WHERE DO LANDLORDS STAND IN ALL OF THIS?

Written by: Attorney Tracy Turner

Much has been written about the effects of COVID-19 on renters and homeowners concerning foreclosures and evictions, but nothing has been written about the small business owners who are the landlords for these people.  Many of these small business owners themselves have mortgages on their properties.  For those small businesses whose properties, whether apartments or single-family residences or duplexes, financed through HUD, FHA, Fannie Mae or Freddie Mac, back on March 18, 2020 President Trump announced a two-month moratorium on evictions and foreclosures going through the end of April, thus, small business owner/landlords with these types of financing cannot evict or foreclose on their tenants or homeowners.  As such, they must look to the Federal Government for help provided small businesses under the CARES Act.

Speaking of the CARES Act, it also places a moratorium for one hundred twenty (120) days beginning March 27, 2020 on not only evictions for “covered properties,” but also prohibits the assessment of a late fee against the tenant during this same period.  A landlord with such a covered property cannot even issue a notice to vacate until thirty (30) days after the one hundred twenty (120) day moratorium ends.

For other landlords in Alabama, the Court system is still open for evictions and foreclosures but certain Sheriffs in Alabama, specifically Jefferson, Montgomery and Madison County, have refused to execute writs of possession issued by the Courts, thus failing to fulfill their constitutional oath and duties.  Similarly, some Judges in Alabama have stated that they would not issue judgments for eviction or foreclosure, even if all of the paperwork was timely and properly filed.

At this time, no Judges in Mobile County nor the Mobile County Sheriff’s Department has refused to conduct move-outs pursuant to lawfully issued writs of possession or failed to enter an Order on properly supported motions for eviction.  Nevertheless, for those instances where the tenant files an answer, even in Mobile County, the landlord is in limbo since the Alabama Supreme Court has suspended all trials through April 30th, and one can only postulate this will be extended well into May considering the continued expansion of COVID-19 cases.  It may well be June before a landlord gets a trial date on an eviction where the tenant will have paid no rent in many cases since February or before.

At this time, Governor Ivey has not issued a state-wide prohibition on evictions and foreclosures.  However, the Governor has not ruled out doing so if COVID-19 experience in Alabama gets any worse.

Considering the situation, if a landlord has someone who is more than a couple of months behind on their rent, and a proper seven (7) business day notice has been provided, it may very well be in their best interest to move forward with filing the eviction as soon as possible before a moratorium is put in place by the Governor.  Doing so, might assist the landlord in later being paid by the tenant if, in fact, the tenant receives stimulus money from the government under the CARES Act before trials are re-instituted in May or June.  If a landlord needs advice on these issues, myself and the attorneys at Johnstone Adams, LLC will be happy to assist.

FAMILY FIRST CORONAVIRUS RESPONSE ACT

Cliff Notes

By: Celia J. Collins

Effective Date 4/2/2020 (expires 12/31/2020)

EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT

Employer

  • Less than 500 employees (Department of Labor has authority to issue regulations exempting employers with less than 50 employees whose business viability may be jeopardized by compliance.)

Eligible Employees

  • Full and part-time employees employed 30 calendar days (but Department of Labor has authority to exclude certain health care workers and first responders from the definition of employee.)

Qualifying Condition

Unable to work or telework due to need for leave to care for a son or daughter because daycare or school is closed, or care provider is unavailable due to COVID issues.  (Provider defined as caregiver who is regularly compensated so would not apply to Grandparents or other babysitters who are not paid for their services.)

Benefits

First 10 days unpaid, after 10 days 2/3 regular rate up to $200 per day.

Return to Work

Employee must be returned to prior position.  (exception for Employers with less than 25 employees if employee’s position eliminated due to situation and reasonable efforts to offer equivalent position fail.  Must make reasonable efforts to contact employee if equivalent position becomes available within 12 months.)

Liability

Same as FMLA but Employers with less than 50 employees are exempt from civil actions for violations.

 

EMERGENCY PAID SICK LEAVE ACT

Covered Employers

  • Less than 500 employees (Department of Labor has authority to issue regulations exempting employers with less than 50 employees whose business viability would be jeopardized by compliance.

Eligible Employees

  • Any full or part time employee regardless of length of employment.
  • Department of Labor has authority to exclude certain health care providers and emergency responders from the definition of eligible employees.

Qualifying Conditions

            Unable to work or telework because:

  • Subject to Federal, State or local quarantine or isolation order due to COVID.
  • Advised by healthcare provider to self-quarantine due to COVID concerns.
  • Experiencing symptoms of COVID and seeking diagnosis.
  • Caring for an individual quarantined or isolated by government or order or by their physician.
  • Caring for their son or daughter because school or daycare is closed or childcare provider unavailable due to COVID concerns.
  • Experiencing other substantially similar conditions specified by Federal agencies.

Exclusions

Employer of healthcare providers or emergency responders may exclude those employees.

Benefits

  • Up to 80 hours for full-time employees and average hours worked over two weeks for part-time.
  • Regular pay rate up to $511 per day for personal health; two-thirds (2/3) regular rate of pay up to $200 when absence to care for others.
  • Cannot require employee to use other accrued paid leave prior to this leave.
  • Department of Labor to issue guidelines within 15 days from enactment (April 2, 2020.)

Notice Posting Requirement

Employers must post Department of Labor approved notice to be published by Department of Labor 7 days after enactment (March 25, 2020.)

Retaliation

Employee who takes leave under Act or files a complaint relating to act is protected from retaliation.

Liability 

Liability for failure to comply or wrongful termination – same as FLSA, double damages for willful conduct and attorney fees.

Alabama Unemployment Changes – COVID-19

By: Celia Collins

Chair of the Employment & Labor Department

 

The Alabama Department of Labor announced Monday that it has temporarily eased qualifying criteria to allow individuals off work due to COVID issues to immediately receive unemployment benefits.  Qualifying reasons include furlough, quarantine by medical professional or government agency (not applicable to self-quarantine), sent home without pay due to employer COVID concerns, diagnosed with COVID or caring for a family member diagnosed with COVID.

The requirement that the individual be ready, willing and able to work and actively seeking employment is waived.  There is no waiting period.  Claims can be filed beginning March 23, 2020.

Employees receiving paid leave, sick pay or vacation pay during a COVID related absence are not eligible for unemployment benefits.

Appeals Court Refuses to Lift Injunction on Public Charge Rule

A panel of federal judges has denied a request to lift the injunction on the implementation of the public charge rule while the a lawsuit over the rule plays out in court. Under the new rule, announced in August, an immigrant would be considered a public charge — essentially dependent on government aid and, therefore, inadmissible — if he or she received at least one public benefit for more than 12 months within any three-year period, among other things. The new rule also authorizes DHS to conduct a more thorough and burdensome examination of the immigrant and his or her sponsor’s financial history, health, and education. The net result of the rule, if implemented, would be to increase the burden on most immigrants and increase the number of application denials on public charge grounds.

Medical Marijuana Update

During the 2019 legislative session, the Alabama Senate passed a bill legalizing medical marijuana in the state. The Alabama House was reluctant to approve the new law without additional research and through compromise a joint proposal was reached establishing a  medical marijuana study commission to research the issue, collect expert and public opinion and review the laws of states which have already legalized medical marijuana. The compromise bill was signed into law by the Governor in June and the commission was given 6 months to accomplish their task and present a report and proposed legislation to the legislature. The report and draft bill were submitted on December 20 and recommended the legalization of marijuana for certain medical conditions under the strong regulation of a new agency, the Alabama Cannabis Commission. The 72 page proposed bill will be introduced in the upcoming legislative section.

Of interest to Alabama Employers is that the proposed bill allows Employers to refuse to permit or accommodate the possession or use of medical cannabis or modify job duties to accommodate use.  It expressly allows Employers to refuse to hire or discipline an employee because of possession or use of medical marijuana and allows Employers to establish and enforce drug testing policies and drug free workplace programs.  Finally, the proposed bill provides that employees suffering a work injury while using medical cannabis are ineligible for worker’s compensation benefits if the injury was caused by the employee’s action or inaction.

Whether this bill passes in the upcoming months or a revised bill remains to be seen.  Stay tuned.

By: Attorney Celia Collins

 

 

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