Read the Outline of Our Webinar Covering Legal Issues for Businesses During Pandemic

We were honored to host a members-only webinar with Kelley Drye & Warren focusing on a myriad of business issues raised by the novel coronavirus outbreak. We are thrilled with the large turnout this webinar received and want to present the vital information discussed to any members who may have missed the webinar.

NIHC April 2 Webinar Outline

Section I: Employment

    • Families First Coronavirus Response Act (FFCRA)
      • In effect April 1, 2020
    • Companies under 500 employees 
      • New paid sick leaves days-up to 10 days
      • New paid FMLA leave-Up to 10 weeks paid
    • Who is an “employee”
      • Part time employees, employees on leave, temp employees (from a temp agency) all count
      • Independent contractors do not count 
          • Important to think about wage-hour implications if trying to get over the 500 employee threshold
            • Could have effect on future audits, unionizations, etc. 
    • FFCRA Paid Sick Leave
      • Everyone is eligible as of their first day on the job 
      • Only applies if:
        • Under a federal, state, or local quarantine order
        • Doctor has ordered a self-quarantine 
        • Experiencing COVID-19 symptoms and seeking medical diagnosis
        • Caring for a family member at risk or taking care of children out of school
        • If they are sick, do not bring them into the workplace to begin work
    • New FMLA Leave
      • Eligibility 
        • Full time or part time employees that have been on payroll for 30 calendar days or more
      • 10 weeks at 2/3 pay (First two weeks are unpaid) 
        • Only eligible if employee is unable to care for a child who’s school or child care has recently been closed due to COVID-19
    • Managing your workforce 
      • Working Remote 
        • Be sure to have a time keeping procedure 
        • Kind in mind the equipment employees are using at home, laptops, monitors, etc as well as possible security measures
        • Exempt Workers
          • Management and professionals
          • If they work one day of the week, they must be paid for the entire week 
        • Nonexempt Workers 
          • Make sure nonexempt workers are working remotely and tracking their time 

Section II: Contractual Obligations 

    • Force Majeure Clauses 
      • Contractual provision that excuses performance for certain occurrences or events that are beyond the control of the parties
        • Creature of contract; can also be called “Termination for Cause”
      • Anatomy 
        • List of Force Majeure events or “Acts of God” 
        • Standard application (task has been hindered, prevented, etc)
        • Effect of clause (cancellation, delayed, or excused)
        • Notification of other party 
      • Degrees of Force 
        • Deciding if Force Majeure applies during COVID
          • Look at the contract’s language describing the event 
            • Okay: “Act of God” 
            • Better: “Public Health Crisis”
            • Best: “Pandemic”
        • Practical Approach 
          • Do your best to mitigate damages 
          • Notify the other party 
          • Negotiate 

Section 3: Insurance Coverage for COVID-19 Losses 

    •    Bad news 
      • Business interruption policies usually have restrictive policy language under many property and business interruption policies, but not universally 
    • Good news 
      • Liability insurance policies should provide expansive coverage if sued for coronavirus related issues 
    • The claims environment 
      • Insurance companies are scrambling to minimize their own losses
      • Facing more push back from insurance carriers (claim denials) than usual 
    • Business interruption insurance 
      • Typically sold as an add on to property insurance 
        • Hurdles to coverage 
          • Most standard policies have a physical damage requirement
            • Coronavirus’s person to person transition will make it hard to demonstrate damages to workplace
          • “Virus/disease” exclusions 
            • Common exclusion in standard forms  
      • Coverage issues 
            • A lot of policies have “communicable disease” exclusions 
              • Often: excluded, but subject to buy-back 
              • Policy holder can “buy back” or write this out of the contract 
    • Main Take Aways 
      • Coverage will depend on the specific facts of your claims
      • Keep an eye on legislation, may not be covered today but could be covered tomorrow