By Scott Merrill
Over the past month, the world has been swept away by the media’s coverage of the COVID-19 pandemic.
Images and stories from around the country depict eerily empty streets in New York City where some hospitals are operating at capacity, while nurses and doctors work to save lives in most major cities around the country. Schools and beaches are closed nearly everywhere, many foreign college students are stranded, and unemployment is higher than it has been since the Great Depression.
Around the country, social distancing and the use of face masks has become the ‘new normal.’ Even opening day for major league baseball is indefinitely postponed and the NCAA tournament was canceled. It is not ‘business as usual’ and many people are wondering when it will be.
During this time of rapid change, New Hampshire’s judicial branches and the legal community have been working hard to maintain their commitment to justice and their clients, fielding questions in a host of practice areas, while making up to the minute adjustments in response to Governor Sununu’s declaration of a state of emergency and the Emergency Orders that have followed.
COVID-19 has led to the Judicial Branch suspending in-person hearings and most law offices have stopped seeing clients in person accept in extreme situations.
On April 1, according to David King, Administrative Judge for the New Hampshire Circuit Court, the circuit courts had 21,118 hearings scheduled during the weeks covered by the supreme court orders.
“Cancelling, rescheduling or otherwise triaging this many cases is difficult and a somewhat fluid situation,” he said, “Particularly when we have no idea where the state will be on May 4[, 2020].”
All New Hampshire Judicial Branch courts remain open during regular business hours but public access to courthouses and/or clerk’s offices has been restricted. Only individuals who are filing for emergency relief or who are scheduled for in-person court proceedings are being admitted.
Prioritizing and Adjusting
Attorneys around New Hampshire are currently advising clients on a variety of changes related to COVID-19. Barry Needleman, an Environmental Attorney, at McLane Middleton said:
“We have two priorities right now. First, continue to provide great, timely service to our clients. Second, do all we can to support our employees personally and professionally, and ensure we’re diligent about keeping them connected and engaged.”
Overall, Needleman said, the attorneys he works with are holding up very well.
“Because of our heavy investment in technology over the last few years, they are all able to work remotely effectively and handle their cases relatively seamlessly,” he said. “The only area that has had some challenges thus far has been the trusts and estates practice.”
This includes situations where clients must sign documents in-person.
“We’re accommodating that need by adhering to a strict set of social distancing protocols which we established that protect our clients and employees while still allowing the signings to occur.”
Labor and Employment
Labor and Employment attorneys have been busy over the past month as well, informing their clients about expansions of the Family Medical Leave Act (FMLA) because of the pandemic, along with a host of other employment related issues.
Attorneys Terri Pastori and Beth Deragon of Pastori/Krans have been fielding questions and offering advice in a quickly changing environment.
One of the many issues employers are worried about, they agreed, were possible workers’ compensation claims stemming from COVID-19 exposure at work or during job-related activities.
“There could also be an uptick in workers’ compensation claims for employees who suffer injury while working remotely (e.g. an employee trips on a cord in a makeshift home office, employee injures an arm because she does not have the proper work set up). In weighing the risk of continuing to conduct business in light of the risk to employees’ health, it is foreseeable that employers could violate OSHA standards.”
With record numbers of unemployment filings across the country, an important issue that has come up according to Pastori and Deragon involves unemployment coverage related to COVID-19.
Under the CARES Act, the two trillion-dollar federal relief plan unveiled on March 31[, 2020], unemployment insurance provisions will include an additional $600 per week payment to each recipient for up to four months; and extend benefits to self-employed workers, independent contractors, and those with limited work history. The federal government will provide temporary full funding of the first week of regular unemployment for states with no waiting period and extend unemployment benefits for an additional 13 weeks through December 31, 2020 after state benefits end.
The CARES Act is scheduled to go into effect in mid-April, days after The Families First Corona Virus Response Act (FFCRA or Act) which requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19.
The ACT, which began on April 1, 2020, states that employees who work for employers with fewer than 500 employees can receive Paid Sick Leave if they cannot work due to quarantine or the care of someone with COVID-19.
Salaried employees would receive up to 80 hours of sick leave while non salaried employees would get 10 days. The amounts vary depending on earnings and once an individual’s sick leave is used, they could be eligible for the Emergency Family Medical Leave Act money for up to 10 weeks.
Deragon said that while she is glad the DOL is doing something to address unemployment because of those directly affected by COVID-19, the Act “comes too late.”
“I’m not knocking it, but I don’t think it will have a prophylactic effect,” she said. “People are being laid off now. This may not be enough to band aid the revenue losses.”
For “non-essential” workers and their employers, those revenue losses could take their toll as time goes on, according to Pastori.
“We’re seeing businesses just close down and those employees are out of work. The Governor has expanded unemployment benefits but that’s not 100 percent,” she said, adding, “Bills don’t change, and businesses have an obligation to pay people. One good thing about the Act. It does allow you to avoid drawing from your sick leave. It’s not a perfect solution, but I don’t know what would be.”
Landlord Tenant Law
Landlord and Tenant Attorneys like Brian Shaughnessy have had their hands full during the pandemic. On March 17[, 2020], Governor Sununu issued Emergency Order #4 prohibiting the initiation of eviction proceedings for the duration of the State of Emergency.
Shaughnessy quickly responded by sending out a letter to his clients that addresses concerns of both tenants and landlords regarding lease payments.
“The purpose of this letter,” Shaughnessy’s letter begins, “is to correct a common misperception that tenants do not have to pay rent and landlords do not have to pay the mortgage and other expenses associated with operating the property. We anticipate that some tenants may need to arrange payment plans, or otherwise wait until some Government assistance is made available in order to make the required rental payments. We are willing to work with our tenants in order to get through this unprecedented emergency and are asking for our tenants to cooperate with us in good faith as we all get through this together.”
On April 3[, 2020], Governor Sununu issued Emergency Order #24 that adds to Emergency Order #4 by allowing landlords to “initiate eviction proceedings against tenants who cause damage to property or who present a threat to the health and safety of their neighbors.”
Social Perspectives and Constitutional Rights
When asked about the limits of governmental authority during a pandemic and of the importance of a “social contract,” Attorney Joe Steinfield offered an intellectual perspective that takes the current political climate into consideration.
“What you call a social contract is essential,” Steinfield said. “The authors of ‘How Democracies Die’ emphasize two longstanding ‘norms’ that characterize a democratic society – ‘mutual tolerance’ and ‘forbearance.’ The latter is defined by them as ‘the intentional restraint of one’s power in order to respect the spirit of the law, if not its letters.’ These are the ‘guardrails’ under which we have always operated, at least until recent times.”
Steinfield cited what he called the “excessive partisanship” of the current political landscape as “wreaking havoc on our customary norms” in a democratic society and that such partisanship combined with the current pandemic, raises constitutional questions.
Two constitutional issues that came to mind for Steinfield include President Trump’s attempt to bar CNN reporter Jim Acosta and Trump v Hawaii, where the Supreme Court upheld a travel ban by a 5-4 vote.
“The press, by definition (and as a matter of First Amendment law) must have access to the workings of government,” he said, adding that the Supreme Court’s ruling in Trump v Hawaii, “exudes; deference to executive power.”
“’We are a country of laws and not men,” as John Adams wrote in the Massachusetts constitution. Without the rule of law there cannot be a democracy. And without adherence to these unwritten rules, the administration of our laws is greatly hampered and, ultimately, undone,” Steinfield said
Lawyers Assistance Program
Attorney Terri M. Harrington is the Executive Director of the New Hampshire Lawyers Assistance Program (LAP). LAP is an independent, non-NH Bar affiliated, confidential resource established by the NH Supreme Court. NHLAP provides confidential assistance to New Hampshire lawyers, judges, and law students who experience substance abuse, depression, stress or other distress that affect well-being and impair an individual’s ability to function and practice law. LAP can also aid in the curtailment of malpractice claims and disciplinary complaints.
According to Harrington, there have not been more calls from attorneys at this time. When asked if she found this to be strange, given the high level of stress some attorneys may be under, she said, “I do, and I don’t.”
“This seems to be the case at many LAPS,” she said. “I think many people are not equating the additional anxiety with work resources. I also think that because there will be an ‘end date’ most people expect to wait it out. It will be interesting to see if there will be those that reach out after we are told to go back to work and the new normal isn’t what people expected.”
LAP, Harrington said, continues to stand ready to provide support and referral sources for any issues and has specific resources related to the pandemic on their website at www.lapnh.org.
Legal Services at the New Hampshire Bar Association
While the New Hampshire Bar Association has been closed to the public, the staff is actively working to ensure attorneys and their clients are provided with necessary services.
One of the programs that will be needed is the NH Free Legal Answers web site administered by the Pro Bono Referral System.
Free Legal Answers provides NH attorneys with the opportunity to help low- to moderate-income people with critical legal advice on civil legal matters from the comfort of their couch. All that is needed is a computer or mobile device and an internet connection to participate.
“We are seeing an uptick in questions, particularly around housing and parenting and COVID-19,” said Pro Bono Director Virginia Martin. “In the weeks ahead, we expect these inquiries to continue to increase and could use more volunteers to help.”
According to Martin, “All legal services programs at the NHBA continue to adapt to the challenges brought by COVID-19 to assure their resources are up and running and available to the public. The growing stream of issues and questions arising from the pandemic is expected to turn into a flood in the coming months.”
For a full list of these services, visit the New Hampshire Bar Associations website.
Professional Development and Programming
According to Professional Development Director at the NHBA, Joanne Hinnendael, the department has been working on adding programs into the online catalog for members to take on-demand.
“NHBA•CLE partners with InReach, and there are about 40 affiliates (bar associations and some law schools) who “share out” their programs so we can offer them to our members,” Hinnendael said. “If we have a practice area that needs a topic, if the CLE Committee doesn’t have a current program, we look for one in the shared programs. Please email us if you have a suggestion.”
CLE has also activated a 10% discount on any online programs people have purchased that will run through at least May 4[, 2020].
Professional Development staff are currently working on an up to the moment list of webinar topics to be offered over the coming weeks.
Despite the quickly changing legal landscape, Attorney Needleman said he and his colleagues have found it gratifying to be able to help individuals and businesses during this difficult time.
“Our employment lawyers have been very busy. We’ve also held several webinars in the last few weeks (with more scheduled) targeted specifically at issues arising out of the pandemic,” he said. “They’ve been well received, and the attendance has been extraordinary. Coupled with the information we’ve been posting regularly on our web page, we’re all proud that we’re able to help so many people manage through this crisis.”
As of June 1, 2021, the NHBA Pro Bono Referral System is part of 603 Legal Aid.