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.

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.

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.