Tag: coronavirus

CMS/HHS Issues FAQs on Essential Health Benefits and COVID-19

As the President issues a state of emergency in response to the Coronavirus (COVID-19) outbreak, the Centers for Medicare & Medicaid Services, U.S. Department of Health and Human Services, issued frequently asked questions (FAQs) on COVID – 19 and essential health benefits (EHB) coverage through the individual and small group insurance markets.

These FAQs state first that EHB generally include coverage for the diagnosis and treatment of COVID-19. However, the exact coverage details and cost-sharing will depend upon the individual’s plan, and some plans may require preauthorization before these services are covered. Under current regulations, each state and the District of Columbia generally determines the EHB that plans in their locality must cover. Moreover, many states are encouraging, and some are requiring, insurance carriers to cover a variety of COVID-19 services, including testing and treatment, without cost-sharing or preauthorization.

The FAQs went on to say that medically necessary isolation and quarantine required by and under the supervision of a medical provider during hospital admission is generally covered as EHB. However, quarantine outside of a hospital setting, such as a home, is not a medical benefit, nor is it required as EHB.

Finally, the FAQs addressed the possibility of a future COVID-19 vaccine. Although not yet available, all vaccines are analyzed by the Advisory Committee on Immunization Practice of the Centers for Disease Control and Prevention, who will recommend whether the vaccine should be included as EHB without cost sharing and before any applicable deductible. Current guidance indicates that the process of evaluation and final implementation as an EHB can take over a year, but plans may voluntarily choose to cover a vaccine before that time. The FAQs also note that participants may use the plan’s drug exemptions process to request the vaccine be covered.

© 2007-2020 Hill Ward Henderson, All Rights Reserved

Can the Government Really Shut Down My Business and Make Me Stay Home? Questions Answered Relating to Declarations of Emergency Due to Coronavirus

As companies face shutdowns and citizens are encouraged to stay home due to the coronavirus (COVID-19), businesses and people may be asking questions, such as can the government really do that? Those who followed China’s response to the outbreak—which involved using martial law to keep millions of citizens in their home—would have seen references in those stories western democracies being unable to use such extreme measures. Yet, it may now seem to some that our own democratic leaders are doing just that (and should be). Can they?

The short answer is yes, they can.

But fear not, because you are not likely to see tanks rolling down the streets enforcing martial law. There remain strong protections for citizens, even in times like these, preventing arbitrary government action. Unlike the famous Dunder Mifflin manager Michael Scott “declaring” bankruptcy in a building parking lot, when Governor Murphy declared a state of emergency in New Jersey he did not simply open the window of his office, shout “this is an emergency!” and then start issuing a list of edicts. His authority, and that of any executive, is restricted by the laws authorizing such a declaration.

A brief review from civics class:

To prevent abuse, the power to make laws, enforce laws, and interpret laws are separated into three branches, i.e., the legislative, executive, and judicial branches. That means the governor cannot simply do what he wants (like a king or dictator), even if he feels those actions are best for the people. He must do only those things which comply with the laws enacted by the legislature (as interpreted by judges). So upon declaring a state of emergency, Governor Murphy—and any other executive declaring an emergency—issued a series of executive orders invoking specific New Jersey legislative enactments. Those statutes pre-authorized the executive branch (which the Governor heads) to take certain, specific actions when the state is facing an emergency.

Most declarations of emergency in recent memory pertain to snowstorms or hurricanes. In those instances, the State invoked more familiar provisions of the statutes governing declarations of emergency, including freeing up money earmarked for emergency use; calling on the national guard to help with the effects of the storm; and allowing the police to redirect traffic. But the Governor’s statutory powers during an emergency are broad, flexible, and include the ability to “make such orders. . . as may be necessary adequately to meet the various problems presented by any emergency,” including “[t]he designation of vehicles and persons permitted to move during. . . emergency,” “[t]he conduct of the civilian population during the threat of and imminence of danger or any emergency,” and “[o]n any matter that may be necessary to protect the health, safety and welfare of the people. . . .”  N.J. S.A. App. A:9-45.  Violations of these orders are considered a disorderly person offense and may be punished by up to 6 months imprisonment, a $1,000 fine, or both.

In response to coronavirus questions:

Governor Murphy also invoked a provision of New Jersey law not implicated by other types of natural disaster called the “Emergency Health Powers Act,” which provided additional authorization for control over medical facilities, the distributions of medical resources, and authority to “identify areas that are or may be dangerous to the public health” and cause “movement of persons within that area to be restricted, if such action is reasonable and necessary to respond to the public health emergency.” N.J.S.A. § 26:13-9. The same law allows the State to “[r]equire the vaccination of persons as protection against infectious disease;” and although the vaccine cannot be “administered without obtaining the informed consent of the person to be vaccinated,” the state may require quarantine for “persons who are unable or unwilling to undergo vaccination. . . .” N.J.S.A. § 26:13-14. And the same law states that no public entity or its agents are “liable for an injury caused by any act or omission in connection with a public health emergency, or preparatory activities. . . .” N.J.S.A. § 26:13-19

So, can the government shut down your business and make you stay home?

Yes. And they can vaccinate you, quarantine you, and are immune from suit for doing any of those things.

There are, however, other avenues and considerations of which businesses and employees should be aware during these times. Many contracts contain force majeure clauses, which businesses should analyze to determine if they apply to coronavirus-related shutdowns, especially those mandated by the Governor’s recent executive order. Others may consider whether they have insurance coverage for a business interruption caused by the government-mandated shutdown. Employees and employers alike should keep abreast of the changing legal landscape surrounding paid sick leave.

©2020 Norris McLaughlin P.A., All Rights Reserved

Coronavirus and Commerce: Possible Insurance Implications

The coronavirus pandemic and its consequences are spreading throughout the world at an alarming rate.  Governments at all levels and the private sector are scrambling desperately to mitigate these consequences even as new closures, stricter quarantines, and fresh fears develop on an hourly basis.

While some industries are more directly impacted than others (e.g., airlines and hospitality), the economic losses associated with coronavirus cut across sectors and are reverberating throughout the economy.  As companies look to mitigate coronavirus-related losses, they should carefully review their insurance policies to determine whether they provide coverage for losses associated with the disease.  While coverage will ultimately turn on the specific terms of the relevant insurance policies and the precise nature of the losses, a number of insurance lines may provide relief.

First-Party Property Insurance – Business Interruption Insurance

Business interruption insurance is a common component of commercial property insurance policies.  In general, business interruption insurance covers loss of income that a business suffers after an interruption of their business operations.  Often, business interruption coverage is triggered as a result of “direct physical loss of or damage to” insured property as a result of an otherwise covered peril.  Depending on the specifics of the claim, a dispute may ensue as to whether “physical loss” occurred as a result of the coronavirus.  The term “physical loss” has been the subject of litigation in many jurisdictions and the outcome of such disputes is not uniform.  Property that becomes unusable or uninhabitable as a result of the coronavirus may be sufficient to satisfy the requirement of “physical loss.”

Some property insurance policies also include contingent business interruption coverage.  Contingent business interruption insurance provides insurance for lost earnings resulting from a third-party supplier or distributor shutdown directly impacting the policyholder’s operations.  Typically, contingent business interruption insurance requires that the type of damage sustained by the third party be a covered type of loss for the policyholder.  Contingent business interruption insurance is often marketed to businesses such as hotels, restaurants, or food vendors that derive business from nearby properties that draw large crowds (e.g., sports stadiums).  Given cancellation of sporting events and conferences, this coverage could potentially be significant.

Specialized Insurance Policies

There are many types of insurance that provide specialized coverages.  For example, trade disruption insurance is political risk insurance that covers loss of gross earnings and extra expenses resulting from delay or failure of materials to arrive due to actions or inactions of a foreign government.  As the coronavirus and the response thereto continue to evolve, potential governmental restrictions on travel and trade will continue to be fluid.  This is just one example of more specialized insurance that could come into play.  Companies should be sure to evaluate all potentially applicable policies (or sublimits within policies) that may respond to coronavirus-related losses.

Commercial General Liability Policies

Commercial general liability insurance typically provides coverage for “all sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which th[e] insurance applies.”  This is coverage for third-party claims against the company.  Although causation may be difficult for plaintiffs to prove based on the specific facts, an important aspect of commercial general liability insurance is that it provides defense for third-party claims and the insurer’s duty to defend is broader than the insurer’s duty to indemnify.

Given the nature of coronavirus, it is not difficult to envision scenarios in which individuals assert claims against companies alleging that they were exposed to coronavirus as a result of negligent behavior by company employees.  Companies should turn to their commercial general liability insurer for both defense and, if ultimately necessary, indemnity of such claims.

Conclusion

The coronavirus pandemic is an evolving threat with catastrophic human and economic consequences.  While the first priority of companies should be the safety of their employees and customers, they should also look to mitigate the economic impact of the disease, including utilizing insurance tools as applicable.  While coverage will ultimately depend on the specific facts associated with the loss and the relevant policy language, companies would be well served to review all of their potentially applicable coverages, including but not limited to those discussed above.

© 2020 Gilbert LLP

The Coronavirus: Best Practices to Mitigate Risks in the Workplace

As impact of the Coronavirus Disease 2019 (COVID-19) continues to develop, employers and employees are increasingly concerned about the risk of contamination. Employers should consider practical steps to protect their employees, address employee concerns and maintain productivity during potential business disruptions that may result from the spread of this virus.

  • Education and communication are critical:  Employers should circulate the most recent Center for Disease Control and Prevention (“CDC”) guidance for employers, as well as state and local guidance, such as those provided by New Jersey and New York City. Review for updates from federal, state and local levels as there will be daily developments and updates. Provide significant updates to employees on a regular basis.   We recommend providing these materials via several methods, such as email, postings in breakrooms, on the company intranet, and hard copies inserted with weekly payroll. Ongoing regular communication with employees will create confidence that the business is taking their continued health seriously and help to avoid panic.

  • Encourage sick employees to stay home: When an employee calls in sick, particularly where the symptoms are associated with COVID-19, employers should err on the side of caution and encourage those employees to stay home. New York City and New Jersey both require employers to provide paid sick leave, which includes time off for employees to care for themselves, care for family members, for time off related to school closures and the like, which eligible employees may need to utilize. Employers should consult leave laws and policies that apply to the company. Moreover, employers should not require a healthcare provider’s note for employees who are sick with respiratory illnesses to validate their illness or to return to work. Relaxing such requirements is important given concerns about containing further spread of the virus and the potential inundation of healthcare providers who may have increasing limited resources.

  • Allow for telecommuting/teleconferencing: Employers should not place emphasis on in-person attendance, and should evaluate telecommuting options. This may require employers to temporarily relax current telecommuting policies, or to take steps to set up a method for telecommuting.

  • Review polices regarding travel and off-site events: Employers should review travel and off-site meeting needs and consider making in-person attendance voluntary.  If an employee voluntarily decides to attend off-site events, we recommend that employers require the employee to sign a short assumption of risk and waiver of liability.  If an employee declines to attend given concerns of the virus, employers should not treat such conduct as insubordination and should consider work around arrangements.  Teleconferencing may provide another means for employees to attend off-site functions.  The CDC guidance recommends travelers stay home for 14 days from the time the person leaves an area with widespread, ongoing community spread.  We recommend employers adopt similar policies as applied to employees returning from business or personal travel.

  • Encourage healthy practices:  Encourage employees to engage in healthy practices, such as regularly washing and/or disinfecting their hands. To the extent an employer is able to secure these items, they should  make disinfectants and hand sanitizers available to employees, especially upon entry to the work place.  Employers also should arrange for periodic industrial cleaning and notify employees of those efforts.

  • Identify areas of risk: Identify health risks specific to each work site, and a plan to address concerns.  Review CDC and the Occupational Safety and Health Administration’s guidance providing safety tips and highlighting potential areas of risk.

  • Avoid stereotyping: Employers should not make determinations of risk or treat employees differently based on race or country of origin.

  • Maintain confidentiality: If/when an employee is suspected or has been confirmed to have contracted the virus, employers should act to maintain confidentiality around the employee’s diagnosis. In addition, employers should refrain from asking employees questions about their symptoms and medical conditions or suspected conditions.

  • Train managers: Train managers on how to handle concerns and preventative steps that the company is taking to manage the potential spread of the virus.  Remind them of current policies and any changes that the business has decided to make to accommodate employees and business needs during this time. Encourage managers to promptly address all leave requests and meet with team members regarding concerns to engage in a dialogue to move forward in a way that benefits both the employee and the company. It may be prudent to appoint a single department or point of contact for COVID-19 questions or concerns that managers need to further discuss.

  • Consider other long term considerations such as:
    –  Consider creating a plan that involves how to prepare for a pandemic, including how to deal with office closures to avoid business disruption.  The CDC encourages employers to plan for a possible coronavirus outbreak and advises employers to ensure that their plan is flexible and well communicated to employees.  A formal plan may help the employer to focus on necessary steps to prepare and ensure a single message regarding preparedness is communicated to employees.

    –  Recognize that there may be legal rights associated with an employee who has the virus or who is perceived to have the virus under federal, state and local disability and leave laws.

    –  If employees are represented by a union, consider whether there are any issues that need to be addressed with the employees’ bargaining representative and whether there are any provisions in the company’s collective bargaining agreements that may be affected.

Importantly, employers should keep in mind that the U.S. is early in the process of understanding and combating COVID-19. The situation is rapidly evolving and employers will need to pay close attention to daily developments.  When in doubt, reliance on the guidance provided by health experts, government agencies, and counsel will best insulate employers from exposure to liability for discrimination, privacy or other legal claims from employees.

© Copyright 2020 Sills Cummis & Gross P.C.

For more on the COVID-19 pandemic, please see the National Law Review Coronavirus News page.

National Law Review: Coronavirus Update

The National Law Review continues normal operations
as we are a virtual company.

If you have any questions or need assistance, please contact us at Info@NatLawReview.com or at 708-357-3317 M-F 7-7 and midday weekends and holidays.
Due to the virus and surrounding legal issues our traffic has soared to over 200,000 visitors and over 250,000 page views yesterday alone. We’re on track to have 1,500,000+ visitors in March.
We sincerely hope for your family and co-workers to remain safe – if you’d like resources about how businesses and individuals are navigating the pandemic, we have a dedicated page with over 200 articles written by the nation’s top law firms on the topic.  Groups including SHRM have directly linked to this resource page.
If your company or professional association needs a consolidated, reliable resource that is updated hourly, we encourage linking to our Coronavirus Resource hub.

Copyright ©2020 National Law Forum, LLC

Options for Employers When Employees Cannot Work From Home

Despite many politicians and employers discussing the option for employees to work at home, there are millions of employees who simply cannot do that. Bartenders, restaurant servers, cashiers, and many others have no one to serve and nothing to ring up when they work at home.

Employers of such employees accordingly have a difficult decision to make when business is at an all-time low or they have been shut down. Most cannot afford to pay employees during this time period and hope employees will qualify for unemployment benefits. The question for these employers thus becomes–to fire, or not to fire.

This is where a work furlough comes into play. A work furlough is essentially a temporary layoff that qualifies for unemployment benefits.

Furloughs rose in popularity some years ago when businesses had to cut costs. Most employers knew employees who worked from paycheck to paycheck would suffer a financial hardship if the employees lost their jobs. Employers did not want to terminate employment. These employers wanted to minimize the negative impact, psychologically and monetarily, a termination brings, and the hard feelings an employee may carry following termination. Employers wanted employees who were already-trained to return to work at the end of a furlough, rather than having to start the hiring process from scratch.

Work furloughs generally have a set beginning and end date, similar to the 15-day shut-down ordered in many cities. The employer does not pay the employee during the furlough. Employees, however, generally qualify for unemployment compensation benefits.

Employers who want to maintain better relations should tell their employees to apply for unemployment benefits on the first day of the furlough. This ensures the employees will receive the maximum compensation possible. Even an employee who uses vacation time or personal time may qualify for unemployment benefits.

Usually there is a one week waiting period before an employee is eligible to receive any unemployment benefits. Many states have benevolently waived this one week waiting period for job losses suffered due to the pandemic. In these states, employees will receive benefits beginning “day 1.” The employee will receive compensation during the second week and any later weeks during which the employee is not working.

Any employee who files after the first week of the furlough must use the second furlough week as the waiting period. The employee, therefore, loses a week of unemployment compensation.

Even if the furlough period is only one week in length, employees should file for benefits. This helps the employee if the employer is forced to extend a furlough or put employees on furlough again later that same year. The one-week waiting period only applies to the first week when the employee did not work during the first furlough. The employee does not have to wait yet another week to receive benefits (compensation) during any furloughs that take place within 12 months of the first furlough.

While furloughs are an excellent option for employers to consider, any employer considering termination or a furlough must carefully consider all state and local laws; the state emergency declarations and laws issued, given the pandemic; and federal law, including any relief package or whether the number of employees furloughed triggers obligations under WARN.

© Polsinelli PC, Polsinelli LLP in California

For more on the COVID-19 outbreak, see the National Law Review dedicated Coronavirus News section.

Important Guidance for IRS Tax Filers

Due to the situation created by the coronavirus, we’ve been fielding questions from clients, co-workers and accountants about potential changes in the tax filing and tax payment deadlines, as well as other IRS administrative issues such as examinations, collection actions and payment plans.

Because the president declared a national emergency, the IRS has broad powers under statute to extend certain deadlines. The IRS also has broad administrative authority. As of the date and time of this email, there has been no official guidance issued on extending the April 15 deadline for the filing of income tax returns. However, statements made on March 17, 2020 by Secretary of Treasury Mnuchin suggest that the government will allow a 90-day deferral of tax payments to the IRS.

Under this program, individuals can defer up to $1 million of tax payments, and corporations can defer up to $10 million, with no penalties and interest for 90 days. This program does appear to require the filing of a tax return first in order to obtain the deferral. Many questions on this program remain, and Varnum’s tax team will provide updates as they evolve.

Out of an abundance of caution, individuals may want to file an extension (Form 4868) prior to the filing deadline. This is NOT an extension in time to pay. As such, the first quarter tax estimates are due April 15 as is any shortfall in the expected 2019 tax liability. Please note, with respect to the payment deferral program, the secretary has not clarified whether the extension form or the estimated tax payment voucher falls under the definition of “return” for the payment deferral program. Finally, there are some safe harbors for estimated tax payments that may apply. Check the IRS website or talk to a tax advisor.

Tax preparers should check with the IRS employee assigned to any matter for the case status, including document requests, etc. If your client is honoring an IRS levy on an employee at this time, those obligations are still in force unless notified otherwise by the IRS. Some deadlines such as filing a Tax Court Petition for relief are statutory in nature and still valid.

© 2020 Varnum LLP

More on tax laws or the coronavirus outbreak on the National Law Review.

Coronavirus and Law Firm Event Marketing: Cancelled, Postponed or Just Different?

Given the current circumstances associated with the coronavirus (COVID-19), a law firm has three choices when it comes to executing on their 2020 event calendar: cancel, postpone, or just change the format. My vote would be for you to change the format wherever you can to stay top of mind and relevant to your client base and referral sources while still practicing a responsible form of “social distancing.”

In-person business development and communication through event marketing involves creating an experience that attendees look forward to, get value from, and associate with your brand. Through hosting various types of business development activities, you can set your law firm up as a networking hub for diverse practices, become a thought leader in your legal niche, and establish a history of credentialing activities that will keep you top-of-mind in your legal community. Virtual events for law firms can, and will, do the same.

It is known that law firm marketing has evolved rapidly in the last decade. In a recent study, 67% of legal marketing professionals and 45% of attorneys listed firm-hosted events as one of the most effective ways to get new clients.  Even with all of the new marketing strategies and techniques, face-to-face connection remains one of the most effective ways to network and gain new clients. In the time of the coronavirus (COVID-19) pandemic that is requiring all industries, even the legal industry, to take a second look at how they will continue to operate effectively under quarantine conditions, law firms need to be flexible in how they market. Event marketing can still take place in the spring and summer of 2020, it will just look a little different than originally anticipated. Excluding large luncheons, parties, and galas, for the most part, technology can allow a law firm to move forward with most of their planned events.

Virtual Business Development Events for Law Firms

Every type of business development event attracts different stakeholders, networking opportunities, and ways to strengthen your law firm’s market dominance. Some types of business development activities for law firms that can be transformed into virtual events include the following:

  • Seminars. Conferences that provide training or updates on legal changes in your area of practice. Many seminars and conferences have scheduled downtime and social time, allowing attendees to network and nurture connections that may lead to future referrals. This networking aspect of a seminar can be done in a virtual manner through private chat rooms or even through a special area of your website that allows for “booths” to be created for information sharing.
  • Legal CLE events. Continuing legal education is an essential part of attorney growth, and since continuing legal education is required for lawyers in most parts of the United States, these events offer clear value to attendees. Speakers at continuing legal education events also have the opportunity to demonstrate their expertise, strengthen their image as an authority in their field, and connect with others in relevant areas of practice. CLEs have been webcasted and recorded for years and the coronavirus outbreak really should have no effect on your law firm’s CLEs schedule. All that is necessary to proceed is to tell your audience it will be a webcasted program rather than a live program, hire a professional videographer, and then add then video and handouts to your website.
  • General education events. These events strengthen a firm’s credibility within the community and demonstrate the firm’s expertise to its target client base. For example, an immigration attorney could host an online Q&A seminar through their Facebook page on recent changes to immigration laws and invite affected community members to attend through that medium. An estate planning attorney may host an informal brown bag luncheon that is webcasted on long-term care options to caretakers of aging family members.
  • Brown bag lunch and learns. Lunch and learn events take advantage of the fact that many attorneys have extremely busy schedules. These events last between 30 and 60 minutes and take place over the lunch hour, letting attorneys fit education or networking into their busy day. Brown bag lunches can also take place in a virtual environment. Attorneys can provide a memorable brown bag experience online through the sharing of relevant documents beforehand that they will go over and using screensharing to direct attention of attendees. Law firms will want to make sure that they pay special attention to small things such as consistency in their lawyer screen names and the background portrayed in their videoconference (i.e. what is behind you or what is around you that the other participants will see and does this portray your law firm in the best way possible).
  • Panels. Panel discussions let attendees learn from multiple experts simultaneously. Question-and-answer sessions provide additional value, allowing attendees to get answers to specific, relevant questions. Panels are easy to convert to a digital format. Be sure to have your moderator use the first name of the person that they are addressing when a question is asked as the conversation has to be directed a bit differently than it would in person when you can connect with body language and eye contact. Also, the audience should know beforehand how their questions can be posed and if they are required to have their computer on mute to control outside noise.
  • Collaborations. Collaborating with businesses relevant to your area of practice expands attorneys’ opportunities for networking. For example, an estate planning law firm may collaborate with a senior activity center to help attendees better understand the needs of aging clients, or an intellectual property law firm may run a seminar with a venture capital firm. These types of collaborations can be moved into a digital format by prerecording them for the audience. The business can easily gather questions that come up from attendees and send them to the attorney or law firm afterward so individual phone calls can be made to the guests as follow-up.

Rather than seeing the need to change the format of their existing events to be virtual as a problem, marketing savvy law firms are seeing this as an opportunity. They are utilizing their existing commitments to being modern law practices with functional, time saving technology to continue to connect with their audience. They are using videoconferencing, webcasting, and video recording to continue to host relevant programming for their community. The real challenge in pivoting an event marketing strategy to be entirely digital for the next 3-6 months will be working with the right type of marketing and videography professionals to engage the audience and drive attendance.

Preparation and Follow-Up

Event success, even for virtual events, is more than just choosing the event for your audience. It is critical to have a clear strategy about how to prepare for your event, execute a successful activity, and follow-up to ensure that it is doing the business development work you expect it to.

Know what success looks like. Prior to the event, you should know which benchmarks you want to reach and have ways to measure those. For example, you may want to hit a certain number of attendees, have representatives from a set number of firms, or yield a specific number of networking connections.

Promote your event strategically. Look into different ways to promote an event including traditional invitations through mail or email, social media, and broadcast or print advertising. Be sure to create a custom hashtag to encourage social media engagement before, during, and after the event.

Expect the unexpected. From technology glitches to presenter snafus, being underprepared can end up turning your potential networking opportunity into a PR nightmare. Make sure to give yourself time to work out all the kinks well in advance of your event date and hire a professional to guide you through the process.

Strategize follow-up activities. Following up with attendees after an event provides valuable information on how successful the event was and whether or not it is worth repeating. Some firms use automated email sequences to gauge the results of an event. Reviewing social media engagement, lead generation, attendance numbers, and other metrics provides valuable insight into the success of the event.

Conclusion

Event marketing in 2020 will need to look a little different for law firms but it still remains an effective tool for fostering professional networking and client connections. With the wide range of events to choose from and also the technology available to today’s law firms, there are many options to help firms continue with their previously planned activity calendar. In addition, when law firms are strategic about how they structure, prepare for, and follow up from their virtual business development event, it can be an incredibly powerful form of marketing that is inexpensive, engaging, and memorable.

© 2020 Denver Legal Marketing LLC

For more on managing events during the coronavirus situation, see the National Law Review Coronavirus News page.

Families First Coronavirus Response Act: Paid Leave now Required for Absences Related to the Coronavirus (COVID-19)

Early Saturday, March 14, 2020 the House of Representatives passed the Families First Coronavirus Response Act (the “Act”). The Senate is set to take this matter up on Monday, March 16, 2020 and President Trump stated that he will immediately sign the legislation. The Act has many facets to it including new temporary employer obligations relative to paid leaves of absence related to the Coronavirus (COVID-19) and expands employer obligations under the Federal Family and Medical Leave Law. Employers have time to prepare as the law will be effective 15 days after enactment (potentially as soon as March 31, 2020, if signed Monday). While there is much remaining to be analyzed under this new law, the following provides an initial overview so employers can begin preparations for compliance and education of the workforce.

Expansion of FMLA rights

First, the Act expands the pool of employees that qualify for federal FMLA leave. The Act will require employers with fewer than 500 employees1 (and all government employers) to provide employees who have been employed for at least 30 days with FMLA leave for Coronavirus reasons if:

  1. The employee is absent from work due to the employee’s physical presence jeopardizing the health of others due to exposure to the Coronavirus or due to the employee exhibiting symptoms of the virus;
  2. The employee will care for a family member who a health care provider or a public health authority determines has been exposed to the Coronavirus or who exhibits symptoms of the virus; or
  3. The employee is needed to care for a son or daughter under 18 because a school or a place of care (daycare) has been closed or the child care provider is not available.

The definition of “family” in the application of the above requirements is expanded to include family members who are senior citizens, grandparents, grandchildren, next of kin of the employee or is a son or daughter with special needs. The definition of “spouse” also includes domestic partners, as defined under the law.

The rights and remedies available to an employee under the federal FMLA remain the same. Therefore, we recommend that employers review existing procedures and forms utilized to determine FMLA eligibility and update those materials to recognize the Act’s broadened scope.2

Enhanced Right to Paid Time Off

The Act also mandates that employers provide “Emergency Paid Sick Leave.” This benefit is available to employees to:

  1. Self-isolate because of a Coronavirus diagnosis;
  2. Obtain medical diagnosis or care if the employee is experiencing the symptoms of the Coronavirus;
  3. Comply with an order of a public official or Health Care Provider that physical presence at work would jeopardize the health of others due to the employee’s exposure to the Coronavirus or because the employee is exhibiting symptoms of the illness;
  4. Care for a family member of the employee due to the family member’s self-quarantining based upon exposure to the virus or because the family member is exhibiting symptoms and requires medical diagnosis or care; or
  5. Care for a child of the employee if a school or place of care has been closed or the care provider for the child is unavailable.

If an employee meets one or more of these qualifications, the Act provides that the employee is entitled to Emergency Paid Sick Leave. Specifically, full-time employees will have 80 hours of sick leave available to them and part-time employees will have their average hours of work over a 2-week period available as Paid Sick Leave. If the employee has variable hours of work each week, the employee’s average hours of work over the preceding 6 months will be used to determine the employee’s average hours per week. The sick leave benefit will be paid at the employee’s regular rate of pay for any absence due to the employee’s own treatment or quarantine. The sick leave benefit will be paid at two-thirds of the employee’s regular rate of pay for any absence to care for a family member or to provide child care due to school or daycare closure.

If an employee needs leave beyond the 2-weeks for Emergency Paid Sick Leave and continues to meet the requirements associated with the Act’s mandate for paid leave under the FMLA, the employee will be paid not less than two-thirds of the employee’s regular rate of pay (or minimum wage, if greater) for the regular hours of work missed, to the extent of the employee’s already-existing available FMLA leave. The changes to the FMLA under the Act will expire on December 31, 2020.

Finally, for employee absences associated with non-FMLA qualifying reasons (e.g., an employer’s decision to send an employee home because the employee is exhibiting flu-like symptoms), the employee may be eligible for Unemployment Insurance benefits beginning in the first week of absence. This provision will expire on December 31, 2020.

It is important to understand that the Act entitlement represents the “floor” of entitlement. In other words, employers will not enjoy a reduced obligation to provide Paid Sick Leave if it already offers Paid Sick Leave to employees. The Paid Sick Leave under the Act is in addition to what the employee may already be entitled to in employment. However, there will not be any carryover right for unused Sick Leave granted under the Act.

Again, it is important that employers revisit their protocol for determining eligibility for paid sick leave and prepare to implement the new mandate. Likewise, employers providing Paid Sick Leave and absence benefits should carefully log the wages paid related to compliance. As of now, the Act anticipates a tax credit available for sick leave wages paid to employees, subject to caps established under the law.

1 Exemptions for small employers (fewer than 50 employees) and certain emergency and healthcare workers continue to be discussed.
2 The DOL will be issuing a Notice related to the new requirements that must be posted along with other employment related Notices to employees.

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For more on the developing Coronavirus situation, see the National Law Review dedicated Coronavirus News page.

U.S. Health & Human Services – Office of Civil Rights Issued Guidance Regarding HIPAA Privacy and Novel Coronavirus

The Office of Civil Rights (OCR) last month provided guidance and a reminder to HIPAA covered entities and their business associates regarding the sharing of patient health information (PHI) under the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule during an outbreak or emergency situation such as what we are all facing right now with the Novel Coronavirus (2019-nCoV) outbreak.

The OCR guidance focused on sharing patient information in several areas, including: treatment, public health activities, disclosures to family, friends, and others involved in an individual’s care, and disclosures to prevent a serious and imminent threat.

The HIPAA Privacy Rule allows a covered entity to disclose PHI to the Center for Disease Control (CDC) or to state or local health departments that are authorized to collect or receive such information, for the purpose of preventing disease and protecting public health.  This would include disclosure to the CDC, and/or state or local health departments, of PHI as needed to report prospective cases of patients exposed to or suspected or confirmed to have Novel Coronavirus.

The OCR message in the guidance document is clear and it emphasized the balance between protecting the privacy of patient PHI and the appropriate uses and disclosures of such information to protect the public health. For more information and resources, see the HHS interactive decision tool which provides assistance to covered entities to determine how the Privacy Rule applies to disclosures of PHI in emergency situations.

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For more on HIPAA regulation, see the National Law Review Health Law & Managed Care section.