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Archive for the ‘Coronavirus Resource Center’ Category

Waiver of Liability and COVID-19

Posted on: June 2nd, 2020

By: Michael Bruyere and Kathleen Cusack

As all 50 states begin easing restrictions related to COVID-19, businesses will be seeking ways to limit not only their employees’ and patrons’ exposure to the virus but also any potential liability stemming from the virus. One tool some businesses are using to try to limit their liability arising from COVID-19 is a waiver. By requiring employees and/or customers to sign a waiver of liability, businesses seek to shift the responsibility associated with contracting COVID-19 to the individual rather than the business.

While a few states will not enforce liability waivers, most jurisdictions in the United States will enforce waivers for liability arising out of negligent conduct. However, most jurisdictions will not enforce waivers of liability that seek to waive liability arising out of intentional, reckless, or grossly negligent conduct. What behavior would meet the threshold for recklessness or gross negligence remains unclear. In a recently filed lawsuit, the family of a passenger on the Grand Princess cruise ship allege that the cruise line was grossly negligent in exposing passengers to risk because it added additional passengers after people on board exhibited symptoms of the virus and the cruise line knew of the potential exposure. The lawsuit claims that passengers were not informed of any risk of exposure and that the cruise ship failed to enact sanitary procedures until about two weeks after passengers exhibited symptoms. (Case No. 2:20-cv-04074).

Where waivers are enforceable, they must be drafted in a manner that guarantees that customers will understand the risks associated with the services and the rights that they will waive.  Waivers also must be written in such a way that they are concise and plainly evident, i.e. not buried in a long document. 

Waivers of liability are common for certain types of businesses, such as gyms, but are less common and perhaps even impractical for many other types of businesses. For instance, while theme parks more commonly have waivers of liability that could be electronically communicated, smaller businesses such as grocery stores and hair salons may not. In addition, a physical waiver form may be impractical because the process of signing the waiver would require contact with objects, which is incongruous with common COVID-19 safety recommendations. Businesses could also warn patrons of a potential risk of contracting COVID-19 by using signs similar to wet floor signs. While signs would not necessarily limit a business’s liability, it might help establish that patrons were aware of the risk of exposure to the virus while on the premises.     

Despite a lack of clear understanding of how courts will interpret COVID-19 liability waivers, businesses across the country will likely try to implement waivers in addition to safety precautions to minimize the risk of exposure for employees and patrons. An example of a COVID-19 liability waiver for the Falmouth Country Club in Massachusetts in part reads “I acknowledge and fully assume the risk of illness or death related to COVID-19 arising from my being on the premises and participating in the Activities and hereby RELEASE, WAIVE, DISCHARGE, AND COVENANT NOT TO SUE (on behalf of myself and any minor children form whom I have the capacity contract) [the business]. . . .” Disney World Resort now also mandates that visitors sign COVID-19 liability waivers. Some businesses have even started mandating that employees waive potential liability stemming from exposure to COVID-19 while at work. While these liability waivers are controversial, many businesses see them as a necessary step in reopening.  

If you have questions or would like more information, please contact Michael Bruyere at [email protected] or Kathleen Cusack at [email protected]

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. 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.**

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].

Los Angeles Mayor Issues Executive Order Requiring Employers To Provide COVID-19 Supplemental Paid Sick Leave For Employees

Posted on: April 14th, 2020

By: Michelle Harrington

What Does The Executive Order Require: The COVID-19 crisis has employers scrambling to stay on top of legal obligations imposed by recent federal legislation, including the federal Families First Coronavirus Response Act and the CARES Act, and various state law initiatives aimed at providing leave or unemployment benefits to employees affected by COVID-19.   Now, Los Angeles has entered the mix and, effective April 7, 2020, employers that have either 500 or more employees in the City or 2,000 or more employees nationally must provide supplemental paid sick leave of up to two weeks (80 hours) for COVID-19 related reasons to employees living within the City of Los Angeles.  The paid sick leave required to be provided under this Order is in addition to the paid sick leave employers are currently obligated to provide under California’s Healthy Workplaces Healthy Families Act and the Los Angeles paid sick leave ordinance. 

The complete supplemental paid sick leave Order may be viewed here, and sets forth the following:

Employees Covered by the Order: All Employees who have been employed by the same employer from February 3, 2020 through March 4, 2020 who have performed work within the geographic boundaries of the City of Los Angeles are entitled to supplemental paid sick leave. 

Employers Covered by the Order: An employer is a person (as defined in Section 18 of the California Labor Code) including a corporate officer or executive, who directly or through an agent or any other person, including through a temporary service or staffing agency or similar entity, employs or exercises control over the wages, hours or working conditions of any Employee.  The Order applies to Employers that have either 500 or more employees in the City of Los Angeles or 2,000 or more employees within the United States.

Supplemental Paid Sick Leave Employers Must Provide: An employee who works at least 40 hours a week or is classified as full-time by the employer is entitled to 80 hours of supplemental paid sick leave.  This leave is calculated based upon an employee’s average two-week pay over the period of February 3, 2020 through March 4, 2020.  Employees who work less than forty hours per week and are not classified as full-time are entitled to supplemental paid sick leave in an amount no greater than the employee’s average two-week pay over the period of February 3, 2020 through March 4, 2020.

Maximum Compensation Employers Must Pay for Leave: The supplemental paid sick leave amount paid to an employee shall not exceed $511 per day and $5,110 in the aggregate.

Qualifying Reasons for Supplemental Paid Sick Leave: Employees are entitled to take supplemental paid sick leave if they are unable to work or telework for any of the following reasons:

  1. the employee takes time off due to COVID-19 infection or because a public official or healthcare provider requires or recommends the employee self-isolate or quarantine to prevent the spread of COVID-19;
  2. the employee takes time off work because the employee is 65 years old or older or has a health condition such as heart, lung or kidney disease, asthma, diabetes or a weakened immune system;
  3. the employee takes time off to care for a family member who is not sick but who public health officials or healthcare providers have required or recommended isolation or self-quarantine; or
  4. the employee takes time off to provide care for a family member who requires care due to the temporary closure of a senior care facility, school or child care provider caring for a child under the age of 18 where such employee is unable to secure a reasonable alternative caregiver.

Employers May Not Require Doctor’s Note as Condition of Leave: An employer may not require a doctor’s note or other documentation for the use of supplemental paid sick leave.  The employee can request the leave verbally or in writing. 

Offset for Prior Allowance of Paid Sick Leave: The obligation to provide 80 hours of supplemental paid sick leave under the Order can be reduced for every hour that the employer allowed an employee to take other paid leave in an amount equal to or greater than such 80 hour requirement (not including previously accrued hours) on or after March 4, 2020 for any of the reasons listed in 1-4, above or in response to an employee’s inability to work due to COVID-19.

Exemptions for Certain Employers: The following employers are exempt from providing supplemental paid sick leave:

  1. Employers of Emergency and Health Services Personnel.  Employers of an employee who is either Emergency Personnel or a health care worker.  Emergency Personnel refers to individuals specified in the April 1, 2020 City of Los Angeles Safer at Home emergency order Paragraph 5(vi), including all first responders, gang and crisis intervention workers, public health workers, emergency management personnel, emergency dispatchers, law enforcement personnel and related contractors and others working for emergency services providers.  A health care worker includes those individuals described in California Government Code Section 12945.2(c)(6) or individuals, including contract workers, working at a health facility licensed under California Health and Safety Code Section 1250;
  2. Employers of Critical Parcel Delivery.  Employers that provide global parcel delivery services;
  3. Employers with Generous Leave.  Employers that have a paid leave or paid time off policy that provides a minimum of 160 hours of paid leave annually do not have to provide supplemental paid leave to any employee that received the more generous leave;
  4. Employers of New Businesses.  Employers that started businesses in the City of Los Angeles on or after September 4, 2019 through March 4, 2020 (not including construction businesses as defined by Los Angeles Municipal Code (“LAMC”) section 21.30 b.1 or film producers as defined by LAMC 21.109).  To qualify, an employer could not have been in business in the City of Los Angeles in the 2018 tax year;
  5. Government Employers.  Government agencies; or
  6. Employers of Closed Businesses and Organizations.  Employers that were closed or not operating for a period of 14 or more days due to a city official’s emergency order because of the COVID-19 or provided at least 14 days of leave.

Employee Enforcement of Order: The Order allows an employee who claims a violation of the Order to bring a civil action in the Superior Court of California.  The employee can seek civil remedies, including reinstatement, back pay, supplemental paid sick leave at the rate of the employee’s average rate of pay, other legal or equitable relief, and reasonable attorney’s fees and costs of suit.

Retaliation and Discrimination Prohibited: The Order prohibits retaliating or discriminating against an employee for opposing any practice proscribed by the Order, for requesting to use or actually using supplemental paid sick leave, for participating in proceedings related to the Order, for seeking to enforce the employee’s rights under the Order by lawful means, or otherwise asserting rights under the Order. 

No Waiver of Employee Rights Under the Order: Any waiver by an employee of any or all of the provision of the Order shall be deemed contrary to public policy and void and unenforceable.

Relationship to Other State and Federal Laws: With the exception of rights and remedies provided to employees under the FFCRA, the Order provides rights and remedies in addition to or independent of any other rights, remedies or procedures available under any other laws and do not diminish, alter, or negate any other legal rights, remedies, or procedures available to an employee. Nothing in the Order should be interpreted or applied to create any power or duty in conflict with any federal or state law. 

Impact of Collective Bargaining Agreements: The terms of a collective bargaining agreement in effect on April 7, 2020 supersede the Order if such agreement contains COVID-19 related sick leave provisions.  A collective bargaining agreement that expires or becomes open for renegotiation may expressly waive the provisions of the Order.  If an agreement is in place on April 7, 2020 but does not address COVID-19 related sick leave provisions, the employer must comply with the Order until the agreement is amended to expressly waive the provisions of the Order. 

Duration of Supplemental Paid Sick Leave: The Order is in effect from April 7, 2020 up until two weeks after the COVID-19 local emergency period ends.

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include COVID-19’s impact on finances and loans, the FFCRA, the CARES Act 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.**

FMG Responds to Coronavirus Crisis with Multiple Client Resources

Posted on: April 3rd, 2020

We know these are challenging times, but we want our clients and friends to know that FMG remains open for business and is here to help. Our lawyers and staff have worked tirelessly to provide a broad cross-section of capabilities to address all of your legal needs arising out of this crisis, including the following:

  • Coronavirus Task Force – Our multi-disciplinary team of attorneys continues to provide up-to-the-minute information, strategic advice, and practical solutions for our clients and potential clients. You can find out more about the team by clicking here or emailing the team at [email protected]. We are endeavoring to respond to all questions submitted to this email address by a professional skilled in your area of concern.
  • FMG COVID-19 Insurance Coverage Practice Team – Our team of highly experienced insurance coverage attorneys can handle coverage questions and disputes that arise throughout the country. They are uniquely situated to service insurers as national counsel to provide consistent advice and litigation positions as COVID-19 issues arise. For more details on what our team and its members can do for you, please click here.
  • FMG’s Coronavirus Resource Center – We also have established a Coronavirus Resource Center you can access on our website, click here. In one place, you can review summaries of court operations in all jurisdictions that FMG services and also review blogs and other educational information that will be helpful to you.
  • Daily Webinars – Our team also has scheduled multiple daily webinars on topics such as the new CARES Act and subject-specific topics including employment, insurance coverage, cybersecurity, tort liability, and California-specific employment and cyber issues. Webinars are free of charge and open to anyone who would like to attend. To review topics and register, click here.

Our attorneys, wherever they are working, have dedicated themselves to being available before, during, and after normal working hours in order to be readily available to you. They are always accessible 24/7 by email or their personal cell phones (contained in their email signatures). If you have any other questions or concerns, please reach out to us, including to me personally, if there is anything we can do to assist you. 

Benton J. Mathis, Jr.
Managing Partner

Coalition of Insurance and Business Groups Propose the COVID-19 Business and Employee Continuity and Recovery Fund

Posted on: April 1st, 2020

By: Nicole L. Graham and Zachariah E. Moura

A broad coalition has urged the federal government to create a recovery fund for businesses hit hard by the COVID-19 pandemic.

Representatives of 36 trade groups from real estate, insurance, retail and other sectors issued a joint letter to the Trump Administration and Congress asking for rapid delivery of liquidity to impacted businesses—regardless of size, industry or location—to mitigate a larger financial crisis. 

The coalition gratefully acknowledges the loan programs instituted by the CARES Act and the Act’s support for “Main Street” businesses but advises that businesses seeking to avoid an “unprecedented systemic, economic crisis” need more liquidity. 

The proposed COVID-19 Business and Employee Continuity and Recovery Fund (the “Recovery Fund”) would be financed by the government. A special administrator would oversee the fund, with significant oversight and authority to enter into contracts to provide immediate relief to eligible businesses. 

The Recovery Fund would serve to help businesses retain and rehire their employees and meet operating expense obligations during a time when the businesses are unable to fully operate.  Quarantine and shelter-in-place measures, travel restrictions, and social distancing measures have created an unprecedented level of disruption across all industries. 

The letter warned, “[w]ithout broad-based and expeditious federal action, long-term damage to the financial markets, rampant unemployment, and irreparable harm to communities are almost certain.”  The proposed Recovery Fund is modeled after the 9/11 Victims Compensation Fund and is designed to provide short-term and immediate relief to impacted businesses.  Some of the signatories including National Association of Mutual Insurance Companies and International Council of Shopping Centers have issued statements in support of the establishment of the Fund and called for swift action from the government. 

We will continue to monitor developments related to the Recovery Fund and provide updates as they occur. 

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include the CARES Act, education claims, law enforcement, the real-world impact of business restrictions, and the viruses’ impact on the construction industry. Click here to register.

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.**