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Small businesses concerned with how the childcare-related paid sick leave and expanded family and medical leave will jeopardize the viability of their business may be able to take advantage of the small business exemption. Small businesses, including religious and nonprofit organizations, with fewer than 50 employees, may be exempt from the paid sick leave and expanded family and medical leave if the leave requirements would jeopardize the viability of a business as an ongoing concern.

Which small businesses qualify for the small business exemption?

1. Businesses with fewer than 50 employees including religious and nonprofit organizations; and
2. An authorized officer of the business has determined that at least one of the three conditions is satisfied:

• The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity; or
• The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
• There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity

3. Leave is requested because the child’s school or place of care is closed, or childcare provider is unavailable due to COVID-19 related reasons; or

4. Leave is requested because employee is unable to work due to:

• Isolation order related to COVID-19;
• Advisement by health care provider to self-quarantine;
• Experiencing COVID-19 symptoms and is seeking a medical diagnosis;
• Caring for an individual subject to isolation order related to COVID-19 or advisement by health care provider to self-quarantine

 What information must be documented by small businesses?

1. Regardless of whether a small business grants or denies a request for paid sick leave or expanded medical leave, small businesses must document the following:

• The name of the employee requesting leave;
• The date(s) for which leave is requested;
• The reason for leave; and
• A statement from the employee that he or she is unable to work because of the reason

2. Small businesses may request that the employee provide the following information that must be documented upon an employee’s request for leave to care for their child whose school or place of care is closed, or childcare is unavailable:

• The name of the child being cared for;
• The name of the school, place of care, or childcare provider that has closed or become unavailable; and
• A statement from the employee that no other suitable person is available to care for the child

The Department of Labor encourages employers and employees to collaborate to reach the best solution for maintaining the business and ensuring employee safety.

We will continue to provide updates on any additional guidance from the DOL. Our attorneys are always available to discuss any questions you may have. Learn more about Mansour Gavin’s Labor and Employment group or contact us today.

Brendon Friesen, Mansour Gavin LPA shareholder and Business and Corporate Services Group chair, recently secured a major victory for his client, Cielo Jardin LLC of Euclid, OH.

In December 2017, the Ohio Medical Marijuana Control Program (MMCP) denied Cielo Jardin one of 24 coveted provisional licenses to legally cultivate medical marijuana in Ohio. Despite Cielo Jardin scoring in the top ten among hundreds of applicants in the highly competitive merit-based application process, the MMCP disqualified the company on what it perceived as a legal technicality. Mr. Friesen represented Cielo Jardin throughout the appeal process, both at the administrative level and in the Cuyahoga County Court of Common Pleas. On February 7, 2020, Judge Hollie L. Gallagher found that the MMCP should have awarded Cielo Jardin the provisional license and ordered the MMCP to reconsider.

On March 31, 2020, the MMCP issued the provisional license to Cielo Jardin. Mr. Friesen is one of just a handful of attorneys to successfully obtain a MMCP provisional license on appeal. Cielo Jardin will work through the build-out process in the coming months and is extremely excited to be part of the MMCP as a Level II cultivator.

As of March 31, 2020, there are twenty operational medical marijuana cultivation facilities in Ohio, none of which are in Cuyahoga County. Since the program’s first sales began in January 2019, Ohioans have purchased over $60 Million in both processed and plant material marijuana products. Mansour Gavin LPA proudly represents Cielo Jardin and other companies in the fast-growing legal cannabis market in Ohio and in other states.

If you have any questions on how we can assist your business, please contact one of our Business and Corporate Services attorneys.

Like all of you, Mansour Gavin LPA, its attorneys and staff are living through unprecedented times. On March 27, 2020 the U.S. federal government signed into law the $2 trillion CARES Act. Beginning today, small businesses can apply for the nearly $350 billion earmarked for loans available through the economic rescue plan. U.S. Small Business Administration (SBA) approved lenders expect a flood of applications for Paycheck Protection Program (PPP) loans, which make up one of the three financial rescue packages available to small businesses. To qualify for a PPP loan, a business must meet the following criteria:

1. Have fewer than 500 employees;
2. Be operational as of February 15, 2020; and
3. Certify that due to the economic uncertainty caused by the COVID-19 crisis, the loan is required to maintain operations, among other stipulations.

A qualifying business is eligible to receive funds up to 2.5 times their average monthly payroll expense from 2019, accounting for up to $100,000 for each individual employee’s salary, with a maximum loan value of $10 million.

PPP loans accrue 1% interest and mature after 2 years. However, the borrower can apply for forgiveness of the loan up to 100% if the funds are used on certain qualifying expenses (e.g. payroll, rent, mortgages), they retain its employees and meet other important criteria. Borrowers may only be able to seek loan forgiveness up to 25% of non-payroll expenses.

The SBA recently made a draft application available online. For more information on PPP loans, the Economic Injury Disaster Loans (EIDL) or other resources available to small businesses, please visit https://www.sba.gov/funding-programs/loans/coronavirus-relief-options. You can always contact an attorney from our business group for guidance.

In response to the numerous challenges Ohio is facing due to the Covid-19 crisis, the Ohio House and Senate passed House Bill 197 on March 25, 2020. While the bill contains numerous relief measures relating to businesses, schools, and state institutions, of particular note in the legal field are the amendments to state law statutes of limitations and court procedures.

HB 197 applies retroactively to March 9, 2020, the date Governor DeWine declared a state of emergency due to Covid-19. The bill tolls any statute of limitations that was or is set to expire between March 9, 2020 and July 30, 2020, which includes the statutes of limitations for civil, criminal, and administrative claims.

Further, the bill automatically tolls any discovery deadlines in any active civil, criminal, or administrative suits or filings. It also tolls the time a plaintiff has to effectuate service of a complaint on a defendant.

The tolling period for each of the above expires on the date the Covid-19 emergency period ends or July 30, 2020, whichever is sooner. HB 197 will take effect on the date Governor DeWine signs the bill, which he has indicated will be on March 27, 2020.

The Department of Labor has issued a Question and Answer page designed to assist employers in complying with the recently passed Families First Coronavirus Act:

https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.

The Q&A provides answers to some initial questions relating to reaching the 500 employee mark; how to determine if an employer is a single or joint enterprise; and the interaction and combined use of sick leave and paid family leave while at home caring for a child.  Importantly, and without explanation for the change, the effective date of the Families First Coronavirus Act has been moved up to April 1, 2020 (formerly April 2, 2020).

The Families First Coronavirus Response Act (“Act”) was recently passed by the Senate and signed into law by President Trump on March 18, 2020. The final version of the Act contains some changes compared to the version first passed by the House of Representatives on March 14, 2020, but is still designed to provide support for employees who are unable to work due to COVID-19 quarantines, school closings, and closing of childcare facilities.

The Act allows for employees to receive paid family and medical leave (FMLA) and sick leave through December 31, 2020. Both the FMLA and sick leave protections apply only to private employers with fewer than 500 employees. Critically, the final version of the Act allows for the U.S. Department of Labor to exempt small businesses with fewer than 50 employees from the Act’s requirements, but only in the Department’s discretion and where the provision would jeopardize the viability of the business to continue.

A summary of the Act’s provisions are as follows:

The Emergency Paid Sick Leave Act – applies to all employers with less than 500 employees and allows all employees sick leave as follows:

• To be quarantined because of a coronavirus diagnosis;
• To secure a medical diagnosis if experiencing symptoms of coronavirus;
• To quarantine based on recommendation or order by physician or public health official that the employee’s physical presence on the job would jeopardize the health of others;
• To provide care for an immediate family member who is in quarantine;
• To provide care for an employee’s child due to school or childcare closure due to coronavirus; OR
• If the employee is experiencing any other substantially similar condition specified by Health and Human Services in consultation with the Department of the Treasury and the Department of Labor

The Act entitles full-time employees up to 80 hours of leave and part-time employees with leave equal to their average number of hours worked over a two-week period. An employee will be compensated at their regular rate for leave, except that they will be paid for two-thirds of their regular rate to care for a child whose school has closed. There are new caps in the final version of the Act that limit pay to employees at a maximum of $511 per day and $5,110 total. For those that are caring for a child whose school has closed, those caps are reduced to $200 per day and $2,000 total.

The Emergency Family and Medical Leave Expansion Act – a new federal emergency paid leave program will require employers with less than 500 employees to provide up to 12 weeks of job-protected leave for those unable to work because they are caring for a child due to coronavirus-related school closings. Leave will be unpaid for the first ten (10) days, unless the employee chooses to substitute paid time off. After the first ten (10) day period, employers will be required to provide employees with partially paid leave at two-thirds of the employee’s regular rate. Moreover, the employer must restore the employee to the same or equivalent position after leave expires. This provision does not apply to an employer with fewer than 25 employees if the employee’s position has been eliminated due to economic conditions caused by the public health crisis during the leave period.

Now that the Act has been signed into law, it will go into effect no later than fifteen (15) days following the President’s signature (or by Thursday, April 2, 2020).

If you have any questions on how to prepare your business for these changes, the Labor and Employment team at Mansour Gavin is available to assist you.

Tatyana Pishnyak has joined Mansour Gavin’s business and corporate law group where she will focus her practice in the areas of mergers and acquisitions. She brings extensive experience in purchases and sales of professional practices as well as consulting doctors and other professionals on various employment law issues.

Tatyana advises clients on general corporate matters, such as corporate entity selection and formation and also provides advice to global corporations on commercial agreements and day-to-day corporate governance.

She is a graduate of Cleveland-Marshall College of Law and Taras Shevchenko National University of Kyiv.

Mansour Gavin’s president, Anthony Coyne, was quoted in The Plain Dealer regarding the much anticipated location for The Sherwin-Williams Co.’s new headquarters and what that means for future development and investment in the city.

Mr. Coyne chairs the Group Plan Commission and served on the Cleveland City Planning Commission for 25 years, most of that time as its chairman.

Read The Plain Dealer article here.

 

Mansour Gavin attorney and Cleveland Metroparks Commissioner Bruce Rinker was recently quoted in Crain’s Cleveland Business as two proposed bills target how the metroparks systems acquire private property to develop amenities for public space. Read entire article here.