Coronavirus Resources Archive

News is being widely reported of a pending Executive Order to be issued by President Biden to require, in part, private employers with 100 or more employees to mandate vaccinations and/or weekly testing for Covid-19. While the details of the specific requirements are yet to be determined, it is anticipated that employers that fail to comply will be subject to significant civil penalties. The employment practice group at WSHB is closely monitoring the developments and working with both national and regional clients to prepare for the new regulations from the Department of Labor. For more information on compliance or for consultation on how this Executive Order may impact your business, please contact firm partners Robert Hellner, Dana Ring and Christian Gunneson.

On August 12, 2021, the U.S. District Court – District of New Jersey, ruled that a group of restaurants located at the Jersey Shore were not entitled to coverage as a result of losses incurred due to Covid-19 under certain policies that contained a virus exclusion.

The restaurants sought to recover benefits under Business Income and Extra Expense coverage provisions pursuant to their applicable policies. These claims were denied under a Virus Exclusion in the policies. The restaurant brought suit, seeking a declaration that Defendant, Twin City Fire Insurance Company, was obligated to provide coverage for the restaurants' alleged losses, asserting claims of breach of contract and bad faith.

The Covid-19 crisis transformed the online community drastically as individuals and businesses quickly pivoted their operations to accommodate remote work. With this change also came increased lawsuits in the area of digital accessibility. An accessibility claim involves a plaintiff alleging that a business' website or mobile application contains content that is inaccessible to users with certain disabilities or impairments. Accessibility claims grew in number in 2020, with a 23% increase from 2019-2020.

In Bridges v. Houston Methodist Hospital, No.4:21-CV-01774 (U.S. District Court for the Southern District of Texas), a federal judge dismissed a lawsuit filed by 117 employees against Houston Methodist Hospital after they sued their employer for requiring a Covid-19 vaccination in order to retain employment. This case is important because it is the first decision of its kind regarding an employer-mandated vaccination requirement as a condition of employment. As the country continues to reopen after over a year weathering the pandemic, employers are now navigating new employment waters with little to no precedent upon which to rely. This decision provides helpful guidance, although courts in other jurisdictions may rule differently, particularly those that enacted statutory causes of action for wrongful termination on public policy grounds.

On June 10, 2021, the U.S. Department of Labor's (DOL) Occupational Safety and Health Administration (OSHA) released the Emergency Temporary Standard (ETS) for Healthcare Employers as well as Guidance for Mitigating and Preventing the Spread of COVID-19 in the Workplace. The ETS mandates specific legal obligations for employers in protecting healthcare workers from COVID-19 exposure, as well as providing non-mandatory “guidance” for other employers. This ETS has been anticipated since January 2021 when President Biden signed an executive order asking the DOL to release an ETS addressing COVID health concerns in the workplace. Healthcare employers must comply with the ETS within two weeks of the final rule being published in the Federal Register, or at minimum, show good faith efforts to come into compliance as soon as possible thereafter. Other private employers are encouraged to comply with the ETS as well, based on OSHA’s recommendations and the likelihood that employees will mount legal challenges to lesser standards.

A Superior Court Judge in Durham County, North Carolina recently ruled in favor of a number of restaurants in their collective action against Cincinnati Insurance for loss of business income due to the Covid-19 pandemic in a case captioned North State Deli, LLC, et al. v. The Cincinnati Insurance Company, et al., Case No. 20-CVS-02569.

In a departure from courts across the country, the presiding judge held that government orders restricting the policyholders’ use of their restaurants constituted “direct physical loss” thus triggering the policies’ Business Income coverage. The court reasoned that the phrase “direct physical loss” “includes the inability to utilize or possess something in the real, material, or bodily world, resulting from a given cause with the intervention of other conditions” and therefore “describes the scenario where business owners…lose the full range of rights and advantages of using or accessing their business property.”

On August 3, 2020, the Southern District of New York (Judge J. Paul Oekten) broadened the scope of paid sick leave for employees seeking relief under the Families First Coronavirus Response Act (“FFCRA”). The Court expanded employee benefits by vacating several features of the U.S. Department of Labor’s (“DOL”) Final Rule regarding administration of the FFCRA. The expanded benefits come at an opportune time with a second wave of crisis looming and families facing massive uncertainty with schools reopening. The DOL will likely appeal this ruling to the Second Circuit. The Second Circuit may reinstate the vacated features from the Final Rule pending review, but until then, the significance of this ruling cannot be ignored by New York employers, which may be risking non-compliance, liabilities and penalties. Further, employers should anticipate and prepare for more employees to request paid leave pursuant to the expanded benefits under this decision.

On August 5, 2020 during a special session of the Nevada Legislature SB4 was passed and is expected to be signed by the Governor in the coming days. This bill grants broad liability protections to businesses including for profit, governmental entities and private non-profit organizations creating immunity from civil liability for personal injury or death resulting from exposure to Covid-19, if the business, governmental entity or private nonprofit organization substantially complied with controlling health standards. Notably hospitals and other health care facilities as well as school districts are exempted from receiving the additional protections afforded by this bill.

Covid-19 related restrictions have lifted across the United States (and in some instances then imposed again). With businesses reopening physical locations and the prospect of schools holding in-person classes this fall, owners, board members, executives and managers all must address potential coronavirus related liabilities. Any owner or operator of a facility where in-person contact occurs is at risk for civil suits and claims for potentially exposing employees, customers or other members of the public to the coronavirus.

In response to these risks, businesses and other institutions have asked employees, customers, and patrons to sign liability waivers. Examples include President Trump’s reelection campaign asking supporters to execute liability waivers before attending rallies. This practice has gained significant media attention and has led many to wonder whether these waivers are enforceable.

On July 2, 2020, California Assembly Bill 1552 was amended and referred to the California Senate Insurance Committee. The bill is intended to regulate commercial business interruption coverage of insured businesses in light of the ongoing COVID-19 pandemic. The bill is an “urgency statute necessary for the immediate preservation of the public peace, health, or safety . . . and shall go into immediate effect.” The immediacy of the bill is intended “to protect the solvency of businesses that were forced to close their doors or limit business” due to the pandemic. The bill, if passed, would apply retroactively to all commercial insurance policies providing coverage for business interruption that were in full force and effect on and after March 4, 2020 (the date of the declared state of emergency).

Much like the global impact from Covid-19 not all occurrences can be foreseen. This is why many contracts contain a provision known as a force majeure clause. Force majeure clauses are especially important in times like these – when businesses are shutting down, the government is ordering the labor force to stay home, and supply chains are interrupted or non-existent.

The question many in the construction industry and beyond are asking is whether the Covid-19 pandemic excuses performance under a contract. As usual when it comes to the law, it depends.

The Covid-19 Pandemic is a singular event. There is no analogous historical precedent. The impact of this disease and the social distancing measures taken to address it have had both local and international effects. The economic impact has been immediate and sharp. Unlike past recessions, the halt in economic activity was precipitous and driven not by a financial crisis, commodities shortages or inflation, but by public health measures. This makes projections risky, as precedents are few and inexact.But we are now far enough into the Pandemic and the response to it that we can begin to see trends. Our views are shaped by experience in past economic downturns and knowledge of the industries in the areas in which we practice. This series of articles present our views on how multiple practice areas will be impacted as Courts return to operation and the pace of litigation returns to normal.

On Tuesday, April 14, 2020, Governor Murphy announced that he signed S-2333/A-3910, which is effective immediately and retroactive to March 9, 2020. S-2333/A-3910 provides immunity to healthcare facilities and professionals from civil and criminal claims resulting from injury or death in treating COVID-19 patients. Under the bill, a "healthcare professional" includes physicians, physician assistants, advanced practice nurses, registered nurses, licensed practical nurses, or other healthcare professionals who are authorized to provide health care services in New Jersey, as well as, EMTs or mobile intensive care paramedics who are "certified by the Commission of Health pursuant to Title 26 of the Revised Statutes or is otherwise authorized to provide health care services in the state."

Earlier this week the California Department of Insurance issued a reminder that all business interruption claims stemming from Covid-19 losses, which are expressed by policyholders must be fairly submitted by all agents and brokers, and properly investigated by all carriers. The reminder comes after the Department received numerous complaints from businesses, public officials and insureds.

Recent studies are now starting to show that the COVID-19 virus is, on average, trending slightly downward in the United States. It is becoming clear that the safety measures put in place throughout our country are at least starting to work. As a result, the legal world may be transitioning into a different phase of pandemic management—one focused less on the measures used to improve safety, and more on the ongoing enforcement and aftermath of these measures.

New Jersey joined several other states in temporarily allowing remote notarizations during the recent coronavirus outbreak. On April 14, 2020, Governor Phil Murphy signed legislation (A-3903/S-2336) temporarily allowing notaries to conduct remote notarizations using "communication technology." The legislation takes effect immediately and expires upon the rescission of Governor Murphy's March 9, 2020 Executive Order declaring a state of emergency as the result of coronavirus.

The remote notarizations must comply with several requirements including the following.

Insurers writing policies of any type in Colorado should be aware of emergency regulations imposed by the Colorado Division of Insurance during the novel coronavirus pandemic. Issued on March 27, 2020, Bulletin B-5.38 is intended to allow consumers with property and casualty insurance policies to retain coverage throughout the present public health emergency.

The Division directed all insurance companies issuing coverage to personal and commercial policyholders to make “reasonable accommodations” to prevent policyholders from losing coverage due to cancellation or non-payment of premiums.

Although health care workers have been the primary focus of anticipated litigation that will result from COVID-19, the tentacles of pandemic litigation are now starting to permeate tangential players and coverages. Presently, the insurance industry is seeing an onslaught of business interruption claims, as businesses slow down or shut down as a result of various permutations of “shelter-in-place” orders throughout the country and the world. There are early indications that, if and when carriers deny coverage for COVID-related claims, insurance agents and brokers will emerge as another “deep pocket” that businesses can target to attempt to recover COVID-19 losses. Industry insiders are speculating that insurance agents and brokers errors and omissions claims will be a part of the next wave of COVID-19 lawsuits to rock the industry. It is anticipated that claimants will generally allege that the agent or broker failed to procure appropriate coverage for a panoply of COVID-related losses.

A host of declaratory judgment actions have already been filed across the country, and several state legislators have proposed bills to compel insurers to provide business interruption coverage, no matter policy terms and exclusions, in the wake of COVID-19. The federal government has taken notice.

On March 18, 2020, Rep. Maxine Waters issued a memo to the Democratic House of Representatives calling for legislation that would "create a reinsurance program similar to [Terrorism Risk Insurance Act 2002 (TRIA)] for pandemics, by capping the total insurance losses that insurance companies would face." On April 10, 2020, President Trump weighed in on the issue of coverage for business interruption during his daily press briefing with an ominous warning to insurers stating, "You have people that never asked for business-interruption insurance, and they've been paying a lot of money for a lot of years for the privilege of having it. And then when they finally need it, the insurance company says, 'We're not going to give it." We can't let that happen."

Much like the global impact from the coronavirus disease (COVID-19), not all occurrences can be foreseen. This is why many contracts contain a provision known as a force majeure clause. Force majeure clauses are especially important in times like these, where businesses are shutting down, the labor force is forced to stay home under government orders, and supply chains are interrupted or non-existent. The question many in the construction industry and beyond are asking is whether the COVID-19 pandemic excuses performance under a contract? As usually goes with the law, it depends. This article will discuss the background of COVID-19 and the application of a force majeure clause and other similar contract terms.

By Order dated April 8, 2020, the President Judge of the Court of Common Pleas of Philadelphia County directed all counsel to advance civil litigation in a safe manner consistent with appropriate social distancing practices. Thus, while the Courts remain closed for trials, arbitrations, motions and hearings, the Order advises and directs that:

Severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) – better known as the coronavirus – has turned our world upside down in a matter of weeks. The infectious disease caused by this newly emerged virus, Covid-19, has taken thousands of lives and sickened hundreds of thousands. The resulting public health crisis threatens to become an economic catastrophe, as governments weigh the need for populations to shelter in place against the financial cost of shutting down most businesses. The risk of lawsuits due to exposure to this infectious disease may add to the economic difficulties businesses are now facing. This article assesses that risk based on principles developed in past infectious disease litigation and the known characteristics of the coronavirus.

If COVID-19 has proven historically unique in the scope of health and economic challenges faced, the legal implications will be unprecedented for employers in the months, days and hours ahead. The employment attorneys at WSHB are committed to helping our clients and industry partners. Partner Dana C. Withers is a leader in the firm’s national employment consultation practice, with over twenty years of experience both in house and as a private practitioner, consulting with CEOs, human resource directors and all variety of leave and personnel issues.

The New Jersey Legislature and Governor Phil Murphy recently took action in response to COVID-19 and have enacted and/or are considering passage of several measures. The following is an up to date synopsis of these actions:

Perceived Coronavirus Symptoms: Under guidance recently issued by the New Jersey Attorney General and the Division on Civil Rights, New Jersey employers are barred under state law from terminating or otherwise penalizing an employee based on perceived coronavirus symptoms, and they must take reasonable action to stop related harassment between employees. The Division on Civil Rights issued a guidance indicating that discrimination based upon actual or perceived symptoms of COVID-19 is protected by the New Jersey Law Against Discrimination. See the Division on Civil Rights Guidance for more information.

Nevada’s Governor, Steve Sisolak, declared a state of emergency in Nevada on March 12, 2020 as a result of the COVID-19 pandemic. Since March 12, 2020 the Governor has issued a number of emergency directives. Most recently, an Emergency Directive for the State of Nevada was issued as follows: “Any specific time limit set by state statute or regulation for the commencement of any legal action is hereby tolled from the date of this Directive until 30 days from the date the state of emergency declared March 12, 2020 is terminated.”

As we all come to understand the impact of the FFCRA, effective April 1, 2020, the most common question I am asked is, “how are businesses supposed to pay for this?” The question comes even more frequently as our nation faces a wave of mandatory business closures and shelter-at-home orders. As noted in my earlier alert, the FFCRA provides certain payroll tax credits to help offset the cost of expanded paid sick leave and paid FMLA leave under the Act, and more help is on the way.

Healthcare professionals in New York were recently granted qualified immunity from civil lawsuits for any injury or death alleged to have been sustained directly as a result of an act or omission by such medical professional in the course of providing medical services, pursuant to the state’s response to the COVID-19 outbreak, by issuance of an executive order from New York Governor Andrew Cuomo, on March 24, 2020.