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Posts Tagged ‘Coronavirus’

Hurricanes, Pandemics, and Shortages, Oh My: Considerations for Hurricane Season in the Time of Coronavirus

Posted on: June 18th, 2020

By: Anastasia Osbrink

According to forecasters with the Climate Prediction Center at the National Oceanic and Atmospheric Administration (“NOAA”), a division of the National Weather Service, the 2020 hurricane season has a 60% chance of being an “above-normal season.” (See https://www.noaa.gov/media-release/busy-atlantic-hurricane-season-predicted-for-2020.)

This forecast is based on several factors. According to the NOAA, there are “warmer-than-average sea surface temperatures in the tropical Atlantic Ocean and Caribbean Sea,” including record high temperatures in the Gulf of Mexico. That “coupled with reduced vertical wind shear, weaker tropical Atlantic trade winds, and an enhanced west African monsoon all increase the likelihood for an above-normal Atlantic hurricane season.” Hurricanes are formed when “a weather disturbance, such as a thunderstorm, that pulls in warm surface air from all directions” combines with “water at the ocean’s surface that is at least 80° Fahrenheit.” (https://oceanexplorer.noaa.gov/facts/hurricanes.html.) Warm sea water gives hurricanes their strength. Therefore, the warmer the seawater, the more fuel they get, and the stronger these storms can become. Additionally, hurricanes lose strength if high-altitude winds shear apart the top of the storm. Hence, reduced vertical wind shear and weaker tropical Atlantic trade winds will also enable stronger storms to form. (https://oceanexplorer.noaa.gov/facts/hurricanes.html.) Regarding the fourth of these conditions, a stronger west African monsoon season “allows wind patterns coming off Africa to more easily spin up storms.” (https://www.noaa.gov/stories/whirlwind-of-atlantic-hurricane-season-what-gives.) Additionally, as the NOAA explains, “El Nino Southern Oscillation (ENSO) conditions are expected to either remain neutral or to trend toward La Nina, meaning there will not be an El Nino present to suppress hurricane activity.” (https://www.noaa.gov/media-release/busy-atlantic-hurricane-season-predicted-for-2020.) The NOAA notes that when “similar conditions” have been present in the past, they have produced more active seasons than when these conditions are not present. In fact, this is the first time since records of hurricanes have been kept where there were three named storms before the official start of hurricane season on June 1st.

There is, though, another factor that will have an impact during this season’s hurricanes and storms – Coronavirus and COVID-19 – for several reasons.

First, during these initial months of response to Coronavirus and COVID-19, staples like toilet paper, water, disinfectants, and first-aid items often have been out of stock at stores and online. With storms heading their way, certain population centers will have to respond to the inevitable rush for food, bottled water, and other crucial supplies.

Second, many people living along the Southeastern Seaboard and the Gulf Coast rely on various businesses that provide hurricane preparation and storage services, such as window boarding, sandbagging, and securing of personal property. With many businesses struggling to remain open or maintain their workforce due to the pandemic, such services may be more difficult to find.

Third, if people have to head to evacuation centers, which are enclosed spaces crowded with people, the virus and COVID-19 may be more likely to spread.

Finally, as cities and states respond, they will need to put more time, effort, and resources into planning and setting up these centers to ensure social distancing can be practiced. One solution is more centers with more volunteers. Additional personal protective equipment (“PPE”) will be needed such as extra masks, gloves, hand sanitizer, and washing stations.

Some of the resources available to respond to these risks are provided in the following links:

https://www.ready.gov/hurricanes

https://www.cdc.gov/coronavirus/2019-ncov/index.html

https://www.fema.gov/news-release/2020/06/01/prepare-2020-hurricane-season-now

https://www.weather.gov/wrn/hurricane-preparedness

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

Additional Information:

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.**

Immunity for COVID-19 Claims in Georgia

Posted on: June 16th, 2020

By: Jake Daly

Following a three-month layoff due to COVID-19, the Georgia General Assembly reconvened on June 15 to complete its business for the 2020 session. With only ten legislative days remaining as of June 15, 2020, there is limited time to deal with new and old priorities. One of the new priorities is a bill providing immunity for businesses and healthcare providers that are sued by employees, customers, visitors, and patients who contract COVID-19.

HB 216 was introduced in the House in 2019 to create a specialty license plate honoring the Georgia Tennis Foundation. The House passed it on March 10, 2020, and it was referred to the Senate Committee on Public Safety where it was amended to become the Georgia Pandemic Business Immunity Act. This committee passed the amended version of HB 216 on June 15, 2020. The bill still needs approval by the full Senate and the House before it can be signed into law by Governor Brian Kemp.

HB 216 is designed to (1) ensure that society’s constitutional freedoms are adequately protected while allowing citizens and businesses to return to some sense of normality without fear of civil liability that may arise from risks that nobody can fully control, (2) allow the citizens of Georgia to focus on rebuilding the state’s damaged economy without being burdened by the costs of crippling litigation, (3) allow businesses to continue to obtain access to affordable insurance coverage for their operations, and (4) allow the state and local governments to raise the revenue needed to provide critical services to their citizens.

If enacted, HB 216 would create a new code section, O.C.G.A. § 51-1-56, which would apply only to claims that arise after its effective date and on or before June 30, 2022. (The end date is two years after Governor Kemp’s last executive order declaring a state of emergency due to COVID-19 expires. Governor Kemp’s current executive order expires on June 30, 2020.) The key provisions of HB 216 are:

  • All persons would be immune from any civil liability for damages arising from exposure to or contraction of COVID-19 by another while on their premises. Note that the term “person” is defined broadly to include natural people, businesses, property owners’ associations, charitable organizations, and state and local governments and their departments and officials. Also, the term “premises” is defined broadly to include residential, commercial, agricultural, and industrial property that is owned, occupied, leased, operated, maintained, or managed by a “person.”
  • All healthcare providers and facilities would be immune from any civil liability for injury or death allegedly caused by the provider’s or the facility’s good-faith acts or omissions while providing healthcare services related to COVID-19.
  • There would be no immunity for conduct that constitutes gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.
  • Punitive damages could not be recovered in any case involving exposure to or contraction of COVID-19.

Stay tuned for further updates as HB 216 winds its way through the General Assembly.

If you have questions or would like more information, please contact Jake Daly at [email protected].

Additional Information:

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.**

OSHA Issues Updated Guidance On When Employers Must Record COVID-19 Cases

Posted on: June 8th, 2020

By: Elizabeth Fellmeth

In OSHA’s original guidance from April 2020, the agency acknowledged the difficulty in determining whether a COVID-19 case was “work-related” due to possible employee infections from outside the workplace.  Most employers did not have a reporting obligation unless the employer had “objective evidence” that the COVID-19 case was work-related.  Under the new guidance set forth below, OSHA confirms COVID-19 is a recordable illness, and all employers – including non-health care employers – are expected to investigate COVID-19 cases and make a determination of work-relatedness.

OSHA’s COVID Recordability Test

A COVID-19 case must be recorded if:

  1. The case is a confirmed case of COVID-19 as defined by the Center for Disease Control and Prevention (CDC)[1]
  2. The case is work-related; and
  3. The case results in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness.

If the employee meets these three requirements, the COVID-19 case should be recorded on the employer’s OSHA 300 log.  A COVID-19 case should also be coded as a respiratory illness.  In accordance with existing regulations, the only employers that are exempt from maintaining such records are those with 10 or fewer employees or certain low-risk industries.[2]

The key issue for an employer in assessing a COVID-19 case is determining whether it is “work-related.” OSHA’s new guidance indicates it will consider the following factors in determining whether an employer has made a reasonable determination on this issue:

  1. The reasonableness of the employer’s investigation into work-relatedness. 

Under this new standard, it would be reasonable for an employer to engage in the following steps upon learning of the employee’s COVID-19 illness:

  • Ask the employee how he or she believes the virus was contracted;
  • Discuss with the employee activities at work and outside of work that may have led to the illness; and
  • Review the employee’s work environment for potential exposure.

OSHA also notes that “due weight” should be given to the opinion of a medical provider or a public health authority in making a determination.  With that said, the employer is not expected to undertake extensive medical inquires.

  1. The evidence available to the employer.

This will include the information reasonably available to the employer at the time it made the decision about work-relatedness.  However, it can be changed later when the employer learns additional information that may impact the determination.

  1. The evidence that a COVID-19 illness was contracted at work.

The new guidance outlines some evidence that weigh in favor or against work-relatedness:

  • Evidence that may weigh in favor of work-relatedness includes:
    • Several cases developing among workers who work closely together and there is not an alternative explanation; and
    • An employee testing positive shortly after lengthy, close exposure to a customer or coworker who has a confirmed case and there is not an alternative explanation.
  • Evidence that may weigh against work-relatedness includes:
    • A worker who tests positive is the only worker in his or her vicinity to contract the virus and his or her job duties do not involve frequent contact with the public; and
    • A worker who contracts COVID-19 has close contact with a family member or close friend who is not a coworker who has the virus.

In summary, it is imperative that employers conduct a reasonable and objective evaluation for work-relatedness when assessing COVID-19 cases in the workplace.


[1] The CDC defines a confirmed case as an individual who tests positive for SARS-CoV-2, the virus that causes COVID-19.

[2] https://www.osha.gov/laws-regs/regulations/standardnumber/1904/1904SubpartBAppA

COVID-19 in Jails: A Case Study

Posted on: May 22nd, 2020

By: Wes Jackson

By now we are all familiar with the CDC’s recommendations for limiting the spread of COVID-19: “social distancing,” maintaining a distance of six feet from others as much as possible, avoiding large gatherings, and self-isolation if you exhibit symptoms of the disease or test positive, among others. As challenging as these practices can be for the general public, they pose a unique challenge to jail administrators who are now tasked with limiting the spread of COVID-19 amongst inmates tightly packed into closed places. All the while, jail officials must also maintain order and security in the jail while respecting the constitutional rights of inmates.

How should jails balance these competing interests and, perhaps more importantly, who gets to decide? There are no clear answers to those questions. Interestingly, though, the Eleventh Circuit Court of Appeals recently issued an opinion in Swain v. Junior that provides a helpful analysis.

In Swain, inmates at Miami’s Metro West Detention Center filed for a preliminary injunction and habeas relief against the jail administrator, arguing that the jail was not doing enough to stop the spread of COVID-19 between inmates. While it was uncontested that the jail had already undertaken many measures recommended by the CDC  to address COVID-19 in jail settings (you can read that guidance here), the inmates nevertheless asked the federal district court to issue an injunction requiring the jail to take various precautions. The district court agreed and ordered the jail to implement several specific practices to stop the spread of COVID-19 in the jail, including maintenance of six feet social distancing “to the maximum extent possible;” strict testing and PPE requirements, and new procedures for the provision of medical care, among others.

The jail then went to the Eleventh Circuit Court of Appeals to ask for a stay of the injunction. The Eleventh Circuit, applying the “deliberate indifference to a risk of serious harm” standard, found that the measures the jail had taken were constitutionally adequate and did not require an immediate injunction. Specifically, the Court of Appeals found that “the evidence supports that the defendants are taking the risk of COVID-19 seriously.” The Court also noted that local governments are in the best position to allocate resources in high-demand needed to prevent, test for, and treat COVID-19 amongst various local facilities, and the district court could not assume the role of “super warden” in ordering a particular allocation of those limited resources.

In short, the COVID-19 pandemic poses a novel challenge to jail administrators. At least for now, the Eleventh Circuit has granted one jail some latitude in how it addresses that challenge. The Eleventh Circuit’s decision is consistent with federal courts’ reluctance to micromanage correctional facilities in the absence of widespread constitutional violations.   

If you have any questions about local governments’ response to COVID-19, please contact Wes Jackson 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.**

FINRA In-Person Hearings Further Postponed Until July 31

Posted on: May 20th, 2020

By: Kathleen Cusack and Kirsten Patzer

On Friday, May 15, 2020, amidst continued concern over the potential spread of COVID-19, the Financial Industry Regulatory Authority (FINRA) postponed all in-person arbitration and mediation proceedings until July 31, 2020. FINRA initially postponed in-person meetings beginning in March and extended the suspension several times. 

In its most recent announcement, FINRA also offered to waive the postponement fee if parties agree to reschedule in-person hearings currently scheduled between July 31 and September 4, 2020. All other case deadlines continue to apply. 

As an alternative to in-person meetings, videoconferencing or telephonic meetings are permissible if requested by parties or if mandated by arbitrators. This option is reportedly unpopular and infrequently utilized. And when it has been utilized, the outcomes are subject to scrutiny and may lead to awards being overturned.

A recent FINRA award has resulted in Wunderlich Securities, Inc. filing an action in the U.S. District Court for the Southern District of New York asking that the $11.4 million award issued against them in March be vacated after the final hearing was held via Zoom. According to Wunderlich, the panel had been inattentive throughout the entire proceeding, held over the course of 9 sessions, with the final session being the only one not held in person. During the Zoom videoconference, one arbitrator would look at other screens, typing, and eating during testimony, another arbitrator completely blocked her screen, and during closing arguments, one of the panelists completely walked away from his screen. After the final hearing Wunderlich filed a motion requesting that the panel recuse itself. That motion was unanimously denied by the panel.

The original FINRA arbitration was Dominick & Dickerman LLC, Michael John Campbell v. Wunderlich Securities, Inc., available here. The Petition to Vacate for that case, available here.  

If you have questions or would like more information, please contact Kirsten Patzer 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.**