■ Law
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and conditions and agreements) to determine
whether changes should and can be made, due
to supply, timing, cost or other limitations;
continuing to properly maintain all business
records, provide notices and satisfy reporting
requirements, even if operating remotely; maintaining
protocols in order to ensure appropriate
cybersecurity; and addressing changes to
business and operations with insurance carriers
to ensure proper coverage.
Despite current business limitations, businesses
should proactively address these and
other matters with counsel to avoid liability, expense
or material adverse effects on their business
during and post-pandemic.
Day Pitney LLP
By Susan Huntington, Esq.,
Partner
Getty Images/iStockphoto
My advice to clients has remained
consistent during the
pandemic—be transparent and
share information, even if the
news is uncomfortable. Have your legal counsel
review such communications to provide an
objective assessment and look for unintended
risk exposure. For example, like most nursing
homes in the United States, several of my clients
had both staff and residents test positive
for COVID‐19, despite having protective policies
and procedures in place that exceeded both
state and federal guidelines. The infections were
reported to the state health department, but the
facility was unsure whether to share this information
with the other residents and their families,
particularly since the press was hounding
them for statistics and any communications
would likely end up in the news. They didn’t
want to be the first to disclose this information
for fear of litigation or reputational damage.
In the end, the facility did distribute a carefully
written update that accurately disclosed the circumstances.
Coincidently, the update was sent
on the same day that the Centers for Medicare
& Medicaid Services published its new requirements
for nursing homes to notify the CDC and
provide updates to residents and families in the
event of positive COVID‐19 cases.
Be transparent and share
information, even if the
news is uncomfortable.
Gibbons P.C.
By Kevin G. Walsh, Esq.,
Co-Chair, Government &
Regulatory Affairs Dept.
Our clients are navigating a crisis
with no playbook or precedent
and, although government
officials are announcing various prohibitions,
no level of government is offering very reliable
guidance about how to operate an essential
business or how to open any business once we
are all permitted to slowly come back to work.
Consequently, and to keep your business open,
consider: 1) making an insurance claim for business
interruption losses, regardless of whether
your policy has an exclusion (because Congress
may be legislating in this area soon); 2) ensuring
that your essential employees who are present
in the workplace are certifying that they understand
the risks of being physically present,
they will follow all of your distancing and disinfecting
procedures, and they are assuming
great risks by going to work; 3) developing a
defensible plan for returning to work in stages,
based on a reduced workforce that is physically
present in the office or facility, with all others,
including vulnerable populations, working
remotely; and 4) viewing all contingency measures
with an eye toward making it to December
31, 2021—this is a marathon for survival, not a
sprint back to work in a few months.
McElroy, Deutsch, Mulvaney
& Carpenter, LLP
By James E. Patterson, Esq.,
Partner, Co-Chair , Labor and
Employment Practice Group
The most important piece of advice
in reducing employment litigation
risks is to stick to the basic best practices
that apply in good times and bad. Employment
termination cases arising from the pandemic
will be decided by judges and juries sitting
in calmer times, and the ultimate issue—as always—will
be whether the employer acted fairly
and without bias. Employers must be able to
show that termination decisions were based on
objective business considerations. Ideally, the
employer should demonstrate that, prior to each
termination and in accordance with established
procedure, it conducted a thorough evaluation
to ensure there were legitimate business reasons
for the decision supported by the employee‘s
work performance history and past reviews. In
addition, the employer must analyze the employee’s
individual circumstances and overall
statistical and demographic data to ensure that
the decision is free from actual or hidden bias.
Employer attempts to “use” the crisis to eliminate
employees for impermissible reasons such
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