P ROTECTING Y OUR B USINESS & E MPLOYEES F ROM THE I MPACT OF C - PowerPoint PPT Presentation

P ROTECTING Y OUR B USINESS & E MPLOYEES F ROM THE I MPACT OF C OVID -19 March 19, 2020

P RESENTERS Brian R. Carnie Edward Hardin, Jr. Labor & Employment Labor & Employment Michael J. deBarros R. Chauvin Kean Insurance Coverage Business & Corporate Jessica C. Engler, CIPP, US Michael D. Lowe Data Security & Privacy Labor & Employment and Construction

P REFACE & D ISCLAIMER The opinions expressed in this presentation and on the following slides are solely those of the presenters and not necessarily those of Kean Miller LLP or its clients. The contents of this webinar does not constitute legal advice. To the extent you require advice about any particular set of circumstance, COVID-19 related or otherwise, we recommend that you contact our presenters, whose contact information will be available at the conclusion of this presentation.

R ESPONDING TO A SUSPECTED OR CONFIRMED CASE What should/can we do if we suspect an employee is sick, or has had “close contact” with someone with COVID-19? Determine if self-quarantine is necessary, and for how long • Precautionary steps to protect others in workplace • Work from home options/risks (attendance as non- • essential?) What if s/he tests positive? •

E MPLOYEE S AFETY Employee screening procedures? Questionnaires (recent travel, symptoms, COVID-19 • diagnosis) Facility access restrictions • Can you take employee’s temperature? • – May depend on locale of facility – Is COVID-19 widespread in the area?

E MPLOYEE R ELATIONS Privacy Concerns … • Wage and Hour Issues … • Benefits … • Worker’s Compensation … • Unemployment Insurance … • Discrimination Concerns … • Closures and Layoffs … • Union Considerations … •

F AMILY F IRST C ORONAVIRUS R ESPONSE A CT • Current status • Changes to the Family Medical Leave Act (“FMLA”) • Emergency paid sick leave

COVID-19 T ASKFORCE (L ABOR & E MPLOYMENT A TTORNEYS ) Brian Carnie Erin Kilgore Direct: 318.562.2652 Direct: 225.389.3712 Chelsea Caswell Michael Lowe Direct: 225.382.3405 Direct: 318.562.2653 Ed Hardin Zoe Wilde Vermeulen Direct 225.382.3458 Direct: 504.620.3367 Scott Huffstetler David Whitaker Direct: 225.389.3747 Direct: 504.620.3358

D ATA P ROTECTION C ONCERNS FOR A R EMOTE W ORKFORCE : A DMINISTRATIVE Remote Work Policies – If you have one, • Update the Incident Response Plan • use it; seek guidance if updating policies; • Prepare the Remote Data Incident implement BYOD policies. Response Team Stress Test Current Remote Systems - • • Ensure Unity in Messaging Can your current system handle a remote workforce? • Data Protection Laws Still Apply – HIPAA, GDPR, CCPA, etc. Keep IT Resources Healthy • • Only Collect the Personal Limit Access on a “Need to Know” Basis • Information Needed to Assess the Use VPNs Risk – Proportionality is key. • Encrypt Personally Identifiable • Information Monitor Information Transfer – Time, • location, outside accounts, unusual increases in activity, etc.

D ATA P ROTECTION C ONCERNS FOR A R EMOTE W ORKFORCE : C OMPANY -W IDE M EASURES Reminders to Safeguard – Prohibit “Remember Password” • • Confidential information, trade Tools secrets, IP, client data, personal Cautiously Donate – Beware of information, etc. • newly formed charities, aggressive Secure WiFi Networks – Password tactics, etc. Confirm legitimacy • protected; updated regularly. Do before donating. not use public networks. Stay vigilant against phishing • Secure Personal Devices – Robust schemes and other fraud • BYOD policies, or provide company equipment. Avoid Personal Email Accounts and • Personal Cloud Storage Accounts Secure Conference Call Lines – • Avoid online and free conference call services.

B USINESS AND C ORPORATE M ATTERS Contractual Obligations Example Force Majeure Text: What if my company can’t meet its “If performance or such delay or • • performance obligations under the hindrance is due to strikes, lockouts, contract? acts of God, governmental restriction , enemy act, civil FIRST: • commotion, unavoidable fire or other casualty, or other cause of a Read your contract! – like nature beyond the reasonable • Each will be different control of Landlord or Tenant , then performance of such work, service or • May contain force majeure other act shall be excused for the provisions period of such delay, and the period for the performance of such work, service or other act shall be extended for a period equivalent to the period of such delay.”

B USINESS AND C ORPORATE M ATTERS • What if my contract doesn’t specifically mention “pandemics” or government restrictions? – La. Civ. Code articles 1873-1878 will govern: • CC 1873 : “An obligor is not liable for his failure to perform when it is caused by a fortuitous event that makes performance impossible.” – Fortuitous Event and Force Majeure have been used interchangeably in Louisiana jurisprudence – Key  Performance must be impossible !

B USINESS AND C ORPORATE M ATTERS • Fortuitous Event : • When is performance impossible? – CC 1875 : an event “that, at the time the contract – Circumstances must be was made, could not have preventative to the extent been reasonably that a party cannot foreseen.” complete its obligations. – Examples: – Substitute goods and services if possible (record • an act of God; war, your attempts!). invasion; extreme weather events; and epidemic, – Partial performance. famine, plague, or other natural calamities.

B USINESS AND C ORPORATE M ATTERS • Liability: – Typically liable for its failures to perform – BUT  if due to fortuitous event (or FM contractual situation), which has made performance impossible, THEN … not liable • Termination vs. Amendment: – CC 1876 : If the entire performance owed is impossible, the contract is dissolved by operation of law – However, suggest an amendment to contract!

I NSURANCE C OVERAGE FOR COVID-19 L OSSES What policies should I be looking at? • Loss of business income and/or Damage to your own property? – Commercial Property • Claims or lawsuits? – Liability policies, such as: • General liability, Pollution Liability, Workers’ Compensation, Employment Practices Liability, D&O, etc.

C OVERAGE U NDER P ROPERTY P OLICIES Typical Coverages: Direct physical damage to scheduled locations • Extra expenses (to move office to another location) • Loss of business income during the “period of • restoration”

B USINESS I NTERRUPTION C OVERAGE (P ROPERTY P OLICIES ) Typical Hurdles to Coverage: • Requirement of “direct physical damage to covered property” • Exclusions – “Exclusion for Loss Due To Virus Or Bacteria” and similar – Pollution Exclusions • Duty to mitigate damages (i.e., removal/sanitation of Coronavirus)

B USINESS I NTERRUPTION C OVERAGE (P ROPERTY P OLICIES ) Potential Solutions to “Physical Damage” Requirement: Presence of COVID-19 in your business location or in one of your supplier’s • locations could constitute “direct physical damage to covered property.” Physical damage as a result of a lack of office maintenance or a lack of power • or other utilities to the office as a result of COVID-19? Some types of property policies (mainly sold to businesses in the hospitality • and health care industries) provide insurance coverage for losses caused by “communicable or infectious diseases” without requiring physical damage to insured property Civil authority coverage may not require physical damage to covered • property. Some forms of political risk insurance may not require physical damage to • covered property.

B USINESS I NTERRUPTION C OVERAGE (P ROPERTY P OLICIES ) Potential Solutions to Exclusions: • While exclusions for Bacteria and Fungi are common, exclusions for viruses are not common in these policies. • New Jersey Legislature Considering Bill To Force Insurers To Pay COVID-19 Business Interruption Claims Expressly Excluded By ISO’s “Virus” Exclusion. • COVID-19 may not be seen as a “pollutant, irritant, or contaminant” for purposes of insurance ( e.g. , Doerr test).

C OVERAGE FOR C LAIMS OR L AWSUITS ? Examples • Product liability suits against airline companies for failing to install high- efficiency particulate air-recirculation filters in their aircrafts. • Negligence suit against a childcare or day-care facility when one infected child in their care gets other children sick. • Suit for improper detention / quarantine of 3 rd parties (cruise line suit). • Suit by employee against employer tested too aggressively. • Suit by employee against employer for failing to provide a workplace free from “recognized hazards”. • Suit by employee against employer for inconsistent treatment (restrictions/testing done on some but not others) – age, race, gender, etc. • Suit by employee against employer for violation of Family and Medical Leave Act or state law equivalents.