of Essential Activities. These include tasks related to personal health and safety, to obtain necessary supplies and services, for outdoor activity (respecting physical distancing procedures), to take care of or transport family members, friends, or pets, and for certain types of work. The Order specifically permits Ohioans to attend weddings and funerals. Persons may also leave to work for or obtain services through healthcare and public healthcare operations. In addition to hospitals, pharmacies, and other traditional healthcare institutions, this exemption includes organizations collecting blood, platelets, and plasma; medical marijuana dispensaries and cultivators; eye care centers; home healthcare providers; and others. However, “fitness and exercise gyms, spas, salons, barber shops, tattoo parlors, and similar facilities” are expressly excluded from this definition.

Essential Activities also include obtaining services from or working for any of the following Ohio departments: Aging; Developmental Disabilities; Health; Job and Family Services; Medicaid; Mental Health and Addiction Services; Veterans Services; and Youth Services. Also included is Opportunities for Ohioans with Disabilities. Essential Activities also include work and services necessary to support Essential Infrastructure Operations, such as food production and distribution; fulfillment centers; construction; building management and maintenance; airports; operation and maintenance of utilities; cybersecurity operations; solid waste and recycling collection and removal; and internet, video, and telephone communications systems.

Essential Government Operations is defined to include all first responders; emergency management personnel; emergency dispatchers; legislators; judges, court personnel, jurors and grand jurors; law enforcement and corrections; and the like. This category also includes services provided by the State or any political subdivision “needed to ensure the continuing operation of government agencies or to provide for or support the health, safety and welfare of the public.”

The Order provides a lengthy list of what constitutes Essential Businesses and Operations. Some of these are obvious: stores selling groceries and medicine; food, beverage, and licensed marijuana production and agriculture; organizations providing charitable and social services; religion entities; media, including newspapers, television, radio, and other media services; gas stations and businesses needed for transportation; financial and insurance institutions; funeral services; and more. Also included in this category are “First Amendment protected speech” (though with no specific guidance as to the meaning of this phrase); hardware and supply stores; laundry services; restaurants providing off-premises consumption; supplies to work from home and supplies supporting Essential Business and Operations; hotels and motels; and professional services, including attorneys, accountants, insurance agents, and real estate professionals. Finally, the Order includes in this definition all Essential Businesses and Operations described as such in a March 19, 2020 memorandum issued by the Department of Homeland Security’s Cybersecurity & Critical Infrastructure Security Agency.

As noted earlier, the Order permits non-exempt businesses to continue Minimum Basic Operations. Those are defined as the minimum amount of work necessary to maintain the value of the business’s inventory, preserve physical plant and equipment, ensure security, process payroll and benefits, and activities that are necessary to facilitate employees’ continued ability to work remotely.

Persons who are using shared space or are outside the home, including those using public transportation, are to adhere to required physical distancing protocols. This includes those persons who are engaging in Essential Travel, that is, travel to support Essential Activity, Essential Governmental Functions, Essential Businesses and Operations, and Minimum Basic Operations.

The Order makes clear its intention is “to ensure that the maximum number of people self-isolate in their places of residence to the maximum extent feasible, while enabling essential services to continue, to slow the spread of COVID-19 to the greatest extent possible.” The Order is subject to enforcement by State and local law enforcement authorities. Violations are second-degree misdemeanors, subjecting the offender to 90 days in jail and a $750 fine.

Finally, the order requires that businesses and employers implement a number of actions, including:

  • Allowing as many employees as possible to work from home
  • Actively encouraging sick employees to remain at home until, without any medication, they are fever-free for at least 72 hours “AND symptoms have improved for at least 72 hours AND at least seven days have passed since symptoms first began”
  • Ensure sick leave policies are “up to date, flexible, and non-punitive”’
  • Physically separate employees apparently suffering from respiratory illness from other employees and “send them home immediately”
  • Perform frequent cleaning of commonly touched surfaces such as workstations, counters, railings, door handles, and doorknobs

The State has issued an FAQ, attempting to address many basic questions about the Order. But many other questions remain unanswered at this early stage. Walter | Haverfield attorneys are here to advise you in determining whether your business may continue normal operations under one of the Order’s exemptions or must take other measures to comply.

Darrell A. Clay is a partner at Walter | Haverfield who focuses his practice on labor and employment and litigation. He can be reached at dclay@walterhav.com or at 216.928.2896.

MarchDarrell Clay 23, 2020

COVID-19 (coronavirus) has brought with it a virtual tidal wave of legal questions. An important one: may a tenant invoke a force majeure (French for “superior force”) clause to avoid paying rent to a landlord in the event of a government lockdown or quarantine? Unfortunately, the answer is, “it depends.” Interpretation and application of any contractual force majeure provision is highly dependent on the particular terms of the clause in question and the circumstances causing a disruption of normal business activities. Other contractual performance doctrines may come into play, such as impossibility of performance and frustration of purpose. Both doctrines refer to occurrences or causes beyond one’s control, and therefore without fault.

A threshold question is whether force majeure applies as a result of COVID-19/novel coronavirus. One recent article observes that “a force majeure clause could cover the COVID-19 pandemic if it includes specific public health-related language, such as ‘flu, epidemic, serious illness or plagues, disease, emergency or outbreak.’” “Acts of government” may also trigger force majeure, but absent other reference to such health-related events, the catch-all phrase “Acts of God” often included in a force majeure clause may not apply. As another article aptly puts it: “An ‘Act of God’ alone may be too broad to excuse a party from performance.” Most courts narrowly interpret force majeure clauses, and that level of strict scrutiny may pose a real challenge where the clause does not specifically mention something relating to public health events.

On the other hand, Ohio, like many other states, has public health laws that may be useful in establishing force majeure/impossibility/frustration. Ohio law provides that “The director of health shall investigate or make inquiry as to the cause of disease or illness, including contagious, infectious, epidemic, pandemic, or endemic conditions, and take prompt action to control and suppress it.” Another Ohio law prohibits any person from violating “any rule the director of health or department of health adopts or any order the director or department of health issues under this chapter to prevent a threat to the public caused by a pandemic, epidemic, or bioterrorism event.” Violation of an order of the Director of Health is punishable as a second-degree misdemeanor.

There are only a handful of reported cases that construe Ohio’s laws regarding orders by the Director of Health, and none deal with large-scale pandemic/epidemic events such as the COVID-19 virus. However, both the Ohio Governor and the Ohio Director of Health have issued an official Stay At Home” Order, mandating that all non-essential business and operations must cease, except for specifically-permitted Essential Businesses and Operations. Therefore, tenants who are not engaged in Essential Businesses and Operations seemingly may have a good argument that rent should be abated during the time period that this Order is in effect. There will undoubtedly be litigation over these issues in the months and years ahead because this Order has required the closure of numerous retail and service businesses, cutting off cash flow to these tenants and in turn compromising their ability to pay rent to their landlords.

At the same time, there is case law holding that these type of closure orders do not constitute force majeure so as to excuse a tenant’s performance under a lease. For example, in Aukema v. Chesapeake Appalachia, LLC, landowners brought an action seeking to declare that certain oil and gas leases had expired and were not extended by force majeure. Defendants argued that a state directive that placed a moratorium on hydraulic fracturing constituted force majeure that excused lack of actual performance, and thereby permitted automatic lease renewal (which was tied to actual drilling operations). The court rejected this argument, noting the state directive permitted alternative drilling operations that could have been performed by defendants so as to trigger automatic lease renewal. The court also rejected claims that the state directive frustrated the lease’s purposes, reasoning that the frustration doctrine requires an event that is unforeseeable, and the directive in question was foreseeable when the leases were “signed, renewed, and assigned.”

Another relevant case, though not involving a commercial lease, is Phelps v. School Dist. No. 109, Wayne County. There, the question was whether a school district had to make payments to a teacher who was under contract with the school board when her school was closed for two months “by order of the state board of health on account of the influenza epidemic . . . .” The trial court sided with her and awarded her $100, representing two months of pay. In upholding this judgment, the Supreme Court of Illinois observed that the move to close the building did not alter the rights of the parties to the contract. Therefore, it is prudent to require a provision in the contract that specifically exempts one from liability in the event of an epidemic or pandemic.

A more limited application of contractual frustration is seen in Colonial Operating Corp. v. Hannan Sales & Service. There, the parties entered into a lease under which the tenant was permitted to use the premises only for an automobile showroom. Five years after entering into the lease, the Office of Production Management of the United States issued a directive prohibiting the sale of model year 1942 automobiles or any automobiles that had been driven less than 1,000 miles. When the landlord sued to collect unpaid rent, the tenant claimed that the OPM order had frustrated the purpose of the lease, thereby discharging the tenant’s obligation to pay rent. The New York Supreme Court, Appellate Division, held that the trial court erred in finding that the lease’s essential purpose had been frustrated, relying on the fact that the OPM order did not completely “prohibit, ban or frustrate the sale of all automobiles in the demised premises.” Rather, the appellate court noted, the OPM directive still permitted sales of other automobiles, including sales to government entities and other various “eligible” parties. Further, the OPM directive did not prohibit the sale of “second-hand automobiles and automobile accessories . . . .” This case reinforces that there must be a fact-specific inquiry into how a government order specifically impacts the tenant’s operations of its leased premises.

Make no mistake: In Ohio alone, there will be hundreds of millions of dollars at stake on the issue of rent suspension due to the effects of COVID-19. Ohio tenants will have the “benefit” of the “Stay At Home” Order and other orders issued by the Governor and the Ohio Director of Health to bolster their arguments of force majeure, impossibility of performance, and frustration of purpose.

Based on the examples above, success may not be assured for tenants invoking these principles in defense of eviction and back-rent claims by landlords. Meanwhile, landlords must still make mortgage payments, pay insurance premiums, and incur operating expenses. One can envision a scenario in which both landlords and tenants become insolvent and are unable to pay debts in the ordinary course. Payments in response to claims under business or rent interruption insurance policies may have the potential to cover some of these cash flow gaps, but it is becoming fairly clear that insurers are taking the position that such policies do not cover claims arising from COVID-19 losses. (A bill was introduced and quickly withdrawn recently in New Jersey which would have compelled insurers to honor business and rent interruption claims due to COVID-19. Read about that here.) It would appear that only the federal government has the resources to craft a rescue of those impacted by the loss of rental income in this crisis.

Darrell A. Clay  is a partner at  Walter | Haverfield  who focuses his practice on labor and employment and litigation . He can be reached at  dclay@walterhav.com or at 216.928.2896.
Jack Waldeck is a partner at  Walter | Haverfield  and the chair of the real estate team. He can be reached at jwaldeck@walterhav.com or at 216.928.2914.

Lisa BurlesonChristine CosslerChristina PeerKathryn Perrico

 

 

 

 

March 23, 2020

On March 18, 2020, the Ohio Department of Education (ODE) issued guidance entitled Consideration for Students with Disabilities during Ohio’s Ordered School-Building Closure. The guidance, as currently written, raises significant questions and related issues as outlined below. School districts are encouraged to contact the ODE directly or through a professional organization with follow-up.

Evaluation Team Reports

The feasibility of completing both initial and reevaluations in a timely fashion is an issue districts are facing. Districts are urged to utilize conference calls and videoconferencing to complete evaluations whenever viable. Signatures can be collected via electronic means, and the meeting, including the means by which the team met and how signatures were collected, should be documented via a prior written notice. It will be important to carefully document how the electronic signatures were obtained to avoid any potential fraud or falsification claims. It will also be important to clearly document how the meeting was conducted in a remote setting to ensure FERPA compliance. The United States Department of Education (USDOE) issued guidance acknowledging that, in instances where face-to-face testing or observations are needed, evaluations will “need to be delayed” until schools reopen to students. Students who were already identified, for whom a reevaluation was pending, would continue to be deemed eligible and should continue to receive services under their individualized education plans (IEPs), although teams can consider whether completion of the evaluation by way of records review is most appropriate. This guidance has been issued by both the United States Department of Education and the Ohio Department of Education.

However, ODE’s March 18th guidance has created confusion regarding initial evaluations. The guidance states: “If the school was scheduled to conduct an evaluation team report review prior to the ordered school-building closure period but was unable to complete it, then consider the student eligible and provide services to students based on your school or district’s processes and procedures.” The language appears to indicate that students who are undergoing an initial evaluation that cannot be completed should be considered eligible under the IDEA until the evaluation can be completed and the team can meet. If this was the intent of the ODE guidance, it raises significant concerns. It would require school districts to provide IDEA services for students absent an evaluation, finding the student eligible. Plus, it would require the development of an IEP without an evaluation team report to drive the goals and services.

To be clear, despite this confusion, we are not recommending that districts make initial eligibility decisions unless the evaluation can be completed and the team can meet (either in person or via phone or videoconference). There may be some instances where an initial evaluation can be completed during the school closure. If the evaluation cannot be completed, a prior written notice indicating that the evaluation will be delayed should be sent. The prior written notice should also indicate that the reason for the delay is the need for face-to-face assessments or observations. Students who were receiving interventions during the evaluation process can, and should, continue to receive these interventions until the evaluation can be completed. The continuation of these interventions should also be noted in the prior written notice.

Amendments to Individualized Education Plans

ODE’s March 18th guidance has also created significant concerns regarding amendments to IEPs. ODE’s guidance states: “School or district personnel should review each IEP to determine the type and frequency of services each student will require during the ordered school building-closure period. If adjustments to specialized services are needed, school personnel should convene the IEP team to review and determine specific services that will be provided during the ordered school-building closure period and revise the IEP accordingly.” This guidance is contrary to the position taken by the USDOE which is not recommending that IEP teams reconvene to make amendments based on changes caused by school closures. Following ODE’s guidance in this area would require school districts to reconvene the IEP teams for every student on an IEP and make changes to the IEP based solely on changes caused by the school-building closure – not based on changes in the student’s needs. Teams would then need to reconvene when school buildings reopen to amend IEPs to reflect in-person services. As IEP services should be driven by student need, not which services can be provided due to outside circumstances, we are not recommending that districts reconvene all IEP teams to make amendments at this time. Instead, districts should continue to assess needs of students on an individual basis, including whether any changes to services are necessary due to the mandated school-building closure. Districts should also communicate with parents via prior written notice, or other means, regarding how and to what extent services will be provided during the mandated school-building closure. See the USDOE Supplemental Guidance issued March 21, 2020, linked here for guidance on amendments during this time.

Compensatory Services and Extended School Year Services

With respect to compensatory services, both the USDOE and the ODE have indicated that individual decisions will need to be made for all students regarding whether, and to what extent, compensatory services are needed based on the mandated school-building closure.  However, at this point, no guidance has been provided regarding how to determine whether students on IEPs are entitled to compensatory services. When providing services during the school-building closure, service providers must keep accurate and detailed records of the services provided.  We will continue to monitor for further guidance.

Regarding extended school year services, districts should note that the decision regarding extended school year eligibility is distinct from the decision regarding compensatory services.  These decisions should be based on regression/recoupment data that has been gathered throughout the school year, including, as may be applicable and appropriate, recoupment data after the present closure comes to an end. While compensatory education and extended school year could be provided over the summer by the same service providers, these decisions are distinct. We will continue to monitor this issue for further guidance as well.

If you have any questions, please contact a Walter | Haverfield attorney. We are here to help.

Lisa Burleson is a partner at Walter | Haverfield who focuses her practice on education law. She can be reached at lburleson@walterhav.com or at 616-246-2156.

Christine Cossler is a partner at Walter | Haverfield who focuses her practice on education law. She can be reached at ccossler@walterhav.com or at 216-928-2946.

Christina Peer is chair of the Education Law group at Walter | Haverfield. She can be reached at cpeer@walterhav.com or at 216-928-2918.

Kathryn Perrico is a partner at Walter | Haverfield who focuses her practice on education law. She can be reached at kperrico@walterhav.com or at 216-928-2948.

At Walter | Haverfield, we understand the difficulties and uncertainties that you’re facing with regards to the COVID-19 pandemic. We want to assure you that we are here to help. Our team is committed to providing counsel and advice on a wide range of issues, including:

Labor and Employment: Compliance with Families First Coronavirus Act; regulating employee health and safety, including questions of quarantine, travel restrictions, testing, privacy; leave policies and legal compliance; wage and hour concerns; work-from-home policies; shutdown/layoff issues, including WARN Act compliance; unemployment benefits

Employee Benefits: Implications of Families First Coronavirus Response Act on continuation and payment arrangements during leaves; HIPAA compliance; potential waiver of copays/coinsurance and deductibles for COVID-19 testing and treatment; potential changes to 401 (k) plan hardship and loan provisions; service provider agreements and obligations

Education: Employment issues; leaves; benefits; contracts (certified, classified and supplemental); accommodations, remote work arrangements; FLSA; FMLA; OSHA/ADA requirements; discrimination claims; labor relations issues (MOUs, grievances and bargaining); student issues (student misconduct during remote instruction, student privacy issues); special education issues (provision of services, compliance issues, compensatory education); vendor contract issues; Sunshine Law issues

Personal Planning: Health care and estate planning documents

Real Estate: Impact of force majeure clauses in real estate-related documents (including leases, purchase and sale agreements, construction contracts) on monetary and non-monetary obligations;  declarations of Emergency and Public Health Orders: Compliance with Closure Directives; insurance issues, evictions, foreclosures and other court proceedings; real estate financing document issues including monetary and non-monetary covenants compliance and default

Business Operations: Business interruption; performance delays and force majeure events in contracts; anticipating and negotiating implications in transactions and M&A contracts

Construction: Negotiating and enforcing contract terms addressing force majeure, supply chain disruption, changes for costs of supplies and labor, and excused performance; application of the doctrines of impracticability/commercial frustration and impossibility of performance to existing contract obligations, evaluation of builder’s risk, general liability and similar insurance policies

Litigation: Contract disputes involving COVID-19-related contract non-performance or performance delays, including force majeure events and other supply chain disruptions

Banking and Finance: Force majeure, material adverse effect, cessation of business and other relevant clauses in financing documents

Business Restructuring, Creditors’ Rights and Bankruptcy: How to effectively address operational, payment and cash-flow difficulties, customer and vendor defaults and insolvency proceedings, and the enforcement of rights and remedies

Environmental: Use of force majeure and similar provisions in environmental statutes, regulations, government orders, or permits by companies to delay, without penalty, required sampling events, remediation deadlines, air permit testing, wastewater record keeping, monitoring, etc.; work-related employee cases of COVID-19 and OSHA’s employee illness and injury record-keeping regulation; planning and implementation of temporary or permanent facility closures

If you are in need of assistance or have questions, please feel free to email us here. Or, contact your Walter | Haverfield attorney by visiting this page of our website.

Lisa Burleson Lisa-WoloszynekMarch 25, 2020 

Currently, Ohio is under a “Stay At Home” Order, which is effective March 23, 2020 through April 6, 2020. The Order, issued by Ohio Department of Health Director, Dr. Amy Acton, requires all individuals currently living within Ohio to stay at home or at their place of residence with certain exceptions. These exceptions permit individuals to leave home for essential activities, such as those for health and safety, to obtain necessary services and supplies, and to engage in certain outdoor activities. The Order’s intention is “to ensure that the maximum number of people self-isolate in their places of residence to the maximum extent feasible, while enabling essential services to continue, to slow the spread of COVID-19 to the greatest extent possible.”  This Order also forces non-essential businesses and operations to cease operations during the period the Order is in effect, with only some very specific exceptions. Importantly, educational institutions, including public and private K-12 schools, are to continue to perform essential functions, and the Order does not change or supersede Dr. Acton’s March 14, 2020 Order suspending student attendance in all K-12 schools from March 17th through April 3rd.

Who determines a school’s essential functions?

While school boards are ultimately responsible for school operations, Ohio Revised Code 3310.01 designates the Superintendent as the executive officer of the board.  As such, the Superintendent is responsible for ensuring the continuation of essential daily operations.  In conjunction with the district’s Treasurer, the Superintendent should identify and manage the majority of essential school functions during the mandated Stay At Home Order, but should work with the Board to address any areas that are beyond the Superintendent and Treasurer’s express and implied authority.

What is considered an essential school function?

There are a variety of school functions that are clearly understood as essential from the Stay At Home Order and other recent Orders issued by Ohio Governor Mike DeWine and the Ohio Department of Health.  At this time, the most important essential function of a school is to continue to provide and facilitate distance learning for its students.  This will include activities that are necessary to allow employees to continue to work remotely or as may be properly designated by the Superintendent.  Meal services for students will also remain essential.  Schools should continue to consider creative alternate options to providing meals, such as a reduced frequency of meal preparation, providing families with a larger quantity of meals at one time, and distributing meals in a manner that limits exposure of school staff to community members. It will also be essential for schools to continue to process payroll and benefits for employees. Board meetings would also be considered essential; however, boards should utilize the latitude granted to them to hold meetings in a manner that limits in-person contact while remaining vigilant about public access requirements and participation in voting.

Other school functions may need further analysis to determine whether they are “essential” and will need to be identified by each individual school district. Those functions include management of employee issues, such as the completion of ongoing investigations, discipline proceedings, processing requests for leave and other human resources matters.  Schools will also need to manage requests for public records and student educational records that might be made during the effective period of the Stay At Home Order. Additionally, it is important that school facilities are maintained during this time to ensure a safe and clean workplace for those essential employees who are still physically reporting to work. School districts need to exercise caution and not simply assume certain functions are or are not essential. For example, schools should consider available options like video conferencing for essential tasks, such as to continue mandated employee discipline procedures, or to complete interviews for complaint investigations.

What are the requirements while schools continue to operate for essential functions?

The Stay At Home Order requires that everyone continue to practice social distancing (six feet) as much as possible and employers implement a number of actions, including:

  • Allowing as many employees as possible to work from home
  • Actively encouraging sick employees to remain at home until, without any medication, they are fever-free without medication for at least 72 hours “AND symptoms have improved for at least 72 hours AND at least seven days have passed since symptoms first began”
  • Ensure sick-leave policies are “up to date, flexible, and non-punitive”
  • Limit group sizes to ten people or less
  • Perform frequent cleaning of commonly touched surfaces such as workstations, counters, railings, door handles, and doorknobs

Ohio’s Superintendent of Public Instruction, Paolo DeMaria, has indicated that the Ohio Department of Education will continue to update information on its website. Also, Ohio Governor DeWine has conveyed that he intends to ask the Ohio General Assembly to approve a number of measures addressing issues ranging from forgoing state-mandated testing in schools for the rest of the school year to providing public entities with the ability to use electronic means for conducting official public meetings. State legislators are expected to continue work on these measures. We will continue to monitor and provide updates as warranted.

If you have questions regarding essential school functions or school district obligations during this uncertain time, please contact a Walter | Haverfield attorney.  We are here to help and will continue to provide updates as we receive them.

Lisa Burleson is a partner at Walter | Haverfield who focuses her practice on education law. She can be reached at lburleson@walterhav.com or at 616-246-2156.

Lisa Woloszynek is an associate at Walter | Haverfield who focuses her practice on education law. She can be reached at lwoloszynek@walterhav.com and at 216-619-7835.

Rina RussoMarch 25, 2020 

On March 25, 2020, the United States Department of Labor (DOL) released its Families First Coronavirus Response Act (FFCRA) notice.  The required notice can be located here (please see first link under “Posters” section). The notice contains basic information about the types of leave certain employees are entitled to under the FFCRA. Further information about the required leave provisions under the FFCRA can be located here.

All covered employers (employers with under 500 employees and most public employers regardless of size) must post this notice in a conspicuous place on its premises that is accessible to all employees. An employer may also satisfy the posting requirement by e-mailing or mailing the notice to its employees, or by posting the notice on an employee information internal or external website.

As reported on the notice, the DOL has interpreted the FFCRA to have an effective date of April 1, 2020.

Rina Russo is a partner at  Walter | Haverfield who focuses her practice on  labor and employment law . She can be reached at  rrusso@walterhav.com or at 216-928-2928.

 

April 2, 2020 

On Friday, March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). The CARES Act provides significant federal funding and expansions to loan programs already offered by the Small Business Administration (the “SBA”) to account for the significant economic damage caused to small businesses by the COVID-19 pandemic. In particular, the CARES Act provides $349 billion dollars to the Paycheck Protection Program, an expansion of the Section 7(a) loan program of the Small Business Act, and an additional $10 billion to the Economic Injury Disaster Loan (EIDL) Program offered by the Small Business Act in Section 7(b). Below is a brief overview of both programs.

The Paycheck Protection Program may be right for you if…

  • You are looking to obtain capital to cover the cost of retaining employees.
  • You already laid off employees and are looking to re-hire them. Before rehiring the employees or applying for the loan, the timing of the re-hire is important to consider for both tax and cash-flow purposes.

If you are looking for a quick infusion of a smaller amount of cash now…

  • The Emergency Economic Injury Grant under the Economic Injury Disaster Loan (EIDL) Program may be right for you.

Before you decide to apply for the EIDL….

  • You need to fully understand the impact of later applying for the Paycheck Protection Program loan, and whether you can refinance the prior EIDL principal.

Are you simply looking to ease your fears about keeping up with payments on your current or potential SBA loan?

  • The Small Business Debt Relief Program may help, which provides immediate relief to borrowers with existing SBA 7(a) loans, 504 loans and microloans.

The Paycheck Protection Program

Basics

Begin Preparing / Finalizing 2019 Financials and YTD 2020. Under the Paycheck Protection Program, all loans are eligible to be partially forgiven if the funds are utilized for permissible uses. The SBA will compare your businesses’ payroll costs over the eight-week period commencing upon receipt of the funds to your business’ payroll costs from February 15, 2019 – June 30, 2019. We recommend that you also prepare monthly Profit and Loss statements for 2019 and YTD 2020.

The Paycheck Protection Program authorizes approved businesses to receive the lesser of: (i) 2.5x the cost of the businesses’ average monthly payroll over the preceding 12 months; or (ii) $10,000,000. Loan proceeds may be used for payroll costs, healthcare costs, interest on mortgage obligations, rent for a lease in place before February 15, 2020, utilities for which service began before February 15, 2020, and other debt obligations in place prior to February 15, 2020. A loan administered under this program shall not have an interest rate of more than 4%, the loan duration shall not exceed more than ten years, and payments on the loan may be deferred for at least six months, but no longer than one year.

Businesses Eligible for the Paycheck Protection Program

Small businesses, non-profit organizations (outside of organizations that receive Medicare expenditures), veterans organizations, and tribal business that employ 500 or fewer people, as well as self-employed individuals automatically qualify for the Paycheck Protection Program. Businesses that employ more than 500 employees may be eligible if the business either: (i) has fewer than the number of employees or has less revenue than is specified in the NAICS table for the business’ specific industry (note: the link to the SBA NAICS table is here); or (ii) falls within the NAICS code 72 classification (primarily food, beverage, and hotel enterprises) that employ 500 or fewer people at each physical location of the business.

Economic Injury Disaster Loan (EIDL) Program

Basics

The Economic Injury Disaster Loan (EIDL) Program allows approved businesses to receive a loan of up to $2,000,000 with collateral and up to $25,000 unsecured. This loan can be used for sick leave for employees unable to work due to COVID-19 as well as for payroll costs, increased material costs due to interrupted supply chains, rent or mortgage payments, repaying obligations that cannot be met due to revenue losses, and obligations that could have been paid had the disaster not occurred. The loan shall not have an interest rate of more than 3.75%, a term of less than 30 years, and no longer requires a personal guaranty on advances and loans of $200,000 or less. The CARES Act also created a new provision within the EIDL Program that allows applicants who need immediate funds the ability to request an emergency advance up to $10,000 within three days after the SBA receives the application. If the application is subsequently denied, the borrower is not required to repay the $10,000 advance.

Businesses Eligible for the EIDL Program

Similar to the Paycheck Protection Program, small businesses, non-profit organizations, veterans organizations, and tribal business that employ 500 or fewer people, as well as self-employed individuals, automatically qualify for the EIDL Program, along with ESOPs and cooperatives (including sole-proprietors and independent contractors).

Economic Injury Disaster Loan Program

  1. Apply Online. Unlike the Paycheck Protection Program, the SBA directly oversees the EIDL. You can apply for an Economic Injury Disaster Loan through the SBA website. Click here to access the online application.
  2. Assemble Financial Information. The online application will ask you to provide the following:

 

  1. Completed application (SBA Form 5)
  2. IRS Form 4506T for applicant, principals and affiliates
  3. Complete copies of the most recent Federal Income Tax Return
  4. SBA Form 2202 – Schedule of Liabilities
  5. Personal Financial Statement (SBA Form 413)

For certain applicants, the SBA may also ask for:

  1. Personal tax returns for all principals
  2. Year-End Financial Statements
  3. Current year-to-date Profit & Loss Statement
  4. SBA Form 1368 (Monthly Sales Figures

 

Walter | Haverfield is Here to Help

We are currently facing an economic crisis that is virtually unparalleled in American history. The attorneys at Walter | Haverfield know that many businesses have questions concerning these programs. We are ready to provide you with any legal assistance you may need concerning your business’ eligibility for these programs and the operations of your business. We can also provide you with corporate documents that we have on file for your business, and assist you with any updates to your corporate governing documents. Walter | Haverfield is here to help you and your business successfully navigate through these difficult times.

Christina PeerMarch 30, 2020 

On March 27, 2020, the Ohio Department of Education issued updated guidance clarifying its previously issued guidance document of March 18, 2020 entitled “Considerations for Students with Disabilities during Ohio’s Ordered School-Building Closure.” The updated guidance document attempts to clarify some of the concerns raised by stakeholders in an attempt to interpret the March 18 guidance document.

Some key points contained in the updated guidance document are:

  • Schools should prioritize taking all necessary steps to protect the health and safety of students and discourage activity that could contribute to the spread of the coronavirus.
  • Schools should work to provide education to all students through alternative means.
  • Recognition that schools may not be able to provide all services in the same manner they are typically provided. However, schools should “continue to try to provide a Free Appropriate Public Education (FAPE) while balancing the need to protect the health and safety of students with disabilities during this national health emergency.”
  • When using alternative delivery models, districts “should make a good faith effort within available capabilities” to determine how FAPE will be provided.
  • Emphasis on the need for schools and parents to “work together collaboratively” to find ways to educate students with disabilities.

The updated guidance document also clarified, to some extent, a question regarding evaluations that were underway, but not complete, at the time of the ordered school-building closure. The updated guidance indicates that if a reevaluation was underway at the time school buildings closed and that reevaluation cannot be completed at this time due to the order, school districts should “continue to provide services in accordance with the information provided” in the guidance. Districts should interpret this to mean that students should continue to receive IEP services, to the extent feasible, as noted above, and consistent with the terms of such services that were in place prior to the ordered school-building closure.

Notably, no additional guidance was provided regarding initial evaluations.

The updated guidance also states that if a district shifts instruction to an alternative mode for all students due to the school-building closure, “it is not required to convene the IEP team or amend the IEP for the sole purpose of the school-building closure.” However, “if a student with a disability cannot access the alternative service delivery model being offered to general education students, the district should consult with the student’s parents to determine the needs of the student and identify the most appropriate means for meeting those needs during the ordered school-building closure.”  The guidance goes on to note that if an IEP team meeting is necessary or requested, the meeting should be held virtually or by phone.

It remains unclear what, if any, relief will be granted to school districts from the IDEA’s procedural and substantive requirements. To date, there is also no guidance regarding what standards will be applied to claims for compensatory education that parents might raise after school operations return to normal. It is imperative that individuals, school districts and professional organizations advocate for the type of relief schools will need given the impact of the pandemic on the ability of educators to deliver instruction and related services. Please share with your elected representatives (federal and state) the efforts your school district is making to serve students with disabilities and the need for a commonsense application of the IDEA’s requirements given the unprecedented school-building closures.

If you have any questions about the updated guidance, please reach out. We are happy to help.

Christina Peer is chair of the Education Law group at Walter | Haverfield. She can be reached at cpeer@walterhav.com or at 216-928-2918.

On March 27, 2020, Ohio Governor Mike DeWine signed into law emergency legislation that addresses the urgent needs of the State due to the COVID-19 pandemic. H.B. 197 goes into effect immediately. The new law addresses a wide range of issues, including the following:

Expectation of continuation of educational opportunities:

  • School districts are expected to provide ways to keep students actively engaged in learning from March 17, 2020 through the end of the school year.
  • School districts are also expected to grant students, who require access to in-person instruction in order to receive a diploma or complete a career technical program, access to these opportunities as soon as is reasonable after being deemed permissible by the Director of Health, even if this access occurs after the last instructional day of the school year.

 Make-up days or hours:

  • In order to make up days or hours that schools were closed during the 2019-2020 school year, per the Director of Health’s March 14, 2020 Order, schools may either:
    • Amend an existing plan to require students to access and complete classroom lessons in order to make up hours in the 2019-2020 school year for which it was necessary to close schools based on the Director of Health’s Order; or
    • Adopt a plan to require students to access and complete classroom lessons in order to make up hours for the 2019-2020 school year for which it was necessary to close per the Director of Health’s Order.
  • Amending an existing plan or adopting a plan can occur at any time after March 27, 2020.

 Authorization to extend or waive deadlines:

  • Authorizes the Superintendent of Public Instruction to extend or waive most deadlines as necessary to ensure that the safety of students, families, and communities are prioritized while continuing to ensure the efficient operation of the Department and schools.
  • Deadlines that may be extended or waived (but are not guaranteed at this time) by the State Superintendent include, but are not limited to, deadlines related to the following:
    • Employee evaluations
    • Notices of intent to not reemploy school personnel
    • Conducting school safety drills
    • Emergency management tests
    • Filling board of education vacancies
    • Updating teacher evaluation policies to conform with the new evaluation framework
    • Identification and screening of gifted students

 Provision of services via electronic delivery or telehealth:

  • Allows for services, both educational and therapeutic, to be provided via electronic delivery method or telehealth to any student who was receiving those services at the time of the March 14, 2020 Order closing school buildings.
    • This applies to students being served in public and private schools and students being served by providers under the Jon Peterson Special Needs Scholarship Program and the Autism Scholarship Program.
  • Prohibits licensure boards from taking disciplinary action against a license holder who provides services to a student in this manner, including limiting, suspending, revoking or refusing to issue a license solely because the license holder provided these services during the time of the school closure.
    • Applicable to individuals licensed by:
      • Ohio Speech and Hearing Professionals Board
      • Ohio Occupational Therapy, Physical Therapy, and Athletic Trainers Board
      • State Board of Psychology appointed under section
      • Counselor, Social Worker, and Marriage and Family Therapist Board
      • State Board of Education with respect to intervention specialists

K-12 School Testing, Accountability and Hours:

  • State-mandated K-12 student assessments for the 2019-2020 school year are eliminated.
    • This includes the Alternate Assessment for Students with Significant Cognitive Disabilities and the Ohio English Language Proficiency Assessment.
  • Ohio’s school district and school building report cards for the 2019-2020 school year are also eliminated.
  • The Ohio Department of Education is prohibited from:
    • Assigning letter grades to buildings or districts
    • Establishing rankings based on report card data
    • The Ohio Department of Education is also authorized to create “safe harbor” for schools and districts to ensure data from the 2019-2020 school year will have no effect in determining sanctions or penalties.

Third-Grade Reading Guarantee:

  • Prohibits the retention of students under the third-grade reading guarantee based solely on the student’s academic performance in reading during the 2019-2020 school year unless the student’s principal and teacher agree the student is reading below grade level and is not prepared to be promoted to fourth grade.

Achievement tests for homeschooled students:

  • Prohibits requiring that the parent of any student who was instructed at home for the 2019-2020 school year to submit to the district superintendent the results of a standardized achievement assessment administered to the student as a condition of the district allowing the student to continue to receive home instruction for the 2020-2021 school year.

 Employee evaluations:

  • Prohibits using value-added progress dimension data from the 2019-2020 school year to measure student learning for a teacher’s evaluation.
  • For employee evaluations not completed by March 14th (the date of the Health Director’s order), the law allows school boards to elect not to conduct an evaluation for the 2019-2020 school year upon determining that doing so would be “impossible” or “impracticable.” If a board elects not to evaluate an employee, the employee must be considered not to have had evaluation procedures complied with for purposes of R.C. 3319.11, including non-renewal purposes.
  • Authorizes school boards to collaborate with unions representing employees in determining whether to complete evaluations for the 2019-2020 school year.
  • Permits districts to use evaluations completed prior to March 14th in employment decisions.

 Licensure extension:

  • Any licensure issued under the Ohio Revised Code (such as drivers’ licenses, vehicle registration, teachers’ licenses, educational aide permits, and CCW licenses) that is set to expire during the period of emergency declared by Executive Order 2020-01D on March 9, 2020, remains valid until the earlier of either ninety days after the date the emergency ends or December 1, 2020. That’s unless the licensure is otherwise revoked, suspended, or subject to discipline or limitation under applicable law for reasons other than maintaining its validity during the period of the COVID-19 emergency. Also, if a person is required by law to take action to maintain the validity of a license during the period of the emergency declared by Executive Order 2020-01D, issued March 9, 2020, the person shall take that action no later than the sooner of either ninety days after the date the emergency ends or December 1, 2020.

Provisional licensure:

  • The State Board of Education may issue a one-year, nonrenewable provisional license to any individual to practice in any category, type, and level if the individual has met all requirements for the requested license except for the requirement to pass an examination prescribed by the State Board in the subject area for which application is being made.
  • Individuals receiving a provisional license under this language must take and pass the applicable subject area examinations prior to the expiration of the provisional license.

EdChoice Scholarship:

  • Scholarship renewals are allowed.
  • Prohibits any new performance-based voucher for the 2020-2021 school year, subject to certain stated exceptions.
  • Maintains 60-day window beginning April 1, 2020 for performance-based scholarships for eligible students for the 2020-2021 school year.
  • Processing performance-based EdChoice scholarships will begin on February 1, 2021 for the 2021-2022 school year.
  • Income-based EdChoice scholarships are unaffected.

 Graduation requirements:

  • Students enrolled in 12th grade in the 2019-2020 school year shall be granted a diploma in the following circumstances:
    • The student was “on track” to graduate prior to the March 14, 2020 Order, but has not met graduation requirements.
    • The student’s principal, in consultation with teachers and counselors, reviews the student’s progress toward meeting graduation requirements and determines that the student has successfully completed the curriculum in the student’s high school or the student’s individualized education program.
    • No district shall grant a diploma under these circumstances after September 30, 2020.
  • School districts with graduation requirements that exceed the state minimum requirements are authorized to utilize the state minimum requirements for the 2019-2020 school year.

Meals:

  • For the period of emergency declared March 9, 2020 but not beyond December 1, 2020, the Director of Agriculture may exempt a school from regulation as a food-processing establishment if two conditions are met:
  • The school was issued a food-service license under ORC Chapter 3717
  • The school is transporting food for purposes of Seamless Summer Option Program or Summer Food Service Program

 Open meetings:

  • Members of a public body are granted the authority, during the period of the emergency declared by Executive Order 2020-01D, issued March 9, 2020, but not beyond December 1, 2020, to hold and attend meetings and to conduct and attend hearings by teleconference, video conference, or any other similar electronic technology (“electronic means”).
    • The provisions extend to public bodies in counties, townships, municipalities at the local level as well as boards, commissions and other state-level entities.
    • Hearings are defined as administrative hearings, hearings defined by Ohio Revised Code 119.01, or other hearings at which individuals may present written or oral testimony on a matter before the public body.
  • Members attending meetings or hearings by electronic means are considered present as if they were attending in person, they are permitted to vote, and they are counted for the purpose of determining quorum.
  • Any public action taken by electronic means under these provisions has the same effect as if it were taken in an open meeting or hearing of the public body.
  • To comply with these emergency provisions, the following requirements must be met:
    • The public body must provide public access to a meeting held by electronic means or to any hearing that the public otherwise would be entitled to attend. Such access must be provided in a method similar to that which the meeting or hearing itself is being conducted.
    • Methods may include, but are not limited to, live-streaming via the internet, local radio, television, cable, public access channels, call-in information for a teleconference, or by any other similar electronic technology.
    • The public body must ensure that the public can observe and hear the discussions and deliberations of all members of the public body, regardless of how such members are participating.
    • The public body must provide notice of such meetings to the public and media that have requested such notice, and in the case of a hearing to parties required to be notified, at least 24 hours in advance of the meeting or hearing, by reasonable methods that allow for any person to determine the time, location, and manner by which the meeting or hearing will be conducted, except in emergency situations that require immediate official action.
    • In an emergency situation requiring immediate official action, the public body must immediately notify the news media that have requested notification of a meeting or the parties required to be notified of a hearing of the time, place, and purpose of the meeting or hearing.
    • When hearings are conducted via electronic means, the public body must use electronic equipment that is widely available to the general public to converse with witnesses and receive documentary testimony and physical evidence.
    • All other Open Meetings Act requirements not in conflict with these emergency provisions must be met.

Unemployment compensation:

  • Eliminates the work-search requirement during a declared public health emergency.
  • Eliminates the one-week waiting period during a declared health emergency.
  • Allows for benefits paid during a declared health emergency to be mutualized across employers.

2020 primary election:

  • The new mail-in ballot deadline is April 28, 2020.
  • No in-person voting is permitted.

The law also addresses various aspects of childcare access and state tax filing changes, among other changes.

If you have questions regarding these new measures, please reach out to a Walter | Haverfield attorney. We would be happy to assist you.

March 30, 2020 

If you need documents notarized, Walter | Haverfield is here to help. We are certified through the Ohio Secretary of State to notarize documents online for individuals in and outside the State of Ohio. No in-person meeting is necessary. Details on what is needed in order to participate in an online notary service are below. The process is also described below.

Participant Requirements:

  • Access to the following: a computer, internet and webcam
  • Driver’s license or passport
  • Digital version of documents that need to be notarized

E-Notary Process (takes about five minutes):

  • A link to join the e-notary process is sent to the participant
  • Once a participant clicks on the link, the e-notary software is launched online and a credential analysis begins
  • During the credential analysis process, the participant uploads his/her driver’s license or passport
  • The software analyzes the license/passport and asks a series of questions to verify one’s identity
  • An e-signature is adopted, and the Walter | Haverfield notary digitally applies the seal and signature to the document(s)
  • An email is then sent to the participant with a copy of the notarized documents

Ohio is one of 36 states that allows documents to be e-notarized. In Cuyahoga County, there are about two dozen e-notaries.

Please note that online notary services are not available for depositions.

We look forward to maintaining our strong working relationship with you during this time and keeping in close contact via phone, email or video conference. Should you need our online notary service or have questions, please email us here.