To our friends, clients and colleagues in local and regional government, higher education and the nonprofit sector, welcome to our latest Monday Message from the Public Law Group at McDonald Hopkins. In today’s email, assembled by attorneys Kelsey Smith and Kevin Butler, you’ll find insights into areas of law we’re watching on your behalf.

In today’s edition:

• Ohio bans mass gatherings indefinitely
• The latest from Washington on direct aid to governments, others
• How far can a local nondiscrimination ordinance go to protect employees?

Ohio bans mass gatherings indefinitely

On July 7, 2020, Gov. Mike DeWine and the Interim Director of the Ohio Department of Health, Lance Hines, extended multiple director’s orders, including the indefinite extension of the state’s mass gathering ban. The order generally reiterates previous requirements and restrictions throughout the state but, unlike prior director’s orders, the current order does not provide a set expiration date. The order will instead remain in place until Ohio’s current state of emergency is lifted.

Dr. Amy Acton, the former Director of the Ohio Department of Health, initially limited mass gatherings in Ohio to 100 people and continued to restrict the number of people until the most recent order. Although there are several exceptions to the mass gathering ban, such as weddings, funerals, and restaurants, the current order prohibits all public and private gatherings greater than 10 people outside a single household. The new order also replaces the director’s prior order closing all K-12 schools and directs that new detailed requirements and guidance for reopening schools be provided. We briefly discussed Ohio’s K-12 reopening guidelines in our July 6, 2020, Monday Message.

The number of COVID-19 cases has continued to increase in Ohio since mid-June and it is unclear when the state can expect a downswing in positive cases. On Sunday, July 12, 2020, Ohio saw its third-largest daily increase in cases since the beginning of the pandemic. We will continue to provide updates as new and modified director’s orders are introduced in response to the ongoing pandemic.

The latest from Washington on direct aid to governments, others; future of HEROES Act remains unclear

Despite the rapid increase in positive COVID-19 cases throughout the country since mid-June, progress on additional stimulus money and a new economic plan have stalled in Congress. The push to move forward has been further exasperated due to Congress’ two week recess. The House of Representatives introduced a $3 trillion stimulus plan, titled the HEROES Act, on May 15, 2020, in an effort to address the recession caused by the pandemic but movement on the new legislation has all but stalled in the Senate. Although the HEROES Act was considered dead on arrival, Senate Majority Leader Mitch McConnell has indicated a newfound willingness to discuss some type of relief package. McConnell stated that when the Senate comes back into session on July 20, 2020, it will again discuss coronavirus aid (including direct, budget-hole-filling aid to local governmental entities) and seek common ground among House Democrats and Senate Republicans. However, the likelihood of success for new legislation, including the HEROES Act, remains unclear. Congress hopes to present new legislation in response to COVID-19 before its Labor Day recess. Agreement among the chambers is especially important since previous relief efforts are slated to expire soon, including unemployment benefits granted by the CARES Act which are set to end July 31, 2020. A summary of the HEROES Act and a breakdown of its provisions can be found on our website.

How far can a local nondiscrimination ordinance go to protect employees?

The U.S. Supreme Court’s current session has been notable in one particular arena among others: workplace protections for LGBTQ employees. In Bostock v. Clayton County, handed down last month, the court held that the Civil Rights Act of 1964 now forbids employers from intentionally firing individuals based on sexual orientation or gender identity or expression. Because “homosexuality and transgender status are inextricably bound up with sex,” the 6-3 majority wrote, the Civil Rights Act’s prohibition of sex-based workplace discrimination must also include discrimination against persons based on their LGBTQ status.

Overnight, the legal (if not practical) landscape changed for all but the nation’s smallest employers. Many municipal legislatures in states like Ohio, meanwhile, had been working to provide local protections against discrimination not previously provided by state and federal code, including workplace discrimination against members of the LGBTQ community. The advocacy organization Equality Ohio reports that at least 29 cities across the state have enacted local workplace (and other) protections for gay, lesbian and transgender persons, and in 2018 Cuyahoga County enacted countywide employment discrimination prohibitions under its own home-rule authority.

The sands are shifting rapidly, but how far do Bostock and local laws go? Last week we saw another opinion handed down by the nation’s high court, Our Lady of Guadalupe School v. Morrissey-Berru, which reminds those engaged in the LGBTQ movement of its often-inherent conflict with the First Amendment’s religious freedom clauses. In Morrissey-Berru, a 7-2 majority expanded the “ministerial exception” to federal, state and local nondiscrimination laws by finding Lutheran and Catholic schoolteachers to be church “ministers” within the meaning of that exception, thus making them terminable at will – even if the termination is based on characteristics (age, race, sex, disability, LGBTQ status) that are now otherwise fully protected classifications. Under the ministerial exception, religious institutions have carte blanche to hire and fire those who “play an important religious role,” and it appears they’ll continue to receive broad discretion from federal courts determining which employees fall within the exception.

Most local nondiscrimination codes wisely contain good-faith religious employer exceptions, but Morrissey-Berru makes clear that the Supreme Court will give expansive treatment to the First Amendment’s religion clauses and thus neuter those looking to closely scrutinize a religious employer’s bona fides. Anyone tasked with enforcing these local codes should take note, and of course you’re are always encouraged to call on our broad-based Public Law and Labor and Employment practitioners for guidance.

Summer holidays will prevent us from sending out the Monday Message on July 20, but if you have questions or need assistance in the meantime, please feel free to contact any member of the McDonald Hopkins Public Law team.

Have a great couple of weeks!

Teresa Metcalf Beasley
Chair, Public Law