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Posts Tagged ‘COVID-19’

New COVID-19 Notice Requirements for California Employers

Posted on: January 12th, 2021

By: Chelsea Whelan

The new year ushers in new rules for California employers receiving notice of potential COVID-19 exposure in the workplace. California Labor Code section 6409.6 became effective January 1 this year following the passage of Assembly Bill 685 and will sunset on January 1, 2023. Section 6409.6 requires employers provide written notice within one business day to employees potentially exposed to COVID-19 in the workplace. 

What Constitutes “Notice of Potential Exposure”?

Section 6509.6 defines notice of potential exposure as exposure to a “qualifying individual”. A “qualifying individual” is defined as an individual who has been diagnosed, tested positive for or died from COVID-19, or anyone subject to a COVID-19-related order to isolate by a public health official. (Cal. Lab. Code section 6509.6(d)(4).) Accordingly, section 6509.6(d)(3) defines notice of potential exposure to COVID-19 as notice either that an employee is a qualifying individual or that an employee was exposed to a qualifying individual at the workplace. 

Written Notice Requirements

In order to comply with section 6509.6, employers notified of potential exposure to COVID-19 in the workplace must provide written notice to all employees, as well as the employers of subcontracted employees, who were on the premises at the same worksite as a qualifying individual within the infectious period. The notice can be sent via email, text or personal service if it can reasonably be anticipated to be received by the employee within one business day of sending. Also, the notice must be in English or the language understood by the majority of employees. The following must be included in a written notice:

  • Information regarding COVID-19-related benefits an employee might be entitled to under federal, state or local law, including, but not limited to workers’ compensation and options for exposed employees, including COVID-19-related leave, company sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions.
  • Notice of antidiscrimination and antiretaliation protections for employees disclosing a positive COVID-19 test or diagnosis.
  • Notice of the disinfection and safety the employer plans to implement and complete per the guidelines of the federal Centers for Disease Control.

As described in the notice requirements above, section 6409.6 contains antiretaliation and antidiscrimination protections for workers disclosing a positive COVID-19 test, diagnosis or order to quarantine or isolate and allows for the Department of Labor Standards Enforcement to issue citations and penalties for violation of the statute.

Section 6409.6 also requires employers to report a COVID-19 outbreak to the State Department of Public Health within 48 hours. What constitutes an outbreak is defined by the State Department of Public Health.

If you have questions or would like more information, please contact Chelsea Whelan 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.**

New Jersey Courts Implement Plan For Virtual Civil Jury Trials During COVID-19 Pandemic

Posted on: January 11th, 2021

By: Daniel Baylson

The New Jersey court system has finally rolled out its plan for virtual civil jury trials during the ongoing COVID-19 pandemic. On January 7, 2021, the NJ Supreme Court authorized a two-phase approach to implementing virtual civil jury trials. The Court’s approved plan for virtual civil jury trials incorporates suggestions from various stakeholder organizations, including the New Jersey State Bar Association, New Jersey Association for Justice, New Jersey Defense Association, Trial Attorneys of New Jersey, County Bar Associations, and many individual attorneys.

The Court’s January 7, 2021 Notice to the Bar and Court Order states that the process for virtual civil jury trials will be implemented in two phases.  During Phase 1, civil cases will be noticed and scheduled for virtual jury trials to start on or after February 1, 2021. Only the following vicinages will conduct virtual civil jury trials during Phase 1: Atlantic/Cape May; Cumberland/Gloucester/Salem; Monmouth; Passaic; and Union.  Consent to proceed remotely will be required during Phase 1.  Consent to proceed in a virtual format may be withdrawn no later than the tenth day before jury selection in a given matter.  As of April 5, 2021, Phase 2 will go into effect, and virtual civil jury trials will expand to all counties.  In Phase 2, consent will not be required for a civil jury trial to proceed in a virtual format. Phase 2 will continue until further order but only as long as necessary based on the COVID-19 pandemic.

In both phases, all civil case types (all dockets and all tracks) will be eligible for virtual civil jury trials. Further, virtual civil jury trials in each county, to the extent possible, will begin with cases involving a single plaintiff, a single defendant, a limited number of issues in dispute, and a modest number of live witnesses. Cases that are especially complex (including but not limited to professional malpractice cases), or anticipated to require more than a few weeks to complete, should be scheduled only after one or more straightforward trials have been conducted in the county. The trial judge will conduct a comprehensive pretrial conference that covers all aspects of the virtual trial process. Jury selection will be conducted in an entirely virtual format. During Phase 1 and Phase 2, relevant factors (including health-related or unavoidable travel-related barriers to attorneys convening in the courtroom) will be considered in scheduling cases for trial dates.

For further information, the Court’s January 7, 2021 Notice to the Bar and Court Order is here: https://njcourts.gov/notices/2021/n210107a.pdf?c=r2o

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

Liability for Injuries Caused by COVID-19 Vaccines

Posted on: January 7th, 2021

By: Jake Daly

Now that COVID-19 vaccines are being administered to millions of people across the country, it is worth asking whether the manufacturers of these vaccines (and others) can be liable for injuries they cause to recipients.  This question is particularly interesting to many people because they are suspicious of the safety of these vaccines based on the speed with which the manufacturers developed them and the FDA approved them.  For most people who sustain a vaccine-related injury, the answer should be no.

The applicable law is the Public Readiness and Emergency Preparedness Act, which Congress enacted in 2005 to encourage the rapid production of vaccines and other medical countermeasures to be used in response to public health emergencies.  The PREP Act provides immunity from claims for personal injuries for (1) manufacturers and distributors of a covered countermeasure, (2) state and local governments and their employees who supervise or administer a program relating to the administration, dispensing, distribution, provision, or use of a covered countermeasure, and (3) licensed health professionals and other people who are authorized to prescribe, administer, or dispense a covered countermeasure, provided that the Secretary of the Department of Health and Human Services must first issue a declaration finding there to be a public health emergency with respect to the particular disease, condition, or threat at issue and defining the medical countermeasures to be covered.

On March 10, 2020, HHS Secretary Alex Azar issued a declaration extending the PREP Act to medical countermeasures to be used against COVID-19.  Under this declaration, which expires on October 1, 2024, a “covered countermeasure” is “any antiviral, any other drug, any biologic, any diagnostic, any other device, or any vaccine, used to treat, diagnose, cure, prevent, or mitigate COVID-19, or the transmission of SARS-CoV-2 or a virus mutating therefrom, or any device used in the administration of any such product, and all components and constituent materials of any such product.”

The PREP Act does not provide immunity from claims for death or serious physical injuries caused by willful misconduct.  For such claims, compensation is available through the Countermeasures Injury Compensation Program.  Some people regard the CICP as inadequate because (1) a claim must be filed within one year of the use or administration of the countermeasure (regardless of when the death occurs or the injury manifests), (2) death benefits are capped at $370,376, (3) benefits for unreimbursed lost wages and out-of-pocket medical expenses are capped at $50,000, and (4) benefits are reduced by amounts received from collateral sources.  Moreover, the CICP rarely awards benefits to claimants.  According to data published on its website, it has awarded benefits to only 29 of 499 claimants since its inception in 2010, and it awarded only about $6,000,000 in total benefits to those 29 claimants (an average of a little more than $200,000 per claimant).

In addition to these structural barriers, claims under the PREP Act must comply with any conditions imposed in the applicable declaration(s).  For example, Secretary Azar’s March 10, 2020 declaration provides that a claimant may receive benefits only upon proof by “compelling, reliable, valid, medical and scientific evidence” that the countermeasure caused the death or serious physical injury.  The “compelling” part of this standard suggests that something more than the traditional tort standard of a preponderance of the evidence is required.

Because of the limitations on claims under the PREP Act, claimants will avoid seeking benefits from the CICP if there are any other options available.  Unfortunately for them, but fortunately for entities and people who are covered by the PREP Act, there appears to be no other recourse for a person killed or injured by a COVID-19 vaccine (or other COVID-19 countermeasure).  Most importantly, the PREP Act expressly preempts conflicting state laws, and so a claimant generally cannot file a traditional state-law tort claim.  Further, the doctrine of sovereign immunity likely forecloses any claim against the FDA based on its approval of a COVID-19 vaccine or other countermeasure.  Finally, the more familiar (and more friendly to claimants) National Vaccine Injury Compensation Program does not apply to COVID-19 vaccines because they are not included on that program’s Vaccine Injury Table.

Thus, most people who sustain an injury caused by a COVID-19 vaccine or other countermeasures will likely be limited to an administrative remedy, if any.  Manufacturers and other covered persons face minimal exposure.  Fair or not, this was the goal of the PREP Act.

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.**

PPP is Back with Second Draws and Favorable Tax Treatment

Posted on: December 22nd, 2020

By: Justin Boron

The Paycheck Protection Program is set to return in 2021. 

As part of the $900 billion COVID-19 relief bill passed yesterday, Congress renewed the popular small business relief program administered by the Small Business Administration to allow certain qualifying businesses to take out a second draw on their forgivable loan, re-opened PPP to first-time borrowers that qualify, and set tax law to allow businesses to take advantage of tax deductions associated with PPP-funded expenses.

To qualify for a second draw loan, the business must have 300 or fewer employees, exhaust their current loan proceeds before the second loan is issued, and show a 25 percent decline in gross receipts in any 2020 quarter compared to the same quarter in 2019.  These are new requirements that apply only to second loans.

The loan comes with some of the same conditions as the PPP loans issued in the first two rounds of funding in 2020—such as requirement that 60 percent of the funds be spent on payroll.  But it also eliminated a disfavored IRS ruling that effectively diminished the value of forgiveness by prohibiting deductions for expenses using PPP funds.  The new provision expressly states that the forgiveness amount will not be treated as income and the expenses may be deducted.

Additionally, the new law expands the list of forgivable expenses to include certain personal protective equipment needed to comply with federal COVID-19 guidelines, certain operations expenses such as HR and payroll accounting software, and certain property damage costs caused by public disturbances in 2020.

The amount of the loan will remain the same—2.5 times the business’s average monthly payroll costs in the year prior to the loan or the calendar year—unless the business has a NAICS code beginning with 72, such as restaurant and hospitality businesses.  Congress upped their loan amount to 3.5 times the monthly payroll cost calculation.  But it lowered the cap on all loans to $2 million.

The new law also opened forgivable loans up to 501(c)(6) organizations, such as chambers of commerce or certain industry associations as long as they don’t exceed certain lobbying activities.

It will take some time for the SBA to be set up for new loan applications.  But the law requires it to issue regulations within 10 days after the legislation is signed into law.

FMG’s Coronavirus Task Force is reviewing the entire stimulus bill passed by Congress to advise clients on the benefits and obligations it creates. Please check back for additional posts on this topic.

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.**

Hackers, Viruses, and Spies, Oh My: The Race to Deliver the First Covid-19 Vaccine Fuels Cyber Espionage

Posted on: December 16th, 2020

By: Isis Miranda

Cyber spies have targeted pharmaceutical companies and universities working to develop a Covid-19 vaccine in attempts to steal trade secret information. These sophisticated hacking groups have recently added new targets – organizations expected to distribute the vaccines, – prompting CISA (the Cybersecurity & Infrastructure Security Agency) to issue a cyber alert on December 3, 2020.

Cyber espionage, in this case believed to be funded by governments, such as Russia, China, North Korea, and others, in an attempt to gain a competitive edge in the race to be the first country to deliver a vaccine, differs significantly from ransomware attacks. Such attacks are frequently launched by mercenary-minded hackers with little interest in the information they encrypt, aside from the ability to extract a ransom payment in exchange for decryption keys. The presence of ransomware in the victim’s network is unmistakable since affected files are rendered inaccessible. Cyber spies, in contrast, operate in stealth mode, seeking to avoid detection and harvest ever greater amounts of valuable information. For example, the U.S. departments of Treasury, Commerce, and Homeland Security recently detected breaches of their systems, believed to be perpetrated by Russian hackers working for the Kremlin, that may have lasted for months before they were discovered.

Silent hacks pose unique threats not only because they may go undetected; the stolen information may be valuable for a wide variety of nefarious purposes. Beyond simply allowing a business to gain an unfair advantage in the marketplace, the secret knowledge could allow bad actors, governments and criminals alike, to more precisely target their perceived enemies and undermine global stability.

The attempts to breach the Covid-19 vaccine cold chain, the network of organizations poised to distribute the vaccines while maintaining subzero temperatures, may be a case in point. Knowing how and where the vaccines are being distributed may be valuable to a government attempting to create its own distribution network, but such information might also be used to disrupt the delivery process.

Preventing and treating viruses – both human and computer – will no doubt continue to be important for the foreseeable future. Given the complexity of developing, manufacturing, and distributing on a massive scale the Covid-19 vaccines, some of which must be stored at negative 94 degrees Fahrenheit, the various shelter-in-place orders may be in effect well into 2021. Fortunately, there’s no place like home.

If you have questions or would like more information, please contact Isis Miranda 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.**