September 14, 2020 Monday Message from the McDonald Hopkins Public Law Team

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Monday, September 14

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:

  • General Assembly passes sweeping immunity measure, leaves workers’ comp law as-is
  • State releases guidelines on safe reopening of senior centers
  • S. Senate effort to pass ‘skinny’ relief bill fails
  • Treasury issues updated guidance on municipal use of CARES Act Coronavirus Relief Fund monies
  • Suit attempting to oust mayor for serving as safety director withdrawn
  • Application window now open for Treasurer’s ResultsOHIO program benefiting nonprofits, local governments, philanthropic organizations

General Assembly passes sweeping immunity measure, leaves workers’ comp law as-is

Private, public, nonprofit and educational entities in Ohio concerned about defending themselves against claims made by persons affected by COVID-related loss or injury have reason to cheer the General Assembly, which on September 2 agreed on the final language of H.B. 606. Once signed by Gov. Mike DeWine, the law will provide broad COVID-related immunity from civil judgments and professional licensure actions in healthcare settings and elsewhere, while preserving the right of plaintiffs to sue for reckless, willful or wanton conduct (except by way of class actions, which are prohibited) and the ability to attack licenses based on gross negligence. To the dismay of some, it will not write a new presumption into workers’ compensation law favoring those who claim an industrial injury as a result of contracting the virus.

In its most sweeping language, H.B. 606 gives any “person” – defined broadly as an individual, for-profit or nonprofit entity (including healthcare providers), estate, trust, school, higher-ed institution, government entity or religious entity – immunity from a civil action for injury, death, or loss to person or property based on exposure to, transmission of or contraction of a coronavirus arising between March 9, 2020 and Sept. 30, 2021. That means all sectors in Ohio operating any ongoing enterprises, and their insurers, stand to feel some relief amid a perilous pandemic. Contact Kevin Butler or any of us for assistance with questions about liability and the new law.

State releases guidelines on safe reopening of senior centers

Our Public Law team member Kelsey Smith reports today on new guidance released by the Ohio Health Department on the safe reopening of senior centers, which local and regional governments have been forced to shutter amid the pandemic. Read Kelsey’s helpful post here and view the latest state health department order, which is also applicable to adult daycare centers, here. Facing these understandably strict guidelines, we’re hearing some senior centers do not intend to open anytime soon. We’ve followed all the state health department orders closely; if we can assist in your reopening plans, whether from a regulatory or employment standpoint, please call on us.

U.S. Senate effort to pass ‘skinny’ relief bill fails

Kelsey Smith also writes today on the U.S. Senate’s inability to push through last week a scaled-back coronavirus relief measure that would provide an additional $500 billion in relief chiefly to the unemployed, to employers taking advantage of the Paycheck Protection Program, and to educational institutions. Read Kelsey’s latest on Washington’s response to the crisis here. The now-failed legislation would have provided an additional $300 per week for unemployment insurance benefits, matching the temporary measure President Trump instituted, an additional $257 billion for the Paycheck Protection Program, and $105 billion for schools. Although Congress’s inability to come together over the summer on any relief package casts into doubt whether it will produce a compromise before November’s presidential and congressional elections, we remain vigilant for updates and will provide them here.

Treasury issues updated guidance on municipal use of CARES Act Coronavirus Relief Fund monies

In a release that may have sweeping implications for cash-strapped municipalities nationwide, the U.S. Treasury Department on September 2 amended its guidance on the use of Coronavirus Relief Fund monies provided for under the CARES Act. In Ohio, those monies are coming to local government by way of H.B. 481, which the General Assembly passed in June, as well as the Ohio Controlling Board and the as-yet-passed S.B. 357.

Treasury’s new guidance was updated to clarify questions surrounding whether and to what extent payroll and benefits of public safety employees may be reimbursed with CARES Act dollars. The guidance reiterates that governments should maintain documentation that their public-safety personnel are “substantially dedicated” to combatting the pandemic, but for the first time provides that a unit of local government “may presume that public health and public safety employees meet the substantially dedicated test, unless the chief executive (or equivalent) of the relevant government determines that specific circumstances indicate otherwise.” The upshot? Under this new presumption, payroll and benefits of public safety employees incurred between March and December 2020 may generally be covered in full using payments from the fund.

Those with questions on how this updated guidance may be further interpreted and implemented should reach out to any of us in the Public Law group.

Suit attempting to oust mayor for serving as safety director withdrawn

We wrote on August 10 about a taxpayer lawsuit filed by a Cincinnati firm alleging that a suburban Cleveland mayor was conflicted by his municipal charter, which prohibited officeholders from holding other public offices, from serving as both the city’s mayor and safety director – an allegation we thought might give rise to similar lawsuits across the state. On August 24 the plaintiff withdrew the suit after the mayor moved for dismissal based on jurisdictional defenses, arguing among other things that a special proceeding called quo warranto – and not a taxpayer lawsuit – was the only method of challenging an elected official’s right to hold office. Importantly, however, in the intervening period of time the city’s legislative authority repealed the 2017 law appointing the mayor as safety director and made the repeal retroactive to his appointment date. While that was apparently enough to convince the plaintiff to back off, we’re not certain we shouldn’t expect additional litigation from this firm in the future over similar charter questions. If we spot anything, we’ll put it before you here in the Monday Message.

Application window now open for Treasurer’s ResultsOHIO program benefiting nonprofits, local governments, philanthropic organizations

Last week Ohio Treasurer Robert Sprague announced that applications will now be accepted for those wishing to participate in his new ResultsOHIO program. ResultsOHIO aims to reward private public and private funders of charitable and government programs tackling longstanding societal challenges such as infant mortality, criminal justice reform, addiction and water quality. When the success of those programs can be measurably demonstrated, participants in the public-private partnership will be reimbursed their project costs (typically between $3 and $10 million) by the state-funded program, with interest. The application period will close November 20, and so we encourage our friends and clients who are charitable service providers, philanthropic organizations and local governments to take note. The Treasurer’s initial inquiry form and an FAQ are here.

If you have questions or need assistance on any of the matters we’ve covered above or with your legal needs in general, please feel free to contact any member of the McDonald Hopkins Public Law team.

Have a great week!

Teresa Metcalf Beasley
Chair, Public Law

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This Publication is designed to provide current information for our clients, friends and their advisors regarding important legal developments. The foregoing discussion is general information rather than specific legal advice. Because it is necessary to apply legal principles to specific facts, always consult your legal advisor before using this discussion as a basis for a specific action.

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