Responding to and recovering from the impact of the coronavirus
Generally, this is a question of state and local law. However, many jurisdictions seem to be looking to federal guidance as a basis for making this determination. The Cybersecurity and Infrastructure Security Agency (CISA) recently issued “Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response,” which provides guidance to state, local, tribal, and territorial jurisdictions and the private sector on defining essential critical infrastructure workers. The workers identified in this guidance generally represent the workforce related to the 16 critical infrastructure sectors’ assets, systems, and networks, whether physical or virtual, that are considered so vital to the United States that their incapacitation or destruction would have a debilitating effect on security, national economic security, national public health or safety, or any combination thereof.
CISA’s guidance, however, is not binding, and states and local governments are establishing the specific parameters for their respective restrictions. Although different jurisdictions are taking different approaches, they are all making determinations about which businesses and employees are “essential” and “non-essential.” We can advise you on how these determinations apply to your business and counsel you on how to comply with them. We can also provide you with practical guidance on how best to respond to questions from employees, media, law enforcement and others.
If an order is already in effect and adversely affects your business, there might still be opportunities to protect your business. Depending on the jurisdiction, some businesses are permitted to seek waivers. Additionally, many orders are being updated and amended and there may be opportunities to seek an exemption in an amended order.
Ryan Robichaux, 205.521.8610
David Stewart, 205.521.8368
If your business has been deemed “essential” or “critical” by state and local authorities, your employees are likely permitted to continue working and traveling to and from work. However, such work and traveling may not be permitted if your business has not been deemed “essential.” We can advise you on how these determinations apply to your business and counsel you on how to comply with them. We can also provide you with practical guidance on how best to respond to questions from employees, media, law enforcement and others.
Ryan Robichaux, 205.521.8610
David Stewart, 205.521.8368
The CARES Act made a number of changes to increase employees’ access to their retirement funds and to decrease the cost to employees for testing and treatment for COVID-19. For example, employees affected by the pandemic may be eligible for penalty-free distributions of up to $100,000 from their retirement plan, and group health plans must cover diagnostic testing and any vaccine for COVID-19 at no cost to employees. Employers will need to consult with their service providers and will need to amend their plans or update their policies to take advantage of some of these changes. Please refer to our article, Highlights of Employee Benefits Provisions in the CARES Act, on the provisions in the CARES Act for more information.
David Joffe, 615.252.2368
Caleb Barron, 615.252.3569
Hourly or other non-exempt employees are only entitled to pay for hours actually worked, and employers are not required to pay these employees for hours the employees would have otherwise worked but for an office closure or shutdown. Employers may require employees to use vacation or PTO, so long as it is consistent with their written policies. Of course, collective bargaining agreements or individual contracts or agreements may provide for pay in certain situations and may restrict forced use of vacation or PTO and should be reviewed carefully. Except for very limited exceptions under federal law, exempt, salaried employees must receive their full salary in any week in which they perform any work, including remotely.
Subject to their written policy terms, employers may require exempt employees to use PTO or vacation time without affecting the employee’s salary basis of payment so long as the employee still receives in payment an amount equal to the employee’s guaranteed salary for the week. However, an employee will not be considered paid “on a salary basis” if deductions from the predetermined compensation are made for absences of less than a full week occasioned by the office closure. State laws may also contain different requirements, and circumstances may change the analysis.
An employer may encourage or require employees to work from home as an infection-control or prevention strategy, based on timely information from public health authorities. Working from home also may be a reasonable accommodation under the ADA for employees with disabilities. The FMLA does not require employers to allow employees to work from home. Of course, employers must not single out employees either to telework or to continue reporting to the workplace on a basis prohibited by any of the EEO laws.
As companies prepare for the impacts of the Coronavirus Disease 2019 (COVID-19), many are considering alternate workplace and remote work options for their employees. Remote work options, or telework, require additional cybersecurity considerations to connect employees to an organization’s information technology (IT) network.
Telework provides opportunities for malicious cyber-actors to find and target vulnerabilities unique to remote working—including those specific to VPN access, security patches on BYOD or home computers, phishing emails, and multi-factor authentication. It is important for businesses to review current information security and other similar policies to determine whether established security guidelines adequately protect remote access to company networks. Similarly, ensure the company’s incident response procedures address how remote employees identify and report potential cyber-incidents or attempts.
Review your IT resources and make sure your technical support team is well staffed. IT resources may be strained from additional remote work, which could compromise the company’s ability to adequately respond to cyber-risks. Create policies and expectations for your IT department and communicate expectations and processes to employees at large.
Remind employees of good cyber-hygiene—don’t leave sensitive information or documents where others can see them (i.e. roommates, family members, friends), train employees to detect phishing or social engineering attacks in a remote setting, never download or save work to a personal device, etc. Companies should also assess how cyber-security requirements and risk assessments may be impacted by large-scale telework, particularly for highly regulated entities, such as financial services.
John Hargrove, 205.521.8343
Matt Miller, 205.521.8243
Erin Illman, 704.338.6026
We recommend that employers emphasize to employees the importance of monitoring their own health status and that they remain away from work if they have a fever or combination of symptoms suggesting possible infection. However, if an employer believes an employee’s condition poses a direct threat to the employee or another worker, the employer may require the employee to have a medical examination prior to returning to work.
Employers may monitor employee travel. As the CDC and other health officials recommend that people who visit specified locations remain at home until it is clear they do not have pandemic coronavirus symptoms, an employer may ask whether employees are returning from high-risk locations, even if the travel was personal.
We recommend that employers emphasize to employees the importance of monitoring their own health status and that they remain away from work if they have a fever or combination of symptoms suggesting possible infection. However, the EEOC takes the position that if pandemic illness becomes widespread in the community as assessed by state or local health authorities or the CDC, then employers may measure employees’ body temperature without violating the ADA.
Employers are encouraged to accommodate any employee who requests time off to undergo testing.
Employers should conduct an analysis under the FMLA when an employee requests an absence to attend to a sick family member. For employees with family members having reported cases of coronavirus, having the employee remain home will likely be in the best interest of everyone.
Similarly, if an employee is under quarantine, best practices suggests that such employees receive accommodations to encourage self-policing by employees.
Employees generally cannot refuse to work based on a mere fear of becoming sick. However, if the employee’s anxiety rises to the level of a disability, the employer may be required to accommodate the employee.
Short-term illnesses usually are not disabilities as defined by the ADA, however, infection could lead to conditions that will qualify as disabilities. Regardless, given concerns of infection and the well-being of other employees, employers should consider providing leave or other accommodations to employees who contract the coronavirus.
A number of OSHA standards are applicable to pandemic situations, including hazard recognition and the general duty clause. As a general matter, employers should assess the hazards to which their workers may be exposed, evaluate the risk of exposure, and use controls to prevent exposure. The degree of risk will vary by industry, as will the controls necessary to prevent or reduce exposure. In the event the employer determines that the workplace is no longer safe despite controls, the employer may need to take more drastic measures. Employees handling cleaning solutions or other chemicals must take appropriate precautions and material safety data sheets must be maintained for such chemicals.
Employers should consider reported cases of the coronavirus as part of the hazard analysis. Depending on the workplace, including the infected employee’s proximity to other employees, reported cases may require additional actions.
John Hargrove, 205.521.8343
Matt Miller, 205.521.8243
Nonsupervisory employees, whether in a union or not, may be able to refuse to work in situations that they reasonably believe to be unsafe. Sometimes, such a refusal may come in the form of group activity. Such concerted activity could invoke protections under both OSHA and NLRA, even for employees not in a union. A collective bargaining agreement also could have language that would govern the exact situation.
John Hargrove, 205.521.8343
Chuck Mataya, 615.252.2324
Bradley is assessing the ability of its own employees and attorneys to work remotely and has begun processes to test the capacity of the remote working system. We are suspending non-essential travel and requiring employees to disclose international travel and cruise ship travel plans, so that we may monitor and plan for their return. We are increasing frequency of cleaning and disinfecting high traffic areas in our offices. Additionally, Bradley is maintaining frequent communication with employees to try to ease fear and anxiety.
Anne Yuengert, 205.521.8362
Jon Skeeters, 615.252.2320
Generally, this is a question of state and local law. However, many jurisdictions seem to be looking to federal guidance as a basis for making this determination. The Cybersecurity and Infrastructure Security Agency (CISA) recently issued “Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response,” which provides guidance to state, local, tribal, and territorial jurisdictions and the private sector on defining essential critical infrastructure workers. The workers identified in this guidance generally represent the workforce related to the 16 critical infrastructure sectors’ assets, systems, and networks, whether physical or virtual, that are considered so vital to the United States that their incapacitation or destruction would have a debilitating effect on security, national economic security, national public health or safety, or any combination thereof.
CISA’s guidance, however, is not binding, and states and local governments are establishing the specific parameters for their respective restrictions. Although different jurisdictions are taking different approaches, they are all making determinations about which businesses and employees are “essential” and “non-essential.” We can advise you on how these determinations apply to your business and counsel you on how to comply with them. We can also provide you with practical guidance on how best to respond to questions from employees, media, law enforcement and others.
If an order is already in effect and adversely affects your business, there might still be opportunities to protect your business. Depending on the jurisdiction, some businesses are permitted to seek waivers. Additionally, many orders are being updated and amended and there may be opportunities to seek an exemption in an amended order.
Ryan Robichaux, 205.521.8610
David Stewart, 205.521.8368
It is important to be proactive and ensure that your critical business operations are deemed “essential.” The government officials and staff that are making key decisions and determining the parameters of a shutdown may or may not fully understand your business or how critical it is. Accordingly, it is important that you engage your state and local officials and staff sooner rather than later.
If an order is already in effect and adversely affects your business, there might still be opportunities to protect your business. Depending on the jurisdiction, some businesses are permitted to seek waivers. Additionally, many orders are being updated and amended and there may be opportunities to seek an exemption in an amended order.
Ryan Robichaux, 205.521.8610
David Stewart, 205.521.8368
We are already hearing from insurers that the absence of physical damage to tangible property will result in the denial of most claims. But there are two sides to every story: What about loss of use and “sick building” triggers resulting from the virulent nature of the coronavirus being present in the HVAC systems of owned or leased property, or nearby attraction property?
The landscape for policyholders is changing rapidly; we have already been asked to assess the impact on otherwise covered claims of the coronavirus exclusions deployed in renewal policies beginning in early January 2020 by insurers (recycled from H1N1/Zika virus). We are also exploring the impact on civil authority and ingress/egress coverage of various governmental declarations, curfews, curtailments and quarantines. Commonly included anti concurrent causation (ACC) clauses may seek to limit the bullseye of intended coverage and confuse the proximate causation inquiry by turning it on its head. Finally, the potential requirement of naming suppliers, critical customers and locations, as well as tier limitations, may upset your supply chain/CBI coverage. Our team is well versed in these products and can offer you advice, counsel and the resources you need to carry out your business continuity plan.
Bradley’s team of policyholder lawyers has decades of experience maximizing insurance recovery for commercial clients operating globally during times of crisis, including 9/11, various hurricanes, storms, earthquakes, floods, and global political risk occurrences triggered by natural catastrophes and civil unrest. Whether your insurance coverage challenge confronts you in the form of high-stakes business interruption/property, event cancellation, CGL, or environmental/pollution, chances are we have advised your industry (and companies ranging from large to small) on how to notify your carriers and, more importantly, spur them to action to benefit your organization. If necessary, we litigate these claims – sometimes with novel theories and results – however, we prefer to resolve insurance losses through discussion, mediation and negotiation.
We invite you to trust us with your coronavirus insurance issue and engage with our team as your organization prepares to recover from what appears to be an exogenous shock in the business cycle.
Geoffrey Greeves, 202.719.8221
Alex Purvis, 601.592.9923
A creature of contract, “force majeure” provisions relieve parties from performance obligations for a period of time and/or allow the parties to terminate the contract without penalty when certain circumstances beyond their control arise. Fundamentally, a force majeure event is an unforeseen and unavoidable event beyond the reasonable control of the parties; it serves as an excuse or delay in the affected party’s performance. If included in the contract, force majeure is triggered when an “act of God”, “War” or other extraordinary event prevents performance entirely. Mere hindrance of performance or increased expense is generally insufficient.
With the global supply chain impact of the coronavirus (a health crisis), obligated parties are seeking relief under force majeure by providing notice of the outbreak, pandemic, and or spread of conditions among their workforces. As no physical damage to property is yet apparent, counter parties are likely to push back on a declaration, if one can be made under these unique circumstances. Our analysis follows a multi-step approach:
Identify and analyze all favorable contract language allowing for discontinuation/termination/cancellation. Does the implicated contract contain a provision entitled “force majeure” (sometimes denominated “right of termination for cause”)? If NO, in the United States, force majeure will not be implied in common law. Absent a force majeure clause, look to common law gap fillers to supply the answer: impossibility, impracticability, frustration of purpose. With regard to contracts for the sale of goods, the Uniform Commercial Code (UCC) may provide a rule of decision in your favor.
Determine whether an event of force majeure springing from the coronavirus may have occurred. The inclusion of a force majeure provision does not mean it will apply to any and all performance impacts caused by the coronavirus. Well-drafted force majeure provisions are tailored to specific events that may excuse performance. Contracts may list some of the following as qualifying for force majeure: acts of God, labor shortages or strikes, disasters, acts of the government, acts of terrorism, fire, and extreme weather. Even more favorable/specific language that captures the coronavirus crisis where we expect parties to seek refuge will reference disease, disaster, supply delays, material shortages, quarantines, and/or pandemics.
Geoffrey Greeves, 202.719.8221
Lee-Ann Brown, 202.719.8212
For our affected clients facing a new set of business challenges with the coronavirus, we have developed an initial insurance policy review product. The output of our process is a scorecard alerting you to potentially responsive insurance that may give you redress if your business has a loss from the coronavirus. Whether you do (or do not) have the coverage in place, we can also help answer questions about force majeure triggers and other loss mitigation strategies.
Once armed with their policies and our assessment, our commercial policyholder clients and their brokers are asking us the right questions if they have responsive insurance, including:
Geoffrey Greeves, 202.719.8221
Business interruption (BI) insurance provides coverage for lost income during the period of restoration following a covered cause of loss. For example, a company that maintains commercial property insurance to cover property loss or damage may maintain BI coverage for lost income and expenses due to a shutdown of business operations while the damaged property is restored. Whether an insured may have a claim for BI coverage will depend on the specific trigger language in the policy. Some policies may provide coverage for all perils not excluded by the policy, which could encompass the coronavirus, unless the policy specifically excludes coverage for losses caused by communicable disease. Other policies may provide coverage for lost income due to the exercise of “civil authority,” such as state or municipality mandated closure. In addition, financial services providers with retail operations may have specific retail operation coverage under which the coronavirus would constitute a covered peril.
Heather Wright, 615.252.2342
Ben Milam, 704.338.6049
Although construction has been deemed “essential” or “critical” in many jurisdictions, you should first confirm that your construction business is permitted to continue under the relevant government-issued stay-at-home orders. If your business has been deemed essential or critical by state and local authorities, your employees are likely allowed to continue traveling to and from their places of work. In response to government-issued stay-at-home orders, many owners and contractors have issued safe passage letters to their employees. We are currently helping clients draft these letters and advising them on how to comply with relevant orders.
Chris Selman, 205.521.8181
Many construction contracts contain a force majeure or similar provision that may excuse performance due to impacts caused by epidemics, pandemics, or other acts outside your control.
Other provisions to consider include price escalation, change order, insurance, suspension, and termination clauses. These clauses should help you determine whether you are entitled to relief and the scope of that relief (e.g., Can I get a time extension? Am I entitled to delay damages? Am I able to suspend or terminate performance?).
Bradley attorneys are assisting clients analyze their contracts to determine what provisions may apply.
Contractors should review their contracts to determine if their contract provides relief for the impact of the coronavirus, and if so, consider what steps are necessary to preserve and pursue that relief.
For instance, contracts typically require a contractor to provide notice of any delay or impact. Generally, notice must be in writing and should be provided promptly. In the case of an evolving outbreak, it may be difficult to determine when notice is appropriate. While contractors should issue notice sooner rather than later to avoid waiver, they should also contemplate fallout from premature notice, e.g., invalid declaration, duty to mitigate, potential loss of other contractual rights or recovery, alarming the owner, impacting client relations, or triggering your own workforce.
Bradley attorneys are currently helping clients navigate these difficult issues.
Contractors should consider what impacts their subcontractor’s or supplier’s actions will have on the overall project schedule. If it will impact the contractor’s performance, contractors should comply with appropriate notice provisions and evaluate what options they have to mitigate the impact or excuse the subcontractor’s performance. If the subcontractor is bonded, notice may also need to be sent to the bonding company. Depending upon the terms of your subcontract or purchase order, supplementing the subcontractor’s or supplier’s performance may be a reasonable means of mitigation.
Contractors should review their contracts to see what provisions may allow them relief, including change order, compensable delay, and price escalation clauses. Recovery of certain cost increases may not be allowed if the contractor assumed these risks.
For example, some standard clauses prohibit recovery of indirect costs, general conditions, and other delay damages as the result of a force majeure event and may limit relief to an extension of the contract time. Contractors should consider creating an accounting mechanism to track extra expenses and revenue losses from the coronavirus effects to demonstrate the full extent of the impact of the outbreak. Such measures may assist in recovery of damages from an owner when negotiating a change order or claim.
Contractors are advised to first consult their contract and determine whether they are being terminated for default or for convenience. The type of termination will likely dictate the contractual defenses and remedies available to the contractor. Contractors may also consider consulting with their owner to discuss alternatives to termination such as negotiating allocation of anticipated cost increases and evaluating deductive changes to reduce scope.
Bradley is available to discuss termination scenarios and advise concerning a contractor’s claims or defenses.
Contractors should consult public health authorities regarding appropriate measures to reduce the chances of further outbreak. Some steps may include implementing additional sanitation and cleaning procedures to protect workers on-site, notifying workers who may have been exposed to the individual, and, if necessary, recommending some or all workers self-quarantine.
Contractors may also evaluate providing notice to the owner discussing the incident and the steps the contractor is taking to mitigate project delays. It may also be beneficial to take proactive measures such as discussing potential exposure events with the owner to reach a mutually agreeable protocol to avoid surprises if/when exposure occurs.
With the recent and rapid spread of the coronavirus in the United States, government contractors are facing unprecedented uncertainty and unique challenges. Rest assured, however, that everyone in the government contracts community is in this together. For our part, Bradley is working around the clock to help our clients tackle the legal issues presented by the coronavirus pandemic.
Aron Beezley, 202.719.8254
We are presently assisting both U.S. domestic clients with overseas business and Non-U.S. clients with U.S. business to address various impacts from the coronavirus.
On March 6, 2020, the United States Treasury Department, Office of Foreign Asset Control (OFAC) announced changes to the general license related to humanitarian aid for the coronavirus outbreak in Iran.
Based on the OFAC’s announcement and related FAQ, the change in license is intended to help in combating the coronavirus.
As background, the change of license provides exceptions to the prior U.S. economic sanctions against the Iranian government and related entities.
The general licenses for humanitarian aid provide a legal means for exports needed to help with the pandemic. If you have questions regarding whether or not a particular good or service falls within the scope of the changes in the general licenses, please reach out to David Vance Lucas or Andrew Tuggle in our International and Cross Border Practice Group for assistance.
Who to Contact
David Vance Lucas, 256.517.5131
Andrew Tuggle, 256.517.5107
Additional information and updates regarding OFAC’s announcement and FAQs can be found at https://home.treasury.gov/index.php/coronavirus.
See also https://www.treasury.gov/resourcecenter/faqs/Sanctions/Pages/faq_iran.aspx#828.
See also https://www.treasury.gov/resource-center/faqs/Sanctions/Pages/faq_iran.aspx#821.
See also https://www.treasury.gov/resourcecenter/sanctions/Programs/Documents/gtsr_gl8.pdf.
The Treasury Department's general guidance on humanitarian assistance to Iran can be found at https://www.treasury.gov/resource-center/sanctions/Programs/Documents/hum_exp_iran.pdf.
The Commerce Department has not yet implemented any specific export control related relief or loosing. Secretary Ross has released a statement in general support of US business in light of the coronavirus which can be found at https://www.commerce.gov/news/press-releases/2020/03/statement-secretary-commerce-wilbur-ross-president-donald-j-trumps.
We are presently assisting both U.S. domestic clients with overseas business and non-U.S. clients with U.S. business to address various impacts from the coronavirus.
On March 12, 2020, the United States Trade Representative (USTR) has announced that five HTSUS subheadings will be excluded from Section 301 tariffs on certain products from China.
Based on the subheadings and the timing of said exclusions, it appears as though they are designed to lessen the burden on importers attempting to obtain products such as plastic bags/garbage bags, sanitary gloves, and other hygienic products useful to combating the coronavirus. Significant, these exclusions are retroactive, applying from September 24, 2018, to August 7, 2020.
As background, the products covered by the exclusions are all part of the “$200 billion action” taken on September 24, 2018, where a 10% tariff was announced on 5,757 HTSUS subheadings. In May of 2019, this 10% tariff was increased to a 25% tariff.
The following products are excluded from said 25% tariff, returning the duty rate to the standard rate:
3923.21.0030 (Plastics and articles thereof)
3923.21.0095 (Plastics and articles thereof)
3926.20.9050 (Plastics and articles thereof)
4015.19.1010 (Rubber and articles thereof)
5603.12.0090 (Wadding, felt and nonwovens; special yarns, twine, cordage, ropes and cables and articles thereof)
If you have questions regarding whether or not a particular product falls within the exclusion, reach out to David Vance Lucas and Austin Hagood in our International and Cross Border team for assistance.
David Vance Lucas, 256.517.5131
Austin Hagood, 256.517.5111
Additional information and updates regarding the Section 301 tariffs involving China, can be found here: https://ustr.gov/issue-areas/enforcement/section-301-investigations/search
We are presently helping both U.S. domestic and foreign business clients to address the impacts of the coronavirus pandemic.
The U.S. and many other countries have issued various travel and immigration-related restrictions and advisories due to the coronavirus. We can advise and provide guidance to international businesses affected by the recent developments.
If you have questions regarding whether a trip or travel plan may be impacted by the new and continuously changing developments, please reach out to Keith Covington in our International and Cross Border Practice Group for assistance.
Keith Covington, 205.521.8389
The U.S. Government has imposed stringent travel restrictions on foreign nationals from a number of countries around the globe. President Trump has issued three Proclamations impacting travel to the U.S., and U.S. Customs and Border Protection has published additional guidance on the restrictions. Links to the Presidential Proclamations and other information are provided in the Resources tab.
Travel abroad is also being severely impacted by the COVID-19 outbreak and the U.S. Department of State has issued travel advisories for many affected countries. Information about these travel advisories, including country-specific entry and exit requirements, can be accessed in the Resources tab.
The agencies responsible for immigration services, including USCIS, ICE, Customs and Border Protection, and the Department of State, have provided guidance on various issues arising out of the COVID-19 outbreak. Information about the impact of COVID-19 on these agencies’ programs and services can be accessed in the Resources tab.
Incoterms® address transfer of risk of loss and the parties’ responsibilities to each other relating to the shipment of goods. Review of applicable Incoterms in conjunction with other provisions of your contract will help you to determine your contractual obligations and available remedies in the event of a delay in performance or in the event there are obstacles to shipment caused by the coronavirus.
In the event that you are unable to perform, or likely will not be able to perform, under a contract due to the coronavirus affecting you, your vendors or suppliers or due to government actions associated with the coronavirus, the following actions should be taken:
If customers, vendors, suppliers or anyone else with a contractual obligation to you is not able to perform, such parties should follow the requirements of any written contract and the applicable law.
Generally a state or local government declaring a state of emergency is a mechanism for the state to be able to take action in an expedited fashion without going through all of the standard protocols in the event that there is a disaster or emergency affecting such governmental entity. The process for the declaration and what is needed to allow the state or local government to declare a state of emergency is dependent upon the laws of the applicable jurisdiction. Normally the declaration of a state of emergency would not be grounds for a force majeure claim, but instead, the actions taken by the government pursuant to the state of emergency may be grounds for a force majeure claim. However, the fact that a state of emergency is in place may be used as factual support for any claim that the actions were beyond the control of the entity affected.
The coronavirus will likely cause delays in performance of various contractual obligations, and we are here to help you and your business get through these difficult times by helping you navigate your rights under your contracts and under applicable law.
Elizabeth M. Boone, 601.592.9924
The coronavirus is significantly impacting the U.S. and global economies. Many industries and sectors of the economy will experience severe financial distress as a consequence, and unfortunately bankruptcy filings are likely to increase dramatically. Bradley’s Bankruptcy and Creditors’ Rights attorneys help clients evaluate the risks and opportunities that economic distress presents, make strategic decisions in the face of a changing market, and navigate the challenges that arise during periods of financial hardship, whether they are creditors, debtors or both.
Chris Glenos, 205.521.8721
Bradley’s health facility operations team is assisting hospitals and health systems by providing practical solutions to the legal challenges associated with the coronavirus response efforts and preparedness. We are monitoring the Centers for Medicare and Medicaid Services (CMS) and Centers for Disease Control and Prevention (CDC) and various health department guidance to help our clients understand and implement coronavirus response plans consistent with existing and emergency regulations. Our team can work with your coronavirus task force to keep you up to speed on the quickly changing regulatory landscape applicable at this critical time.
Legal support can be critical for leadership and task force members being asked to plan for surge capacity demands and yet still meet ongoing licensure and regulatory compliance when establishing triage and testing stations outside of designated emergency departments. Our attorneys are helping clients address EMTALA-compliance questions that arise when a hospital decides to limit patient access points and change patient screening processes to address surge demand and implement infection control measures.
Hospitals are increasingly seeking guidance regarding best practices for addressing challenges pertaining to physician staffing and the need for coverage flexibility despite stringent contractual and regulatory limitations that apply to their financial relationships with physicians and physician-owned companies.
Wendi Rogaliner, 214.257.9841
Due to the unique dangers to the long-term care facility population, the Centers for Medicare and Medicaid Services (CMS) and state health departments have issued mandatory guidance for SNFs to restrict visitation of all visitors and non-essential health care personnel, except for certain compassionate care situations, such as an end-of-life situation. If visitors are allowed after a case-by-case assessment in compassionate care situations, any visitor must 1) be screened so they are free of any signs and symptoms of infection, 2) be restricted to the resident’s room, 3) use personal protective equipment (PPE) including facemask/respirators, and 4) be instructed to frequently wash their hands. Facilities are also directed to cancel communal dining and all internal and external group activities.
Per the CMS guidance, facilities will be closely monitored for infection control practices and must initiate active and vigorous screening and monitoring of employees for symptoms of, and exposure to, the coronavirus. CMS will expect facilities to demonstrate strict compliance with the latest infection control and COVID-19 guidance to prevent the spread of the disease.
CMS guidance is changing on a regular basis, and providers should check it daily, as the implementation requirements are often “immediately.” The current CMS guidance on prevention and precautions for SNFs is at https://www.cms.gov/files/document/qso-20-14-nh-revised.pdf.
While CMS’s direction is not mandatory for assisted living facilities, many state health departments have adopted similar orders to discourage, limit, or prohibit non-essential visits from that outside of the facility. These orders suspend the facility’s obligation to allow visitors. We are counseling assisted living facilities to follow any such state orders and to consider adopting the CMS guidance issued for nursing homes as a best practice for assisted living providers.
We are working with facilities to overcome regulatory obstacles to deploying telehealth as an alternative to on-site physician visits.
Clients are seeking our guidance on how to manage employment issues (employees with positive diagnosis, assistance with childcare needs for employees with schools closing, and payment or non-payment of various benefits based on what is occurring).
A team of Bradley attorneys is already supporting national and state long term care associations on these issues.
Chris Puri, 615.252.4643
Michael Brent, 615.252.2361
Bradley HIPAA attorneys can answer questions involving the use or disclosure of protected health information. Unless and until the Department of Health and Human Services (HHS) suspends the HIPAA Privacy Rules, covered entities and their business associates will need to follow the HIPAA exceptions for permissible disclosures.
Effective March 15, 2020, HHS has waived several HIPAA requirements for HOSPITALS (1) in the emergency area identified in the HHS public health emergency declaration; (2) that have instituted a disaster protocol; and (3) for up to 72 hours from the time the hospital implements its disaster protocol. This limited waiver means these hospitals are permitted (but not required) to waive the following HIPAA requirements during the waiver period:
Otherwise, besides treatment disclosures, HIPAA permits certain disclosures for public health purposes and to friends and family involved in a patient’s care, but continue to follow all conditions and limit disclosures to the minimum necessary to meet the exception. Reporting patient information to the media or public at large is generally not permitted without a valid HIPAA authorization from the patient or personal representative. See https://www.hhs.gov/sites/default/files/february-2020-hipaa-and-novel-coronavirus.pdf.
On the security front, now is a good time to review your emergency-mode contingency plans and disaster recovery plans required under the HIPAA Security Rule and build out policies and practices to ensure the availability, as well as the confidentiality, of electronic health information.
We are already working with clients to employ telehealth as an alternative to on-site visits and can do the same for you.
Amy Leopard, 615.252.2309
We are assisting providers in understanding the changes in CMS coverage guidance for diagnosing and treating the coronavirus for Medicare and Medicaid patients, including the provisions in the Telehealth Services During Certain Emergency Periods Act of 2020 and potential waivers under Section 1135 of the Social Security Act.
Medicare will now cover the lab test for the coronavirus billed under new HCP’S codes after February 4, 2020, if the physician or practitioner orders it.
The waiver of copays and deductibles by Medicare, Medicaid, employer-sponsored and commercial health plans is rapidly changing, and we are monitoring these developments.
Travis Lloyd, 615.252.2306
Because our Real Estate team at Bradley has earned a reputation as experienced problem solvers, our landlord and tenant clients have been reaching out to us with a myriad of questions and concerns stemming from the coronavirus pandemic.
They want us to help them build a contingency plan should quarantines or building shutdowns be necessary. They want to understand whether rent is owed if tenants are unable to occupy space due to a shutdown. They wonder whether business interruption insurance will cover their rent in such an instance. Will delays or shutdowns be considered force majeure events? Can extra building costs related to cleaning, etc. be passed through to tenants?
We can help you answer these questions by walking through lease terms, jurisdiction, type of lease and particular details of your situation.
Johanna Jumper, 615.252.2321
Brooks Smith, 615.252.2344
Bradley attorneys already are assisting companies with implementing the differing guidance under the CARES Act, GSE bulletins, and state regulatory agencies regarding forbearances, loss mitigation, foreclosure and eviction moratoriums.
COVID-19 Regulatory Guidance for the Financial Services Industry
Christy Hancock, 704.338.6005
Bradley attorneys already are assisting companies with developing comprehensive supplements to their business plans that respond to pandemic planning.Learn more about what you can do by viewing our COVID-19 webinar on business continuity.
COVID-19 Webinar Series: Business Continuity Planning Webinar Recording
Haydn Richards, 202.719.8217
Bradley attorneys already are assisting companies with responding to requests and demands from regulatory agencies. For example, Bradley is preparing responses to the New York Department of Financial Services to provide guidance on their business continuity plans.
COVID-19 Regulatory Guidance for the Financial Services Industry
Haydn Richards, 202.719.8217
Christy Hancock, 704.338.6005
Robert Maddox, 205.521.8454
For mortgage lenders concerned with the problem of recording deeds and mortgages in the short term due to closures of county recording offices associated with the cororavirus, a primer on the basics of e-recording and an update on the locations where electronically recording such documents is possible may be helpful to reduce the associated stress. As of today, there are more than 2,000 counties and equivalents throughout the United States that allow for the electronic recording of documents, and these jurisdictions cover over 80% of the population of the United States. For additional detail on which counties and equivalents support electronic recording, we encourage our clients to visit the websites of companies like Simplifile© for a more comprehensive and up-to-date list of jurisdictions offering e-recording. In short, mortgage lenders should expect to be able to continue to electronically record deeds, mortgages and associated documents during the impact of the cororavirus as long as local land recording offices are able to continue to process electronic recording remotely.
As for e-recording, a quick primer and refresher may be helpful. Through the use of prescribed recording practices, local county recording offices are able to review, stamp, record and return recorded documents impacting real property electronically. These documents can be both transmitted and returned to a settlement agent or other third-party vendor electronically. Electronic recording is possible because all states have enacted legislation supporting the practice including the Uniform Electronic Transaction Act (“UETA”), the Uniform Real Property Electronic Recording Act (“URPERA”), or both. Generally speaking, these acts authorize the use of electronic signatures on real property documents and authorize local land recording offices to accept and store documents in electronic form for recording. To record a real property record electronically, a mortgage lender (or more likely its closing and settlement agent or third-party vendor) scans the necessary document to convert it for electronic submission, the document is submitted to the local recording office through the internet, the local recording office accepts the submission using a standardized software system, and the submitter receives an electronic document in return bearing the necessary recording information, and this returned document becomes the “original”. If a recording is rejected, the submitter typically receives immediate feedback on the reason, and can work to resolve any issues identified. Of course, this can mitigate the risk associated with physical recordings and the delay of information provided as to rejections. In many jurisdictions, documents submitted for e-recording are processed ahead of documents that are mailed for recording and can be tracked through the process, which further speeds up the recording process and assists with questions of priority.
Naturally, during this period of the cororavirus impact, the use of electronic recording options for recording deeds, mortgages and related documents should enable loan closings to move forward remotely, and the lender’s collateral can be protected by electronic recording even when the local courthouse is closed. Again, not all jurisdictions currently allow the submission of electronically recorded documents, but the majority do. We encourage each of our clients to engage in conversations with e-recording vendors to confirm capacity in the short term, and to engage in conversations with its network of closing and settlement agents and vendors to confirm they are capable of e-recording as well.
Hall Eady, 205.521.8375
Licensed institutions, such as mortgage companies, money transmitters, consumer finance companies, debt collection entities, and other institutions often have limitations on when their employees can work from home. State regulatory agencies are providing some relief from these requirements, and Bradley attorneys are tracking these requirements on a real-time basis and have created a helpful chart so that you can make business decisions regarding your workforce.
Haydn Richards, 202.719.8217
Many states’ corporate laws permit virtual shareholders’ meetings and SEC rules govern changed circumstances such as these. Our Corporate and Securities lawyers can assist you with these and related questions.
The SEC has issued guidance about transitioning to virtual annual shareholders meetings. Here is the link to the SEC guidance.
Be sure to confirm that the state law under which the company is organized, as well as its bylaws and other organizational documents, also permit virtual meetings and/or remote participation in meetings.
On April 6, 2020, the Tenth Modification to Delaware’s Declaration of a State of Emergency added a statement that permits a Delaware corporation to notify stockholders of a change from a physical annual meeting location to a virtual meeting format by following the SEC’s previously provided guidance: Issuance of a press release, filing of such press release with the SEC, and prominent posting of notice of the format change on the corporation’s website.
On April 2, 2020, the governor of the State of Alabama issued a Fifth Supplemental Proclamation regarding that state’s public health emergency. This proclamation includes the authorization of any Alabama corporation to hold its annual meeting of stockholders by means of remote communication, if such meeting is held while the state of emergency continues to exist, in essence making Alabama corporations subject to Sections 10A-2A-7.09 and -7.20, in advance of Chapter 2A’s automatic effective date of January 1, 2021.
Laura Washburn, 205.521.8370
Charlie Roberts, 205.521.8122
John Titus, 615.252.2341
The applicability of an MAE clause depends on numerous factors, including the clause’s specific wording and which state’s law governs the agreement. Our Corporate and Securities lawyers can assist you with these and related questions.
Frederic Smith, 205.521.8486
Harold Kushner, 205.521.8600
Hall Bryant, 256.517.5187
In a signal of how seriously the SEC is looking at disclosures by public companies regarding the impact of COVID-19 on businesses, the chair of the SEC and the director of Corporation Finance issued a joint statement on April 8, 2020, urging companies to provide as much information as is practicable about the effects COVID-19 is having on business.
To help public companies assess and disclose the impact of COVID-19, the SEC’s Division of Corporation Finance released disclosure guidance that includes questions for companies to consider with respect to present and future operations and suggestions for providing earnings guidance and reporting financial results.
Our securities lawyers can assist you in drafting appropriate risk factor text for SEC filings and communications with customers, clients, and other constituencies.
Stephen Hinton, 205.521.8406
Laura Washburn, 205.521.8370
Charlie Roberts, 205.521.8122
John Titus, 615.252.2341
Harold Kushner, 205.521.8600
An SEC exemptive order allows filers impacted by COVID-19 to extend the due date of many SEC filings for up to 45 days from the ordinary filing deadline. To claim the extension, the filer must furnish to the SEC a Form 8-K (or Form 6-K for foreign private issuers) by the original filing deadline providing certain information about why the filer could not meet the original deadline and an estimate of when it will be filed.
Stephen Hinton, 205.521.8406
Laura Washburn, 205.521.8370
Charlie Roberts, 205.521.8122
John Titus, 615.252.2341
Harold Kushner, 205.521.8600
We have lawyers with experience in franchising matters.
Ted Pierce, 704.338.6109
Mike Denniston, 205.521.8244
The coronavirus will have a significant impact on business arrangements and contracts and may also present new and unique liabilities. Bradley attorneys have extensive experience across the country representing clients in litigation, helping them to mitigate risks or to maximize recovery. Our team can provide counsel in times of crisis to allow you to make strategic litigation decisions.
Courts across the country have taken different approaches to court proceedings in the wake of efforts to combat the coronavirus. Most, but not all, courts have suspended in court proceedings. The details vary with each jurisdiction. Bradley's lawyers are closely monitoring these orders across all jurisdictions. Please feel free to contact us with questions about how these orders may affect you and your legal proceedings.
Kim Martin, 256.517.5155
Gary Howard, 205.521.8595
Patent and trademark offices around the world have not been insulated from the effects of the global coronavirus pandemic. Many offices have directed their employees to transition to telework, and several have extended deadlines or offered other forms of relief. However, IP owners need to be aware that not all nations have offered relief, and some deadlines may not be waived even if the relevant governmental office is closed.
Jeff Dyess, 205.521.8288
Frank Caprio, 256.517.5142
Jake Neu, 615.252.4639
State laws differ on whether virtual meetings are permitted, and organizational bylaws are a key part of the analysis. In addition, where virtual meetings are permissible, a knowledge of parliamentary procedure and special rules are necessary to ensure that meetings remain fair and members’ discussion and voting rights are protected.
Sarah E. Merkle – one of only five lawyers in the world to hold the credentials of Certified Professional Parliamentarian and Professional Registered Parliamentarian – can assist you with these and related questions. Answers can also be found on the blog The Law of Order.
Sarah E. Merkle, 205.521.8380
Bradley has the technological resources and expertise to help facilitate a compliant board or annual membership meeting that’s virtual. Sarah E. Merkle – one of five lawyers in the world to hold the credentials Certified Professional Parliamentarian and Professional Registered Parliamentarian – can assist with answering your questions and ensuring that you have the right framework in place to hold a compliant meeting.
Sarah E. Merkle, 205.521.8380