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 Amanda Gordon, Margaret O’Bryon, Amy Wojnarwsky and Kevin Butler, you’ll find insights into areas of law we’re watching on your behalf.

In today’s edition:

  • Treasury issues final rule on ARPA’s $350 billion state, local government relief fund
  • Ensuring ESG success after the M&A transaction
  • VSSR claims: Additional ways for Ohio employees to recover from employers

Treasury issues final rule on ARPA’s $350 billion state, local government relief fund

Last week the U.S. Treasury Department issued its final rule governing the use of state, county and local government funding under the 2021 American Rescue Plan Act (ARPA), the Biden administration’s signature COVID-19 relief bill. The rule finalizes government’s use of $350 billion in ARPA money set aside under a portion of the aid package known as the State and Local Fiscal Recovery Fund (SLFRF).

Recipient governments may use SLFRF monies to replace pandemic-related lost tax revenue, increase compensation to essential workers, make grants to businesses, nonprofits and households affected by the pandemic, and invest in public health, water or broadband infrastructure. The final rule, in many respects, reflects the guidance found in the earlier interim final rule regarding these funds—but it also provides further clarity regarding the eligible uses of SLFRF dollars, simplifies governments’ calculation of revenue losses, and offers broader flexibility in some instances by expanding eligible criteria for local governments’ use of ARPA funds. An overview of the rule may be found here.

The Pubic Law team at McDonald Hopkins continues to analyze the final rule and related regulations as it counsels various clients regarding this landmark funding. We anticipate providing a webinar on these matters in the coming weeks to best serve clients and stakeholders from the government and nonprofit arenas (tip: keep our Events page bookmarked). Meanwhile, feel free to contact Amanda Gordon, Teresa Metcalf Beasley, Kevin Butler or any of us for your more immediate needs and questions regarding ARPA funding.

Ensuring ESG success after the M&A transaction

In the fourth and final installment of the M&A and ESG series co-authored by McDonald Hopkins and Epoch Pi, our colleague Amy Wojnarwsky last week discussed best practices following the closing of mergers and acquisitions as those practices relate to environmental, social and governance principles. “Mergers and acquisitions produce a transition period,” she writes, “and with that can come uncertainty and restructuring, which has the potential to cause a significant threat to ESG programs.” Read more from Amy on avoiding those threats here.

ESG will continue to change business strategies, including mergers and acquisitions, and McDonald Hopkins is here to assist clients with their general corporate governance matters or plans for future acquisitions or sales in the ESG space. Feel free to read over Amy’s first, second and third installments in this series before reaching out to her for guidance.

VSSR claims: Additional ways for Ohio employees to recover from employers

Today our colleague Margaret O’Bryon, a veteran law director, prosecutor and workers’ compensation defense attorney, offers the following primer on claims leveled against Ohio employers, both public and private, for violations of specific safety requirements, or VSSRs. VSSR claims are a way for employees to add to their recovery under the workers’ comp system, which ordinarily bars lawsuits by employees against their employers for workplace injuries. Here Margaret provides a synopsis of the VSSR application process, potential employer penalties, the investigation process, the hearing process, settlement issues, and defenses and recommendations.

Dating back to 1924, the Ohio constitution has empowered the state’s Industrial Commission to grant additional awards of compensation to any employee whose injury, disease or death was caused by an employer’s violation of a specific safety requirement. Those safety requirements are provided in Part 4123-1 of the Ohio Administrative Code and are categorized mainly by occupation.

To receive an award, the employee must show an applicable safety requirement was in effect at the time of his or her injury; the employer failed to comply with the requirement; and the employer’s failure to comply was the proximate cause of the employee’s injury, disease or death.

If a violation is found, the Industrial Commission may order the employer to pay the employee directly between 15 and 50 percent of the maximum compensation rate for the year of injury to the employee, depending on the egregiousness of the violation, the employer’s safety record and the severity and extent of the injury. Additionally, the Revised Code authorizes the Industrial Commission to impose upon an employer a civil penalty up to $50,000 if the employer has two or more safety violations within a two-year period.

The employee must have an allowed workers’ compensation claim in order to file an application for an additional VSSR award (IC-8/9 form), which must be made within a year of the injury. Once an application is filed, the Bureau of Workers’ Compensation will conduct an onsite investigation and file a report with the Industrial Commission. After the filing of the investigation report, a prehearing conference will be scheduled to clarify issues and to schedule a merits hearing date. If the employer wants to introduce new evidence or witnesses at the merits hearing, the employer must request a record hearing and pay for court reporter. Unlike normal Industrial Commission hearings, there is no appeal from merits-hearing decisions; to challenge an award, the employer must request a rehearing within 30 days of the order.

Because of the employer risks involved in a VSSR claim, most employers will settle the VSSR claim before the merits hearing. Employers should always consider settling all issues between the employee and employer when settling the VSSR claim, including the underlying workers’ compensation claim, employment claims and any other lawsuit such as an intentional tort lawsuit.

It is important to remember that the Industrial Commission will deny a settlement of the VSSR claim if the commission determines that the settlement is not fair to either party. Further, the application for settlement of the VSSR claim must be submitted and approved before settlement of the worker’s compensation claim can befiled. Finally, it is recommended that the employer also obtain a separate employment release.

Unlike underlying workers’ compensation claim standards, VSSR standards are strictly construed in the employer’s favor. If the employee does not follow the employer’s safety guidelines or fails to use safety equipment, the employee will not entitled to a VSSR award. The safety requirement must be specific enough for employers to understand their obligation to their employees and certain safety requirements apply to specific designated industries.

As you can imagine, VSSR claims can be very costly for employers, but Margaret and our workers’ comp defense attorneys can mitigate those costs by providing up-front guidance before claims are filed and carefully mapping out strategies with clients if they are—all while (as necessary) appearing in the case, preparing employers for the investigations, supplying all required documents in a timely manner, interviewing witnesses, preparing the site before an investigator arrives, obtaining expert witness reports, representing clients at the prehearings and merits hearings, and preparing settlement documents and overseeing settlement discussions.

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

Teresa Metcalf Beasley
Chair, Public Law

Kevin Butler
Monday Message Editor
Of Counsel, Public Law

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