Overview

We have assembled a firmwide multidisciplinary task force to address clients’ business and legal concerns and needs related to the COVID-19 pandemic. Our lawyers are closely monitoring the latest developments and guidance from government and public health authorities and are prepared to provide guidance on planning for and responding to the many issues arising as the virus spreads.

We can advise on a broad range of matters, including:

Banking & Finance: Force majeure, material adverse effect, cessation of business and other relevant clauses in financing documents 

Business Operations: Business interruption/continuity planning; performance delays and force majeure events in contracts; anticipating and negotiating downstream implications in transactional and M&A contracts; SEC reporting requirements regarding risk and earnings disclosures; business and financial disruptions and other material events for publicly held companies; shareholder meetings and investor relations issues

Business Restructuring, Creditors’ Rights & Bankruptcy: Strategies to effectively address operational and financial distress, payment and cash flow difficulties, supply chain disruptions, customer and vendor defaults and insolvency proceedings, and the enforcement of rights and remedies

Construction: Negotiating and enforcing contract terms addressing force majeure, supply chain disruption, changes for costs of supplies and labor, and excused performance; application of the doctrines of impracticability/commercial frustration and impossibility of performance to existing contract obligations; evaluation of insurance coverage for builder’s risk, general liability and similar policies

Employee Benefits: Benefit continuation and payment arrangements during leaves; HIPAA compliance; potential waiver of copays/coinsurance and deductibles for COVID-19 testing and treatment; potential expansion of short-term disability plans; potential changes to 401(k) plan hardship and loan provisions; service provider agreements and obligations

Environmental: Review use of force majeure and similar provisions in environmental statutes, regulations, government orders, or permits by companies to delay, without penalty, required sampling events, remediation deadlines, air permit testing, wastewater record keeping, monitoring, etc.; work-related employee cases of COVID-19 and OSHA’s employee illness and injury recordkeeping regulation; disruptions in waste collection, disposal, and/or recycling services; planning and implementation of temporary or permanent facility closures

Government Contracts: Contract terms regarding notice requirements, determination of the risk of non-performance and insurance coverage; contract compliance with applicable laws and regulations; contract terms regarding the application of federal, state and local statutes and regulations enacted after contract award; contract performance criteria and the impact of health-caused delays on key contract deliverables, the government contract supply chain and available actions to mitigate specific impacts on contract cost, performance requirements and schedule

Health Care: Telemedicine; contracting issues; government guidance; HIPAA privacy and security

Intellectual Property: Performance of IP agreements (i.e., force majeure), country trademark registration protection as supply chain and manufacturing facilities relocate to other countries, patent and trademark deadline docketing services, patent and trademark prosecution overflow services, new manufacturing and intellectual property agreements as supply chains are disrupted

International Trade: Supply chain disruptions; import/export issues; force majeure and other contract provisions

Labor & Employment: Leave policies; quarantine rules; travel restrictions; remote working arrangements; FLSA compensation rules for partial weeks off work; OSHA/ADA requirements; discrimination claims; immigration issues; employee workplace safety and privacy issues

Litigation: Contract disputes involving COVID-19-related contract non-performance or performance delays, including force majeure events and other supply chain disruptions; strategies for negotiating and drafting contractual provisions with customers and suppliers; insurance coverage disputes regarding COVID-19-related issues; director and officer liability disputes resulting from COVID-19-related issues; white-collar criminal actions resulting from COVID-19-related conduct; compliance counseling regarding CARES Act and other COVID-19 related legislation and associated white-collar criminal actions; counseling and litigation regarding compliance with Stay-At-Home orders, including regarding whether a business is an essential business; other COVID-19-related litigation

Personal Planning: Health care documents and estate plans

Privacy & Data Security: Security for mobile and remote working; protection of sensitive personal information; compliance with health care privacy laws

Product Liability: Defend companies against inhalation exposure and respiratory illness claims. Advice regarding warnings and regulatory issues for manufacturers and suppliers of PPE, ventilators, and other products to address COVID-19

Real Estate: Impact of service disruptions, facility closures and quarantine policy on commercial property owners, tenants, borrowers and lenders; best practices for real estate contract negotiations during uncertain times

Transportation: Supply chain disruptions involving the shipment of goods; contingency planning; contract provisions with suppliers, customers and transport providers, including force majeure, minimum volume commitments, liquidated damages or capacity protection; and demurrage and detention charges

The global COVID-19 pandemic is an unprecedented situation with developments occurring at a rapid pace. As such, our previous client updates and webinars may contain information that has changed since publication. Please be sure to refer to our most recent publications and contact your Thompson Hine lawyer for additional information.

Employer Checklist
Employer Policy/Consideration Checklist – Pandemic Plan


 Access a pdf here.


Initial Planning
  • Organize a planning team
  • Designate an executive team member as point person
Recruiting and Hiring
  • Make arrangements for remote interview options
  • Develop exposure screening questions for in-person interviews
  • Train employees on safety protocols (e.g., no shaking hands, communications with recruits)
  • Train employees to avoid bias against national origins related to high-risk areas
  • Understand the scope of permissible pre- and post-offer questions related to exposure
  • Reduce or eliminate temporary hiring
Education and Awareness
  • Inform employees about how to prevent spreading disease
  • Advise employees to stay at home when sick
  • Place posters to reinforce messages (see, e.g., the Centers for Disease Control’s printable materials)
  • Advise caution regarding shaking hands
Environment
  • Maintain supplies of hand sanitizer and disinfecting wipes
  • Frequently clean and disinfect doorknobs, counters, light switches, other touch points
  • Perform specialized cleaning of areas where any infected employee has been
Visitors and Onsite Vendors
  • Request information regarding recent travel
  • Request information regarding symptoms related to COVID-19
  • Understand and utilize permissible screenings
  • Implement remote work policies for onsite vendors
  • Restrict nonessential visitors
Workplace Presence
  • Develop or expand voluntary work-from-home policies
  • Develop mandatory work-from-home policies
  • Consider issues for non-exempt employees (e.g., no required pay for time not worked)
  • Consider how to respond to employees who refuse to report to work or attend events due to exposure fears
  • Utilize teleconferences or videoconferences instead of in-person meetings
  • Minimize or eliminate nonessential events
  • Eliminate any requirements for a doctor’s note to justify an absence
Workplace Function
  • Plan for absence coverages
  • Plan for reassignment of essential duties
  • Arrange for staggered work schedules where possible
  • Establish temporary succession planning
  • Establish contingency plans for temporary workers
  • Plan for the redistribution of duties
Travel
  • Implement inquiries regarding personal travel to affected areas
  • Restrict nonessential business travel
  • Develop provisions for employees who become ill during business travel
  • Consider investing in (additional) business travel insurance
Evaluation of Employees
  • Prepare a script (jointly with legal counsel) for inquiries regarding symptoms
  • Consider (jointly with legal counsel) taking temperatures in event of pandemic
    Communicate policies with employees in advance
  • Send home employees with symptoms
  • Prepare a script for communications with coworkers who have been exposed
  • Send home coworkers who have been exposed
  • Identify a procedure for self-reporting exposure by travel, family member, etc.
  • Do not request health records from the group health plan or make disability inquiries
Leave Policies/Procedures
  • Identify flexibility in leave policies
  • Consider expansion of eligibility for approved leaves
Compensation
  • Understand payment requirements for exempt employees
  • Understand payment requirements for non-exempt employees
  • Consider paid time off when employee is not otherwise PTO eligible
  • Determine pay policies for quarantined employees
Group Health Plans
  • Consult with legal counsel regarding any disclosure of an employee’s health information (see the Department of Health and Human Services’HIPAA bulletin)
  • Consider expanding access to HIPAA-compliant telehealth services
  • Consider and consult an employee benefits attorney regarding waiving cost-sharing requirements for testing
  • Consider expanding coverage for off-formulary prescription drugs in the event of supply shortages
  • Understand and plan for the repercussions of coverage loss due to quarantine or workplace shutdown for plans that base eligibility on hours of service
  • Consider to what extent expatriate employees may need additional coverage
Other Employee Benefits
  • Review contracts with employee benefits vendors for force majeure clauses and governing law that permits reliance on a doctrine of impossibility or frustration
  • Consult employee benefits counsel to determine whether a hardship distribution to an affected employee is permissible under your 401(k) plan
  • Anticipate changes in 401(k) plan investment options or deferral elections given market volatility
Immigration
  • Review where expats are located on assignments and consider if they should be moved back to home countries
  • Review visa expiration dates and determine if those visas will be able to be timely renewed in light of limited consulate services and/or limited travel policies
  • Review international assignments scheduled for the upcoming months and determine if they will be able to proceed
  • Consider H-1B required wage compliance if “benching” employees
  • Consider H-1B required wage compliance if H-1B workers request time off
Union Issues
  • Consider whether any policies or changes require bargaining
  • Coordinate with union representative to discuss contingency planning
Layoffs and Shutdowns
  • Understand legal prohibitions on employee termination (e.g., FMLA, USERRA, ADA approved leaves)
  • Prepare for potential WARN Act implications
  • Determine required and discretionary severance for employees
  • Determine required and discretionary continuation of health care benefits (e.g., COBRA)
  • Outline a plan for bringing employees back to work

Blog Posts

Country-by-Country Guide: Government Measures Taken in Response to COVID-19

In collaboration with our international law firm partners, we are regularly updating a chart compiling key economic, employment, safety and export measures implemented by governments worldwide in response to the COVID-19 pandemic. The summary is not intended as legal advice but as a practical resource for companies adapting to the global pandemic. We will continue to provide the latest version of this summary here on this page (link above) as well as on our Trump and Trade blog.

Recent COVID-19-Related Blog Posts:

Team

Webinars

The global COVID-19 pandemic is an unprecedented situation with developments occurring at a rapid pace. As such, our previous client updates and webinars may contain information that has changed since publication. Please be sure to refer to our most recent publications and contact your Thompson Hine lawyer for additional information.


Recent CFIUS Developments: Regulatory Changes and Impact of COVID-19 Pandemic on National Security Concerns - 5.27.2020


Preparing Your Business for the COVID-19 World: Paycheck Protection Program (PPP) Loans - 5.26.2020


Preparing Your Business for the COVID-19 World: M&A Transactions - 5.19.2020


Preparing Your Business for the COVID-19 World: Force Majeure Clauses - 5.12.2020


Return-to-Work Considerations for Employers Webinar - 5.7.2020


Preparing Your Business for the COVID-19 World: Insurance Considerations Webinar - 5.5.2020


COVID-19 Impct on International Trade Webinar - 4.30.2020


Preparing Your Business for the COVID-19 World Webinar: Session One
Opening Pandora's Box Protecting Your Business by Ensuring a Safe Environment for Employees and Customers  April 28, 2020


The FFCRA Is in Effect: What Now for Employers? Webinar  April 8, 2020


The CARES Act: Employment & Benefits Update Webinar – April 01, 2020


Retirement Considerations in a COVID-19 Environment Webinar  March 27, 2020


Workforce Management Considerations in the COVID-19 Era Webinar  March 24, 2020


Families First Coronavirus Response Act: Next Steps for Employers Webinar  March 20, 2020


COVID-19: Planning Considerations for Employers Webinar  March 10, 2020