Which Tax and Retirement Deductions Must Be Taken from FFCRA Emergency Paid Leave?

THIS BLOG POST HAS BEEN UPDATED ON APRIL 24, 2020.

When employers make payments to employees under the new emergency paid leave provisions of legislation enacted to address the COVID-19 crisis, they will not take out deductions for social security, but they will take out all other normal deduction – federal and state income tax, Medicare, and contributions North Carolina state and local government employee retirement systems. This blog post explains why. At the conclusion of the blog post are a series of frequently asked questions and answers about FFCRA emergency paid leave and the social security tax exemption. Read more »

Governor Cooper’s COVID-19 Statewide Stay at Home Order: What Effect Does It Have On County and City Emergency Restrictions?

In response to the escalating COVID-19 crisis, Governor Roy Cooper issued Executive Order 121 imposing a series of statewide restrictions, prohibitions, and directives referred to as a Stay-at-Home Order (“EO121” or “the Order”).  The Order goes into effect on Monday, March 30, 2020 at 5:00 p.m. and remains in effect for 30 days until April 29, 2020 unless rescinded, revised, or extended.  While the Governor has urged voluntary compliance with EO121, the Order is nonetheless mandatory, and violations are punishable as a Class 2 misdemeanor.  To read EO121, click here.  For FAQs and guidance on EO121, click here.

A number of counties and cities in our state have already imposed local restrictions, including “stay-at-home,” under their local state of emergency declarations (for more discussion of “stay-at-home” restrictions imposed by counties and cities, see this blog post).  Does EO121 override or nullify local restrictions and prohibitions already in place?  Does EO121 prevent counties and cities from imposing more restrictive measures in the future?  This blog discusses the effect EO121 has – and doesn’t have – on local restrictions already imposed and those which might be imposed by county and city officials as they continue to deal with COVID-19 at the local level.  Read more »

Taxes, Reappraisals, and Budgets in the COVID-19 Era

Local tax officials from across the state continue raise important questions about the pandemic.  I don’t have perfect answers to all of those questions, but I’ll do my best to respond to many of them in today’s post.  Please also see my earlier post on pandemic-related tax questions.  And click here the see all of the School of Government’s growing pandemic resources. Read more »

Local Government Emergency Loans for Small Businesses: Contracting with Financial Institutions for Loan Administration

The COVID-19 public health crisis is giving rise to an unprecedented economic crisis. Economic activity across the nation has slowed considerably, and many small businesses—which were operating successfully only one month ago—are now struggling to survive. As their bills pile up but no revenue comes in, some businesses will run out of cash and be forced to shut down permanently. Business closures on a vast scale would likely inhibit a recovery for years after the current crisis subsides. The economy will rebound more quickly after the crisis if these small businesses keep their staff in place and are able to resume operations as soon as restrictions are lifted.

One way to assist small businesses during a cash crunch is to establish an emergency loan program. The federal Small Business Administration (SBA) offers a disaster loan product for this purpose, but the process takes 60-90 days (possibly longer in a time of heavy demand) for the SBA loan to be issued by a bank. Some businesses would be forced to lay off workers in the interim, and many businesses still wouldn’t have enough cash to remain solvent while waiting for the SBA loan.

This is where state and local governments come in; they can offer emergency loans during the intervening period. As explained in an earlier blog post, North Carolina local governments possess statutory and constitutional authority to offer small business loans and could fill the gap. However, the need is great and local governments may not have enough trained staff to run a loan program at the scale required. Fortunately, North Carolina is home to an array of community-minded financial institutions who know how to administer and manage small business loans. A number of those financial institutions have collaborated on a statewide emergency loan program. It is possible for local governments to contract with these and other third-party financial institutions for administration of a local government emergency loan program. Read more »

Can We Really Ban In-Person Attendance at Board Meetings During the Coronavirus Emergency?

[Update 11/18/2020: Section 5.2(a) of the Governor’s Executive Order 169 (extended by Executive Order 176) generally exempts “government operations” from the order’s prohibitions on mass gatherings.  The NC Department of Public Safety interprets “government operations” to include local government board meetings. Section 5.2(a) expressly does NOT exempt government operations from the capacity limits imposed by Sections 3.2 and 6 of EO 169.  Section 3.2 covers bars, night spots, and arenas, while Section 6 concerns very large outdoor facilities.  For purposes of Section 6, a “very large outdoor facility” has a seating capacity of at least 10,000.]

[UPDATE 5/22/2020: The Governor’s Executive Order 141 includes mass gathering restrictions that supersede those previously imposed by Executive Orders 138 and 121. As interpreted by the Governor’s legal counsel, the mass gathering restrictions in EO141 do not apply to local government board meetings.]

[UPDATE 5/6/2020: The Governor’s Executive Order 138 imposes a 10-person limit on mass gatherings that appears to supersede the limitation in Executive Order 121. Unlike EO121, EO138 doesn’t expressly exempt “Essential Governmental Operations” from its mass gatherings provision. Local governments should consult with their attorneys regarding the impact of EO138 on their board meetings.]

[UPDATE 4/23/2020: The Governor’s Executive Order 135 extends the provisions of Executive Order 121, including its 10-person limit on mass gatherings, until 5:00 p.m. on May 8, 2020.]

[UPDATE 3/27/2020:  The Governor’s latest executive order limits mass gatherings to 10 people, though that limitation doesn’t apply to “Essential Governmental Operations” as defined in the order. Local governments may want to seek guidance from their attorneys on the order’s implications for public attendance at their board meetings.]

Under the open meetings law, the general rule is that “any person is entitled to attend” an official meeting of a public body. G.S. 143-318.10(a).  In response to the COVID-19 crisis, some local governments have begun prohibiting members of the public from attending board meetings in person. This blog post considers the lawfulness of those exclusions. Read more »

Disclosing Information about People with COVID-19 to First Responders

UPDATE (May 13, 2020): On May 4, changes to North Carolina’s communicable disease confidentiality law went into effect, including important modifications to the parts of the law that permit information to be released to law enforcement officials. Please see this post for details.

UPDATE (March 24, 2020): After this was posted, the HHS Office for Civil Rights (OCR) released guidance for HIPAA-covered entities on disclosures of protected health information to first responders. The OCR guidance addresses the requirements of the HIPAA Privacy Rule and reminds readers to take state laws into account as well. There are some specific examples in the OCR guidance that reach different conclusions than this post, but that is because the OCR guidance focuses solely on HIPAA. This blog post integrates both HIPAA and North Carolina law. 

As more COVID-19 cases are identified in North Carolina, some local health departments may be asked to give first responders addresses or other information about local residents who are known or suspected of having the disease or having been exposed to it.

First responders who go to the homes of infected or exposed persons are at risk of being exposed to the virus that causes COVID-19. Both medical and non-medical responders need information about using personal protective equipment (PPE) or other actions they should take to protect their own health and safety. Medical first responders such as EMS need additional information to provide appropriate care, and to alert hospitals when they are transporting a patient who may have COVID-19. At the same time, information that identifies a person who has or may have COVID-19 is protected by confidentiality laws that limit the amount of information that may be disclosed.

The CDC has provided important guidance for 911 and other emergency call centers about screening questions that should be asked before emergency services are dispatched, and the PPE that first responders may need. In addition, the North Carolina Office of Emergency Medical Services has developed guidance for EMS dispatch about screening for the virus that causes COVID-19. The HIPAA oversight agency, U.S. DHHS’s Office for Civil Rights (OCR), has also released a document that includes information about disclosures of individually identifiable information in emergency circumstances. I urge readers to read these documents for more detailed information about these issues.

This post is focused on whether and to what extent information about COVID-19 infections or exposures that are known to public health officials may be disclosed, but it is essential to remember that many infections and exposures will be unknown to public health officials.

It is also important to bear in mind that, like everything else associated with COVID-19, this is an evolving situation. The recommendations for how to respond may change over time as the situation changes and as different agencies work together to further develop and align their guidance.

Read more »

Remote Participation in Quasi-Judicial Evidentiary Hearings

Quasi-judicial evidentiary hearings are subject to formal procedural limits. Such hearings must adhere to the core elements of a fair trial and protect the due process rights of the parties. These issues heighten the concerns (and challenge) of holding a meeting of a quasi-judicial board remotely. As such, it is best to hold evidentiary hearings in person. If a live meeting is impractical due to a pandemic, a major weather event, or otherwise, it is best to postpone the evidentiary hearing. In certain limited circumstances there may be flexibility to allow remote participation in a quasi-judicial evidentiary hearing if absolutely necessary. This blog highlights the concerns and outlines some practical considerations. Read more »