Articles by Our Attorneys

Many parents have struggled recently with the impact of the COVID-19 quarantine and the uncertainty regarding their obligations under existing custody orders.  A parent’s innate desire to protect their child can cause conflict and anxiety during the recent pandemic when required to take the child out of the home to comply with their obligation for custody exchanges, particularly when a custody order provides for the exchange to occur in a public location.  A party’s failure to comply with a custody order is a basis for a finding of contempt by the Court if it is determined to be willful, and punishment can be severe including fines, probation and imprisonment.  Nevertheless, the recent COVID-19 quarantine has been asserted by parties in some circumstances as a basis to withhold a child from the other party in violation of their obligations under an existing custody order. 

In Pennsylvania, Governor Wolf’s recent “Stay at Home” Order has provided some direction to parents and parties regarding their obligations under custody orders during the COVID-19 outbreak.  The Order provides that all individuals residing in Allegheny, Bucks, Chester, Delaware, Monroe, Montgomery and Philadelphia counties must stay at home except as needed to access, support, or provide life sustaining business, emergency, or government services.  The Guidelines issued with the Order state that allowable essential travel includes travel to care for minors and dependents, travel required by court order and travel to return to a place of residence from an outside jurisdiction. 

In Chester County, the Court of Common Pleas, Family Division has provided further direction to residents in the county by issuing a Policy regarding custody exchanges in response to the “Stay at Home” Order and in reliance on direction from the Governor’s Office of General Counsel that the Order does not prohibit necessary travel to effectuate an existing custody order.  The Chester County Policy requires compliance with existing custody orders which provide for custodial exchanges of children, absent true exigent or emergency circumstances.  The Policy provides that if the custody exchange is to occur in a public place that may create an elevated risk, the parties should consider exchanging at their respective residences (curbside, if necessary) or such other location as they may agree.  Further, if a party believes emergency circumstances exist which would justify temporary suspension of custodial exchanges, the party must prepare an Emergency Petition for Temporary Modification of the custody order stating precisely the alleged exigent circumstances, which will be reviewed by a judge. 

Navigating custody can be difficult even under the best of circumstance.  As we continue to address the impact of COVID-19, cooperation between parents is essential to maintain the best interests of their children and the safety and health of the family.  If you have any questions regarding custody or other family law issues, please contact Ashley B. Stitzer, Esquire at (610) 840-0243 or [email protected].

These are uncertain times.  The COVID-19 pandemic has the world grinding to a halt and many questions remain unanswered, but the following is aimed at providing guidance and the best practical advice of how to navigate child and spousal support obligations in light of the COVID-19 pandemic.

Whether you are the party paying support or receiving it, the main takeaway of this article is that support obligations remain enforceable. 

Support obligations are always modifiable if there is a substantial change in circumstance, such as a loss of job, significant reduction of working hours, an increase or decrease in childcare expenses, or an increase or decrease in medical expenses.  For example, in light of recent developments, suppose that you are considered an essential employee who must report to work and you have to hire a caretaker for your child(ren) whose school year has been suspended or cancelled due to COVID-19, you may be entitled to an increase in child support.  Or, if your hours have been reduced or you have been laid off due to the effect of COVID-19, you may be entitled to a decrease in your support obligation. 

Many people are experiencing some or all of the above-mentioned changes in circumstance and these changes are a legitimate basis to seek a modification of a support obligation.  It is unclear if there are any considerations specifically linked to COVID-19 related issues and support, however, it would be safest to treat changes in circumstances due to the effects of COVID-19 like any other change in circumstance when seeking support modification.   

Additionally, while courts are currently closed until further order due to the impact of the COVID-19 pandemic, it is important to note that modification of a support obligation is influenced by when the party’s change in circumstance occurs and the date on which the party files for modification. The date on which a party files for modification is called the “Effective Date” and it is the date that the court will use to calculate retroactive support obligations or support awards.  So, even though the courts are temporarily closed, a party seeking modification will still have to file their Petition to Modify Support to preserve their Effective Date, regardless of when the courts re-open for normal business.

It would be prudent to contact us, whether you are the party paying support or receiving it to discuss any modification and to prepare any necessary documentation to file with the court immediately, and preserve the Effective Date of your modification. 

If you have questions concerning your support obligation, contact Brian at 610-840-0221 or by email at [email protected].

As a result of the current economic situation caused by COVID-19, the federal government is encouraging lenders to enter into forbearance agreements with their borrowers. Many lenders and other creditors are expressing their willingness to do so.

A forbearance agreement is one made between a borrower and a lender. In these arrangements, the lender will agree to refrain temporarily from enforcing its rights against the borrower (such as, in most cases, a lawsuit for breach of the underlying loan agreement or promissory note) in exchange for certain promises or assurances from the borrower.

During the current crisis, lenders should consider contacting borrowers who default or are likely to default. A forbearance agreement may present an effective solution for both lender and borrower.

• For one, we are all hopeful that the economic fallout from the pandemic is temporary and that the recovery will be swift. The borrower will usually negotiate an amended repayment schedule, which will provide it more time to recover from the cause of the default and pay off the loan.

This is much more cost-effective for the lender than a lawsuit. Lawsuits are expensive and, even after securing a judgment, the lender may find that the borrower has no assets to collect. By allowing the borrower to extend the payment schedule, it may be more likely that the lender is made whole.

• Second, the lender can use the forbearance agreement to introduce new commercial terms. For instance, the lender may be able to secure the loan with additional collateral, obtain better financial covenants, or even support the loan with a personal guaranty. Thus, a lender can actually become more secure in its lending than when the loan originated.

There are a number of important legal considerations that borrowers and lenders must take into account and all forbearance arrangements should be documented in a legally binding agreement. If you would like assistance negotiating or drafting a forbearance agreement, please contact Andrew R. Silverman, [email protected].

The SBA Emergency Loan funding included in the COVID-19 relief package enacted last week
has rightfully gotten a great deal of attention in the press and numerous summaries of the new
law, including our own.

If you have an existing SBA Loan, the SBA’s deferment policies are another tool available to
help you navigate these uncertain times. The SBA recently reminded SBA lenders that its
existing guidelines give them broad authority to grant SBA borrowers deferments that
restructure or delay payments. Lenders can make deferment decisions and design their terms
based upon each borrower’s unique situation. If a lender owns the loan it can offer deferments
of as long as 6 months. If the loan has been sold to an investor, the lender can offer deferments
for up to 90 days without the investor’s consent.

If you have a SBA Loan we would encourage you to contact your lender to update them about
the current status of your business and, if you are concerned about COVID-19’s impact on your
business, to ask them what information they will need to consider a deferment.
If you have any questions about the terms of your current SBA Loan or how to work with your
lender on a loan deferment, please contact Mary Kay Gaver at [email protected].

A common question many employers face is, “how do we respond to a workplace accommodation request under the Americans with Disabilities Act (ADA)?”  Like many legal questions, the answer starts with “it depends …”

Simply put, employers responding to accommodation requests must navigate a host of legal issues, including understanding the coverage of the ADA, how the ADA defines key terms like “disability” and “undue hardship”, and knowing how to engage in the necessary “interactive process” to address the request.  Notably, the failure to properly respond to an ADA accommodation request can lead to significant legal exposure for an employer, particularly if the employment relationship ends.  Successful plaintiffs under the ADA can recover not only back and front pay, but also compensatory and punitive damages and attorney’s fees.

The following are a few key points to consider when addressing an ADA accommodation request.

The Request

Broadly speaking, a reasonable accommodation is a modification to the work environment that an employer can reasonably implement that would allow an employee with a disability to perform the essential functions of a job, or enjoy benefits and privileges of employment that are enjoyed by similarly situated, non-disabled employees.

There is no specific form, or question, or magic phrase that an employee has to use to request an accommodation under the ADA.  An employee may request a reasonable accommodation orally or in writing, at any time, and is not even required to have a particular accommodation in mind before making the request.  Generally, all that is required is that the employer knows or has reason to know that the employee has a disability and a need for an accommodation.

Is the employer covered by the ADA or an analogous statute?

After receiving a request, the employer must consider whether it is covered by the ADA or an analogous state or local statute.  With limited exceptions, a private employer is covered under the ADA if it has 15 or more employees on its payroll.  Notably, however, state and local statutes often have narrower coverage provisions, but also prohibit discrimination based upon disability.  For example, the Pennsylvania Human Relations Act applies to Pennsylvania businesses with 4 or more employees, while the Philadelphia Fair Practices Ordinance narrows the coverage to employers with 1 or more employees.  Therefore, knowledge of the applicable law is essential to determining what action by the employer is required.

Does the employee have a “disability” protected by the ADA?

The ADA broadly defines disability as “a physical or mental impairment that substantially limits one or more major life activities of an individual (that is, an actual disability)” or “a record of this kind of impairment”. 42 U.S.C. § 12102(1).[1]  A physical impairment includes any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems (e.g. neurological, musculoskeletal, respiratory, etc.)  A mental impairment includes a mental or psychological disorder, such as an intellectual disability or emotional or mental illness. 29 C.F.R. § 1630.2(h)(1), (2).  “Major life activities” include seeing, hearing, sitting, standing, walking, lifting, bending, sleeping, breathing, thinking, and many more. 29 C.F.R. § 1630.2(i)(1)(i).  Notably, the “record of impairment” definition of disability extends ADA protections to individuals who have a history of, or who have been misclassified as having, a physical or mental impairment. 29 C.F.R. § 1630.2(k)(3)).

One of the most difficult aspects of defining a disability is the meaning of the phrase “substantially limits”.  While there is no clear definition in the ADA, the ADA Amendments Act of 2008 (ADAAA) and its regulations provide guidance on this issue.  Per these regulations, employers are to construe “substantially limits” broadly.  To qualify as a substantially limiting impairment, the impairment need not prevent, or significantly or severely restrict the individual from performing a major life activity.  Employers are to judge the ability of the individual compared to most people in the general population, and without consideration of most mitigating measures, such as hearing aids. 29 C.F.R. § 1630.2(j)(1)(i)-(ix).

Is the employee “qualified”?

The purpose of an accommodation request is to allow the requesting employee to perform certain job duties, either in their current role or in a position they are seeking.  Therefore, the individual making the request must be “qualified”, meaning the employee is able to perform the essential functions of the job with or without a reasonable accommodation, and otherwise has the skills, experience, etc. necessary for the position.  Essential functions are “fundamental job duties of the employment position the individual with a disability holds or desires”. 29 C.F.R. § 1630.2(n)(1)).

“Undue Hardship” and “Direct Threat”

An employer is not required to make an accommodation if the accommodation would impose an undue hardship on the employer.  This is a case-by-case determination, however the factors that determine undue hardship include: the nature and net cost of the accommodation, the overall financial resources of the employer, and the number of employees of the employer. 42 U.S.C. § 12111(10)(B).

In addition, certain disabilities can be considered to create a “direct threat” to the health or safety of others, which no reasonable accommodation can negate. 29 C.F.R. § 1630.2(r).  For example, an employer may not be required to accommodate an individual who suffers from dizziness or fainting spells if the only jobs available require operation of heavy machinery, since the condition could endanger the workplace.

The Interactive Process

Assuming the proper criteria are met, the next step is for the employer and employee to engage in an “interactive process”.  This is an area where difficulties often arise, as this process imposes duties on both the employer and the employee.  As stated by the Third Circuit Court of Appeals in Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 312 (3d Cir. 1999), employers and employees “have a duty to assist in the search for appropriate reasonable accommodation and to act in good faith.”  This means that both the employee and employer must engage in an “interactive process” “to work toward finding a suitable accommodation.” Id.  Employers can show their good faith compliance in a number of ways, such as: “meeting with the employee who requests an accommodation, requesting information about the condition and what limitations the employee has, asking the employee what he or she specifically wants, showing some sign of having considered the employee’s request, and offering and discussing available alternatives when the request is too burdensome.” Id. at 317.

Importantly, if an accommodation is offered and it is reasonable, the employer has satisfied its obligations, even if the proposed accommodation is not the preferred choice of the employee. See, Khoury v. Secretary United States Army, 677 Fed.Appx. 735 (3d Cir. Jan. 27, 2017) (employee is not entitled to her preferred accommodation, only a reasonable one); Diaz v. City of Philadelphia, 565 Fed.Appx. 102, 106 (3d Cir. May 2, 2014) (“The ADA does not … require an employer to provide a disabled employee with the accommodation of her choosing.”)

Examples of Accommodations

Since accommodations are judged under a “reasonableness” standard, accommodations can be as unique as the person requesting them.  However, common examples of reasonable accommodations include:

• physical changes such as installing a ramp or changing a workspace layout;
• accessible or assistive technologies such as reader software;
• accessible communications such as closed captioning at meetings;
• light-duty for certain physical demands of a job;
• modifications of work schedules;
• telecommuting; and,
• job reassignment.

For individuals with a “record of” disability, common accommodation examples include a schedule change or time off for medical follow-up or monitoring appointments with their physician.

Employer compliance: the bottom line

ADA compliance is a process.  Training of management and maintaining clear and up-to-date employment policies are critical to properly responding to an accommodation request.  Equally important is engaging in meaningful communications with any employee who requests an accommodation, as every situation is unique.  Ultimately, the proper handling of accommodation requests requires not only active participation, monitoring and documentation, but also an understanding of this constantly evolving area of the law.

[1] The ADA definition of disability also includes “being regarded as” disabled.  Individuals “regarded as” disabled are protected from discrimination under the ADA, however they are not entitled to a reasonable accommodation.

---

Jeffrey P. Burke, an associate in MacElree Harvey’s West Chester office, counsels businesses and individuals on employment agreements, equal employment policies, non-competition agreements, independent contracting issues, and other employment-related matters. Jeff also represents businesses and individuals in employment discrimination litigation, such as Americans with Disability Act claims, Age Discrimination in Employment Act claims, discrimination based upon sex, race or religion, sexual harassment, and hostile work environment.

To schedule a consultation with Jeff, call (610) 840-0229 or email [email protected].

The Tax Cuts and Jobs Act of 2017 (TCJA) gave us the highest estate and gift tax basic exclusion amount in history – $10 million.  The exclusion amount, adjusted for inflation, was $11.4 million in 2019 and will rise to $11.58 million in 2020.  Married couples can double that amount if they elect to exercise “portability” on a timely filed Estate Tax Return.  The TCJA exclusion increase is temporary, however, and in 2026 the $10 million exclusion will revert back to a $5 million base.

The estate tax generally is calculated using a taxpayer’s taxable estate at death, combined with any lifetime taxable gifts.  Because the increase in the basic exclusion amount is temporary, some have wondered whether taxpayers who die after 2025 will receive the full benefit of the higher exclusion. The problem can be illustrated by the following example:

Suppose an individual taxpayer gifts $11.4 million to his child today, his only taxable gift. This gift currently would be sheltered by the heightened exclusion amount and no gift tax would be due. The taxpayer then dies in 2026 with a $4 million taxable estate. The taxpayer’s total taxable estate and lifetime gifts are $15.4 million, however, only $5 million of exclusion is now available.  This would result in a much higher estate and gift tax due than the taxpayer originally anticipated when he made the gift.

The final regulations issued by the IRS on November 26, 2019 resolve this “clawback” issue.[1]  In calculating the credit against the estate tax, the exclusion amount used is the greater of: (1) the exclusion amount at death and (2) the exclusion amount at the time the lifetime gift(s) were made.[2]  The regulations provide the following example:

An unmarried individual made cumulative taxable gifts of $9 million during his lifetime, all sheltered from gift tax by the $11.4 million basic exclusion amount on the date of the gifts.  The basic exclusion amount on the individual’s death is $6.8 million.  Because the total exclusion amount allowable on the dates of the gifts exceeds the $6.8 million exclusion amount allowable at the individual’s death, the exclusion amount for purposes of calculating the individual’s estate tax is $9 million.[3]

The regulations also ensure that a Deceased Spouse’s Unused Exclusion Amount (DSUE) will not be reduced when the exclusion amount decreases in 2026.[4]  Accordingly, if one spouse dies in 2019 and elects portability on a timely filed Estate Tax Return, that unused $11.4 million exclusion will not be lost even if the basic exclusion amount is reduced at the surviving spouse’s death.

The result is that a taxpayer can take advantage of a fluctuating estate and gift tax exclusion during his or her lifetime, and will not be subject to estate tax simply because the exclusion is lower at death.  In light of the increased exclusion amount and the recently published regulations, taxpayers should consider using their increased exclusion amount before it reverts back to $5 million in 2026.

[1] Treas. Reg. § 20.2010-1.

[2] Treas. Reg. § 20.2010-1(c).

[3] Treas. Reg. § 20.2010-1(c)(2)(i).

[4] Treas. Reg. § 20.2010-1(c)(2)(iii).