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Posts Tagged ‘COVID-19’

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.**

Boston Implements New COVID-19 Safety Procedures for Construction Sites

Posted on: May 13th, 2020

By: Catherine Bednar

On May 5, 2020, the City of Boston activated new COVID-19 safety procedures for active construction sites, which are currently limited to projects meeting the City’s definition of emergency or essential work. The City also targeted dates for expanding the categories of permitted construction activity in the City to more closely match the State’s definition of essential construction services; currently, the City has imposed significantly greater restrictions on construction activity.[1]

The City’s Order sets forth the following timetable:

• May 5, 2020 – Essential construction projects with approved COVID-19 Safety Affidavits and COVID-19 Safety Plans will be authorized to prepare the site with project-specific COVID-19 safety measures.

• May 18, 2020 – The City will allow essential construction work on sites that meet the following criteria: (1) Projects are permitted, in compliance and have filed a COVID-19 Safety plan and a signed affidavit; (2) Project sites are sufficiently prepared to adhere to all criteria of their safety plan; and (3) the work is for hospitals, public schools, residential buildings [1-3 units], road and utility work, or other outdoor/open air-work such as steel erection, roofing and constructing foundations.

• May 26, 2020 – All essential construction projects may re-commence construction activities in adherence to their safety plans.

The City has adopted this incremental approach in order to provide additional time “necessary to allow complex, large-scale development an opportunity to educate their workforce, safely remobilize and implement their site-specific Safety Plan.” All Projects must comply with the City’s COVID-19 Safety Policy for Construction, issued on April 27, 2020, which requires the implementation of best practices, including pre-shift safety measures (e.g. employees travel to work separately), job site hygiene practices (e.g. hand sanitization stations), social distancing techniques (e.g. holding safety meetings outdoors); and appropriate use of Personal Protective Equipment (PPE).

[1] Massachusetts Sees Tensions Between Municipal Construction Bans and Governor’s “Essential Services” Order (April 1, 2020).

[2] https://www.boston.gov/news/temporary-guidance-construction-city-boston

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include liability considerations for jails and prisons, tort claims in a post COVID-19 world, real estate issues amid the pandemic 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.**

Can I Take Your Order Please? OSHA Releases COVID-19 Guidance for Restaurants Offering Takeout or Curbside Pickup

Posted on: May 8th, 2020

By: Travis Cashbaugh

The COVID-19 pandemic has impacted all industries across the country, perhaps none greater than the restaurant, food and beverage industry. Faced with widespread closures, many retailers in the food and beverage industry modified their business models for the new post-crisis world to include in-store takeout and curbside pickup. Each method of delivery offers convenient, quality, fresh products for the consumer. More importantly, both offer minimal-touch pick-up options consistent with the “socially-distanced” goals of COVID-19 prevention for all involved—customers and employees.

To maintain the safety of such services on both customers and employees in the restaurant, food and beverage industries, the Occupational Safety and Health Administration (OSHA) has issued guidance for restaurants and beverage vendors offering takeout or curbside pickup. Through its May 1, 2020 safety alert publication, OSHA identified the following tips to help reduce the risk of exposure to the coronavirus:

  • Encourage workers to stay home if they are sick.
  • Avoid direct hand-off, when possible.
  • Display a door or sidewalk sign with the services available (e.g., take-out, curbside), instructions for pickup, and hours of operation.
  • Reserve parking spaces near the front door for curbside pickup only.
  • Train workers in proper hygiene practices and the use of workplace controls.
  • Allow workers to wear masks over their nose and mouth to prevent spread of the virus.
  • Provide a place to wash hands and alcohol-based hand rubs containing at least 60% alcohol.
  • Routinely clean and disinfect surfaces and equipment with Environmental Protection Agency approved cleaning chemicals or that have label claims against the coronavirus.
  • Practice sensible social distancing by maintaining six feet between co-workers and customers. Mark six-foot distances with floor tape in pickup lines, encourage customers to pay ahead of time by phone or online, temporarily move workstations to create more distance, and install plexiglass partitions, if feasible.
  • Encourage workers to report any safety and health concerns.

In addition to remaining alert for further guidance from OSHA, employers in the restaurant, food, and beverage industries should be aware of specific guidance from state and local governments, as states across the county begin preparations to reopen. In Georgia for example, Governor Brian Kemp recently issued an Executive Order that provides new and extensive guidance for businesses across Georgia, including restaurants. FMG provided a detailed overview of that Executive Order and its impact on businesses, here.

With new habits and behaviors forming, those in the food and beverage industry that fail to pivot will likely find themselves struggling to compete. Employers that are planning on reopening—or continuing to operate, perhaps modifying their business model to include takeout or curbside pickup—should immediately begin assessing the health and safety protocols they have in place now and what additional steps they need to take consistent with OSHA’s guidance and state and local requirements.  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 or employees of contracting COVID-19 when on 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 real estate issues, business interruption losses, 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.**

An Era of Un-Road-Tested Drivers: What Parents and Their Insurers Need to Consider In Light of Georgia’s Changes to the Licensing Process During COVID-19

Posted on: May 5th, 2020

By: Wayne Melnick and Janeen Smith

Georgia’s on-the-road driving test joins the ever-growing list of changes to life as we know it as a result of COVID-19.   A new generation of drivers will be hitting the roads in Georgia soon, and they will not have taken any practical on-the-road test to get their licenses.  On April 23, 2020, Governor Brian Kemp waived the requirement for on-the-road tests until the Public Health State of Emergency is terminated citing social distancing requirements as the rationale for the waiver.  According to news sources, the road-test waiver will also alleviate a backlog of up to 30,000 applicants waiting to upgrade their learner’s permits to provisional driver licenses.     

Driving applicants are not getting a free pass as they will still be required to to satisfy all other statutory requirements for obtaining a license, i.e., a passing grade on the written test on driving safety and law, a certificate of completion of a 30-hour driver’s education course (for 16-year-olds); and, 40 hours of supervised driving time (for 17-year-olds).  Applicants can take advantage of Georgia’s waiver of the on-the-road test until June 12, 2020 when the twice-renewed state of emergency expires.

Georgia’s waiver of the on-the-road driving test has received widespread media attention.  It has been heavily criticized to the extent the waiver relies on parents executing Driving Experience Affidavits certifying their children have enough experience to obtain a license.  To some extent, Georgia’s licensing process has always involved a degree of trust.  Whether Georgia’s group of drivers who skipped the on-the-road test are any less safe than their tested counterparts remains to be seen.  After all, sources show roughly 80% of applicants pass the over-the-road test during their first attempt. 

That being said, cutting out an independent third-party’s assessment of a young driver’s readiness for the road could nevertheless have serious liability implications for parents and their insurers.  Arguably, the waiver of an on-the-road test heightens the importance of a parent’s execution of the Driving Experience Affidavit as it is currently the only assessment of a young driver’s actual abilities.  It does not take much imagination to conceive of the liability ramifications for parents. 

Consider negligent entrustment, a liability theory predicated on a vehicle owner’s “actual knowledge” that the individual entrusted with the vehicle is either incompetent or habitually reckless.  A claim of negligent entrustment is always a fact-intensive inquiry.  But, Georgia parents with minors licensed during this period of loosened licensing requirements will likely face heightened scrutiny for their children’s accidents.   

How can parents minimize their exposure during these unprecedented times? And how can insurers help minimize their risk by alerting their insureds with soon-to-be-licensed teens? All things considered; the answer is much the same way as they would before.  Our recommendations are:

  • Lead by example and always practice safe driving habits;
  • Instill the importance of being observant.  Studies show 50% of driver-error crashes are caused by a lack of scanning surroundings, being distracted, or failing to reduce speed in response to other drivers on the road;
  • There is no substitute for practice.  The law requires your child to have 40 hours of practice, but you ultimately make the decision as to whether your child may need more practice;
  • Does your child think he or she is ready for a driver’s license?

Ultimately, there is no way to make your young driver (or yourself) liability proof.  However, there are many ways to minimize risk.  Georgia’s ditching of its on-the-road test could simply be a waiver of a technicality; or it could provide to be a breeding ground for creative liability arguments.  Our intent is to continue monitoring developments on this front and to keep you appraised of ways to minimize risk. 

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include real estate issues, business interruption losses, 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.**