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Posts Tagged ‘COVID-19’

Statute of Limitations Tolled in California Amid Pandemic

Posted on: August 3rd, 2020

By: Matthew Jones

In response to the COVID-19 pandemic, California’s Governor Gavin Newsom issued a “state of emergency” for the entire State. In response, the California Judicial Council adopted several Emergency Rules to implement during the pandemic. In particular, Rule 9 states that all statute of limitations for civil causes of action are tolled from April 6, 2020 until 90 days after the state of emergency related to COVID-19 is lifted by the Governor. Therefore, if a party’s claim would have expired pursuant to the applicable statute of limitations during this timeframe, such claims are still very much alive. In regard to those claims, there is currently no deadline to file them since the “state of emergency” has yet to be lifted by the Governor. Once lifted, claimants will have six months to file their respective claims.

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.**

Pennsylvania Offers Certain Employers Help with Hazard Pay

Posted on: July 23rd, 2020

By: Justin Boron

Last week, the governor made $50 million available to businesses, health care non-profits, public transit agencies, and certain economic development organizations to cover hazard pay for ‘front line’ employees exposed in life-sustaining industries exposed to COVID-19 risks. The payments must go toward paying employees in certain industries, including healthcare, food manufacturing, food retail, childcare, janitorial, transit, and security services.

The hazard pay is a $3/hour raise on the employee’s regular pay rate paid during the ten-week period from August 16, 2020 to October 24, 2020. It also must be used to supplement—rather than supplant—any eligible overtime, benefits, existing employer-paid, hazard pay, or any scheduled increases to current compensation. The funding also may be used only to pay direct, full-time and part-time employees earning less than $20/hour, excluding fringe benefits and overtime.

Eligible businesses must apply online with the Department of Community and Economic Development.  The amount of funding is limited to $1,200 per full-time equivalent employee for up to 500 employees per location.

Employers relying on this program will need to be careful to assimilate the hazard pay correctly into their pay system to ensure compliance with wage-and-hour regulations. One question left unanswered is whether the adjusted regular rate that includes hazard pay should be used for calculating the overtime rate. It’s likely that additional guidance will be issued, so employers using a hazard pay grant will need to track updates.

If you have questions or would like more information, please contact Justin Boron 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.**

A Temporary Reprieve for New Jersey Employers: Delay and Changes to the Amended New Jersey WARN Act

Posted on: July 21st, 2020

By: Stephanie Greenfield

Six months ago, prior to the COVID-19 pandemic in the United States, New Jersey became the first state in the nation to pass a law obligating employers to provide severance to employees affected by a mass layoff.  On January 21, 2020, New Jersey Governor Phil Murphy amended the existing New Jersey Worker Adjustment and Retraining Notification Act (NJ WARN Act). The new amendments, originally scheduled to go into effect on July 19, 2020, require that employers provide severance to each laid-off employee in the amount of one weeks’ pay for each year of employment. Previously under the NJ WARN Act, employers were only obligated to provide severance in connection with a covered mass layoff only if they failed to comply with the required 60-day notice. The new law will ultimately make it drastically more expensive for companies to conduct a large- scale reduction in force in New Jersey.

The significant changes to the NJ WARN Act include:

  • Expanded Notice Requirement: An employer that has 100 or more employees must provide at least 90 days’ notice before the first employee is discharged as part of a mass layoff, termination of operations, or transfer of operations. The existing NJ WARN Act requires only 60 days’ notice.
  • Mandatory Severance Requirement: In addition to notice, employers must provide discharged employees with “severance pay equal to one week of pay for each full year of employment.” Under the existing NJ WARN Act, an employer is only required to pay severance as a penalty if it fails to provide the required notice.
  • Lower Threshold for Mass Layoffs: The threshold for a “mass layoff” was lowered to 50 employees (even if they did not amount to 33% of the workforce). 
  • Expanded Counting and Coverage of Part-Time Employees: Employers must include part-time employees in both the 100-employee (for a covered employer) and 50-employee (for a termination of operations or a mass layoff) thresholds. Further, part-time employees are entitled to 90 days’ notice and severance just like full-time employees.
  • Expanded Statewide Definition of “Establishment”: The definition of “establishment” was expanded to include a group of all of the employer’s locations in New Jersey.

When the law was passed, the state and nation had no way of knowing that, in a matter of weeks they would be facing a national health crisis. Given the massive labor disturbance and resulting economic impact caused by COVID-19, New Jersey amended the NJ WARN Act once again, effective April 14, 2020. The NJ WARN Act now exempts from coverage any mass layoffs resulting from a natural disaster or national emergency (such as COVID-19), and delays the effective date of the amendments that were originally scheduled to take effect on July 19. These exclusions are retroactive to March 9, 2020, and, thereby, exclude any otherwise covered mass layoff from that date forward. This change permitted New Jersey employers to breathe easier, especially those implementing furloughs and layoffs due to the pandemic.

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

New Jersey and COVID-19: What Businesses Need To Know About Reopening Plans

Posted on: July 13th, 2020

By: Ashley Hobson

New Jersey has been one of the most proactive and reactive states amidst the COVID-19 pandemic. As of the publication of this Blog, the State has only entered into the second stage of its reopening, which still excludes indoor dining and attendance at bars, indoor exercise at gyms and other fitness studios, and attendance at nightclubs.

As the state continues to slowly reopen its doors, employers must be keenly aware of the many regulations imposed on newly reopened facilities. Not only are New Jersey businesses advised to follow CDC and OSHA Guidelines in reopening their businesses, they must follow guidelines imposed by the state.  Despite the initial closure of many retail operations, on April 15, 2020, Executive Order No. 122 provided a short, but comprehensive list of cleaning requirements for business that remained open and those that would eventually reopen. The guidelines include, but are not limited to, routine cleaning and disinfecting of highly touched areas, maintaining routine cleaning procedures in areas that are not highly touched, and ensuring there are enough workers to implement the cleaning protocols.

As employees remain cautious about a return to work, many employees across the state, however, remain unable to return to their positions because their employers can only reopen as a part of the 3rd stage of Governor Phil Murphy’s plan.  As a result, the current employment rate increased to 15.2% in May 2020, which represents a drastic increase from 3.3% in the prior year.

To continue to prepare for the growing number of the unemployed, on July 1, 2020, New Jersey’s Department of Labor expanded the number of eligible weeks for a claimant by 20 weeks. The additional 20 weeks will begin after the claimant has exhausted the initial 26 weeks of the state’s unemployment and the 13 weeks of the federal Pandemic Emergency Unemployment Compensation (“PEUC”).

In addition to the additional state benefits, the Department of Labor and Workforce Development announced that eligible workers will be able to receive a larger percentage of their wages under the Temporary Disability Insurance and Family Leave Insurance programs. The changes to the legislation will provide:

  • Workers with up to 12 consecutive weeks of Family Leave Insurance or 56 days of intermittent days and
  • Increase of the maximum benefit amount to 85% of the employee’s average weekly wage with a maximum of $881 per week.

The increased benefit amount and time adds to the growing list of protections under New Jersey’s ever-expanding protections for the employed and unemployed. It will remain to be seen if additional expansions will be announced after the expiration of the additional 20 weeks of unemployment compensation and if the state will also increase the benefit amount as the unemployment rate continues to hover in the double digits.

All of these new changes remind employers that they must remain vigilant in understanding their obligations during these very unusual times.  Of course, if you have any questions, please contact one of our New Jersey Labor & Employment team members.

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.**

Update: Immunity for COVID-19 Claims in Georgia

Posted on: July 2nd, 2020

By: Jake Daly

After being interrupted by three months because of COVID-19, the Georgia General Assembly finally completed its 2020 session on June 26.  The final ten days saw a flurry of activity as legislators raced to pass a budget, a hate-crimes bill, and many other bills.  One of the legislators’ new priorities was to provide immunity from civil damages for businesses and healthcare providers that are sued by employees, customers, visitors, and patients who are infected with COVID-19.

Ultimately, the legislature considered three bills on this issue.  All were committee substitutes because Crossover Day (the last day for a bill to pass the chamber in which it was introduced and “cross over” to the other chamber for its consideration) had passed before the session was suspended on March 13, which meant that new bills could not be introduced.  My previous post discussed HB 216, the first bill that was amended to provide COVID-19 immunity, but it never received a vote by the full Senate after being amended by substitute in the Senate Committee on Public Safety.  Next up was HB 167, which originated as a bill dealing with licensing of certain employees of property and casualty insurers.  It passed the House in 2019 and was referred to the Senate Committee on Insurance and Labor, which amended it by substitute to address COVID-19 immunity.  HB 167 passed the full Senate but did not receive a vote in the House.

What emerged from the chaos was SB 359.  Originally, this bill would have created the Surprise Billing Consumer Protection Act, and the full Senate passed an amended version of it unanimously before the March 13 suspension.  After the legislature reconvened in June, SB 359 was referred to the House Special Committee on Access to the Civil Justice System, which amended the bill by substitute to address COVID-19 immunity.  On the last day of the session, the full House passed the substituted version of SB 359 and sent it to the Senate.  At about 10:15 p.m. that night, the full Senate passed SB 359 in one of its last official acts before adjourning.

Assuming that Governor Kemp signs it, SB 359 will create the Georgia COVID-19 Pandemic Business Safety Act, which will be codified at O.C.G.A. §§ 51-16-1 to -5.  Under this Act, healthcare facilities and providers, entities,[1] and individuals are immune from a “COVID-19 liability claim” unless their actions showed gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.  O.C.G.A. § 51-16-2(a).  A “COVID-19 liability claim” is a claim for:

  1. transmission of, infection by, exposure to, or potential exposure to COVID-19 (a) at a healthcare facility or on the premises of any entity, individual, or healthcare provider that results in injury or death, or (b) caused by the actions of a healthcare provider or an individual;
  2. injuries or death caused by acts or omissions by a healthcare facility or a healthcare provider in arranging for or providing healthcare services for COVID-19 or where the response to COVID-19 reasonably interfered with the arrangements for or the provision of healthcare services to the claimant; or
  3. manufacturing, labeling, donating, or distributing personal protective equipment or sanitizer that is directly related to providing the personal protective equipment or sanitizer to the claimant by any entity during a public health state of emergency for COVID-19 if the manner in which the personal protective equipment or sanitizer is manufactured, labeled, donated, or distributed departs from the normal manner of manufacturing, labeling, donating, or distributing the personal protective equipment or sanitizer and such departure causes injury or death.

O.C.G.A. § 51-16-1(3).

For COVID-19 liability claims against an entity or an individual for transmission of, infection by, exposure to, or potential exposure to COVID-19 when the claimant is on the entity’s or the individual’s premises,[2] there is a rebuttable presumption of assumption of the risk by the claimant when:

  1. a receipt or proof of purchase for entry issued by the entity or the individual for entry or attendance includes the following warning in at least ten-point Arial font placed apart from other text:

Any person entering the premises waives all civil liability against this premises owner and operator for any injuries caused by the inherent risk associated with contracting COVID-19 at public gatherings, except for gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, by the individual or entity of the premises.

or

  1. there is a sign posted at the point of entry that states the following in at least one-inch Arial font placed apart from other text:

Warning

Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19.  You are assuming this risk by entering these premises.

O.C.G.A. § 51-16-3(a).  This rebuttable presumption does not apply if the actions of the entity or the individual showed gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.  Id.  An entity or an individual is entitled to the immunity under O.C.G.A. § 51-16-2(a) even if these warnings are not used.  O.C.G.A. § 51-16-3(b).

For COVID-19 liability claims against a healthcare facility or a healthcare provider for transmission of, infection by, exposure to, or potential exposure to COVID-19 when the claimant is injured or dies at a healthcare facility or on the premises of a healthcare provider, there is a rebuttable presumption of assumption of the risk by the claimant when there is a sign posted at the point of entry that states the following in at least one-inch Arial font placed apart from other text:

Warning

Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19.  You are assuming this risk by entering these premises.

O.C.G.A. § 51-16-4(a).  This rebuttable presumption does not apply if the actions of the healthcare facility or the healthcare provider showed gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.  Id.  An entity or an individual is entitled to the immunity under O.C.G.A. § 51-16-2(a) even if this warning is not used.  O.C.G.A. § 51-16-4(b).

The Act includes a sunset provision.  It applies only to COVID-19 liability claims that accrue on and before July 14, 2021.  It does not indicate whether it applies to COVID-19 liability claims that accrue prior to the effective date, so that could be a source of future litigation.

Two points should be made in conclusion.  First, the Act does not impair the rights of employees under the worker’s compensation act.  O.C.G.A. § 51-16-5(3).  Second, although the Act defines “entity” as including political subdivisions, counties, municipalities, and other governmental offices and bodies, it should not be construed as waiving sovereign or official immunity.  O.C.G.A. § 51-16-2(b) (“The immunity set forth in subsection (a) of this Code section shall be provided in addition to, and shall in no way limit, any other immunity protections that may apply in state or federal law.”).


[1] The Act defines “entity” to include “any association, institution, corporation, company, trust, limited liability company, partnership, religious or educational organization, political subdivision, county, municipality, other governmental office or governmental body, department, division, bureau, volunteer organization; including trustees, partners, limited partners, managers, officers, directors, employees, contractors, independent contractors, vendors, officials, and agents thereof, as well as any other organization other than a healthcare facility.”  O.C.G.A. § 51-16-1(4).

[2] The Act defines “premises” to exclude healthcare facilities.  It means “any property owned, occupied, leased, operated, maintained, or managed by an individual or entity, whether residential, agricultural, commercial, industrial, or other real property located within the State of Georgia,” other than a healthcare facility.”  O.C.G.A. § 51-16-1(9).