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
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.
Statutes of Limitations Are Moving Targets During the COVID-19 Pandemic - COVID-19 Update
April 09, 2020
FEMA Announces Export Restrictions on Personal Protective Equipment (PPE) - COVID-19 Update
April 09, 2020
Annual Shareholder Meetings in the Time of COVID-19 - COVID-19 Update
April 07, 2020
Shareholder Activist Filings in Light of the COVID-19 Pandemic - COVID-19 Update
April 07, 2020
CMS Issues Blanket Waivers of the Stark Law During the COVID-19 Public Health Emergency - COVID-19 Update
April 03, 2020
DoD Issues Class Commercial Item Determination for Critical Supplies & Services to Aid COVID-19 Response - COVID-19 Update
April 03, 2020
Ohio’s Amended Stay-at-Home Order - COVID-19 Update
April 03, 2020
Ohio Report: COVID-19 Relief for Commercial Tenants and Borrowers - COVID-19 Update
April 02, 2020
FTC and DOJ Announce Expedited Procedure to Provide Antitrust Guidance to Businesses Responding to COVID-19 Pandemic - COVID-19 Update
April 02, 2020
FMC to Address COVID-19 Port Congestion by Engaging Industry Stakeholders - COVID-19 Update
April 02, 2020
FTC and DOJ Announce Changes to Civil Merger Review Process During COVID-19 Pandemic, Including Changes to HSR Early Termination Procedure - COVID-19 Update
April 01, 2020
Communicating With Your Lenders Early and Often Is More Important Than Ever - COVID-19 Update
April 01, 2020
Emergency Orders Increase Access to Medical Care and Reimbursement for Telehealth Services During COVID-19 Public Health Emergency - COVID-19 Update
March 31, 2020
New Jersey Announces Grants for Small Businesses and Expands Employee Benefits Programs for COVID-19-Related Reasons - COVID-19 Update
March 31, 2020
FMCSA Temporarily Extends Commercial Drivers’ Licenses, Permits and Medical Certifications - COVID-19 Update
March 30, 2020
U.S. EPA Issues Guidance for Temporary Enforcement Discretion During COVID-19 Pandemic - COVID-19 Update
March 30, 2020
CARES Act: Implications for Businesses - COVID-19 Update
March 28, 2020
SEC Grants No-Action Relief to Permit Purchase of Debt Securities from Affiliated Mutual Fund* - COVID-19 Update
March 27, 2020
Federal CARES Act Provides Substantial Relief to Employers from Effects of COVID-19 - COVID-19 Update
March 27, 2020
CARES Act: Paycheck Protection Program – Forgivable Loans for Small Businesses - COVID-19 Update
March 27, 2020
Government Contracting Using Emergency Acquisition Flexibilities - COVID-19 Update
March 27, 2020
Remote Online Notarization Emerging as an Essential Business Tool in Ohio - COVID-19 Update
March 27, 2020
SEC Order Extends Reporting and Delivery Exemptions for Certain Public Companies - COVID-19 Update
March 26, 2020
Public-Private Partnership Created for Emergency Drug Packaging Solutions - COVID-19 Update
March 26, 2020
SEC Temporarily Exempts Open-End Funds from Some Short-Term Funding Requirements - COVID-19 Update
March 26, 2020
As More Employees Work Remotely, Protecting Trade Secrets Must Remain “Essential Business” - COVID-19 Update
March 26, 2020
Insider Trading Compliance During the COVID-19 Pandemic - COVID-19 Update
March 25, 2020
DOL Issues Employer Guidance on Implementing Families First Coronavirus Response Act - COVID-19 Update
March 25, 2020
When Your Critical Service Providers Telecommute: Risks and Tips - COVID-19 Update
March 25, 2020
Ohio’s Stay-at-Home Order: Considerations for Regulated Operations - COVID-19 Update
March 25, 2020
Stay-at-Home Orders: Q&A for Businesses with Transportation Operations - COVID-19 Update
March 24, 2020
New York Courts Severely Curtail Litigation Activity in Response to COVID-19 Crisis - COVID-19 Update
March 24, 2020
COVID-19 and International Trade: Status of Trade-Related U.S. Government Agencies & Courts and Helpful Online Resources - COVID-19 Update
March 24, 2020
DHS Issues Guidance on Identification of Essential, Critical Infrastructure Workers - COVID-19 Update
March 24, 2020
Insurance Coverage for Losses Related to the Coronavirus - COVID-19 Update
March 23, 2020
Review Teleworking Cybersecurity Policies and Practices - COVID-19 Update
March 23, 2020
Mitigating COVID-19’s Commercial and Business Impacts: SBA’s Loan Programs - COVID-19 Update
March 23, 2020
FINRA Regulatory Guidance Provides Broker-Dealers Limited Relief Amid COVID-19 Outbreak - COVID-19 Update
March 23, 2020
Ohio Issues Stay-at-Home Order - COVID-19 Update
March 22, 2020
OCR Allows Flexible Telehealth Technology Use During COVID-19 Emergency - COVID-19 Update
March 20, 2020
Top Five Considerations for Construction Projects During the COVID-19 Outbreak - COVID-19 Update
March 20, 2020
SEC Issues Guidance for Registered Funds Facing Operational Challenges Due to COVID-19 - COVID-19 Update
March 20, 2020
Chemical Industry Regulatory Update – March 2020 - A Newsletter from The Adhesive and Sealant Council and Thompson Hine LLP
March 20, 2020
The Federal Government’s COVID-19 Response Requires Employers With Fewer Than 500 Employees to Provide Paid Leave - COVID-19 Update
March 20, 2020
IRS Notice - Tax Payment Extension
March 19, 2020
New York State Enacts Paid Sick Leave for COVID-19 Quarantines, Lowers Percentage of Employees Allowed Onsite - COVID-19 Update
March 19, 2020
FMCSA Expands Emergency Regulatory Relief for Truck Transportation of Essential Supplies, Equipment, and Persons - COVID-19 Update
March 19, 2020
OFCCP Issues National Interest Exemption for Coronavirus Relief Contracts - COVID-19 Update
March 19, 2020
New Employee Leave Benefits Enacted by Families First Coronavirus Response Act - COVID-19 Update
March 19, 2020
Families First Coronavirus Response Act: Five Issues for Benefit Plan Sponsors to Consider - COVID-19 Update
March 18, 2020
SEC Provides Temporary Regulatory Relief for Investment Advisers - COVID-19 Update
March 18, 2020
Frequently Asked Questions about COVID-19 and Employee Privacy - COVID-19 Update
March 18, 2020
SEC Issues Annual Meeting Guidance Amid COVID-19 Concerns - COVID-19 Update
March 17, 2020
SEC Extends Relief Overriding In-Person Board Meeting Requirements - COVID-19 Update
March 16, 2020
COVID-19: DOL Reminds Employers of Their Duties Under the FMLA, ADA and FLSA - COVID-19 Update
March 16, 2020
How Federal Contractors Can Prepare for Coronavirus Disruptions - COVID-19 Update
March 16, 2020
House Passes Families First Coronavirus Response Act - COVID-19 Update
March 16, 2020
OSHA Issues COVID-19 Guidance for Employers - COVID-19 Update
March 13, 2020
The COVID-19 Virus Presents Contracting Opportunities and Challenges to Life Science and Biotechnology Companies - COVID-19 Update
March 13, 2020
Considerations for Practicing Telemedicine During the COVID-19 Pandemic - COVID-19 Update
March 13, 2020
IRS Issues Guidance on High Deductible Health Plans and COVID-19 Expenses - COVID-19 Update
March 12, 2020
Going off Script: Managing the Workplace under the Specter of the COVID-19 Virus - COVID-19 Update
March 09, 2020
Novel COVID-19 Virus, Commercial Contracts and Force Majeure - Business Litigation Update
March 05, 2020
The Coronavirus Threatens U.S. Company Supply Chains - Practical Tips and Contract Considerations to Manage Risk - Transportation Update
February 25, 2020
Employer Policy/Consideration Checklist – Pandemic Plan
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
- “House Ways & Means and Senate Finance Chairmen Request Expedited ITC Section 332 Investigation to Identify COVID-19 Imported Goods,” Thompson Hine Trump and Trade Blog, April 8, 2020
- “Government Measures Worldwide in Response to COVID-19,” Thompson Hine Trump and Trade Blog, April 7, 2020
- "USTR Issues China Additional Section 301 Tariff Exclusions, Including Exemptions for Certain Medical Supplies," Thompson Hine Trump and Trade Blog, March 29, 2020
- "Country Guide: COVID-19 Foreign Government Measures," Thompson Hine Trump and Trade Blog, March 28, 2020
- “COVID-19 and International Trade: Status of Trade-Related U.S. Government Agencies & Courts and Helpful Online Resources,” Thompson Hine Trump and Trade Blog, March 22, 2020
- "USTR Seeks Comments on Possible Modifications to China Section 301 Tariffs in Response to COVID-19," Thompson Hine Trump and Trade Blog, March 22, 2020
- "U.S. Trade Agencies and Courts Begin to Adjust to COVID-19 Concerns," Thompson Hine Trump and Trade Blog, March 17, 2020
- "Helpful COVID-19 Web Resources for International Trade Professionals," Thompson Hine Trump and Trade Blog, March 17, 2020
- "USTR Issues Additional China Section 301 Tariff Exclusions, including Exemptions for Certain Medical Supplies Helping to Curb Coronavirus Spread," Thompson Hine Trump and Trade Blog, March 15, 2020
- "USTR Issues Section 301 Product Exclusions for Medical Supplies to Help Curb Coronavirus Spread," Thompson Hine Trump and Trade Blog, March 9, 2020
- Business Litigation – Laura Watson Schultz
216.566.5824, Laura.Schultz@ThompsonHine.com
- Business Restructuring, Creditors' Rights
& Bankruptcy – Curtis L. Tuggle
216.566.5904, Curtis.Tuggle@ThompsonHine.com
- Commercial & Public Finance – Irving C. Apar
212.908.3964, Irving.Apar@ThompsonHine.com
- Construction – Jeffrey R. Appelbaum
216.566.5548, Jeff.Appelbaum@ThompshonHine.com
- Corporate Transactions & Securities – Rob D. Powell
614.469.3274, Rob.Powell@ThompsonHine.com
- Employee Benefits & Executive Compensation – Kim Wilcoxon
513.352.6524, Kim.Wilcoxon@ThompsonHine.com
- Environmental – Nathan C. Hunt
937.443.6908, Nathan.Hunt@ThompsonHine.com
- Government Contracts – Tom Mason
202.263.4168, Thomas.Mason@ThompsonHine.com
- Health Care – Cori R. Haper
937.443.6856, Cori.Haper@ThompsonHine.com
- Intellectual Property – Roger H. Bora
937.443.6817, Roger.Bora@ThompsonHine.com
- International Trade – David M. Schwartz
202.263.4170, David.Schwartz@ThompsonHine.com
- Labor & Employment – Deborah S. Brenneman
513.352.6638, Debbie.Brenneman@ThompsonHine.com
- Life Sciences – Faith L. Charles
212.908.3905, Faith.Charles@ThompsonHine.com
- Personal & Succession Planning – James Spallino, Jr.
216.566.5865, James.Spallino@ThompsonHine.com
- Privacy & Data Security – Thomas F. Zych
216.566.5605, Tom.Zych@ThompsonHine.com
- Product Liability Litigation – William J. Hubbard
216.566.5644, Bill.Hubbard@ThompsonHine.com
- Real Estate – Patrick Abell
216.566.7978, Patrick.Abell@ThompsonHine.com
- Tax – Thomas J. Callahan
216.566.5612, Tom.Callahan@ThompsonHine.com
- Transportation – Karyn Booth
202.263.4108, Karyn.Booth@ThompsonHine.com
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.
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
