To our friends, clients and colleagues in local and regional government, welcome to our inaugural Monday Message from the Public Law Group at McDonald Hopkins. In these periodic emails, you’ll find insights into areas of law we’re watching on your behalf.
Coronavirus and workers’ comp
This week we focus on coronavirus-related workers’ compensation claims made by public employees. It’s likely that much of your workforce is deemed essential under the Ohio statewide stay-at-home order, which means your employees are likely to remain in close proximity with the public. Our colleague Margaret O’Bryon, a seasoned workers’ compensation attorney and also a longtime law director, warns of the risks of equating COVID-19 workers’ comp claims with other kinds of claims for compensable workplace injuries. The synopsis: be skeptical of whether the virus contracted by employees is work-related, and be cautious in how you respond. Read Margaret’s insightful blog post here.
Federal stimulus dollars and budget gap-fillers
We’re keeping a weather eye on what’s happening in Washington in response to the pandemic. Very few public entities nationwide meaningfully benefited or will benefit from the first several phases of federal financial relief – including the CARES Act, the Families First Coronavirus Response Act, and the Federal Reserve Bank’s newly announced municipal liquidity facility. Congress is debating what its next phase of responsive legislation will look like and whether it’ll provide smaller public entities direct access to ready cash or expanded infrastructure dollars, in addition to expanding the popular Paycheck Protection Program.
Our CARES Act Team, public finance professionals and Public Law Group have spent hundreds of hours analyzing all these laws, determining how they may affect your borrowing, labor and employment decisions, unemployment costs, and access to federal entitlements – so watch this space for continued updates on the next phases of coronavirus relief. In the meantime, let us know if we can assist you as you wade through the patchwork of these new federal laws.
FEMA disaster assistance: What you should be doing now
One of the brighter spots for local and regional government entities is that FEMA will provide federal disaster assistance for expenses incurred in your own response to the pandemic. If your subdivision or agency hasn't begun the process of applying for assistance, here are a few steps you can take now to get yourself prepared for the application process:
- Track COVID-related expenses. As a result of the disaster declaration, all "eligible emergency protective measures" qualify for disaster funding on a 75% reimbursement basis. Your finance and first response personnel should be tracking expenses directly related to their response to the virus, including specialized pandemic training, the purchase of additional personal protective equipment, any additional costs related to communications, and the like. FEMA has provided guidance on expenses eligible for disaster assistance here.
- Register with FEMA. Eligible entities must first create an account to access FEMA's disaster assistance portal, and then fill out and submit a Request for Public Assistance form using the same grants portal.
- Work closely with your county EMA. County emergency management officials are coordinating requests for disaster assistance with the Ohio Emergency Management Agency. They should be helpful allies to you. Find a list of all county emergency management agencies here.
The reimbursement process has already begun for many public entities, and several of our attorneys are assisting their clients with these efforts. Let us know if we can help you.
Wedding shop lawsuit: What it means for you
We end this week by pointing to the new federal lawsuit by a disgruntled bridal shop owner against Ohio’s health director. Filed by the same firm behind several of the recent lawsuits over Ohio cities’ rental property and point-of-sale inspection programs, the suit alleges that Dr. Amy Acton, the state health director, violated the Columbus bridal shop’s due process rights by not providing a hearing that would permit the shopkeeper an opportunity to challenge Dr. Action’s order making wedding-dress shopping nonessential.
The plaintiff argues that the state “is required to supply Ohioans who own businesses it deems ‘nonessential’ with a prompt hearing where the burden is on the [state] to justify its decision mandat[ing] full closure of those Ohioans’ businesses.” The state has responded by arguing that orders of statewide, general applicability such as Dr. Acton’s stay-at-home order do not create due process rights, especially when no property was seized directly from the plaintiff and when the order applies to entire classes of businesses.
We’ll continue to monitor the injunctive proceedings in the case, but the lawsuit may ultimately serve at least as a reminder of the importance of creating administrative review hearings within your own local legislation and directives (whether coronavirus-related or not) if you're directly affecting people's property rights. Our Public Law team includes several current and former law directors with decades of experience in legislative and policy drafting, and we stand ready to assist you.
If you have questions or need assistance, please feel free to contact me or any member of the McDonald Hopkins Public Law team. Have a great week!