Generally, Ohio workers’ compensation is designed to cover medical bills and related expenses from injuries or illnesses incurred while working. While you could be certain that you caught COVID-19 at work, but proving it is another matter entirely.

Work-Related Injuries and Illness

The Ohio Bureau of Workers’ Compensation (BWC) covers injuries sustained on the job, as well as occupational diseases. An occupational disease “generally results from repeated work-related exposure… [It] has a harmful effect on the employee and there is a causal relationship between the exposure and the harmful effect that is confirmed by a medical diagnosis. The conditions of the employment create a greater hazard to the worker than to the general public.”

Is COVID-19 an Occupational Disease?

The BWC is careful to note that “[m]ere exposure to or contact with a disease-causing agent is insufficient to allow an occupational disease claim.” You must prove that you caught the virus on the job. Whether filing a claim for COVID-19 or another occupational illness, an injured worker will often need to prove that his or her job put them at hazard or risk of getting the disease in a greater degree or a different manner than the general public. Thus, if you work in a job that poses a special hazard or risk, such as a healthcare worker, and you contract COVID-19 from the work exposure, you may have a compensable claim.

Proving that you caught COVID-19 on the job is easier said than done. Most people have not adhered to a strict lockdown since the early days of the pandemic. Even then, visiting grocery stores, gas stations, drugstores, and other public areas was permissible. To prove a compensable illness, you would need a physician’s opinion stating that there is a causal link between your employment and your contracting of the virus. Since the burden is on the injured worker to prove that they contracted the virus on the job—and not anywhere else—the BWC will not automatically approve all workers’ compensation claims for COVID-19.

This is incredibly disappointing for many people, especially if you’ve suffered long a hospitalization and severe side effects. If you have questions about your workers’ compensation claim or appeal, contact Dworken & Bernstein today.

On September 4, 2020, the Center for Disease Control (“CDC”) issued an order prohibiting residential landlords from evicting tenants for unpaid rent.[1]  In turn, the Ohio Supreme Court issued a statement, which affords residential tenants protection from eviction by filing a “Declaration Form.”[2]  The CDC order expires on December 31, 2020, which is fast approaching.

The Ohio legislature is now looking at how evictions should be handled while COVID-19 is still pervasive.  In March 2020, Representatives Leland and Crossman introduced House Bill 562, which proposes a statewide moratorium on foreclosures and evictions for both residential and commercial properties.[3]  Under this Bill, while landlords would be allowed to file eviction complaints, the courts could not adjudicate or effectuate evictions while Ohio remains in a State of Emergency.[4]  The Bill likewise prohibits courts from adjudicating and effectuating foreclosure actions.[5]  House Bill 562 has been in committee since May 2020, although it may be garnering support because of the impending deadline.[6]

The Bill is a radical expansion of the CDC order because it encompasses commercial property and foreclosures. The sponsors of House Bill 562 argue that the impact of COVID-19 on individuals is more substantial in terms of job loss and increased medical expenses. They argue it is more difficult for tenants to pay their rent; whereas, property owners and banks are better able to bear the risk of missing payments.  Under the CDC order and the Bill, a tenant’s rent is not forgiven and he or she will ultimately be responsible for paying it.  The counter-argument is that many rental properties are owned by smaller real estate investors with thin profit margins, who cannot bear the loss of several months’ rent without themselves suffering serious financial ramifications.

While the legislature grapples how to address the concerns of those involved, in Northeast Ohio at least one lawsuit has been filed by landlords, who are unable to evict tenants for non-payment of rent under the CDC’s order.[7]  The complaint, which was filed by the Pacific Legal Foundation and the 1851 Center for Constitutional Law, alleges that the CDC was not authorized to issue a nationwide moratorium on evictions, the CDC is making law, which is reserved for Congress by the Constitution, and by doing so, the CDC ignored rule making policy.[8]  Plaintiffs request a judgment declaring the moratorium unlawful and/or unconstitutional, a preliminary injunction setting aside the CDC eviction moratorium, and forbidding Defendants from enforcing, as well as an award of attorneys’ fees.[9]  As of the publishing of this blog, the court has not made any rulings in that case.[10]

Stay tuned to see whether the moratorium is extended, expanded or dissolved.

[1] The CDC’s order can be found at: https://www.federalregister.gov/documents/2020/09/04/2020-19654/temporary-halt-in-residential-evictions-to-prevent-the-further-spread-of-covid-19#footnote-5-p55293

[2] The Ohio Supreme Court’s statement can be found at: https://www.supremecourt.ohio.gov/coronavirus/resources/cdcEvictions.pdf  The Declaration Form must state that the tenant used her best efforts to obtain government assistance for rent/housing, that she was within certain income limits, that she cannot make full rent payments due to loss of income, or increased medical expenses, she used her best efforts to make full rent payments, and that eviction would likely make her homeless or force her to move into a new congregate or shared setting.

[3] https://www.legislature.ohio.gov/legislation/legislation-summary?id=GA133-HB-562

[4] Id.

[5] Id.

[6] See Lawmakers seek Ohio moratorium on evictions, foreclosures, which can be found at: https://ohiocapitaljournal.com/2020/12/04/lawmakers-seek-ohio-moratorium-on-evictions-foreclosures/

[7] A link to the docket for Skyworks, Ltd., et al.  v. Centers for Disease Control and Prevention, et al. can be found at: https://pacificlegal.org/case/skyworks-ltd-v-centers-for-disease-control/

[8] Id.

[9] Id.

[10] Id.

Also “Persons” — which broadly includes individuals, business entities, churches, schools, non-profits, and other like entities — are also granted immunity from any COVID related liability unless it can be “established that the exposure to, or the transmission or contraction of, any of those viruses or mutations was by reckless conduct or intentional misconduct or willful or wanton misconduct on the part of the Person against whom the action is brought.”

“Gross Negligence” is defined in the Act as “a lack of care so great that it appears to be a conscious indifference to the rights of others.”  “Reckless Disregard” is defined as follows: “as it applies to a given health care provider rendering healthcare services, emergency medical services, first-aid treatment, or other emergency professional care, conduct by which, with heedless indifference to the consequences, the health care provider disregards a substantial and unjustifiable risk that the health care provider’s conduct is likely to cause, at the time those services or that treatment or care were rendered, an unreasonable risk of injury, death, or loss to person or property” but has a different definition for non-healthcare workers: “Reckless Conduct” means conduct by which, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person’s conduct is likely to cause an exposure to, or a transmission or contraction of, MERS-CoV, SARS-CoV, or SARS-CoV-2, or any mutation thereof, or is likely to be of a nature that results in an exposure to, or a transmission or contraction of, any of those viruses or mutations. A person is reckless with respect to circumstances in relation to causing an exposure to, or a transmission or contraction of, MERS-CoV, SARS-CoV, or SARS-CoV-2, or any mutation thereof, when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist.”

The Act also bars class actions related to COVID and specifically prohibits the establishment of any duty of care, cause of action, or legal right that may be alleged to have arisen from any government rule, order, or recommendation.

Without doubt, this Act will be sure to breed litigation – if nothing else over whether or not someone has engaged in Gross Negligence, Reckless Conduct, or acted with Reckless Disregard.  I also find the breadth of the application of the Act to be interesting.  It applies not only COVID 19 (i.e. SARS-CoV-2) and however it may mutate in the future, but also to other variants like MERS and SARS.  For healthcare workers and facilities it applies to the decisions and acts they undertake related to COVID, but then appears to also extend to all other decisions and acts.  I am sure that many attorneys will not be pleased with this Act.  Personal injury and medical malpractice attorneys will no doubt find this Act restrictive to their practice as I would imagine that this, at a minimum, adds additional hurdles to what they have to prove to obtain relief and the seemingly broad immunity for healthcare workers and businesses may act as a complete bar to medical and nursing home negligence cases.  On the flip side, business and corporate attorneys will no doubt be pleased that they can inform their clients that they do not need to worry about liability from COVID absent Gross Negligence or Reckless Conduct.  

Naturally, this Act begs the question as to what will constitute Gross Negligence or Reckless Conduct; particularly in light of the frequently changing State orders and requirements.  Will failure to wear a mask by an otherwise healthy person rise to that level?  I doubt it.  Will intentionally going shopping, eating, or to work while sick, but without a positive COVID test, reach those levels?  Perhaps.  If a person knows they have COVID and goes to work or shopping or whatever will that conduct raise to Gross Negligence or Reckless Conduct?  Probably – if it can be proven.  How does a business avoid having their employees conduct rise to the level of Gross Negligence or Reckless Conduct?  What will be the threshold to liability for its employee’s or agent’s Gross Negligence or Reckless Conduct?  What about from their customer’s or client’s actions?  What will the liability threshold look like in a residential setting?  Do landlords have any risk of liability if their tenants contract COVID?  What about for their common areas like gyms and social areas?  

In the end, this Act raises as many questions as it gives answers despite appearing on the surface to be a grant of blanket immunity to businesses and individuals from COVID related liability.  The picture appears to be clearer for healthcare workers and businesses as their immunity has less loopholes and the threshold for liability seemingly higher.  Regardless, this law will inevitably be good for attorneys as cases are brought in the months and years to come to answer these questions and many others.  

¹ See https://www.legislature.ohio.gov/legislation/legislation-summary?id=GA133-HB-606 

² as defined in O.R.C. 1.59

³ Am. Sub. H. B. No. 606 Section 1(A)(18)

⁴ Am. Sub. H. B. No. 606 Section 1(A)(42)

⁵ Am. Sub. H. B. No. 606 Section 2(D)(3)

⁶ Am. Sub. H. B. No. 606 Section 2(B) and (C)

Is the Pandemic Causing More Personal Bankruptcy Filings?

It is likely that we will see an increase in personal bankruptcy cases in the near future. Just how large this increase will be remains uncertain. As of the beginning of May, 2020, personal bankruptcy cases had not yet increased. In fact, there “were 47% fewer consumer bankruptcies in April 2020, compared to April 2019, according to statistics released Tuesday by the American Bankruptcy Institute (ABI) . . . [which is] a professional association for lawyers and judges involved in the bankruptcy process.” There were 30 million unemployment claims filed during the month of April, however, which might result in a surge in personal bankruptcy claims later on.

Some current consumer protections might stave off personal bankruptcy cases. Many homeowners will not be penalized for missing payments on federally backed mortgages right now, for example. Some states have stopped companies from collecting debts, and they have stopped landlords from evicting tenants. The federal government has stopped requiring people to make student loan payments to mitigate the financial impact of the pandemic. While these measures are still in place, an influx of personal bankruptcy claims is unlikely.

Will the CARES Act Help People Avoid Filing for Bankruptcy?

The Coronavirus Aid, Relief, and Economic Security Act, or the CARES Act, provided each American a single stimulus payment to be used for expenses. That money, while helpful, can legally be seized by a creditor from a bank account in a collection action. Without a personal bankruptcy filing in process, those funds are vulnerable to being garnished from wages and bank accounts by overzealous creditors.

The CARES Act added some protections for consumers in personal bankruptcy cases, but these are limited. The biggest change was to extend the amount of time consumers have to pay off their Chapter 13 plans from five years to seven years, but this change only applies those that can show “hardship”, which can be tough to prove, and only it only applies to current bankruptcy filings. Legislators could have made more significant changes, such as setting a maximum amount that debtors can be required to pay.

Are the Bankruptcy Courts Equipped to Handle a Sharp Increase in Claims?

Because we are unsure of how many new cases there will be and how rapidly the number of filings will increase, it is difficult to say. Because the number of personal bankruptcy claims was extremely low before the pandemic began, there is probably available capacity in courtrooms and law offices for additional filings.

That being said, bankruptcy courts still might not be able to help some consumers who really need them. The COVID-19 pandemic could make it difficult for some people to access and file documents in bankruptcy courts. Some groups are disproportionately affected by the inability to access technology or hire an attorney because they are not in a financial position to do so. Those consumers face additional challenges when initiating their bankruptcy cases, especially in states where bankruptcy courts are not physically open and the only easy way to file is online.

One thing is for sure: There will be many more changes made to the personal bankruptcy process as we progress through the pandemic. These changes might help consumers to file and pursue personal bankruptcy cases, or they might make the process more difficult. The best way to protect yourself when filing for bankruptcy is to have an experienced attorney on your side to guide you through.

What Should I Do if I Need to File for Bankruptcy Now?

If you are struggling with debt and considering bankruptcy, find an attorney who specializes in bankruptcy law to represent you. The experienced and compassionate lawyers at Dworken & Bernstein can help you explore your bankruptcy options, make sure that it is the right time to file, and pursue your personal bankruptcy case in court.

As of July 2020, there have been more than 4.0 million confirmed cases of COVID-19 in the United States, and there have been 142,000 deaths. As of the same date, there have been 81,000 confirmed cases in Ohio, and 3,200 deaths. Ohio is the 16th hardest hit state when ranked by number of confirmed cases. Across the country and within Ohio, nursing homes have been a major source for the spreading of the virus. As of July 7, 2020, nursing home residents and workers accounted for 10% of all US confirmed cases (296,000 cases) and 42% of all US deaths (55,000 deaths). As of July 23, 2020, in Ohio, nursing home residents accounted for nearly 8000 cases of COVID, and staff members accounted for roughly 3,700 cases.

Nursing homes are major sources of the virus because they house particularly vulnerable populations in close quarters. For these reasons, the conditions of a nursing home itself can be conducive to spreading COVID. Patients at nursing homes are often “frail” and sometimes suffer from dementia, “a condition that can make social distancing difficult to enforce.” Some nursing homes have also neglected patients who have already contracted COVID. In one nursing home, employees failed to monitor and document whether an infected “patient at risk of weight loss and dehydration was consistently consuming food and fluids,” and by doing so failed to follow a prescribed care plan.

The Law May Shield Nursing Homes from Liability for COVID Cases

Whether nursing home residents contract COVID seems to depend largely upon which nursing home is in question.  “The disparity in coronavirus cases is still a medical mystery: Why have some homes . . . had dozens of deaths while others have been able to contain the outbreaks?”  Whatever the homes with more cases and deaths are doing in response to COVID might be the key to determining whether they’re liable for damages.

Groups that represent nursing homes have been lobbying for legislation that grants immunity from civil lawsuits. They argue that “nursing homes and front-line workers are responding to an unprecedented health emergency and deserve protection from lawsuits, particularly when medical equipment and tests are in short supply.” Groups that represent patients argue against such legislation. According to them, “even before the pandemic, many [nursing] homes had been unable or unwilling to meet basic health, safety and staffing standards set by the federal government . . . [and] could use immunity to evade long-standing liabilities.”

Roughly 20 states have “issued . . . emergency order[s] granting nursing homes immunity from most lawsuits during the coronavirus pandemic.” State governments have blocked affected residents and family members from receiving damages from COVID in civil law cases against nursing homes in court. They have also blocked family members from access to information about patients’ final days in nursing homes, and gathering such information is particularly difficult because visitation during COVID has often been limited or banned altogether. A representative of the New York State Governor gave the following rationale for granting immunity to nursing homes: “[i]f we had not done this, we never would have had enough front-line-health-care workers working and taking care of patients.”

The Ohio Senate passed a bill that protects nursing homes (along with other businesses) from civil lawsuits related to COVID. The bill is called the “Good Samaritan Expansion Bill.” This bill is not yet in its final form: it will go “back to the Ohio House for further consideration on amendments.”  Like in other states, though, lobbyists are arguing for an amendment that removes nursing homes from the list of immune businesses. Whether and when nursing homes will be immune under the final version of the Ohio law is still up for debate.

Exceptions to the General Rule: When the Law Does Not Shield Nursing Homes from Liability for COVID Cases

It could be the case, though, that exceptions to immunity will remain, even if nursing homes are still covered by the law.  Similar laws in Connecticut and New York, for example, do not protect nursing homes in cases of gross negligence. The laws in most states do not protect nursing homes from allegations of criminal activity or willful misconduct, either.

What You Should Do if You or a Loved One Under the Care of a Nursing Home Has Contracted COVID

Because of the exceptions to this general immunity in Ohio (if nursing homes end up being immune in Ohio), it is likely that nursing homes can still be held liable in a court of law for cases of COVID within their patient populations.

If an attorney can show that a patient has contracted COVID and a nursing home is not immune to civil liability, then an Ohio court will find that the nursing home needs to compensate the patient or the patient’s family. Another possibility is that a nursing home might settle with the patient or the patient’s family outside of court.

Contact an Experienced Nursing Home Neglect Attorney for Help

If you or a loved one has contracted COVID while in the care of a nursing home, you should contact an experienced nursing home neglect attorney at Dworken & Bernstein to discuss your legal rights. An attorney will be able to help you to understand whether the nursing home is immune in your case and which kinds of remedies are available to you.

There are many other people in Ohio who have been left with overwhelming medical debt as the result of a medical emergency. Given the costly nature of medical bills, it should come as no surprise that medical bills are one of the most common reasons why people in the country end up filing for bankruptcy.

The Devastating Nature of Medical Debt

Because people are not required to provide details about their reason for filing for bankruptcy, it is difficult to determine the exact percentage of people who pursue this option as a result of medical debt.

There are, however, many factors that can quickly make medical debts larger than a person can ever possibly pay. For one, rare and serious diseases often require substantial medical care. Second, medical emergencies like car or motorcycle accidents often result in victims facing several serious injuries that require immediate and on-going care.

These complications also tend to cause people to miss work, which can only increase the overall difficulty in managing these expenses. Losing a job can leave a person without the necessary resources to pay off medical debt. Another reason why medical debts often escalate is that healthcare costs in the United States are continuing to rise. Since 1980, healthcare costs have increased at a much sharper rate than inflation prices.

Bankruptcy Can Help Eliminate Medical Debt

If you cannot make the minimum payments on your medical bills each month and your debt continues to escalate, it is critical to remember that bankruptcy for medical debt often allows people to either eliminate or restructure debt of this nature.

While Chapter 7 bankruptcy allows people to liquidate, Chapter 13 bankruptcy allows people to establish a repayment plan. The type of bankruptcy that will work best to take control of a person’s situation often depends on the circumstances.

If a person meets the income qualifications for Chapter 7 bankruptcy, there is not a limitation placed on the amount of medical debt that a court can discharge. If a person chooses to utilize Chapter 13 bankruptcy, however, that individual will be required to repay some of this medical debt over the life of a several year repayment plan.

Following the completion of these payments, courts will discharge any remaining debt. While Chapter 7 is often ideal for people with low income and few financial resources, Chapter 13 is often viewed as people who have a steady source of income and who would like to continue making payments on their debt.

Speak with a Skilled Bankruptcy Lawyer

No matter if you have already decided to file for bankruptcy or merely want to learn more about this method of taking control of your debt, it can help to speak with a knowledgeable bankruptcy attorney.

To schedule a free case evaluation, contact Dworken & Bernstein today to schedule a free case evaluation.

PUA is only available for those who do not qualify for traditional unemployment benefits.  In addition, applicants must meet one of the following criteria:

• The individual has been diagnosed with COVID-19, or is experiencing symptoms and is seeking medical diagnosis;
• A member of the individual’s household has been diagnosed with COVID-19;
• The individual is providing care for a family member or member of the household who has been diagnosed with COVID-19;
• A child or other person in the household for which the individual has primary caregiving responsibility is unable to attend school or another facility is closed as a direct result of the COVID-19 emergency, and the school or care is required for the individual to work;
• The individual is unable to reach the place of employment because of a COVID-19 quarantine;
• The individual is unable to reach the place of employment because a healthcare professional has advised him or her to self-quarantine due to COVID-19 concerns;
• The individual was scheduled to commence employment and does not have a job or is unable to reach the job as a direct result of COVID-19;
• The individual has become the breadwinner or major support for a household because the head of the household has died as a direct result of COVID-19;
• The individual has quit his/her job as a direct result of COVID-19;
• The individual was laid off as a direct result of COVID-19;
• The individual’s place of employment is closed as a direct result of COVID-19

Eligible individuals can pre-register by visiting https://cares.unemployment.ohio.gov/; however, the program is not expected to officially launch until mid-May.  Workers who file for PUA benefits will receive a weekly benefit similar to traditional unemployment benefits.  These benefits will be retroactive once eligibility is determined and can go back as far as February 2, 2020.  Under this program, individuals can receive a maximum of thirty-nine (39) weeks of benefits.

To apply for PUA, applicants will need to provide the following information:

• Social security number, date of birth and driver’s license or state ID number
• Name, address, telephone number, and valid email address
• Name, address, telephone number and dates of employment for 2019
• Reason for unemployment
• Dependent information (Spouse or Children), including social security number and date of birth
• Banking information for direct deposit

Self-employed individuals can also apply for PUA and will need to submit proof of employment including W-2 forms, recent pay stubs or vouchers, earnings statements (reflecting profit and loss), recent bank records showing payroll direct deposit, or a 2019 tax return, if available.  Additional information about the PUA program can be found here.

If you have questions about whether you may be eligible for benefits under the PUA program, contact Dworken & Bernstein at (440) 352-3391 to speak to an attorney.

Clarity on compliance with parenting schedules for parties subject to a custody agreement and/or order was made on April 1, 2020 by Cuyahoga County Domestic Relations Court Administrative Judge Leslie A. Celebrezze.  Pursuant to the April 1, 2020 Journal Entry, “[p]arents who are subject to parenting time orders shall continue to follow them absent good cause shown; these orders remain in full force and effect.  Parties shall adhere to all holiday and spring break schedules as designated by their schools at the beginning of the school year regardless of the recent changes.”  A full copy of Judge Celebrezze’s April 1, 2020 Journal Entry may be found on the following link.  http://domestic.cuyahogacounty.us/pdf_domestic/en-US/COVID-19/COVID-19%20and%20Parenting%20Time%20Orders.pdf

To date, surrounding counties have not issued similar Journal Entries regarding compliance with parenting schedule orders set forth in a custody agreement.  That does not necessarily mean compliance with the parenting schedule should not be made during the effective timeframe of the stay home Order.  If you have any questions about Judge Celebrezze’s Journal Entry, or the impact of the stay home order with your particular custody order, please contact Dworken & Bernstein Co., L.P.A. at 440-352-3391 or visit our website at www.dworkenlaw.com.

As the country recovers from the pandemic, one question that lingers is whether the disease will qualify as a workers’ compensation claim. In the state of Ohio, illnesses as well as injuries that are contracted during the course of employment are compensable. The following examines how Ohio workers’ compensation laws will apply to COVID-19.

Workers’ Compensation Laws in Ohio

Workers’ compensation law in Ohio requires a causal relationship between a person’s medical condition and their employment. This factor must have come from the scope of a person’s employment activity, even if it was a task that the worker does not frequently perform. Consequently, workers must establish that they developed the condition during the course of employment.

The Relationship Between Ohio Law and COVID-19

Even though Ohio workers’ compensation law has been in existence for some time, a question remains of how an injured worker can establish that they contracted an illness while on the job instead of through a non-work-related activity.

Understandably, it is often challenging for workers to establish that they contracted an illness while on the job. Because COVID-19 is a virus that has spread through many parts of our daily lives, workers will face a challenging task of connecting the virus to a task they performed while on the job.

Injured workers must present medical evidence connecting the injury to work activity, which means that a medical professional must provide an opinion supporting this connection. Ohio law places the burden on workers to establish this connection.

Workers also must eliminate other potential sources that could have resulted in coronavirus. As a result, workers who are interested in establishing a connection between the coronavirus and their position have a difficult road ahead. An experienced workers’ compensation attorney can help establish this connection.

Work at Home Injuries, COVID-19, and Compensation

A slightly related question to pursuing COVID-19 workers’ compensation claims involves workers who are injured while at home. The pandemic has resulted in many Ohio workers having to perform their positions at home. A question remains, however, about what will happen if a person experiences an injury while working from home.

The answer to this question is that workers might have valid Ohio workers’ compensation claims if they can establish that they experienced an injury while working remotely. An injured worker must have sustained the injury while performing employment-related tasks, and not while performing personal activities.

Speak with an Experienced Workers’ Compensation Attorney Today

If you are interested in pursuing a workers’ compensation claim related to COVID-19, you are likely to face many obstacles. To help pursue these claims, it can help to retain the assistance of an experienced attorney. Contact Dworken & Bernstein today to schedule a free case evaluation.

In particular, by “requesting” that commercial landlords and commercial lenders comply with this Executive Order and stating same does not “suspend” any federal or state law, Governor DeWine effectively avoids the complex legal issues and challenges this Executive Order seems to implicate.  On the other hand, if a commercial landlord pursues its legal rights, such an act undoubtedly will cast a bad light on that landlord for pursuing arguably legal remedies which go against the “plea” of the Executive Order. In short, the enforcement and impact of this Executive Order is highly controversial.

In this regard, the Executive Order has three pertinent aspects which include:

1. Landlords being asked to suspend–for a term of at least ninety (90) consecutive days–rent payments for small businesses and commercial tenants in the State of Ohio that are facing financial hardship due to the COVID-19 pandemic;
2. Landlords being asked to allow a moratorium from commencing evictions of small business commercial tenants for a term of at least ninety (90) consecutive days; and
3. Lenders being asked to provide commercial real estate borrowers with a commercial mortgage loan the opportunity for a forbearance of a term of at least ninety (90) consecutive days a result of a financial hardship due to the COVID-19 pandemic.

The Executive Order defines “Lender” as including “any banking organization, bank holding company, credit union, mortgage broker, mortgage loan servicer, master or special servicer, mortgage revenue bond issuer, mortgage revenue bond holder, mortgage loan originator, owning or holding any mortgage loan secured by property located in the State of Ohio, including commercial mortgage-back securities (CMBS) loans.”  Further, “forbearance” is defined as an “agreement to forbear from: (a) enforcing any remedies following any monetary or non-monetary default arising as a result of the COVID-19 pandemic, including the filing of suit against any borrower, maker, co-maker or guarantor, the filing of foreclosure, appointment of a receiver, impounding of reserve or other funds deposited in accord with any loan or security documents, or termination of any license to use cash, or (b) sweeping and/or seizing any cash regardless of a default or the existence of circumstances that may give rise to a cash sweep trigger event arising as a result of the COVID-19 pandemic, or (c) pushing any party to waive any legal rights or admit any default arising as a result of the COVID-19 pandemic.”  It appears these are pleas and not mandates for commercial landlords to refrain from enforcing their contractual rights for at least 90 days.  A copy of the Executive Order can be found at:

https://coronavirus.ohio.gov/wps/wcm/connect/gov/3bd3536c-cf6a-486a-8aa6-3949c55dc2b4/Executive+Order+-+Commercial+Evictions+and+Foreclosures+04.01.20.pdf?MOD=AJPERES&CONVERT_TO=url&CACHEID=ROOTWORKSPACE.Z18_M1HGGIK0N0JO00QO9DDDDM3000-3bd3536c-cf6a-486a-8aa6-3949c55dc2b4-n4TCUhI

While it is clear that the goal of this Executive Order is to stabilize local economies, Landlords and Lenders should evaluate, on a case-by-case basis, whether they should elect to suspend rent and loan payment obligations and evictions as requested in the Order. If a forbearance is chosen, the question becomes how to accomplish this through lease amendments, forbearance agreements or loan modifications.  In doing this, careful consideration should be given when drafting such agreements and close attention should be paid to language regarding the admission of defaults, dealing with guarantor covenants that are no longer being met and how deferred payment obligations are dealt with going forward.  If you have any questions about your rights, obligations and the impact of this Executive Order, please contact Dworken & Bernstein at 440-352-3391 or visit our website at www.dworkenlaw.com.