Tag: COVID-19

CDC Changes Masking Guidance for Fully Vaccinated Individuals

The Centers for Disease Control (CDC) announced on July 27, 2021 that it will adjust its advice to recommend that vaccinated people in substantial or high transmission areas of COVID-19 (defined below) wear masks in indoor public spaces. This guidance will substantially alter the CDC’s May 13 guidance that largely exempted fully vaccinated individuals from the indoor mask requirement. There has been no change in the outdoor masking recommendations at this time. In changing its masking recommendations, the CDC asserts that current scientific information indicates that the delta variant can be spread despite vaccine status, warranting an adjustment to its prior guidance.

Below is a summary of the updated guidance based on the media telebriefing:

  • In public indoor settings in areas of substantial or high transmission, all are to wear masks – including fully vaccinated individuals.
  • All individuals in K-12 schools must wear a mask, regardless of vaccination status, including teachers, staff, and visitors.
  • There should be a continuing effort to strongly encourage vaccination to reduce the spread of COVID-19, including the delta variant.
  • Community leaders should encourage universal masking and vaccination nationwide, regardless of whether or not in a substantial or high transmission area.

Despite the updated guidance, CDC Director Dr. Rochelle Walensky emphasized that wearing a mask is a “personal choice” and no “stigma” should attach to the decision whether or not to wear a mask. Moreover, Dr. Walensky acknowledged that the renewed indoor masking requirement would “weigh heavily” with individuals who are already fully vaccinated. The White House has not provided additional comment on the CDC guidance as of this writing.

The definition of a substantial or high transmission area is based on the CDC’s COVID-19 Data Tracker, which tracks the level of community transmission by county nationwide. Notably, the updated guidance does not apply to areas of moderate or low transmission.

While the CDC guidance is not mandatory, employers are advised to evaluate their workplace policies to determine the extent to which it may be prudent to alter workplace masking requirements. Additionally, states and cities are free to institute their own legally binding masking requirements, regardless of the CDC guidance. Employers are advised to closely monitor state and local developments. We also note that it is unclear what, if any, impact the CDC guidance will have on OSHA’s recent healthcare emergency temporary standard for healthcare employers or its enforcement of its safe workplace standards.

©2021 von Briesen & Roper, s.c

Article By John A. Rubin and Robert J. Simandl at von Briesen & Roper, s.c.

For more CDC COVID-related guidelines, see the National Law Review Coronavirus News section.

Should Virtual Depositions Survive the Pandemic? The Answer is Yes and No.

As the “new normal” of pandemic virtual legal proceedings appears to be waning, a question arises as to which, if any, practices initially born out of necessity, but no longer so, should continue to be utilized. One such device previously employed sparingly, but which became de rigueur during COVID, is the virtual deposition. In some but not all circumstances, virtual depositions can remain an effective tool for litigators.

The critical considerations in determining whether to continue using this mechanism will hinge on the purpose of the deposition and the stature of the particular witness. For example, if a deposition is being conducted for basic discovery purposes, i.e., understanding the broad strokes of a dispute, or determining generally what the opposing side knows or has, it might make sense to conduct it virtually. What may be obtained from such witnesses over video-link likely would not be enhanced by conducting the depositions in person. Moreover, the technical hiccups sometimes incidental to a video deposition, such as audio deficiencies and temporarily frozen screens, likely would not diminish the value of such “low-stakes” testimony.

But, if the purpose is to obtain testimony that will be presented to a trier of fact, there is no substitute for a live deposition. Like cross-examining an opponent’s witness during a trial, being in the same room to control that witness without the delay of a video feed or the interference of opposing counsel who may be present with the witness while you are not, makes a world of difference. Due to the unavailability of witnesses, cases may be won and lost during depositions. Consequently, it is important to treat these depositions as if you are eliciting trial testimony. Doing so live will give you the best chance at a successful examination.

A second important consideration is the stature of the witness. A virtual deposition would certainly be appropriate for a low ranking company employee with no ability to bind an organization, or a document custodian whose elicited testimony would likely be mechanical in nature. However, the deposition of a critical fact witness, high-ranking company official, or corporate designee most definitely should be conducted live, if possible. There simply is no substitute for looking a witness in the eyes during questioning to gauge their credibility, or obtaining a face-to-face assessment of their composure and demeanor. That type of evaluation is simply not possible over a video-link, particularly given the possibility of technical mishaps.

These considerations should not be viewed in a vacuum, of course. For more and more clients, a primary concern is legal cost containment. For those attorneys with national practices, being able to conduct the video deposition of a witness who resides on the other side of the country surely will provide significant cost savings for such a client. Similarly, a busy litigator’s life will be made easier by having the option of deposing a witness virtually, rather than committing to otherwise avoidable travel time.

Like most legal conundrums, the answer to this question is not clear-cut. But, having options like those outlined above to address the different types of witnesses and circumstances will increase the likelihood of eliciting valuable testimony.

©2021 Epstein Becker & Green, P.C. All rights reserved.
For more articles on depositions, visit the NLR Litigation / Trial Practice section.

Summer Is Here: International Vacation Travel During a Pandemic

International travel during the COVID-19 pandemic has been challenging, but conditions are finally improving. Many Americans are now vaccinated against COVID-19. The latest CDC reporting indicates 50.9% of the U.S. population has received at least one vaccine dose and more than 41% of the U.S. population has been fully vaccinated.

Many international destinations are planning for an uptick in tourism – including Europe. Unfortunately, there remains no consistency in the rules in effect across the pond. With Europe opening, many have been hoping since May that the United States will reciprocate and eliminate at least some of the COVID-19 international travel restrictions.

The EU Commission’s overall recommendation is that tourists from countries with low infection rates be allowed to enter if they are fully vaccinated with an EU-approved vaccine. This is reflected in some recent developments from European countries. For example:

  • Denmark has opened to EU/Schengen countries and plans to open to international tourists later in June.
  • France plans to use a “traffic light” system to determine which countries’ residents can visit and what restrictions will apply.
  • Malta is open fully to vaccinated travelers.
  • The UK plans to use a “traffic light” system that will determine “green-listed” countries, who will need to quarantine, and what testing will be required.
  • Portugal is open to EU/Schengen countries and the UK.
  • Italy is open to those from the UK, the EU, and Israel who are fully vaccinated.
  • The Netherlands is open to 15 low-risk countries.
  • Greece has been open to the EU, the United States, the UK, and Israel if the travelers are fully vaccinated or have a negative COVID-19 test.

In the meantime, the CDC has lowered travel restrictions for more than 100 countries. Further, especially due to upcoming international travel requirements, the United States is considering offering voluntary documentation that would allow U.S. residents to prove vaccination status. However, these vaccine “passports” have been controversial and a spokesperson from DHS noted that there will be “no federal vaccination database or a federal requirement for Americans to provide they’ve been vaccinated . . . . ” The status of these “passports” promises to be an evolving area, considering the privacy concerns that have been raised, such as in New York.

For now, everything is country by country and airline by airline – and everything is subject to change (make sure your airline tickets and hotel reservations are refundable!).

Those planning to travel need to make sure to check with the appropriate consulates before starting to plan.

Jackson Lewis P.C. © 2021
ARTICLE BY Kristopher W. Peters of Jackson Lewis P.C.
For more articles on international vacations, visit the NLR Immigration section.

 

A Return to Normal?

On Friday, May 28th, Governor Murphy will be lifting the State of New Jersey’s mask and social distancing mandate for mo2st businesses. That said, the most recent Executive Order makes clear that businesses can require mask use if they want and cannot stop people from wearing masks, if they so choose.

“Indoor public spaces” will no longer require masks or social distancing, HOWEVER, this does NOT include indoor worksites of employers that do not open their indoor spaces to the public for purposes of sale of goods, attendance at an event or activity, or provision of services. So in the typical closed office environment, individuals continue to be required to wear face coverings, subject only to exceptions that have previously existed, such as when employees are at distanced workstations or in their own offices, and shall continue to maintain six feet of distance from others to the maximum extent possible, except in the circumstances described therein. That said, if you have a business where customers are coming into the building to get products or services, mask use and social distancing will not be required by law. Additionally those who are not vaccinated are “strongly encouraged” to continue to wear a mask when indoors.

© 2021 Giordano, Halleran & Ciesla, P.C. All Rights Reserved

ARTICLE BY Jay S. Becker,  Jeri L. Abrams and
Ari G. Burd of Giordano, Halleran & Ciesla, P.C.

For more articles on COVID-19, visit the NLR Coronavirus News section.

Recent OSHA Update Targets Restaurant Industry

Occupational Safety and Health Administration (OSHA) has recently updated its COVID-19 response plan. Last year, OSHA focused much of its COVID-19 related attention on healthcare, elderly care, and prisons. This new Updated Interim Enforcement Response Plan for COVID-19 and National Emphasis Program — Coronavirus Disease 2019 (COVID-19) guidance shifts its focus to other industries where OSHA feels there could be spread of COVID-19. As part of the guidance, OSHA specifically targeted full-service and limited-service restaurants for inspections.

Restaurants should be prepared for on-site or virtual OSHA inspections. To prepare, restaurants should:

  • Ensure all OSHA recordkeeping (OSHA 300, 300A, and 301s) is in order and up to date.
  • Ensure any contact tracing for COVID-19 illness is properly documented.
  • Ensure a COVID-19 response plan is documented and in place-include relevant Federal, state and local guidance.
  • Ensure compliance with OSHA standards, specifically Personal Protective Equipment and Blood Borne Pathogens.
  • Ensure employees are trained on COVID-19 related hazards, reporting of COVID-19 symptoms, prevention of COVID-19, and document this training.
  • Ensure employees are trained that they will not be retaliated against for raising concerns regarding safety, specifically COVID-19 related safety.

Note that we are still waiting for OSHA’s Emergency Temporary Standard to be issued. OSHA has provided its proposed standard to the White House where it is currently being reviewed. Once that is issued, there will likely be more requirements for all industries with respect to COVID-19 related employee safety and health.

This article was written by Jane H. Heidingsfelder at Jones Walker law firm. For more information on OSHA guidance, please visit our Labor and Employment news page.

In-Person Client Meetings and COVID-19

A fellow attorney just circulated a poll to his friends asking, “Are you starting to meet with your clients in person?” If you are restarting in-person meetings with your clients, consider whether you are in a jurisdiction that mandates contact tracing and whether that conflicts with your duty to maintain a client’s confidential information confidential.

Every jurisdiction has adopted some form of ABA Model Rule 1.6, Confidentiality of Information. It provides in part that:

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

The mere fact that a person has consulted an attorney can be in itself confidential information. One obvious example is a famous celebrity visiting a divorce attorney.

The problematic situation arises if you learn that the client has COVID after an in-person meeting. Alternatively, what if you learn after the meeting that you have COVID? In jurisdictions that require contact tracing disclosure, or even for public policy and health considerations, you may need to disclose your client’s identity to contact tracing authorities. As an attorney, you should take a moment to learn the contact tracing and public health reporting laws in your jurisdiction. For example, right now, I understand that there is a tracing program in Massachusetts, but disclosure is voluntary, not legally required. This may change.

The easy answer to this dilemma is to discuss the issue before meeting a client in person. Model Rule 1.6 permits the disclosure of otherwise confidential client information with informed consent, so you should inform the client about contact tracing so the client can decide whether to meet in person or remotely.

The hard answer arises if you have not had this conversation. Absent informed consent from a client to disclose their identity to contract tracers, Model Rule 1.6 does permit – but does not require – disclosure to comply with a statutory requirement for contact tracing:

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: . . . (6) to comply with other law or a court order . . .

While the ethical rules may permit you to comply with a statutory requirement to disclose your client’s identity in a COVID tracing situation, such a unilateral decision to make disclosure may not be good for your attorney-client business relationship.

In conclusion, you should seriously consider discussing the possibility of contact tracing disclosure obligations before meeting with a client in-person.

© 2021 SHERIN AND LODGEN LLP

ARTICLE BY Edward S. Cheng of Sherin and Lodgen LLP
For more articles on the legal industry, visit the NLR Law Office Management section.

Food & Food Packaging Is Unlikely to Spread COVID-19

The U.S. Food and Drug Administration (FDA) and Department of Agriculture (USDA) published a press release yesterday underscoring the international consensus that no credible evidence shows that food or food packaging is a source of viral transmission of SARS-CoV-2, the virus that causes COVID-19.

The press release highlights a September 2020 opinion from the International Commission on Microbiological Specifications for Foods that stated, “Despite the billions of meals and food packages handled since the beginning of the COVID-19 pandemic, to date there has not been any evidence that food, food packaging or food handling is a source or important transmission route for SARS-CoV-2 resulting in COVID-19.”  This consensus is consistent with literature reviews and research in other countries, and the fact that in the 100 million cases of COVID-19 worldwide, no epidemiological evidence suggests food or food packaging is a source of transmission to humans.

The U.S. Centers for Disease Control and Prevention (CDC) together with the U.S. Occupational Safety and Health Administration (OSHA) have provided guidance for food manufacturers to reduce the risk of spreading COVID-19 between workers. These guidelines complement the USDA and FDA food safety requirements that all U.S. food manufacturers must follow, such as the current Good Manufacturing Practices and preventative controls that focus on good hygiene practices and worker safety.

© 2020 Keller and Heckman LLP
For more, visit the NLR Biotech, Food, Drug section.

COVID-à manger: COVID-19 Takes a Bite out of French Lunch Traditions

The COVID-19 pandemic has changed dining habits across the world, as governments have shut down and restricted indoor and outdoor dining.  Even where restrictions have eased, many avoid sit-down dining out of concern for COVID-19 exposure and rely on take-away for their restaurant meals.  Clearly, the COVID-19 pandemic has limited dining options.

France, however, has decided to provide workers with a new, previously forbidden, dining option, although it remains to be seen how palatable it will be to French employees.  The Labor Ministry has decreed that to contain the spread of COVID-19, French workers now may eat lunch at their desks, which prior to the pandemic, Article R.4428-19 of the French Labor Code prohibited.

Gathering around a table for lunch with friends and colleagues has been long-standing French tradition, reflecting the country’s customs, habits and tastes.  The decree is intended to allow workers to return to the workplace and still limit the spread of COVID-19, by permitting them to lunch alone at their own workspace.  Until now, employers that allowed employees to eat lunch at their desks were subject to a fine, if caught, and employees who ate at their desks faced unspecified disciplinary action.

The French government has long been active in imposing regulations to prevent employers from exploiting their workers and in protecting workers’ rights, such as by imposing a 35-hour workweek, implementing the “right to disconnect” and mandating lunch hours.  Workers have become accustomed to dining out for lunch, and traditionally consider this time away from their work stations as an opportunity to refresh their bodies and minds prior to returning to work for the afternoon.  This simply is part of the French concept of maintaining a proper work-life balance.

While the French government continues to encourage remote work wherever possible, the new measure reflects the government’s effort to encourage businesses to reopen, where they can, with measures in place that will protect employees’ workplace health and safety.  Allowing workers to eat lunch at their desks offers workers and their employers a safer dining option, though arguably at the expense of traditional French cultural norms.  It is yet another example of how the COVID-19 pandemic has challenged, and changed, customary workplace standards.

©2020 Epstein Becker & Green, P.C. All rights reserved.

ARTICLE BY Erika C. Collins and Ryan H. Hutzler of Epstein Becker & Green, P.C.
For more, visit the NLR Global law section.

IT Security Trends in the Era of COVID: Our Top Five Tips for Making Your Network Safer in 2021

As the COVID era drags on, it is clear that work life “post-COVID” may be very different from life “pre-COVID.” This is especially true as it relates to IT security. More and more employees have shifted to a telecommuting work model, and for many businesses that may be the case for an indefinite period of time. This raises important questions as to which security improvements or other changes IT departments need to make in 2021 to keep their businesses and client data safer from cyberattacks.

Here are five potential IT defense measures that your business can implement to protect your organization’s data as well as your clients’ data:

  1. Ensure your network only accepts connections through an encrypted Virtual Private Network (VPN). Preparing your network for long-term telecommuting connectivity and ensuring that your employees can only access your company’s network by using an encrypted VPN is an important first step. When properly configured, VPNs provide an encrypted “tunnel” between an employee and the company’s internal network (and back), which provides a secure connection as employees continue to remotely access their employers’ networks over the long haul.
  2. Invest in and enact mandatory multi-factor authentication techniques. Multi-factor authentication (MFA) involves validating the identity of a person and is critical to defending a network against many types of cyber threats, including phishing and credential stuffing attacks. MFA helps to protect against unauthorized network access even if an employee has had their account log-in credentials compromised. According to TechRepublic, the use of MFA increased by 18% in 2020. This also includes a 27% increase in the use of biometric data for security purposes. MFA has emerged as a key tool to combat the threat and expense of cyberattacks; as such, organizations of all sizes would be well served in making MFA implementation a top priority.
  3. Implement mandatory employee social awareness training. According to the 2019 Verizon Data Breach Investigations Report, approximately one-third of all cybersecurity breaches stemmed from phishing attacks, with that number rising to almost 80% in cyber espionage attacks. There is no better time to prepare your employees on how to recognize and avoid phishing attacks. One cost-effective measure to combat phishing attacks is to tag all emails originating outside the company as “external.” This creates more awareness and helps to prevent employees clicking on bad links or opening infected attachments that appear to come from fellow colleagues.
  4. Implement “layered” security for your network, also known as “Defense in Depth.” In addition to requiring a user to log in with solely their credentials, consider “layering” your network security by encompassing additional security measures such as MFA, password hashing and salting, biometric verification, application whitelisting and/or secure network logging and auditing. According to Help Net Security, in the second quarter of 2020, approximately 70% of all cyber-attacks involved “zero day” malware. This means 70% of all cyberattacks are using malware that does not yet have an anti-virus signature – a 12% increase from just the first quarter of 2020. To help defeat these “zero day” attacks, the more “layers” of network defense will work to strengthen a company’s ability to detect and prevent a developing cyberattack. Diversifying network defenses can pay dividends.
  5. Recognize and minimize the insider threat. “Insider” cyberattacks have increased by approximately 50% over the last two years. According to the Verizon Data Breach Report, over 30% of all reported cyberattacks and data breaches are directly attributable to company insiders. To alleviate this threat, it is critical to have your IT department identify and eliminate employee “privilege creep.” Insider attacks often stem from employees having excessive access and privileges to parts of the company network to which they do not need access. In short, it is critical to take the time to ensure that employees only have access to the data they actually need, and nothing more.

This list is by no means exhaustive, and there are certainly many other tactics, defenses and strategies companies can implement to protect their networks and data from external and internal cyber threats and attacks. Nevertheless, these “top five” recommendations are foundational to any type of network security improvements and should be considered as part of any upgrades for network cyber defenses in 2021.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.

ARTICLE BY Jason G. Weiss, Peter Baldwin and Amy Grewal Dunn of Faegre Drinker
For more, visit the NLR Communications, Media & Internet section.

Legal Ramifications of Flouting Mask Rules by Members of Congress

During the invasion of Congress on January 6, 2021, members of Congress were forced to take shelter for a few hours with a large group of their colleagues. Several Democratic members of Congress—Reps. Bonnie Watson Coleman (N.J.), Pramila Jayapal (Wash.), and Brad Schneider (Ill.)—have revealed that they have tested positive for COVID-19 after sheltering with colleagues who refused to wear masks. There have been rules in place since July 2020 that require masks in House office buildings and on the floor of the House, but those rules have not been consistently enforced. A number of House Republicans did not wear masks during the emergency sheltering and refused to accept masks offered by Rep. Lisa Blunt Rochester (Del.). House leadership has committed to enforce the rules more stringently going forward and impose fines starting at $500 on members who do not wear masks on the House floor. Democratic Representatives Debbie Dingell (Mich.) and Anthony Brown (Md.) have introduced legislation that would go farther, imposing fines of $1,000 per day on House members who do not wear masks on the Capitol grounds.

But do representatives who have contracted COVID-19 have any legal remedy for holding the House or other individual House members liable for their having contracted the virus?

First, it is important to note that no one can say with certainty when, where, or how they contracted the virus. Representative Schneider has acknowledged directly that he does not know that he contracted the virus during the insurrection, but that his exposure during the shelter in place was the greatest exposure he has experienced during the pandemic. He surmises that the fact that three people (thus far) have tested positive points to the forced sequestering with unmasked colleagues as the probable source of infection. There has been no reporting on whether the Republican members who refused to wear masks have tested positive for the virus, making the proof of the source of the infection more challenging.

Second, even assuming the newly infected Representatives could establish they contracted the virus from unmasked colleagues on January 6, their legal remedies are extremely limited. While employees in the private sector could complain to the Occupational Safety and Health Administration (OSHA) about unsafe working conditions, the Occupational Safety and Health Act (29 U.S.C.§ 654) does not apply directly to the U.S. Congress. Under the Congressional Accountability Act (CAA), 2 U.S.C. § 1341, the legislative branch is required to comply with OSHA standards mandating that the workplace be free from recognized hazards likely to cause death or serious injury. Under the CAA, a member of Congress or a staff person can request that the General Counsel of the Office of Congressional Workplace Rights (OCWR) conduct an inspection of unsafe working conditions. If the inspection determines there are unsafe working conditions, the OCWR General Counsel can issue a citation or notice of violation. If the violation has not been corrected after that notice, the General Counsel may file a complaint to be submitted to a hearing. Currently, even without a formal complaint to the OCWR, Congress has taken steps to more rigorously enforce its rule requiring masks in congressional workplaces.

Third, assuming a member of Congress who contracted COVID-19 could prove he or she was infected by a specific colleague who was not wearing a mask, legal recourse against that colleague would likely be barred by the terms of the Speech or Debate Clause of the U.S. Constitution, contained in Article I, Section 6. This clause states that members of both Houses of Congress “shall not be questioned in any other Place” about any speech or debate and shall be “privileged from Arrest” during attendance at a session of Congress. The limitation on questioning a member of Congress about speech or debate is intended to protect them from efforts by members of the Executive branch or members of the public to interfere with their exercise of their legislative duties. The refusal to wear a mask might not be seen as an aspect of legislative debate, but at least one Republican who refused to take the mask offered by Representative Rochester was heard to say she did not want to make this “political,” and those who refuse to wear masks may assert that they do so for political reasons.

If the Speech or Debate Clause did not bar a suit by one Representative against another, the legal claim would likely be one for tort damages related to an intentional assault, which requires proof that an individual deliberately acted to cause another to fear imminent harm. There have been numerous tort cases filed against cruise ships, nursing homes, and entertainment venues by people exposed to COVID-19. Suits against individuals are rare, but might follow the theories advanced by individuals exposed to the Human Immunodeficiency Virus (HIV). HIV cases ordinarily involved battery claims because of the means of transmission through close bodily contact, but because COVID-19 is transmitted through airborne particles, liability would not necessarily be predicated on physical contact but merely the apprehension of contracting the airborne virus.

Establishing liability for COVID-19 infection is difficult in any workplace. As in many other areas of employment and tort law, imposing liability on members of Congress is even more challenging. In the absence of targeted legislation, members of Congress may have little recourse against colleagues who expose them to a greater risk of infection by their refusal to comply with basic health and safety practices during the pandemic.

ARTICLE BY Carolyn Wheeler of Katz, Marshall & Banks, LLP
For more, visit the NLR Coronavirus News section.