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Posts Tagged ‘Executive Order’

A Summary of the Executive Order on Policing and “Instances of Misconduct”

Posted on: June 18th, 2020

By: Jake Loken

Seeking to address the “instances in which some [law enforcement] officers have misused their authority, challenging the trust of the American people, with tragic consequences,” President Trump issued the Executive Order on Safe Policing for Safe Communities, on June 16, 2020, as a way to “redouble our efforts as a Nation to swiftly address instances of misconduct.”

The executive order contains four major points:

  1. Creation of a “credentialing body” to be used to certify law enforcement agencies seeking federal grant funding have certain policies in place, such as the prohibition of chokeholds, unless “use of deadly forces is allowed by law;”
  2. Creation of a database to share information related to excessive use of force;
  3. Request for the Attorney General and Secretary of Health and Human Services to develop “co-responder programs” where mental health professionals and law enforcement officers respond together to calls, and to create a report on “community-support models addressing mental health, homelessness, and addiction;” and
  4. Request for the Attorney General to propose legislation that “enhance[s] the tools and resources available to improve law enforcement practices and build community engagement.”

The executive order does not address qualified immunity, does not use the words “racism” or “bias” or comment on such issues, and does not address some of the vocal ideas heard at protests—such as the phrase “Defund the Police.”

Regarding some of the specifics of the four major points contained in the order:

First, the order focuses on the creation of a “credentialing body” that will be used to certify law enforcement agencies seeking discretionary grant funding from the Department of Justice have certain policies and standards. Notably, law enforcement agencies seeking grant funding should have “use-of-force policies [that] prohibit the use of chokeholds… except in those situations where the use of deadly force is allowed by law.” Other policies law enforcement agencies should have include: “training regarding use-of-force and de-escalation techniques; performance management tools, such as early warning systems that help to identify officers who may require intervention; and best practices regarding community engagement.”

Second, the order seeks the creation of a database “concerning instances of excessive use of force related to law enforcement matters.” The database is to be shared between law enforcement agencies and only “aggregated and anonymized data from the database” is to be made public. The database is to also include a way to track “terminations or de-certifications of law enforcement officers, criminal convictions of law enforcement officers for on-duty conduct, and civil judgments against law enforcement officers for improper use of force.” Only law enforcement agencies that submit information to this database can obtain discretionary grant funding from the Department of Justice.

Third, the order requests the Attorney General and the Secretary of Health and human Services to work to develop “co-responder programs” where social workers and mental health professionals are to “arrive and address situations together” with law enforcement officers. Also, the Secretary of Health and Human Services is requested to “survey community-support models addressing mental health, homelessness, and addiction” and summarize the survey in a report to the President within 90 days of the signing of the executive order. The report “shall include specific recommendations regarding how appropriated funds can be reallocated to support widespread adoption of successful models and recommendations for additional funding.”

Fourth, the order requests the Attorney General propose legislation that “enhance[s] the tools and resources available to improve law enforcement practices and build community engagement.” The legislation should assist law enforcement agencies with the implementation of the credentialing body, database, and co-responder programs as found in the order. The legislation should also provide for “improved use-of-force policies and procedures, including scenario-driven de-escalation techniques,” the retention and recruitment “of high-performing law enforcement officers,” law enforcement officers having access to confidential “mental health services,” and the creation of “programs aimed at developing or improving relationships between law enforcement and the communities they serve.”

If you have any questions about this executive order or other government-related matters, please contact Jake Loken at [email protected] or any other member of FMG’s Government Law group. 

Governor Kemp Issues Comprehensive Executive Order Reopening And Impacting Businesses in Georgia

Posted on: April 28th, 2020

By: Andrew Kim

On April 23, 2020, Governor Brian Kemp issued an Executive Order that provides new and extensive guidance for businesses across Georgia, including restaurants, bowling alleys, theaters, childcare facilities and private social clubs, that are currently operating or seeking to re-open to in-person services after being closed by a previous Order by the Governor.

The general effective date of the Order begins on May 1, 2020 at 12:00 a.m. and ends on May 13, 2020 at 11:59 p.m., unless otherwise provided in the Order.

The Order spans 26 pages so any business operating in Georgia should review the Governor’s executive action to ensure it knows how it applies to its business, but below are some highlights: 

A.        General Provisions of the Executive Order:

1.         Shelter-In-Place Still Is In Effect For Certain Residents

Initially, it is important to note that, while the Order primarily addresses what businesses must do if they want to remain open, it also makes clear that certain residents of the State of Georgia are required to shelter in place.  Those residents are the following:

  • 65 years old or older
  • Living in nursing home or long-term care facility
  • Chronic Lung Disease
  • Moderate to severe Asthma
  • Severe heart disease
  • Immunocompromised (e.g., cancer treatment, smoking, bone marrow or organ transplant, poorly controlled HIV/AIDS)
  • Severe obesity
  • Those with diabetes, liver disease, chronic kidney disease undergoing dialysis

Those subject to the shelter-in-place restrictions can, however, conduct or participate in “Essential Services,” perform “Necessary Travel,” perform “Minimum Necessary Activities to maintain the value of a business” and perform work for a “Critical Infrastructure” business.  All of the above-quoted terms are specifically defined in the Order. 

2.         Businesses Are Limited To The Number Of Persons Physically Present

Unless a business is considered to be “Critical Infrastructure,” no business (including non-profit organizations, county and municipal government) shall allow more than ten (10) persons physically present at a Single Location if, to be present, persons are required to stand or be seated within six (6) feet of any other persons.

However, “groups of more than ten (10) people are permitted if their grouping is transitory or incidental, or if their grouping is the result of being spread across more than one Single Location.”

The Executive Order defines Single Location as, “a space where all persons gathered cannot maintain at least six (6) feet of distance between themselves and any other person.”

B.        Mandates for Restaurants Effective April 27, 2020:

The Executive Order allows restaurants to again provide dine-in services effective Monday, April 27, 2020, but does not permit them to have more than ten (10) patrons in the restaurant per 500 square feet of public space. The spaces that must be considered when calculating square footage include waiting areas and bar areas, but do not include hallways, restrooms; and spaces closed to patrons.

Additionally, the Order imposes several mandates on restaurants if they want to provide dine-in-services, including the following (this is not the entire list, but a highlight of the major obligations):

  1. Screen and evaluate workers who exhibit signs of illness, such as a fever over 100.4 degrees Fahrenheit, cough, or shortness of breath;
  2. Require all employees to wear face coverings at all times. Such coverings shall be cleaned or replaced daily;
  3. Require workers who exhibit signs of illness to not report to work or to seek medical attention. Per existing U.S. Food and Drug Administration Food Code requirements, employees who are sick should remain home. If an employee becomes ill or presents signs of illness at work, the operator should identify the employee’s condition during a pre-work screening and send the employee home.
  4. Implement staggering shifts for all possible workers;
  5. Where possible, stagger workstations to avoid employees standing adjacent to one another or next to each other. Where six (6) feet of separation is not possible, consider spacing options that include other mitigation efforts with increased frequency of cleaning and sanitizing surfaces;
  6. Increase physical space between workers and patrons and limit contact between wait staff and patrons;
  7. Discontinue use of salad bars and buffets;
  8. If providing a “grab and go” service, stock coolers to no more than minimum levels;
  9. Remove items from self-service drink, condiment, utensil, and tableware stations and have workers provide such items to patrons directly wherever practicable;
  10. Between diners, clean and sanitize table condiments, digital ordering devices, check presenters, self-service areas, tabletops, and commonly touched areas, and discarding single-use items;
  11. The use of disposable paper menus is strongly encouraged, which should be discarded after each patron use. Otherwise, businesses subject to this Section shall clean and sanitize reusable menus between each use by a patron. Non-touch menus are also acceptable for use;
  12. Update floor plans for common dining areas, redesigning seating arrangements to ensure at least six (6) feet of separation from seating to seating. Utilize physical barriers on both seating when available;
  13. Limit party size at table to no more than six (6);
  14. Post signage on entrances that no one with a fever or symptoms of COVID-19 is permitted in the facility;
  15. Where practicable, physical barriers such as partitions or Plexiglas at registers should be used;
  16. Do not allow patrons to congregate in waiting areas or bar areas. Design a process to ensure patron separation while waiting to be seated that can include floor markings, outdoor distancing, or waiting in cars;
  17. Mark ingress/egress to and from restrooms to establish paths that mitigate proximity for patrons and staff;
  18. Where practicable, take-out and curbside pick-up services should be prioritized over dine-in services; and
  19. All restaurant or dining room playgrounds shall be closed.

It is important to note that none of these mandates apply to the operation of dining services in:

  • Hospitals
  • Healthcare facilities
  • Nursing Homes
  • Or other long-term care facilities.

C.        Guidance for Businesses Defined as Critical Infrastructures Effective May 1, 2020:

The Executive Order also requires that, effective May 1, 2020 (and through May 13, 2020), Critical Infrastructure businesses that continue in-person operations implement measures which mitigate the exposure and spread of COVID-19.  The Order does not mandate any specific measures, but instead identifies various actions that such a business can (and should) take to the maximum extent possible.

  1. Screening and evaluating workers who exhibit signs of illness, such as a fever over 100.4 degrees Fahrenheit, cough, or shortness of breath;
  2. Disinfecting common surfaces regularly;
  3. Practice social distancing;
  4. Requiring hand washing or sanitation by workers at appropriate places within the business location;
  5. Permitting workers to take breaks and lunch outside, in their office or personal workspace, or in such other areas where proper Social Distancing is attainable;
  6. Implementing teleworking for all possible workers;
  7. Implementing staggered shifts for all possible workers;
  8. Holding all meetings and conferences virtually, wherever possible;
  9. Discouraging workers from using other workers’ phones, desks, offices, or other work tools and equipment;
  10. If in use, open sales registers must be at least six (6) feet apart;
  11. Point of sale equipment should be frequently cleaned and sanitized;
  12. Placing notices that encourage hand hygiene at the entrance to the workplace and in other workplace areas where they are likely to be seen; and
  13. Suspending the use of Personal Identification Number (PIN) pads, PIN entry devices, electronic signature capture, and any other credit card receipt signature requirements to the extent such suspension is permitted by agreements with credit card companies and credit agencies;

D.        Measures for Non-Critical Infrastructure Businesses Effective May 1, 2020:

Effective, May 1, 2020, Non-Critical Infrastructures continuing their in-person operations must adhere to various measures, including the following:

  1. Screening and evaluating workers who exhibit signs of illness, such as a fever over 100.4 degrees Fahrenheit, cough, or shortness of breath;
  2. If a retail business, posting a sign on the storefront stating that individuals who have a fever or other symptoms of COVID-19 shall not enter the store;
  3. Requiring workers who exhibit signs of illness to not report to work or to seek medical attention;
  4. Disinfecting common surfaces regularly;
  5. Requiring hand washing or sanitation by workers at appropriate places within the business location;
  6. Practice social distancing at work
  7. Permitting workers to take breaks and lunch outside, in their office or personal workspace, or in such other areas where proper social distancing is attainable;
  8. Implementing teleworking for all possible workers;
  9. Implementing staggered shifts for all possible workers;
  10. Holding all meetings and conferences virtually, wherever possible;
  11. Discouraging workers from using other workers’ phones, desks, offices, or other work tools and equipment;
  12. Placing notices that encourage hand hygiene at the entrance to the workplace and in other workplace areas where they are likely to be seen;
  13. For retailers and service providers, providing for alternative points of sale outside of buildings, including curbside pick-up or delivery of products and/or services if an alternative point of sale is permitted under Georgia Law;
  14. Open sales registers must be at least six (6) feet apart;
  15. Increasing physical space between workers and patrons; and
  16. Suspending the use of Personal Identification Number (PIN) pads, PIN entry devices, electronic signature capture, and any other credit card receipt signature requirements to the extent such suspension is permitted by agreements with credit card companies and credit agencies.

The Executive Order also recommends all Critical and Non-Critical Infrastructures that continue their in-person operations adhere to the following measures when practicable:

  1. Providing Personal Protective Equipment as available and appropriate to the function and location of the worker within the business location;
  2. Providing disinfectant and sanitation products for workers to clean their workspace, equipment, and tools; and
  3. Increasing physical space between workers’ worksites to at least six (6) feet.

The April 23, 2020, Executive Order defines Personal Protective Equipment as: “surgical masks, N95 masks, respirators, other facemasks, protective gloves, protective clothing, protective garments, and shoe coverings.”

E.        Measures for Retail Businesses and Food Establishments Effective May 1, 2020:

Effective May 1 and running through May 13, 2020, all retail businesses, which includes Food Establishments like Retail and Wholesale Grocery Stores, must implement the following additional measures:

  1. Limiting the number of patrons inside the store to 50% of fire capacity occupancy or eight (8) patrons per 1,000 square feet;
  2. Encouraging patrons to use hand sanitizer upon entering;
  3. Encouraging non-cash payments when possible;
  4. Sanitizing entrance and exit doors at least three (3) times per day;
  5. Encouraging workers to report any safety and health concerns to the employer;
  6. Installing protective screens or other mitigation measures where worker-patron interactions are likely; and
  7. Providing additional hand sanitizer within the business.

The Executive Order also requires that these retail businesses implement additional measures where practicable. The measures that the Executive Order recommends, to the maximum extent practicable, include:

  1. Schedule specific hours of operation for vulnerable populations to shop without other patrons;
  2. Reducing store hours to allow for increased cleaning and sanitation while the store is closed;
  3. Enacting policies and procedures to encourage social distancing for patrons and employees. Such measure may include:
    1. Protective Plexiglass screens at service counters and at cash registers;
    2. Decals on the floor or aisles with messaging on social distancing;
    3. Signs throughout the store giving visuals on social distancing;
    4. Limited occupancy if store becomes too crowded; and
    5. Use of one-way aisles.
  4. Providing Personal Protective Equipment as available and appropriate to the function and location of the worker within the business location;
  5. Encouraging patrons to wear face coverings;
  6. Utilizing in-store messaging to educate and remind patrons and employees on recommended hygiene and social distancing;
  7. Discontinuing sampling or cooking stations;
  8. Closing self-service salad bars and buffets;
  9. Adding additional staff to specifically oversee increased sanitation of grocery carts, and other high-touch areas such as door handles, point of sales equipment, conveyor belts, and other surfaces;
  10. Checking restrooms regularly, cleaning and sanitizing based on frequency of use, and ensuring adequate supply of soap and paper towels at all times;
  11. Allowing time for frequent hand washing for employees, including cashiers, that interact directly with patrons;
  12. Increasing or add hand sanitizing stations around stores for patrons and employees; and
  13. Procuring options with third-party cleaning companies to assist with the increased cleaning demands as needed.

The April 23, 2020, Executive Order specifically excludes the above measures for the following retail businesses:

  • Food Processing Plants;
  • Wholesale Sandwich manufacturers; and
  • Wholesale Salad manufacturers.

F.         Additional Measures for Gyms and Fitness Centers Effective Immediately:

In addition to the measures imposed on the other businesses, Gyms and Fitness Centers are required to implement the following measures immediately (through May 13, 2020):

  1. Placing signage at any entrance to instruct patrons that they cannot enter if they have been diagnosed with COVID-19, had symptoms of COVID-19, or had contact with a person that has or is suspected to have COVID-19;
  2. Placing signage at any entrance and throughout the facility to instruct patrons of the enhanced sanitation procedures, Social Distancing requirements, and other instructions and limitations, as applicable, set forth below;
  3. Screening patrons at entrance. Patrons exhibiting a temperature greater than 100.4 degrees Fahrenheit, cough, shortness of breath, or other respiratory symptoms shall not be permitted to enter;
  4. Limiting occupancy to enforce Social Distancing requirements and to prohibit Gatherings;
  5. Utilizing contactless forms of patron check-in;
  6. Providing hand sanitizer stations for patrons and encouraging use;
  7. Providing sanitation wipes at or near each piece of equipment and requiring users to wipe down the equipment before and after use;
  8. Requiring workers to patrol patron areas to enforce the equipment wipe-down policy and conduct additional cleanings during times when equipment is not being used;
  9. Limiting use of cardio machines to every other machine to maintain acceptable Social Distancing between users;
  10. Enforcing Social Distancing and prohibiting congregating between non-cohabitating patrons. Patrons should be encouraged to conduct their workout and exit the facility without unnecessary delay;
  11. Halting the provision of group classes;
  12. Halting the provision of in-facility child care services;
  13. Closing the following facilities and equipment within a gym or fitness center:
    1. Pools
    2. Basketball courts
    3. Group sport areas
    4. Hot-tubs
    5. Saunas
    6. Steam rooms
    7. Tanning beds
  14. Limit locker room use and avoid use if possible;
  15. Requiring patrons to spray showers with a provided cleaning spray after use; and
  16. Requiring workers to clean and sanitize bathrooms and locker rooms regularly throughout the opening hours in addition to the regular cleaning schedule.

G.        Additional Measures for Body Art Studios, Hair Salons, Estheticians, and Other Businesses Effective Immediately:

The April 23, 2020, Executive Order also issues additional measures for the following businesses, effective immediately (through May 13, 2020):

  • Body Art Studios, pursuant to Code Section 31-40-2
  • Businesses registered pursuant to Code Sections 43-10-11 and 43-10-18
    • Beauty Shops
    • Beauty Salons
    • Barber Shops
    • Schools of Cosmetology
    • Schools of Hair Design
    • Schools of Esthetics
    • Schools of Nail Care
    • Schools of Barbering
  • Individuals who, for compensation, engage in the practice of esthetics (massages, trims, dyeing, etc.), or cosmetic skincare, pursuant to Code Section 43-10-1(8)
  • Hair Designers, pursuant to Code Section 43-10-1(9)
  • Persons who practice Massage Therapy, pursuant to Code  43-24A-8; and
  • Tanning Facilities, as defined by Code Section 31-38-1(6)

The below measures are mandatory for the businesses listed above:

  1. Providing services by appointment only. Walk-in patrons should not be allowed;
  2. Patrons should be required to sanitize their hands upon entering the facility and before any treatment;
  3. Providing hand sanitizer or sanitization wipes to patrons upon arrival;
  4. Posting signs at the entrance and at eye-level at each workstation stating that any patron who has symptoms of COVID-19 must reschedule their appointment;
  5. Allowing only one (1) patron per service provider in the business at any one time,
  6. Allowing one (1) parent to be within a facility if a minor child is receiving a haircut;
  7. Requiring patrons to wait in car in his or her car until service provider is ready;
  8. Staggering use of every-other workstation or spacing workstations more than ten (10) feet apart, whichever option is practicable given the facility’s configuration;
  9. Staggering work schedules so that no more than 50% of the normal number of employees providing services will be in the business at a time;
  10. Requiring all employees to wear Personal Protective Equipment as available and appropriate to the function and location of the worker within the business location;
  11. Sanitizing all equipment, chairs, and tables used by employees and patrons between each client visit;
  12. Utilizing disposable materials and supplies as much as practicable according to state rules and regulations; and
  13. Training all employees on additional measures both verbally and in writing.

H.        Additional Measures for Theaters Effective May 1, 2020:

In addition to the above applicable requirements, indoor movie theaters and cinemas that choose to operate from May 1, 2020 to May 13, 2020 must implement the following additional measures:

  1. Each party of patrons must be seated at least six (6) feet apart. No party seated together may number more than six (6) individuals;
  2. At least one usher must be used in each theater room before and at some point, during each showing to ensure that proper Social Distancing protocol is enforced;
  3. Seats, armrests, handrails, doors, doorknobs, and door handles in each theater must be thoroughly sanitized before and after each showing;
  4. Tape must be applied to floors at ticket counters and concession stands to enforce proper Social Distancing protocol for patrons who are waiting in line;
  5. Restrooms must be cleaned and disinfected regularly, and touchpoints must be cleaned no less than once per hour;
  6. Foodservice areas must adhere to the same guidelines set for Restaurants and Dining Services;
  7. Party rooms located at theaters may not host parties or Gatherings; and
  8. Closing playgrounds and arcade rooms, if any.

I.          Additional Measures for Bowling Alleys Effective May 1, 2020

In addition to the above applicable requirements, bowling alleys that choose to operate from 12:00 a.m. May 1, 2020 to May 13, 2020, must implement the following additional measures:

  1. Placing signage at entrance and throughout the facility to instruct patrons of social distancing requirements and other instructions and limitations, as applicable;
  2. Providing hand sanitizer stations for patrons throughout the facility;
  3. Foodservice areas must adhere to the same guidelines set for Restaurants and Dining Services;
  4. Tape must be applied to floors at ticket counters and concession stands to enforce proper social distancing protocol for patrons who are waiting in line;
  5. Removing items from all self-service bowling ball, bowling shoe, and other bowling accessory stations and have workers provide such items to patrons directly;
  6. Allowing groups of six (6) patrons or less per lane;
  7. Staggering use of lanes so that only every other lane or every third land is in use to maintain Social Distancing between groups of patrons. Each party of patrons must be seated at least six (6) feet apart;
  8. Scorekeeping machines, ball returns, tables, seats, and other fixtures at each bowling lane must be thoroughly sanitized before and after each use;
  9. Bowling balls and bowling shoes must be thoroughly sanitized before and after each use;
  10. Party rooms located at bowling alleys may not host parties or groups of more than 10 people if they are not at least six feet apart; and
  11. Closing playgrounds and arcade rooms, if any.

J.         Measures for Businesses Performing Outdoor Work

People who perform work outdoors where regular contact with another person does not occur only need to practice social distancing and implement a sanitation process in accordance with the guidelines published by the Centers for Disease Control and Prevention.

The April 23, 2020, Executive Order lists the following businesses as examples of outdoor work:

  • Delivery Services
  • Contractors
  • Landscape Businesses
  • Agricultural Industry Services

K.        Measures Impacting Healthcare Businesses Effective Immediately

The Executive Order also includes provisions that apply to various healthcare businesses. The following provisions are effective immediately:

  • All persons, services, or entities delivering healthcare during the effective dates of the Order must follow the guidelines listed for Critical Infrastructure along with the additional Healthcare guidelines listed in the Order.
  • Dental practices and clinics continuing their in-person operations must not only adhere to the guidelines listed for Critical Infrastructures, but also adhere to the American Dental Association’s Interim Guidance for Minimizing Risk for COVID-19 Transmission and Interim Mask and Face Shield Guidelines.
  • Any previous previously issued Executive Order or rule that would prevent dental practices and clinics from providing the full scope of their services subject to the above requirements are suspended.
  • Licensed Optometrists and their staff continuing their in-person operations must not only adhere to the guidelines listed for Critical Infrastructures, but also adhere to the American Optometric Association’s Practice Reactivation Preparedness Guide and the Georgia Optometric Association’s COVID-19 guidelines for practices issued on March 17th and April 20th of 2020.
  • Any previous previously issued Executive Order or departmental rule that would prevent optometrists from providing the full scope of their services subject to the above requirements are suspended.
  • Licensed Opticians and their staff continuing their in-person operations must not only adhere to the guidelines listed for Critical Infrastructures, but also adhere to the Centers for Disease Control and Prevention’s Recommendations for Office Disinfection and Recommendations for Employers.
  • Any previous previously issued Executive Order or departmental rule that would prevent opticians from providing the full scope of their services subject to the above requirements are suspended.
  • Ambulatory Surgical Centers continuing their in-person operations must not only adhere to the guidelines listed for Critical Infrastructures, but also implement additional measures to prevent the spread of COVID-19. To the maximum extent practicable, these measures may include:
  1. Screening patients before visits and monitoring their health prior to starting surgery as party of the pre-operative procedure;
  2. Requiring staff to self-monitor and screen for viral symptoms daily;
  3. Continuing to use Personal Protective Equipment per the latest Centers for Disease Control and Prevention recommendations for all procedures;
  4. Following waiting room spacing guidelines, social distancing, face masking, and other recommended procedures for patients and visitors prior to entering the facility;
  5. Ensuring heightened disinfection to prevent and mitigate risk of spread;
  6. Ensuring patients have been medically cleared by their primary care physician where applicable;
  7. Balancing the needs of patient care with the risk of providing that care by prioritizing procedures for patients who have lower co-morbidities and surgical risks and procedures accompanied by lower risk with regard to airborne transmission and those with minimal risk of unintended hospital admissions;
  8. Performing regular rapid COVID-19 testing on providers and employees where feasible; and
  9. Performing COVID-19 testing on patients suspected to be experiencing COVID-19 and factoring the results of such testing into clinical decisions as to whether or not to proceed with procedures.
  10. As with the above sections, any previously issued Executive Order or departmental rule that would prevent ambulatory surgical services from providing the full scope of their services subject to the above requirements are suspended.

L.        Enforcement of Executive Order

The Executive Order allows “any law enforcement officer, after providing reasonable notice and issuing at least two (2) citations for violations of Code Section 38-3-7, is authorized to mandate the closure of any business, establishment, corporation, non-profit corporation, or organization not in compliance with this Order for a period not to extend beyond the term of this order.”

M.       So What Next?

Employers that are planning on reopening (or continuing to operate) their business based on Governor Kemp’s April 23, 2020 Order should immediately begin assessing the health and safety protocols they have in place now for employees and what additional steps they need to take to comply with the April 23 Order.  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 of contracting COVID-19 when visiting 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 re-opening the workplace, protecting business interests, shelter in place orders 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.**

Governor Kemp Issues Executive Order Reopening Certain Businesses in Georgia

Posted on: April 22nd, 2020

By: Andrew Kim

On April 20, 2020, Governor Kemp signed an Executive Order that will impact certain businesses in Georgia. The new Executive Order reopens some businesses previously closed due to the Coronavirus pandemic and removes certain restrictions for other types of businesses as well.

Here are some key provisions:

Health-Related Practices and Services Not Subject to Minimum Basic Operations Restrictions:

The following practices and services are not subject to the Minimum Basic Operations restrictions. Instead, these practices and services “should consider implementing the operational guidelines provided in Executive Order 04.02.20.01 for Critical Infrastructure:”

  • Medical practices
  • Dental practices
  • Orthodontics practices
  • Optometry practices
  • Physical therapists
  • Ambulatory Surgical Centers
  • Physicians performing elective surgeries
  • Healthcare Institutions
  • Medical Facilities
  • Any and all other healthcare-related practices and services that have elected to cease operations because of the spread of COVID-19.

The Executive Order urges these practices and services begin treating patients as soon as possible in accordance with the Centers for Disease Control and Prevention guidelines, Centers for Medicare and Medicaid Services guidelines, and the provisions of his April 20, 2020 Executive Order to prevent the spread of COVID-19.

Reopening of Certain Businesses Effective April 24, 2020:

The Executive Order reopens the following businesses on Friday, April 24, 2020:

  • Gyms
  • Fitness Centers
  • Bowling Alleys
  • Body Art Studios
  • Businesses registered pursuant to Code Sections 43-10-11 and 43-10-18
    • Beauty Shops
    • Beauty Salons
    • Barber Shops
    • Schools of Cosmetology
    • Schools of Hair Design
    • Schools of Esthetics
    • Schools of Nail Care
    • Schools of Barbering
  • Individuals who, for compensation, engage in the practice of esthetics (massages, trims, dyeing, etc.), or cosmetic skincare.
  • Hair Designers
  • Persons who practice Massage Therapy

However, these businesses must implement the following in-person Minimum Basic Operations in order to reopen:

  1. Screening and evaluating workers who exhibit signs of illness, such as a fever over 100.4 degrees Fahrenheit, cough, or shortness of breath;
  2. Requiring workers who exhibit signs of illness to not report to work or to seek medical attention;
  3. Enhancing sanitation of the workplace as appropriate;
  4. Requiring hand washing or sanitation by workers at appropriate places within the business location;
  5. Providing personal protective equipment as available and appropriate to the function and location of the worker within the business location;
  6. Prohibiting gatherings of workers during working hours;
  7. Permitting workers to take breaks and lunch outside, in their office or personal workspace, or in such other areas where proper social distancing is attainable;
  8. Implementing teleworking for all possible workers;
  9. Implementing staggered shifts for all possible workers;
  10. Holding all meetings and conferences virtually, wherever possible;
  11. Delivering intangible services remotely wherever possible;
  12. Discouraging workers from using other workers’ phones, desks, offices, or other work tools and equipment;
  13. Prohibiting handshaking and other unnecessary person-to-person contact in the workplace;
  14. Placing notices that encourage hand hygiene at the entrance to the workplace and in other workplace areas where they are likely to be seen;
  15. Suspending the use of Personal Identification Number (PIN) pads, PIN entry devices, electronic signature capture, and any other credit card receipt signature requirements to the extent such suspension is permitted by agreements with credit card companies and credit agencies;
  16. Enforcing social distancing for non-cohabitating persons on their property;
  17. For retailers and service providers, providing for alternative points of sale outside of buildings, including curbside pickup or delivery of products and/or services if an alternative point of sale is permitted under Georgia law;
  18. Increasing physical space between workers and customers;
  19. Providing disinfectant and sanitation products for workers to clean their workspace, equipment, and tools; and
  20. Increasing physical space between workers’ worksites to at least six (6) feet.

The April 20, 2020 Executive Order includes the same language and restrictions from the previous April 2, 2020 Executive Order. This language and restriction states that all businesses, non-profits, and county and municipal governments, other than those defined as “Critical Infrastructure,” shall restrict gatherings to ten (10) individuals at a single location if “such gathering requires persons to stand or be seated within six (6) feet of any other person.”

Reopening of Other Businesses Effective April 27, 2020:

Governor Kemp’s April 20, 2020 Executive Order does not include any provisions that reopen or lift restrictions for:

  • Restaurant dine-in services;
  • Private Social Clubs; and
  • Theaters

However, during his press conference on April 20, 2020, Governor Kemp announced that the above businesses will be allowed to reopen on Monday, April 27, 2020, should those businesses comply with specific social distancing and sanitation mandates. The Governor’s Office will be issuing these additional mandates for these businesses in the next few days.

Governor Kemp stated in his press conference that the following businesses will remain closed:

  • Bars
  • Nightclubs
  • Operators of Amusement Park Rides
  • Live Performance Venues

So What Next?

Employers that are planning on reopening their business based on Governor Kemp’s April 20, 2020 Order should immediately begin assessing the health and safety protocols they have in place now for employees and what additional steps they need to take to implement the protocols identified by the April 20 Order.  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 of contracting COVID-19 when visiting 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 returning to the workplace, business interruption coverage 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.**

Is “Birthright Citizenship” Subject To Revocation By A Presidential Executive Order?

Posted on: October 30th, 2018

By: Ken Levine

citizenship

During an interview by Axios on October 29, 2018, President Trump declared that he was about to sign an executive order to abolish birthright citizenship in the United States. While the President insisted that birthright citizenship, a concept enshrined in the 14th Amendment of the U.S. Constitution, could be revoked via executive order, it is an understatement to say that the constitutionality of such an order would be dubious.

The 14th Amendment of the U.S. Constitution provides, in part, that all individuals born in the United States, and subject to the jurisdiction of the laws of this country, are automatically U.S. citizens. Any amendment to the U.S. Constitution requires a 2/3rd majority in both houses of Congress or a constitutional convention called for by two-thirds of the State legislatures.

Furthermore, the issue of birthright citizenship has already been comprehensively addressed in the 1898 U.S. Supreme Court case of U.S. vs. Wong Kim Ark, 169 U.S. 649. The issue at hand in the case was whether a child born in the United States to Chinese citizens, who were temporarily residing in the U.S., was automatically a U.S. citizen by operation of law. In a 6 to 2 decision the Supreme Court determined that the 14th amendment, which was passed after the U.S. Civil War, guaranteed U.S. citizenship to all individuals born in the United States, no matter the citizenry of the child’s parents. The decision reiterated that the 14th amendment does however exclude birthright citizenship for the children of foreign diplomatic officers, which is the sole exception.

Eminent constitutional scholars around the U.S. have already weighed in on this issue and have spiritedly validated that the U.S. Constitution not only guarantees birthright citizenship, but that a unilateral Presidential Executive Order cannot amend the constitution. It is unclear at this time whether President Trump will actually move forward with this executive order.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Ken Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected]

A Majority of Federal Agencies Are “At Risk” For Further Data Security Incidents

Posted on: June 6th, 2018

By: Allen Sattler

The Office of Management and Budget (“OMB”) performed a cyber security risk assessment of 96 federal agencies, and it recently published its findings in the “Federal Cybersecurity Risk Determination Report and Action Plan.”  The OMB reported that only 25 of the 96 agencies assessed were adequately managing their risk.  Most agencies, 74% of them, were either “at risk” or “high risk.”  A “high risk” rating meant that the agency either did not have in place or failed to sufficiently deploy key, fundamental cybersecurity policies, processes, and tools.

The OMB performed the risk assessment in response to an Executive Order requiring that the OMB develop a plan to adequately protect the executive branch by improving its cybesecurity.  The assessment conducted by the OMB examined the agencies’ ability to identify, detect, and respond to cyber incidents.  Nearly 31,000 cyber incidents affected the 96 agencies in 2016 alone.

The OMB found that most agencies had poor situational awareness.  The OMB explained that those agencies often lacked the information and resources needed to understand or determine the tactics, techniques, and procedures being used by threat actors to exploit their systems.  For instance, in 38% of the cyber incidents analyzed, the agencies affected could not identify the method of attack used by the threat attacker.  The OMB also found that most agencies lack standardized procedures and information technology, which makes mitigating the vulnerabilities of those systems difficult.  For instance, one agency operates 62 separate email services on its systems, making it “virtually impossible” to track and inspect inbound and outbound communications to prevent attacks.  The OMB explained that if the email service is standardized, the agency can then manage the risk.  For instance, it can inspect, detect, and quarantine malicious messages, such as phishing attempts and emails that include attachments with malicious code.

The OMB also found that agencies lack the ability to detect when large amounts of data have been pulled from their systems by an outside attacker.  Only 27% of the agencies reported the ability to detect and investigate whether large amounts of data have been exfiltrated from their systems.  Also, while agencies have largely complied with policies requiring them to encrypt data in transit, less than 16% of agencies achieved their targets for encrypting data at rest.

The findings by the OMB are alarming given that the federal government is often a prime target for attack by cyber criminals, as shown by previous, high-profile breaches.  For instance, in 2015, the Office of Personnel Management sustained a data breach that resulted in the disclosure of fingerprint data belonging to 5.6 million federal employees.

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