CLOSE X
RSS Feed LinkedIn Instagram Twitter Facebook
Search:
FMG Law Blog Line

Archive for April, 2020

Massachusetts Enacts Legislation Authorizing Virtual Notarization During COVID-19 State of Emergency

Posted on: April 30th, 2020

By: Jennifer Markowski

On April 27, 2020, Governor Baker signed into law An Act Providing for Virtual Notarization to Address Challenges Related to COVID-19 (the “Virtual Notarization Act” or the “Act”). In doing so, Massachusetts joins a number of other states, including Rhode Island, Pennsylvania, Connecticut, New Jersey, New York, New Hampshire and Georgia (among others), in adopting temporary measures to permit virtual notarization during the COVID-19 pandemic. The Massachusetts Virtual Notarization Act shall remain in effect until three (3) business days after Governor Baker’s March 10, 2020 declaration of state of emergency terminates and permits a duly authorized notary public to virtually notarize signatures during this time. According to the Act, notaries shall adhere to the following protocols when performing an acknowledgment, affirmation, or other notarial act using real-time video conferencing:

  • Both the notary and the signer must be physically located within Massachusetts and the signer must swear under the pains and penalties of perjury as to his or her location.
  • The notary must observe the signing of the document.
  • The signer must verbally assent to the recording of the video conference.
  • The signer must disclose any other person present in the room and make that person viewable to the notary.
  • The signer must provide the notary with satisfactory evidence of identity per M.G.L. ch. 222, § 1. If the notary is reviewing government-issued identification, the signer must visually display the front and back of the identification to the notary and then send a copy of the identification (front and back) to the notary, which will be maintained securely and confidentially for ten (10) years.
  • The notary must indicate in the notarial certificate that the document was notarized remotely under the Act and indicate the county in which the notary was located at the time the notarial act was completed.
  • After the video conference, the signer must deliver the original executed documents to the notary.
  • The notary must make an audio and video recording of the notarial act and maintain the recordings for ten (10) years.

In addition to the preceding list of requirements, there are two additional steps to be taken for any documents executed in the course of a real estate transaction. If the signer is not personally known to the notary, during the initial video conference the signer must display a second form of identification containing the signer’s name. Another government-issued identification, credit card, social security card, tax or utility bill dated within 60 days of the video conference are acceptable forms of identification.  Additionally, upon receipt of the executed document(s), the notary and signer must engage in a second video conference during which the signer verifies to the notary that the document received by the notary is the same document executed during the first video conference. The signer must again disclose any other person present in the room and make him or her viewable to the notary.

The notary must also execute an affidavit that provides that he or she has:

  • Received a copy the signer’s identification and visually observed it during the video conference with the principal, if applicable;
  • Obtained the signer’s verbal assent to record the video conference;
  • Taken the signer’s affirmation that he or she was physically present within Massachusetts; and
  • Been informed of and noted on the affidavit any person present in the room and included a statement of the relationship of any person to the signer.

The notary shall retain the affidavit for ten (10) years.

The Act does not alter or amend the requirement in Massachusetts that the closing of a transaction involving a mortgage or other conveyance of title to real estate may only be conducted by an attorney duly admitted to practice law in the Commonwealth.

If a notary chooses to notarize documents under the Virtual Notarization Act, it is advisable to confirm with the client that a virtually notarized document is acceptable.  Additionally, it is also advisable to confirm that any applicable errors and omissions policy will cover professional acts involving a virtual notarization.

If you have any questions or would like more information, please contact Jennifer Markowski at [email protected].

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include re-opening the workplace, protecting business interests, shelter in place orders and more. Click here to view upcoming webinars.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

The Eight-Corners Rule is Deep in the Heart of Texas

Posted on: April 28th, 2020

By Kristin Inguslrud

Under the “eight-corners rule,” an insurer’s duty to defend is determined by comparing the allegations in the complaint with the terms and conditions of an insurance policy. Application of the eight-corners rule takes the allegations of the claim at face value, without regard to the truth or falsity of the allegations, and it necessarily excludes consideration of extrinsic evidence.

On March 20, 2020, the Texas Supreme Court published an opinion rejecting an attempt to create an exception to the eight-corners rule in Richards v. State Farm Lloyds, 63 Tex. Sup. J. 614, 2020 Tex. LEXIS 236 (Tex. 2020).  Richards concerned an insurer’s duty to defend an automobile collision suit. The U.S. District Court for the Northern District of Texas trial court granted summary judgment in favor of the insurer, which had denied coverage based on extrinsic evidence regarding the place of the collision and residency of the injured party. 

The district court held that the eight-corners rule did not apply because the subject policy did not include a provision agreeing to defend “groundless, false or fraudulent” claims.  On appeal, the U.S. Court of Appeals for the Fifth Circuit certified the question to the Texas Supreme Court.

The Texas Supreme Court reversed the district court’s ruling. The court declined to find this exception in the eight-corners rule and rejected the assertion that the eight-corners rule is predicated on the inclusion of a groundless-claims clause. The court noted that the duty to defend has never turned on the presence or absence of a groundless-claims clause.  The court stated that parties are free to contract out of the eight-corners rule but that the policy language here failed to do so.

The holding in Richards was limited to the question of whether the absence of a groundless-claims clause affects application of the eight-corners rule. 

In one of the earliest Texas opinions to consider a proposed exception to the eight-corners rule, International Serv. Ins. Co. v. Boll, 392 S.W.2d 158, 160 (Tex. Civ. App.–Houston 1965, writ ref’d n.r.e.), the court evaluated an auto insurer’s duty to defend an auto accident suit brought against the insured, who was the father of the driver. The underlying suit did not identify the driver by name, but extrinsic evidence established that the driver was the insured’s son, in which case the claim would not be covered. The court admitted the extrinsic evidence concerning the driver’s identity and found no duty to defend. The extrinsic evidence did not contradict any allegation of the underlying facts. 

In Northfield Ins. Co. v. Loving Home Care, Inc., 363 F.3d 523, 531 (5th Cir. 2004), the Fifth Circuit (applying Texas law) ventured an Erie guess and speculated that the Texas Supreme Court, if it were to recognize an exception to the eight-corners rule, would do so only if both these conditions are met: (1) it is initially impossible to discern whether coverage is potentially implicated, and (2) the extrinsic evidence goes solely to a fundamental issue of coverage which does not concern the truth or falsity of any facts alleged in the underlying case.

In 2006, the Texas Supreme Court acknowledged the Northfield opinion but issued a narrow ruling in GuideOne Elite Ins. Co. v. Fielder Rd. Baptist Church, 197 S.W.3d 305 (Tex. 2006), disallowing extrinsic evidence intended to controvert factual allegations in the underlying complaint. The GuideOne opinion examined the liability insurer’s duty to defend a church where a church member filed a sexual misconduct lawsuit against the church and a youth minister. The insurer sought to admit extrinsic evidence regarding the youth minister’s dates of employment as they did not align with the policy period. The court excluded the evidence on the grounds that it contradicted the underlying complaint’s allegation that the youth minister assaulted the claimant during the policy period. However, the court acknowledged the possibility that an exception to the eight-corners rule might apply under different facts. In both GuideOne and Richards, the court issued rulings upholding the eight-corners rule based on the record before it but did not take a position on other potential exceptions.

If you have any questions or would like more information, please contact Kristin Ingulsrud at [email protected].

Governor Kemp Issues Comprehensive Executive Order Reopening And Impacting Businesses in Georgia

Posted on: April 28th, 2020

By: Andrew Kim

On April 23, 2020, Governor Brian Kemp issued an Executive Order that provides new and extensive guidance for businesses across Georgia, including restaurants, bowling alleys, theaters, childcare facilities and private social clubs, that are currently operating or seeking to re-open to in-person services after being closed by a previous Order by the Governor.

The general effective date of the Order begins on May 1, 2020 at 12:00 a.m. and ends on May 13, 2020 at 11:59 p.m., unless otherwise provided in the Order.

The Order spans 26 pages so any business operating in Georgia should review the Governor’s executive action to ensure it knows how it applies to its business, but below are some highlights: 

A.        General Provisions of the Executive Order:

1.         Shelter-In-Place Still Is In Effect For Certain Residents

Initially, it is important to note that, while the Order primarily addresses what businesses must do if they want to remain open, it also makes clear that certain residents of the State of Georgia are required to shelter in place.  Those residents are the following:

  • 65 years old or older
  • Living in nursing home or long-term care facility
  • Chronic Lung Disease
  • Moderate to severe Asthma
  • Severe heart disease
  • Immunocompromised (e.g., cancer treatment, smoking, bone marrow or organ transplant, poorly controlled HIV/AIDS)
  • Severe obesity
  • Those with diabetes, liver disease, chronic kidney disease undergoing dialysis

Those subject to the shelter-in-place restrictions can, however, conduct or participate in “Essential Services,” perform “Necessary Travel,” perform “Minimum Necessary Activities to maintain the value of a business” and perform work for a “Critical Infrastructure” business.  All of the above-quoted terms are specifically defined in the Order. 

2.         Businesses Are Limited To The Number Of Persons Physically Present

Unless a business is considered to be “Critical Infrastructure,” no business (including non-profit organizations, county and municipal government) shall allow more than ten (10) persons physically present at a Single Location if, to be present, persons are required to stand or be seated within six (6) feet of any other persons.

However, “groups of more than ten (10) people are permitted if their grouping is transitory or incidental, or if their grouping is the result of being spread across more than one Single Location.”

The Executive Order defines Single Location as, “a space where all persons gathered cannot maintain at least six (6) feet of distance between themselves and any other person.”

B.        Mandates for Restaurants Effective April 27, 2020:

The Executive Order allows restaurants to again provide dine-in services effective Monday, April 27, 2020, but does not permit them to have more than ten (10) patrons in the restaurant per 500 square feet of public space. The spaces that must be considered when calculating square footage include waiting areas and bar areas, but do not include hallways, restrooms; and spaces closed to patrons.

Additionally, the Order imposes several mandates on restaurants if they want to provide dine-in-services, including the following (this is not the entire list, but a highlight of the major obligations):

  1. Screen and evaluate workers who exhibit signs of illness, such as a fever over 100.4 degrees Fahrenheit, cough, or shortness of breath;
  2. Require all employees to wear face coverings at all times. Such coverings shall be cleaned or replaced daily;
  3. Require workers who exhibit signs of illness to not report to work or to seek medical attention. Per existing U.S. Food and Drug Administration Food Code requirements, employees who are sick should remain home. If an employee becomes ill or presents signs of illness at work, the operator should identify the employee’s condition during a pre-work screening and send the employee home.
  4. Implement staggering shifts for all possible workers;
  5. Where possible, stagger workstations to avoid employees standing adjacent to one another or next to each other. Where six (6) feet of separation is not possible, consider spacing options that include other mitigation efforts with increased frequency of cleaning and sanitizing surfaces;
  6. Increase physical space between workers and patrons and limit contact between wait staff and patrons;
  7. Discontinue use of salad bars and buffets;
  8. If providing a “grab and go” service, stock coolers to no more than minimum levels;
  9. Remove items from self-service drink, condiment, utensil, and tableware stations and have workers provide such items to patrons directly wherever practicable;
  10. Between diners, clean and sanitize table condiments, digital ordering devices, check presenters, self-service areas, tabletops, and commonly touched areas, and discarding single-use items;
  11. The use of disposable paper menus is strongly encouraged, which should be discarded after each patron use. Otherwise, businesses subject to this Section shall clean and sanitize reusable menus between each use by a patron. Non-touch menus are also acceptable for use;
  12. Update floor plans for common dining areas, redesigning seating arrangements to ensure at least six (6) feet of separation from seating to seating. Utilize physical barriers on both seating when available;
  13. Limit party size at table to no more than six (6);
  14. Post signage on entrances that no one with a fever or symptoms of COVID-19 is permitted in the facility;
  15. Where practicable, physical barriers such as partitions or Plexiglas at registers should be used;
  16. Do not allow patrons to congregate in waiting areas or bar areas. Design a process to ensure patron separation while waiting to be seated that can include floor markings, outdoor distancing, or waiting in cars;
  17. Mark ingress/egress to and from restrooms to establish paths that mitigate proximity for patrons and staff;
  18. Where practicable, take-out and curbside pick-up services should be prioritized over dine-in services; and
  19. All restaurant or dining room playgrounds shall be closed.

It is important to note that none of these mandates apply to the operation of dining services in:

  • Hospitals
  • Healthcare facilities
  • Nursing Homes
  • Or other long-term care facilities.

C.        Guidance for Businesses Defined as Critical Infrastructures Effective May 1, 2020:

The Executive Order also requires that, effective May 1, 2020 (and through May 13, 2020), Critical Infrastructure businesses that continue in-person operations implement measures which mitigate the exposure and spread of COVID-19.  The Order does not mandate any specific measures, but instead identifies various actions that such a business can (and should) take to the maximum extent possible.

  1. Screening and evaluating workers who exhibit signs of illness, such as a fever over 100.4 degrees Fahrenheit, cough, or shortness of breath;
  2. Disinfecting common surfaces regularly;
  3. Practice social distancing;
  4. Requiring hand washing or sanitation by workers at appropriate places within the business location;
  5. Permitting workers to take breaks and lunch outside, in their office or personal workspace, or in such other areas where proper Social Distancing is attainable;
  6. Implementing teleworking for all possible workers;
  7. Implementing staggered shifts for all possible workers;
  8. Holding all meetings and conferences virtually, wherever possible;
  9. Discouraging workers from using other workers’ phones, desks, offices, or other work tools and equipment;
  10. If in use, open sales registers must be at least six (6) feet apart;
  11. Point of sale equipment should be frequently cleaned and sanitized;
  12. Placing notices that encourage hand hygiene at the entrance to the workplace and in other workplace areas where they are likely to be seen; and
  13. Suspending the use of Personal Identification Number (PIN) pads, PIN entry devices, electronic signature capture, and any other credit card receipt signature requirements to the extent such suspension is permitted by agreements with credit card companies and credit agencies;

D.        Measures for Non-Critical Infrastructure Businesses Effective May 1, 2020:

Effective, May 1, 2020, Non-Critical Infrastructures continuing their in-person operations must adhere to various measures, including the following:

  1. Screening and evaluating workers who exhibit signs of illness, such as a fever over 100.4 degrees Fahrenheit, cough, or shortness of breath;
  2. If a retail business, posting a sign on the storefront stating that individuals who have a fever or other symptoms of COVID-19 shall not enter the store;
  3. Requiring workers who exhibit signs of illness to not report to work or to seek medical attention;
  4. Disinfecting common surfaces regularly;
  5. Requiring hand washing or sanitation by workers at appropriate places within the business location;
  6. Practice social distancing at work
  7. Permitting workers to take breaks and lunch outside, in their office or personal workspace, or in such other areas where proper social distancing is attainable;
  8. Implementing teleworking for all possible workers;
  9. Implementing staggered shifts for all possible workers;
  10. Holding all meetings and conferences virtually, wherever possible;
  11. Discouraging workers from using other workers’ phones, desks, offices, or other work tools and equipment;
  12. Placing notices that encourage hand hygiene at the entrance to the workplace and in other workplace areas where they are likely to be seen;
  13. For retailers and service providers, providing for alternative points of sale outside of buildings, including curbside pick-up or delivery of products and/or services if an alternative point of sale is permitted under Georgia Law;
  14. Open sales registers must be at least six (6) feet apart;
  15. Increasing physical space between workers and patrons; and
  16. Suspending the use of Personal Identification Number (PIN) pads, PIN entry devices, electronic signature capture, and any other credit card receipt signature requirements to the extent such suspension is permitted by agreements with credit card companies and credit agencies.

The Executive Order also recommends all Critical and Non-Critical Infrastructures that continue their in-person operations adhere to the following measures when practicable:

  1. Providing Personal Protective Equipment as available and appropriate to the function and location of the worker within the business location;
  2. Providing disinfectant and sanitation products for workers to clean their workspace, equipment, and tools; and
  3. Increasing physical space between workers’ worksites to at least six (6) feet.

The April 23, 2020, Executive Order defines Personal Protective Equipment as: “surgical masks, N95 masks, respirators, other facemasks, protective gloves, protective clothing, protective garments, and shoe coverings.”

E.        Measures for Retail Businesses and Food Establishments Effective May 1, 2020:

Effective May 1 and running through May 13, 2020, all retail businesses, which includes Food Establishments like Retail and Wholesale Grocery Stores, must implement the following additional measures:

  1. Limiting the number of patrons inside the store to 50% of fire capacity occupancy or eight (8) patrons per 1,000 square feet;
  2. Encouraging patrons to use hand sanitizer upon entering;
  3. Encouraging non-cash payments when possible;
  4. Sanitizing entrance and exit doors at least three (3) times per day;
  5. Encouraging workers to report any safety and health concerns to the employer;
  6. Installing protective screens or other mitigation measures where worker-patron interactions are likely; and
  7. Providing additional hand sanitizer within the business.

The Executive Order also requires that these retail businesses implement additional measures where practicable. The measures that the Executive Order recommends, to the maximum extent practicable, include:

  1. Schedule specific hours of operation for vulnerable populations to shop without other patrons;
  2. Reducing store hours to allow for increased cleaning and sanitation while the store is closed;
  3. Enacting policies and procedures to encourage social distancing for patrons and employees. Such measure may include:
    1. Protective Plexiglass screens at service counters and at cash registers;
    2. Decals on the floor or aisles with messaging on social distancing;
    3. Signs throughout the store giving visuals on social distancing;
    4. Limited occupancy if store becomes too crowded; and
    5. Use of one-way aisles.
  4. Providing Personal Protective Equipment as available and appropriate to the function and location of the worker within the business location;
  5. Encouraging patrons to wear face coverings;
  6. Utilizing in-store messaging to educate and remind patrons and employees on recommended hygiene and social distancing;
  7. Discontinuing sampling or cooking stations;
  8. Closing self-service salad bars and buffets;
  9. Adding additional staff to specifically oversee increased sanitation of grocery carts, and other high-touch areas such as door handles, point of sales equipment, conveyor belts, and other surfaces;
  10. Checking restrooms regularly, cleaning and sanitizing based on frequency of use, and ensuring adequate supply of soap and paper towels at all times;
  11. Allowing time for frequent hand washing for employees, including cashiers, that interact directly with patrons;
  12. Increasing or add hand sanitizing stations around stores for patrons and employees; and
  13. Procuring options with third-party cleaning companies to assist with the increased cleaning demands as needed.

The April 23, 2020, Executive Order specifically excludes the above measures for the following retail businesses:

  • Food Processing Plants;
  • Wholesale Sandwich manufacturers; and
  • Wholesale Salad manufacturers.

F.         Additional Measures for Gyms and Fitness Centers Effective Immediately:

In addition to the measures imposed on the other businesses, Gyms and Fitness Centers are required to implement the following measures immediately (through May 13, 2020):

  1. Placing signage at any entrance to instruct patrons that they cannot enter if they have been diagnosed with COVID-19, had symptoms of COVID-19, or had contact with a person that has or is suspected to have COVID-19;
  2. Placing signage at any entrance and throughout the facility to instruct patrons of the enhanced sanitation procedures, Social Distancing requirements, and other instructions and limitations, as applicable, set forth below;
  3. Screening patrons at entrance. Patrons exhibiting a temperature greater than 100.4 degrees Fahrenheit, cough, shortness of breath, or other respiratory symptoms shall not be permitted to enter;
  4. Limiting occupancy to enforce Social Distancing requirements and to prohibit Gatherings;
  5. Utilizing contactless forms of patron check-in;
  6. Providing hand sanitizer stations for patrons and encouraging use;
  7. Providing sanitation wipes at or near each piece of equipment and requiring users to wipe down the equipment before and after use;
  8. Requiring workers to patrol patron areas to enforce the equipment wipe-down policy and conduct additional cleanings during times when equipment is not being used;
  9. Limiting use of cardio machines to every other machine to maintain acceptable Social Distancing between users;
  10. Enforcing Social Distancing and prohibiting congregating between non-cohabitating patrons. Patrons should be encouraged to conduct their workout and exit the facility without unnecessary delay;
  11. Halting the provision of group classes;
  12. Halting the provision of in-facility child care services;
  13. Closing the following facilities and equipment within a gym or fitness center:
    1. Pools
    2. Basketball courts
    3. Group sport areas
    4. Hot-tubs
    5. Saunas
    6. Steam rooms
    7. Tanning beds
  14. Limit locker room use and avoid use if possible;
  15. Requiring patrons to spray showers with a provided cleaning spray after use; and
  16. Requiring workers to clean and sanitize bathrooms and locker rooms regularly throughout the opening hours in addition to the regular cleaning schedule.

G.        Additional Measures for Body Art Studios, Hair Salons, Estheticians, and Other Businesses Effective Immediately:

The April 23, 2020, Executive Order also issues additional measures for the following businesses, effective immediately (through May 13, 2020):

  • Body Art Studios, pursuant to Code Section 31-40-2
  • Businesses registered pursuant to Code Sections 43-10-11 and 43-10-18
    • Beauty Shops
    • Beauty Salons
    • Barber Shops
    • Schools of Cosmetology
    • Schools of Hair Design
    • Schools of Esthetics
    • Schools of Nail Care
    • Schools of Barbering
  • Individuals who, for compensation, engage in the practice of esthetics (massages, trims, dyeing, etc.), or cosmetic skincare, pursuant to Code Section 43-10-1(8)
  • Hair Designers, pursuant to Code Section 43-10-1(9)
  • Persons who practice Massage Therapy, pursuant to Code  43-24A-8; and
  • Tanning Facilities, as defined by Code Section 31-38-1(6)

The below measures are mandatory for the businesses listed above:

  1. Providing services by appointment only. Walk-in patrons should not be allowed;
  2. Patrons should be required to sanitize their hands upon entering the facility and before any treatment;
  3. Providing hand sanitizer or sanitization wipes to patrons upon arrival;
  4. Posting signs at the entrance and at eye-level at each workstation stating that any patron who has symptoms of COVID-19 must reschedule their appointment;
  5. Allowing only one (1) patron per service provider in the business at any one time,
  6. Allowing one (1) parent to be within a facility if a minor child is receiving a haircut;
  7. Requiring patrons to wait in car in his or her car until service provider is ready;
  8. Staggering use of every-other workstation or spacing workstations more than ten (10) feet apart, whichever option is practicable given the facility’s configuration;
  9. Staggering work schedules so that no more than 50% of the normal number of employees providing services will be in the business at a time;
  10. Requiring all employees to wear Personal Protective Equipment as available and appropriate to the function and location of the worker within the business location;
  11. Sanitizing all equipment, chairs, and tables used by employees and patrons between each client visit;
  12. Utilizing disposable materials and supplies as much as practicable according to state rules and regulations; and
  13. Training all employees on additional measures both verbally and in writing.

H.        Additional Measures for Theaters Effective May 1, 2020:

In addition to the above applicable requirements, indoor movie theaters and cinemas that choose to operate from May 1, 2020 to May 13, 2020 must implement the following additional measures:

  1. Each party of patrons must be seated at least six (6) feet apart. No party seated together may number more than six (6) individuals;
  2. At least one usher must be used in each theater room before and at some point, during each showing to ensure that proper Social Distancing protocol is enforced;
  3. Seats, armrests, handrails, doors, doorknobs, and door handles in each theater must be thoroughly sanitized before and after each showing;
  4. Tape must be applied to floors at ticket counters and concession stands to enforce proper Social Distancing protocol for patrons who are waiting in line;
  5. Restrooms must be cleaned and disinfected regularly, and touchpoints must be cleaned no less than once per hour;
  6. Foodservice areas must adhere to the same guidelines set for Restaurants and Dining Services;
  7. Party rooms located at theaters may not host parties or Gatherings; and
  8. Closing playgrounds and arcade rooms, if any.

I.          Additional Measures for Bowling Alleys Effective May 1, 2020

In addition to the above applicable requirements, bowling alleys that choose to operate from 12:00 a.m. May 1, 2020 to May 13, 2020, must implement the following additional measures:

  1. Placing signage at entrance and throughout the facility to instruct patrons of social distancing requirements and other instructions and limitations, as applicable;
  2. Providing hand sanitizer stations for patrons throughout the facility;
  3. Foodservice areas must adhere to the same guidelines set for Restaurants and Dining Services;
  4. Tape must be applied to floors at ticket counters and concession stands to enforce proper social distancing protocol for patrons who are waiting in line;
  5. Removing items from all self-service bowling ball, bowling shoe, and other bowling accessory stations and have workers provide such items to patrons directly;
  6. Allowing groups of six (6) patrons or less per lane;
  7. Staggering use of lanes so that only every other lane or every third land is in use to maintain Social Distancing between groups of patrons. Each party of patrons must be seated at least six (6) feet apart;
  8. Scorekeeping machines, ball returns, tables, seats, and other fixtures at each bowling lane must be thoroughly sanitized before and after each use;
  9. Bowling balls and bowling shoes must be thoroughly sanitized before and after each use;
  10. Party rooms located at bowling alleys may not host parties or groups of more than 10 people if they are not at least six feet apart; and
  11. Closing playgrounds and arcade rooms, if any.

J.         Measures for Businesses Performing Outdoor Work

People who perform work outdoors where regular contact with another person does not occur only need to practice social distancing and implement a sanitation process in accordance with the guidelines published by the Centers for Disease Control and Prevention.

The April 23, 2020, Executive Order lists the following businesses as examples of outdoor work:

  • Delivery Services
  • Contractors
  • Landscape Businesses
  • Agricultural Industry Services

K.        Measures Impacting Healthcare Businesses Effective Immediately

The Executive Order also includes provisions that apply to various healthcare businesses. The following provisions are effective immediately:

  • All persons, services, or entities delivering healthcare during the effective dates of the Order must follow the guidelines listed for Critical Infrastructure along with the additional Healthcare guidelines listed in the Order.
  • Dental practices and clinics continuing their in-person operations must not only adhere to the guidelines listed for Critical Infrastructures, but also adhere to the American Dental Association’s Interim Guidance for Minimizing Risk for COVID-19 Transmission and Interim Mask and Face Shield Guidelines.
  • Any previous previously issued Executive Order or rule that would prevent dental practices and clinics from providing the full scope of their services subject to the above requirements are suspended.
  • Licensed Optometrists and their staff continuing their in-person operations must not only adhere to the guidelines listed for Critical Infrastructures, but also adhere to the American Optometric Association’s Practice Reactivation Preparedness Guide and the Georgia Optometric Association’s COVID-19 guidelines for practices issued on March 17th and April 20th of 2020.
  • Any previous previously issued Executive Order or departmental rule that would prevent optometrists from providing the full scope of their services subject to the above requirements are suspended.
  • Licensed Opticians and their staff continuing their in-person operations must not only adhere to the guidelines listed for Critical Infrastructures, but also adhere to the Centers for Disease Control and Prevention’s Recommendations for Office Disinfection and Recommendations for Employers.
  • Any previous previously issued Executive Order or departmental rule that would prevent opticians from providing the full scope of their services subject to the above requirements are suspended.
  • Ambulatory Surgical Centers continuing their in-person operations must not only adhere to the guidelines listed for Critical Infrastructures, but also implement additional measures to prevent the spread of COVID-19. To the maximum extent practicable, these measures may include:
  1. Screening patients before visits and monitoring their health prior to starting surgery as party of the pre-operative procedure;
  2. Requiring staff to self-monitor and screen for viral symptoms daily;
  3. Continuing to use Personal Protective Equipment per the latest Centers for Disease Control and Prevention recommendations for all procedures;
  4. Following waiting room spacing guidelines, social distancing, face masking, and other recommended procedures for patients and visitors prior to entering the facility;
  5. Ensuring heightened disinfection to prevent and mitigate risk of spread;
  6. Ensuring patients have been medically cleared by their primary care physician where applicable;
  7. Balancing the needs of patient care with the risk of providing that care by prioritizing procedures for patients who have lower co-morbidities and surgical risks and procedures accompanied by lower risk with regard to airborne transmission and those with minimal risk of unintended hospital admissions;
  8. Performing regular rapid COVID-19 testing on providers and employees where feasible; and
  9. Performing COVID-19 testing on patients suspected to be experiencing COVID-19 and factoring the results of such testing into clinical decisions as to whether or not to proceed with procedures.
  10. As with the above sections, any previously issued Executive Order or departmental rule that would prevent ambulatory surgical services from providing the full scope of their services subject to the above requirements are suspended.

L.        Enforcement of Executive Order

The Executive Order allows “any law enforcement officer, after providing reasonable notice and issuing at least two (2) citations for violations of Code Section 38-3-7, is authorized to mandate the closure of any business, establishment, corporation, non-profit corporation, or organization not in compliance with this Order for a period not to extend beyond the term of this order.”

M.       So What Next?

Employers that are planning on reopening (or continuing to operate) their business based on Governor Kemp’s April 23, 2020 Order should immediately begin assessing the health and safety protocols they have in place now for employees and what additional steps they need to take to comply with the April 23 Order.  Further, we recommend that employers consult with their counsel to evaluate any industry or location-specific measures that should be taken to reduce any concerns by customers of contracting COVID-19 when visiting the employer’s establishment. 

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include re-opening the workplace, protecting business interests, shelter in place orders and more. Click here to view upcoming webinars.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Massachusetts: Relief Funds For Nursing Home & Other Long-term Care Facilities Fighting COVID-19

Posted on: April 27th, 2020

By: Janet Barringer and William Gildea

Massachusetts Governor Charlie Baker announced on April 27, 2020 the Commonwealth will allocate $130 Million to nursing homes and other long-term care facilities in Massachusetts to assist in the ongoing battle against COVID-19. The COVID-19 Nursing Facility and Accountability Support document states “[n]ursing facilities account for more than half of COVID-19 related deaths in the state.” The rapid rate of infection and mortality is driven by the “health status of residents, lack of infection control sophistication and for crisis management, substantial staffing issues (up to 20-40% of call out rates), and difficulty cohorting residents to decrease transmission.”

Nursing homes and other long-term care facilities should take note of this new assistance offered by the Commonwealth to help the battle against COVID-19. The Press Release provides the following:

  • Funding will support staffing costs, infection control and personal protective equipment (PPE);
  • Funding is dependent on required COVID-19 testing of all staff and residents, regular infection control audits, appropriate allocation of funding and the public release of facility performance and funding use;
    • Facilities must test all staff and residents, and report results to the Commonwealth. Facilities are also encouraged to identify and pursue testing avenues with area hospitals, EMS or other providers. The state’s mobile testing program is available for those facilities unable to set up testing.
    • All nursing facilities will be regularly audited in-person for infection control and accountability, and each will receive a baseline audit during the first two weeks of May. These clinical audits will be conducted using a 28-point Infection Control Checklist, based on DPH, CDC and industry guidance. This checklist includes infection control, PPE supply and usage, staffing, clinical care, and communication requirements.
    • Frequency of audits is dependent upon a variety of factors including: Audit Rating, historically documented infection control issues, staffing levels based on industry standard hours per patient day of care and call-out rates, level of COVID-19 infection, and quality rating by the Nursing Facility Taskforce.
  • Facilities will be scored into three ratings: in adherence (green), in adherence but warrants inspection (yellow) and not in adherence (red).
  • The Commonwealth will offer support for temporary staffing assistance for all nursing homes in need, including clinical response teams of 120 nurses and Certified Nursing Assistants deployed in teams of 10 during emergency situations, crisis management support and deployment of the Massachusetts National Guard;
  • All performance measures and funding use will be publicly reported using a mandatory reporting template, and the Commonwealth will provide consolidated information in the testing completion status by facility, COVID-19 case counts and mortality of staff and residents, and audit results. These reports will be due shortly after June 30th, and the Commonwealth will then compile and deliver a public report.
  • Funding is directly linked to an audit rating over time and, if qualified, will be dispersed biweekly over four “pay periods.”

Governor Baker promised to be “aggressive” in assisting long term care facilities impacted by COVID 19. The $130 Million in relief funds and associated steps for protection are examples of the care extended by Massachusetts to those who live and work in nursing homes and other long-term care facilities.

If you have any questions or would like more information, please contact Janet Barringer at [email protected] and William Gildea at [email protected].

CARES Section 18006 Encourages Schools to Retain Staff to the “Greatest Extent Practicable”

Posted on: April 27th, 2020

By: Tia Combs

As many schools around the country make the final decision to remain closed for the school year, it may be tempting to cut back on staff to save money for what is predicted to be a historic budget shortfall next year. However, the wisdom of that move may be lost when districts consider legislation recently passed by Congress.

On March 27, 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security Act (the “CARES” Act”). The lengthy piece of legislation gives financial benefits to seven primary groups: 1) individuals, 2) small businesses, 3) mid-size and larger companies, 4) hospitals and public health facilities, 5) children and families, through federal safety net programs, 6) state and local governments, and 7) providers of educational services.

Of particular interest to educational institutions is the Education Stabilization Fund. The fund provides over $30 billion dollars to educational institutions. Roughly $16.5 billion of the fund is allocated for distribution to elementary and secondary schools through the Elementary and Secondary School Emergency Relief Fund and the Governor’s Emergency Education Relief Fund. Distribution of these funds are contingent on the educational institutions fulfilling certain labor and employment related requirements. 

In particular, pursuant to Section 18006 of the Act states:

A local educational agency, State, institution of higher education, or other entity that receives funds under “Education Stabilization Fund,” shall to the greatest extent practicable, continue to pay its employees and contractors during the period of any disruptions or closures related to Coronavirus.

For K-12 educational institutions, this means that they must continue to pay employees and see that contractors (and their employees) are paid to the greatest extent possible and be prepared to explain any failure to do so.  Many state educational agencies have given advised local districts to do what they can to retain workers. For example, the Indiana Department of Education has advised districts: 

In the application for the CARES Act funding, the LEA must attest that it has been paying all employees and contractors during the closure or disruptions related to the coronavirus, or that it will begin doing so immediately. If LEAs are not able to attest to this fact, then it must provide a reasonable explanation beyond reasons related to cash flow (as tuition support has not been reduced) in order to be eligible for the CARES Act funding. IDOE considers the employees and contractors to include, but is not limited to, the following positions: teachers, administrators, counselors, social workers, nurses, paraprofessionals, bus drivers, custodians, food service, and administrative staff.

In light of Section 18006, districts considering staffing reductions should make those decisions in consultation with legal counsel so that the district’s ability to receive these federal funds is preserved.

If you have any questions or would like more information, please contact Tia Combs at [email protected].