John Rushford Elected to PBA

Carfardi Ferguson Wyrick Weis + Gabriel llc  is pleased to announce that John Rushford has been elected to the Council of  Pennsylvania Bar Association Education Law Section.

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COVID-19: LEGAL SUPPORT CENTER

We at Cafardi Ferguson Wyrick Weis + Gabriel have been prepared for this type of crisis for years. While our physical offices are closed as a result of the Order issued by Gov. Wolf, our lawyers continue to work without interruption, with full computer access and staff coordination. From our founding, we intentionally set up our business so that all of our lawyers and staff have the capability to work from anywhere, with secure access to our systems and client files. Computers, printing, mailing and every other part of our operation was well prepared for this type of circumstance. Our 21st century capabilities are not as a result of preparations for a crisis, but instead flow from our commitment to deliver cutting edge legal solutions to our many business and local government clients – whenever and wherever they need them. The current coronavirus outbreak is no exception. If you are a business or local government that needs guidance during this difficult time, or even if you simply need ordinary legal help while most everyone else is shut down, please reach out. Our entire team is here and we are open for business.


NEW 04.30: Governor Wolf Signs Extension to HB 1869

Governor Wolf just signed the HB 1869, which extends the coverage of the Heart and Lung Act to any Nation Guard soldier who is called to active duty for the pandemic and also for any employees already covered by the Heart and Lung Act, including the sheriff and deputies, police officers, and firefighters.  If any of those employees contracts the virus or is quarantined because of exposure, they are to be covered by the Heart and Lung Act (which means they get paid their full salary with no deductions) for a period not to exceed 60 days per occurrence.

Here is a link to the bill: HB 1869


NEW 04.15: Order Imposing Additional Employee Safety Measures To Go Into Effect April 19, 2020

WHAT DO YOU NEED TO DO TO PREPARE?

The Office of the Secretary of the Pennsylvania Department of Health issued an Order today imposing additional safety requirements and protocols on businesses in the Commonwealth that must remain open during the COVID-19 pandemic.   The Order requires, among other things, that employers:

  1. Stagger start and stop times when practicable to prevent groups of people from gathering when entering or leaving the premises;
  2. Provide and require employees to wear masks at all times, except when eating or drinking;
  3. Require all customers to wear masks;
  4. Ensure social distancing protocols are being maintained in your buildings, including limiting meetings, setting up break areas to ensure sufficient space between people as well as forward facing seating so that people do not sit across from each other, and limiting people in common areas;
  5. Schedule hourly breaks for handwashing;
  6. Designate a specific weekly time for high-risk and elderly person to use the business if there is a continuing in-person customer-facing component;
  7. Prohibit non-essential visitors for coming in entirely; and
  8. You can see the full list here: https://www.governor.pa.gov/wp-content/uploads/2020/04/20200415-SOH-worker-safety-order.pdf

The Order goes into effect at 8:00PM on April 19, 2020.  Governor Wolf has directed the following state agencies to enforce the order and issue citations, fines, or license suspensions:

  • Pennsylvania Liquor Control Board
  • Department of Health
  • Department of Agriculture
  • Department of Labor and Industry
  • Pennsylvania State Police
  • Local officials, using their resources to enforce closure orders within their jurisdictions.

See https://www.governor.pa.gov/newsroom/gov-wolf-health-secretary-signs-order-providing-worker-safety-measures-to-combat-covid-19/


NEW 04.01: Updated Definition of Emergency Responder

The Department of Labor issued new guidance today on the Families First Coronavirus Response Act, which further updated the definition of an emergency responder.  The new definition has been expanded to include child welfare workers and service providers.  A full copy of the guidance is available at: https://www.dol.gov/sites/dolgov/files/WHD/Pandemic/FFCRA.pdf


Guidance on New Families First Coronavirus Response Act

The U.S. Department of Labor and Industry has posted additional questions and answers regarding implementation of certain provisions of the Federal Families First Coronavirus Response Act. The questions and answers can be found at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.

This information includes the following answer, which is very important for many of our clients:

57. Who is an emergency responder?

ANSWER: For the purposes of employees who may be excluded from paid sick leave or expanded family and medical leave by their employer under the FFCRA, an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA.


Coronavirus Aid, Relief, and Economic Security (CARES) Act – Help for Your Business

By: Christopher A. Cafardi at ccafardi@cfwwg.com or 412.779.4337

On March 25, the Senate unanimously passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act – the third COVID-19 relief package to help workers, families, hospitals and their staff, small businesses, and the unemployed during this crisis. On March 27, the House of Representatives passed the CARES Act and it was signed into law by the President. This is a period of uncertainty for many small businesses. The CARES Act was designed by the Federal Government to provide assistance not only to individuals (in the form of direct payments), but also to small businesses.

What relief is included in the CARES Act for small businesses?

  1. Paycheck Protection Program (PPP): The law includes nearly $350 billion to create a Paycheck Protection Program that will provide small businesses, nonprofits, and other entities with zero-fee loans of up to $10 million based on average monthly payroll costs. Up to eight weeks of average payroll, mortgage interest, rent, and utility payments can be forgiven if the business retains its employees and their salary levels. Principal and interest payments can be deferred for up to a year, and all SBA borrower fees are waived. This temporary emergency assistance through the U.S. Small Business Administration (SBA) and the Department of Treasury can be used in coordination with other COVID-financing assistance established in the law or any other existing SBA loan program.
  2. Small Business Administration (SBA) Loans: The law also includes $17 billion to further ease the burden on small businesses that use SBA loan products. Under the law, the SBA will cover all loan payments for existing SBA borrowers, including principal, interest, and fees, for six months. The loan amount is based on average total monthly payments for payroll for the 12-week period beginning February 15, 2019, or at the election of the eligible recipient, March 1, 2019, and ending June 30, 2019.
  3. Emergency Economic Injury Grants: The law includes $10 billion in funding for a provision to provide an advance of $10,000 to small businesses and nonprofits that apply for an SBA economic injury disaster loan (EIDL) within three days of applying for the loan. EIDLs are loans of up to $2 million that carry interest rates up to 3.75% for companies and up to 2.75% for nonprofits, as well as principal and interest deferment for up to 4 years. The loans may be used to pay for expenses that could have been met had the disaster not occurred, including payroll and other operating expenses.
    • The EIDL grant does not need to be repaid, even if the grantee is subsequently denied an EIDL, and may be used to provide paid sick leave to employees, maintaining payroll, meet increased production costs due to supply chain disruptions, or pay business obligations, including debts, rent and mortgage payments.
  4. Refundable Tax Credits: IRS will be posting information soon on these credits on its website (www.irs.gov), including information on how to obtain advance payment of these credits.
  5. Payroll Taxes: The law defers payroll taxes through the end of 2020. Deferred taxes will not become due until end of 2021 and end of 2022, with 50% of the liability being paid at each date.
  6. Employee Retention Tax Credit: is available for struggling businesses that are not eligible or choose not to participate in the new SBA Paycheck Protection Program.

Is my small business eligible for relief?

  1. Paycheck Protection Program (PPP): This relief is available for small businesses, 501(c)(3) nonprofits, 501(c)(19) veterans organizations, or Tribal businesses with not more than 500 employees who were in operation on February 15, 2020. It is also available to sole proprietorships, independent contractors, and eligible self-employed individuals.
  2. Small Business Administration Loans: This relief will be available to existing SBA loan borrowers and new borrowers who take out an SBA loan within six months after the president signs the law. Each program has different requirements, go to www.sba.gov/funding-programs/loans for more details.
  3. Emergency Economic Injury Grants: The grant is available to small businesses, private nonprofits, sole proprietors and independent contractors, tribal businesses, as well as cooperatives and employee-owned businesses. Eligible grant recipients must have been in operation on January 31, 2020.
  4. Refundable Tax Credits: The law makes the credits available for private-sector employers that are required to offer coronavirus related paid leave to employees.
  5. Payroll Taxes: Any business that does not have a loan forgiven under the new SBA Paycheck Protection Program is eligible for the payroll tax deferral.
  6. Employee Retention Tax Credit: The law provides a refundable payroll tax credit for 50% of wages paid by employers to furloughed or reduced-hour employees during the COVID-19 crisis.

SBA lenders are still awaiting guidance from the SBA regarding what the application process for any of the forms of assistance referenced above will be. Business owners should compile necessary expense documentation so that they are ready to complete the application process when it is finalized.

For additional information regarding how the CARES Act may apply to your company, please contact Christopher A. Cafardi at www.cfwwg.com or 412.515.8900.


Understanding Emergency Sick Leave, Emergency FMLA, and Expanded Unemployment Compensation for Businesses and Local Governments

During this pandemic, a big issue for every employer has been how to handle their employees—whether to continue to maintain their employment, pay them, or lay them off and rely on their ability to collect unemployment compensation benefits.

There have been several recent laws that have addressed these issues. First, on March 18, 2020, the President signed the Families First Coronavirus Response Act. It becomes effective on April 1, 2020, and it provides paid sick leave and expanded FMLA benefits to employees who are unable to work or telework due to COVID-19 related issues. These benefits are in addition to any benefits your company or municipality already provides.

Paid Sick Leave:

A full-time employee unable to work or telework due to the following is entitled to up to 80 hours of paid sick leave at his or her regular rate of pay:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID– 19.
  3. The employee is experiencing symptoms of COVID– 19 and seeking a medical diagnosis.

A full-time employee unable to work or telework due to the following is entitled to up to 80 hours of paid sick leave at 2/3 his or her regular rate of pay:

  1. The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).
  2. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.
  3. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Part-time employees also receive paid leave based upon their average hours worked.

Expanded FMLA:

The expanded FMLA applies to all public entities and private employers with less than 500 employees. This is different than regular FMLA which does not apply to private employers with less than 50 employees. In addition, to be entitled to this FMLA benefit, an employee only needs to have been employed for 30 calendar days.

Qualified employees can receive up to an additional 10 weeks of expanded FMLA at two-thirds their regular rate of pay if the employee is unable to work due to a bona fide need to care for a child whose school or child care provider is closed due to COVID-19.

Unemployment Compensation:

On March 27, 2020, the President signed the CARES Act into law. It provides various benefits for individuals and businesses to handle the financial ramifications of this pandemic. Part of the CARES Act is the Relief for Workers Affected by the Coronavirus Act, which provides, among other things, expanded unemployment compensation benefits for individuals who suffered a loss of employment or a reduction in hours as a result of COVID-19. Specifically, the Act provides:

  1. Covered Individuals: The Act specifically applies to only unemployment resulting from the COVID-19 pandemic and sets for specific basis for which it applies. In addition to employees who are unable to work or suffered a reduction in hours, it also applies to self-employed individuals. It does not apply to individuals who can telework with pay or individuals receiving sick leave or other paid leave benefits (this would include the paid sick leave and expanded FMLA detailed above).
  2. Federal Pandemic Unemployment Compensation: The Federal government is providing an additional $600 per week in unemployment compensation to employees. This is in addition to the State benefit the employee would receive.
  3. Effective Period: The effective period shall be January 27, 2020 – December 31, 2020. The period shall not exceed 39 weeks. The Secretary of Labor is charged with determining how it will apply retroactively.
  4. No waiting week.
  5. Reimbursements: The Act provides that the State shall receive Federal funds to reimburse governmental entities and non-profit organizations for amounts paid into the State unemployment funds for the period of March 13, 2020 through December 31, 2020. It is not clear how these reimbursements will be disbursed to local governments.
  6. Relief From Charges: Apart from the Act, Pennsylvania Office of Unemployment Compensation, has confirmed that contributory businesses will be granted Relief from Charges and their tax rates will not be increased due to COVID-19 related claims. https://www.uc.pa.gov/COVID-19/Pages/Employer-COVID19-FAQs.aspx

The intention of the law is to provide federal money to supplement any benefits the employee is eligible to receive from the state. It leaves it up to the individual states to work with the Secretary of Labor to reach agreements and to figure out how administratively it will be applied. It is expected that guidance will be issued by the Secretary of Labor and the Office of Unemployment Compensation, which will provide additional details to employees and employers. We will continue to monitor that, but you may also find additional information at https://www.uc.pa.gov/Pages/covid19.aspx.

If you have questions about the Family First Coronavirus Response Act or Relief for Workers Affected by the Coronavirus Act and how they impact you, please contact Christopher Gabriel at cgabriel@cfwwg.com or 412.328.5853 or Stephanie Fera at sfera@cfwwg.com or 814.594.9201


Pennsylvania Supreme Court Closes Courts to the Public Statewide

In an effort to further restrict potential COVID-19 exposure within the courts, the Pennsylvania Supreme Court announced on March 18, 2020 that all Pennsylvania courts – including trial and intermediate appellate courts – are closed to the public for non-essential functions through at least April 3, 2020.

The statewide court closure also includes magisterial district courts, Philadelphia Municipal Court, and Pittsburgh Municipal Court, Arraignment Division. In addition, the Court has suspended all time calculations and deadlines relevant to court cases or other judicial business through April 3, 2020. The Court has also authorized and encouraged the use of advanced communication technology to conduct emergency court proceedings.

In the Courts of Common Pleas, the Order outlines essential functions as:

  1. Emergency bail review and habeas corpus hearings;
  2. Gagnon 1 hearings;
  3. Bench warrant hearings pursuant to Pennsylvania Rule of Criminal Procedure 150;
  4. Juvenile delinquency detention;
  5. Juvenile emergency shelter and detention hearings;
  6. Temporary protection from abuse hearings;
  7. Emergency petitions for child custody;
  8. Emergency petitions for guardianship;
  9. Civil mental health reviews (50 P.S. §302)
  10. Any pleadings or motions relating to public health concerns and involving immediate and irreparable harm; and
  11. Any other function deemed by a president judge to be essential consistent with constitutional requirements.

In addition, court calendars, scheduling notices, subpoenas or other court orders compelling appearance by any attorney, litigant or other participant in non-essential cases are continued or postponed until further order.

Except for ongoing trials, jury and non-jury trials (both criminal and civil) are suspended and jurors do not need to report for duty on or before April 3, 2020.

The Court has offered the following guidance to magisterial district courts, Philadelphia Municipal Court, and Pittsburgh Municipal Court, Arraignment Division (minor courts) with regards to essential functions:

  1. Preliminary arraignments (bail setting) for bailable cases;
  2. Criminal case filings and subsequent processing;
  3. Preliminary hearings for incarcerated persons only;
  4. Issuance of search warrants; and
  5. Emergency protection from abuse petitions.

The Court’s Order also directs that, during the period of judicial emergency, no eviction, ejectment or other displacement from a residence based on failure to make payment can be made. It also suspends Rule of Criminal Procedure 600 in all judicial districts.

Unless otherwise designated by a President Judge, all other cases pending are postponed.

Minor courts are directed to accept payments by mail, electronically (online), or by telephone where possible.

Additional information about the impact of COVID-19 on court operations is available online, at http://www.pacourts.us/ujs-coronavirus-information.

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Guidance on New Families First Coronavirus Response Act

Update: 3/30/2020

The U.S. Department of Labor and Industry has posted additional questions and answers regarding implementation of certain provisions of the Federal Families First Coronavirus Response Act. The questions and answers can be found at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.

This information includes the following answer, which is very important for many of our clients:

57. Who is an emergency responder?

ANSWER: For the purposes of employees who may be excluded from paid sick leave or expanded family and medical leave by their employer under the FFCRA, an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.

To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA.


Yesterday, the Department of Labor Wage and Hour Division issued guidance on the New Families First Coronavirus Response Act. The Act, which will take effect on April 1, 2020, provides paid leave to employees for Coronavirus related absences.

Under the Act, all employees are entitled to up to eighty hours of paid sick leave at their regular rate of pay when an employee is unable to work (or telework) because of one of the following reasons:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID– 19.
  3. The employee is experiencing symptoms of COVID– 19 and seeking a medical diagnosis.

All employees entitled to up to eighty hours of paid sick leave at two-thirds their regular rate of pay if they are unable to work (or telework) because of one of the following reasons:

  1. The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).
  2. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.
  3. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

In addition, employees who have been employed for at least 30 days, can receive up to an additional 10 weeks of expanded FMLA at two-thirds their regular rate of pay if the employee is unable to work due to a bona fide need to care for a child whose school or child care provider is closed due to COVID-19.

Some employers were reading the Act’s language as discretionary as to whether to credit time off prior to April 1st as Emergency Sick Leave or the Expanded FMLA leave; however, the Department of Labor’s Guidance answers that question in the negative. The Act is not retroactive and employees are not entitled to the leave it provides until April 1st.

Employers are required to post notice of the Act’s requirements in a conspicuous place in the workplace. If you have employees working from home, you must also email or direct mail the notice to your employees or post it on your website. The poster from the Department of Labor is available here: FFCRA_Poster_WH1422_Non-Federal

Helpful Links:

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Pennsylvania Governor Orders all Non-Life Sustaining Businesses to Close

You can view the official order of the governor here:

A List of Non-Life Sustaining Businesses can be downloaded here:

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COVID-19: LEGAL SUPPORT

UPDATE: PA Governor Orders All Non-Life Sustaining Businesses To Close


We Stand Ready

The lawyers of Cafardi Ferguson Wyrick Weis + Gabriel stand ready to assist local governments and businesses with all of their legal needs related to the Coronavirus outbreak. We have expertise in local government labor and employment law and business operations, and we also have county and municipal solicitors on staff to provide expertise about emergency powers of local governments in crisis situations. We don’t just provide our clients cell phone numbers for our lawyers when there is a crisis, because personal connection and immediate responsiveness to our clients is the normal way we do business.

Many of you have been in contact with us over the last few weeks as the outbreak has occurred. We are in constant communications with local officials regarding their emergency declarations and related powers, as well as their labor and employment issues arising from this crisis. Local businesses are also responding to the emergency, and we are advising them regarding reduced operations and employment issues related to temporary closures and service reductions.

From our experience both before and during this crisis, we recommend local government officials focus their energy on 3 areas for the immediate future:

Three Key Areas of Focus:

  1. Understanding and Exercising their Emergency Powers Regarding the Public
  2. Analyzing and Reducing their Operations
  3. Understanding and Preparing for Labor and Employment Issues that Will Arise

We have prepared this brief, issue-spotting guide for your use, so that you can have a checklist of things that you should be dealing with right now. We have also included some links to helpful resources where you can find reliable, up to date information.

If you need assistance with any of these things, know that, as always, our team is just a phone call, text, or email away.



Priority Checklist

1. What emergency powers does my County/Municipality Have?

Mayors of Third Class Cities and Boroughs have broad emergency powers under the Third Class City Code and the Borough Code. (See 11 Pa.C.S. § 11203; 8 Pa.C.S. §10A06).

All local government entities have emergency powers under the Emergency Management Services Code. (See 35 Pa.C.S. §7101; §7105).

Counties and some Municipalities also have Emergency Powers under their Boards of Health if they have established them. These generally will overlap.

2. Do we have to continue to hold public meetings?

No. You can cancel meetings at least temporarily.

If you need to continue holding meetings, you can satisfy the quorum and voting requirements telephonically. The Office of Open Records recommends that you make accommodation for public participation in meetings, but acknowledges that this likely can be avoided under a Disaster Emergency Declaration.

In addition, the law specifically allows local governments to suspend formal requirements for bidding and purchasing and many other things under a Disaster Emergency.

3. Should we close or reduce operations?

Yes. As of March 18, both the State and Federal government have recommended or required non-essential businesses to close and are recommending people not assemble in groups of more than 10 people.

4. How do we decide who is, and who is not, an essential employee if we want to reduce operations?

Some calls are easy, others will be harder. County jail guards and 911 dispatchers, for example, are essential. Many other local government employees are not in the sense that their services could be suspended for 1-2 weeks without significant disruptions.

Each entity will have to evaluate its work force for itself, but generally we recommend asking whether or not the entity and the public can do without the service provided by each group of employees for: 1 week, 2 weeks, or longer. For many offices, this answer will be “yes” in the short term. Consider also that most offices can be run short-staffed for the intermediate or longer term.

5. Can we require employees or members of the public to submit to a forehead scan to see if they have a fever before entering our offices?

We support this decision if you make it, and we likely would do this if large numbers of people visited our offices.

That being said, there is no easy answer to this question from a legal standpoint. The EEOC suggests that employers may be able to do this without being subject to claims of discrimination. But that is advice for private employers and does not take into account the question of whether such a scan is a search under the 4th Amendment, which is an important consideration for public employers. This is an emergency, and safety is the first consideration. Legal questions with no obvious answer may just have to wait.

6. Can we require employees who are home sick to get a medical certification from their doctor certifying that they are free from Coronavirus before they return to work?

Yes, we can require a medical certification to return to work, but keep in mind that there are limited testing kits available and generally people are being discouraged from seeking medical care unless their symptoms are more serious. It may be impractical to require such a certification at this time. This may change if testing becomes more available. For now, the best practice is to advise employees not to return to work, until they have been symptom free for at least 3 days.

7. Can we require employees who are sick, or who have traveled to areas with known Coronavirus outbreaks to remain home?

Yes, you can require employees who are sick to stay at home. In addition, you can also require employees to disclose personal travel to affected areas and limit their return until it is clear that they did not contract the virus, which is typically a period of 14 days.

8. If we close or reduce operations, do we have to pay our employees?

The law does not require you to pay non-exempt employees for time that they do not work. You are not required to continue to pay your rank and file employees if they are off and not working. However, exempt employees are going to be entitled to their full wages if they perform any work while they are at home. This includes checking their emails.

Employees may be permitted to utilize their paid leave for any absences, and employees who are not receiving pay may also be entitled to unemployment compensation benefits during this time.

In fact, the State Unemployment Compensation Office has relaxed some of the requirements, including the waiting week requirement, for employees to receive unemployment compensation.  They have put out a fact sheet of frequently asked questions, which is available by following the link here.

9. If we want to pay our employees, or make changes to our paid time off benefits like sick leave, will we have a problem with our unions?

This is an emergency situation and so we have helped many of our clients make changes quickly. Generally speaking, the unions are asking for employees to be sent home and for employers to be flexible with leave policies. If what you are doing is enhancing the employees’ ability to be home and receive pay, the unions are likely to work with you and/or not object to emergency measures.

If you require assistance with these issues, please call us.

10. Can employees take FMLA leave for this?

Illness in the nature of the flu or other respiratory infections are not normally covered by FMLA unless they result in a “course of continuing treatment,” however, the Families First Coronavirus Response Act has recently been passed.  As detailed more fully below, it provides expanded FMLA leave for Coronavirus related absences from work.


FAMILIES FIRST CORONAVIRUS RESPONSE ACT

The Families First Coronavirus Response Act was enacted on March 18, 2020, and will be effective within 15 days. The Act provides paid sick leave and free coronavirus testing, expands food assistance and unemployment benefits, and requires employers to provide additional protections for health care workers. There are two components that will govern the payment of sick leave for employees absent from work due to the Coronavirus.

The first is the Emergency Paid Leave Act, which provides full time employees with up to two weeks (80 hours) of paid sick time if the employee is unable to work (or telework) due to:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID– 19.
  3. The employee is experiencing symptoms of COVID– 19 and seeking a medical diagnosis.
  4. The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).
  5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

An employer of healthcare providers or emergency responders may exclude those employees from the payment of sick leave provided under this Act.

Part-time employees are also entitled to leave for the reasons above based upon their average weekly hours over a two-week period.

The sick leave under this Act shall be in addition to any leave already provided by your municipality, and may be used before any paid leave to which the employee is already entitled.

Employees entitled to compensation under this Act shall receive their regular rate of pay or at most $511 per day and $5,111 in the aggregate if absent for reasons (1) through (3) above. Employees absent for reasons (4) through (6) above are entitled to at least two-thirds (2/3) of their regular rate of pay or at most $200 per day and $2,000 in the aggregate.

The second is the Emergency Family and Medical Leave Expansion Act, which expands the FMLA to provide up to 10 weeks of paid leave to eligible employees who need to be off work due to a “qualifying need related to a public health emergency”, which means “the employee is unable to work (or telework) due to a need to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed or the child care provider of such son or daughter is unavailable.”

Note that the applicability for entitlement to this Emergency FMLA is expanded to all employers with less than 500 employees and to be eligible for paid leave under this Act, an employee need only to be employed for 30 calendar days.

The first 2 weeks of leave can be unpaid (or the employee may elected to use his or her paid leave) and the remaining 10 weeks of leave will be paid at an amount of not less than two-thirds (2/3) the employee’s regular rate of pay calculated in accordance with the FLSA; provided however, that the benefit shall be capped at $200 per day and $10,000 in the aggregate.


Recommended Resource Links

Posted in General News Comments Off on COVID-19: LEGAL SUPPORT

Cafardi Ferguson Wyrick Weis + Gabriel llc and the Law Office of Meg Burkardt Announce Merger

Promotion of Meg Burkardt, John Rushford and Andrew Gabriel as Members!

Effective January 1, 2020, Cafardi Ferguson Wyrick Weis + Gabriel, llc (“CFWW+G”) is excited to announce its merger with the law practice of Meg Burkardt, Esq., allowing both firms to better serve their clients by offering a much broader range of legal services at two convenient locations. CFWW+G is also excited to announce the promotion of Meg Burkardt, John Rushford and Andrew Gabriel as Members.

Meg L. Burkardt joins CFWW+G as a Member. Meg is a third generation estate planning attorney. She began practicing law with her father, Robert F. Burkardt, in 1988. Over the years, she developed a general law practice with a focus on estate planning and administration. Meg is experienced at crafting estate plans that meet her clients’ needs.


John Rushford has been promoted to Member of CFWW+G. John has over 20 years of experience representing school districts and municipal governments in all areas including special education, due process hearings and federal court litigation. He represents public and private entities in matters related to governmental affairs including: contract negotiations; grievance arbitrations; personnel matters; construction issues; tax assessment appeals; zoning; planning; and development issues.


Andy Gabriel has been promoted to Member of CFWW+G. Andy is a patent attorney with extensive experience obtaining patents for clients predominantly in the technology sector. In addition to the preparation and prosecution of patent applications, Andy also has experience in patent and trademark litigation, as well as experience obtaining trademark registrations. He has represented clients before the U.S. Patent and Trademark Office and has worked with foreign attorneys to obtain patents for clients internationally.


Cafardi Ferguson Wyrick Weis + Gabriel, llc is a law firm comprised of 13 attorneys with offices located in Wexford, PA and Oakmont, PA. CFWW+G provides legal representation in transactions, litigation and legal counseling. Our attorneys average more than 20 years of experience in their areas of practice.

Main Office: 2605 Nicholson Road, Suite 2201, Sewickley PA 15143

Oakmont Office: 647 Allegheny Avenue, Suite 100, Oakmont PA 15139

Contact Keisha Borselli – 412.515.8900 or kborselli@cfwwg.com with any questions.

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When Local Government and the PUC Intersect

Understanding the Impact of the Commission’s Regulatory Authority

If your township finds itself in the middle of a utility-related hearing, rate case, or complaint, you will need to understand the Pennsylvania Public Utility Commission’s powers, rules, and regulations to successfully navigate what could be a rather complicated proceeding.  Experienced legal counsel, consultants, or accountants may be critical as well.

By Neva Stotler, Esq. / Cafardi Ferguson Wyrick Weis + Stotler, LLC
And Jonathan Nas, Esq. / Cozen O’Conner

This article first appeared in the June 2019 issue of PSATS Magazine.

Once upon a time in Pennsylvania, a borough disbanded its municipal authority and began providing water service through its own water department.  The borough painstakingly followed the dissolution process in the Municipality Authorities Act but underestimated the impact of the authority having long provided service in a neighboring township.

When the borough attempted to raise rates, a customer in the neighboring township filed a complaint with the Pennsylvania Public Utility Commission (PUC), resulting in an enforcement action for operating a public utility without a certificate of public convenience and civil penalties of up to $1,000 per day.

Convinced that regulary crossing over railroad tracks had taken its toll on his vintage truck, a borough resident filed a complaint with the PUC, and the borough found itself in unfamiliar state regulatory proceedings.

In a neighboring community not so far away, a longtime borough resident decided he was tired of the bumpity-bump of the railroad tracks crossing a borough street.  He had replaced the shocks on his vintage pickup truck twice of the last year and a half.  A quick search on Goggle directed him to the PUC’s jurisdiction over railroad crossings.  He filed a formal complaint with the PUC and soon, the county, borough, railroad, utility companies, resident, and PUC were visiting the tracks, submitting information to the PUC, and attending hearings in Harrisburg to determine whether the crossing was a hazard to the traveling public.

Sometimes, well-intentioned municipalities inadvertently fall subject to the PUC’s authority.  PUC administrative proceedings are unique, potentially involving a wide range of parties, including the PUC’s Bureau of Investigation and Enforcement, the Office of Consumer Advocate, the Office of Small Business Advocate, and customers.  Because of the unique and sometimes complicated matters of a PUC administrative proceeding, particularly a rate case, experienced legal counsel can be helpful in navigating these strange waters, and even better, for preparing a strategy to do so.

This means that township officials need to know, understand, and prepare for the specific powers of the PUC that could affect them.

Crossing paths with the PUC

Townships may find themselves crossing paths with the PUC in the following circumstances:

  • Creating a public utility, expanding its service territory, or changing its ownership — If a township wants to provide utility service to the public for compensation outside it’s municipal boundaries, it must obtain a certificate of public convenience from the PUC.  This certificate authorizes the municipality to provide a certain type of service, such as water, in a specific territory.

For the utility to provide that service in a different territory or provide a different type of service, such as sewer, the municipality must obtain a new certificate of public convenience authorizing it to provide that service in that territory.

In the first situation above, the borough should have filed for a certificate of public convenience before it disbanded its municipal authority.  Another option would have been for the borough to file a petition with the PUC asking it to find that a certificate of public convenience is not necessary based on unusual circumstances, such as providing service to a very small number of customers outside its boundaries.

Once a municipality obtains a certificate of public convenience to serve a territory, it must obtain another certificate of public convenience to stop providing service in that territory.  Generally, these proceedings involve a sale of the system to another municipality or an investor-owned utility.

A recent state law that changed the way municipal water and wastewater systems are valued when they are sold to investor-owned utilities’ has encouraged some local governments to sell their municipal systems.  The PUC must approve such transactions.

  • Rates charged by public utilities — Perhaps the most common way that the PUC affects local governments is by setting rates for a municipal utility system.  This can occur by a customer outside the municipality filing a complaint with the PUC, usually alleging that the municipality is not charging the rates in its commission-approved tariff.  More frequently, the municipality is the party filing the case, seeking commission approval to raise rates to customers outside the municipality.

To raise rates, a regulated municipal system must file a rate case with the commission, generally 60 days before the increase will take effect.  The municipality also must provide notice of the proposed rate increase to customers, who can file comments on the increase of complaints against it.  The commission can suspend the rate increase for an additional seven months to investigate it.

Municipalities filing a rate case would consider consulting with specialist in this area.  The PUC has certain rate-making methodologies, often foreign to even the most seasoned accounting professionals, that should be used in preparing a rate case.  As a result, a rate consultant or an accountant experienced in public utility matters is essential to successfully navigate the PUC process and coming out on the other side with a rate that can sustain the operation.

  • Quality of facilities and services — The Pennsylvania Public Utility Code requires public utilities, including municipal systems subject to PUC regulation, to furnish and maintain adequate, efficient, safe and reasonable service and facilities.  The PUC has interpreted this law very broadly as appealing to everything from failing provide potable water to failing to adequately communicate with customers about service issues.

If a customer files a complaint with the PUC and the parties cannot reach a settlement, the municipality would need to defend itself in a trial-type proceeding, which can be expensive and time-consuming.

  • Rail-highway crossings — The PUC has jurisdiction over the intersection of railroads and highways of streets.  This authority is not limited to at-grade crossings; it also includes bridges carrying a highway over train tracks and railroad bridges over highways.  Specifically, the commission regulates the construction, alteration, or removal of rail-highway crossing to promote public safety.

Generally, these proceedings begin with an application filed with the commission and served on affected parties, including the county and city, borough, or township where the crossing is located.  Many of these cases are resolved by an agreement among the parties, but, if necessary, the matter is referred to an administrative law judge for hearings.

Significantly, the commission has the authority to allocate the costs of the project among the parties, including local governments.  In some cases, the commission has held a local government did not have the financial resources to pay those costs.

  • Contracts between local governments and public utilities — Contracts between local governments and public utilities must be submitted to, and approved by, the PUC before taking effort except for contracts for the provision of public utility service at regularly tariffed rates.  The failure to make the required filing renders any such contract invalid in the eyes of the law.

This provision is particularly important if a neighboring municipality sells its utility system.  For example, suppose a borough has a wastewater treatment plant and enters into a contract with a neighboring township to receive and treat sewage from that township.  If the borough sells its treatment plant to an investor-owned utility, the township’s contract with the borough would need to be assigned to the utility.  As a result, the contract would ow be the township and the utility, which means the PUC must approve the assignment of the contract.

In some cases, the commission has held a local government responsible for certain costs despite claims that the local government did not have the financial resources to pay those costs.

Involved in a PUC proceeding?

Here’s what to do if your township finds itself involved in a PUC proceeding:

  • Move quickly — The time frames for responding to PUC complaints are usually short, and opportunities to extend these period are limited.
  • Assemble a team — Consultants and professionals with PUC experience can steamily the process and protect your interests.  They work faster in the PUC space and know the relevant players.

Talk to your solicitor. In this situation, your solicitor may be like a family doctor who is able to identify a problem and, if necessary, refer you to a specialist who can help you address it by facilitating the assembly of the right team for a particular issue.

  • Get educated — The Public Utility Code can be found at Title 66 of the Pennsylvania Consolidated Statutes, and the PUC’s regulations can be found at Title 52 of the Pennsylvania Code.  PUC decision are public documents available at www.puc.state.pa.us.
  • Self-audit — With the information provided here, you can begin to thin about where your community might intersect with PUC regulations.  You can anticipate issues based on the services you provide.

There may be other ways to provide the service outside of PUC regulation, other ways to structure a deal, or early maintenance efforts to avoid complaints.

About the authors: Neva L. Stotler, Esq., is a member of the law firm Cafardi Ferguson Wyrick Weis + Stotler, LLC.  She counsels local government clients in all aspects of municipal law.  Jonathan Nas, Esq., is of counsel with the law firm of Cozen O’Conner.  Before joining the firm, Jonathan served as the deputy director-legal of the PUC’s Office of Special Assistants, where he supervised attorneys drafting orders and decisions for the PUC.  He counsels public and private clients in utility law.

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Nicholas Cafardi comments on Prime Minister Candidate

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Intellectual Property Practice

CFWW+S is pleased to announce the addition of an intellectual property (IP) practice to the firm’s offerings. Andy Gabriel is the head of the IP practice at CFWW+S. Andy was born and raised in DuBois, Pennsylvania and now lives in the North Hills of Pittsburgh.  Andy has an advanced physiology degree from Penn State College of Medicine and his law degree from the University of Pittsburgh.  Andy is a patent attorney and he has joined CFWWS with extensive experience obtaining patents for international Fortune 100 companies as well as smaller companies and innovative startups, predominantly in the areas of computer software, robotics, and industrial equipment.  Andy also helps clients with trademark registration, IP acquisition and licensing, competitive intelligence, landscape reports, and other IP related matters, including litigation.

CFWW+S is capable of handling all types of IP cases, from straightforward to complex. We take a client focused approach to IP cases and will work with you to tailor the type of IP service to your particular needs, at cost-effective and competitive rates.

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