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Coronavirus (COVID-19): Navigating the Path Ahead

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Baker Donelson's resource for helping your business beyond the curve of COVID-19.

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Employment Risks and COVID-19 September 17, 2020
Your Burning Questions Answered: COVID-19 and More August 20, 2020
Return to School Plan: Key Legal, Policy, and Operational Considerations for Independent Schools August 12, 2020
Bracing for the Next Bankruptcy Wave in the Post-COVID World July 22, 2020
Strategies for Minimizing Liability Relating to Reductions in Force July 16, 2020
Immigration Restrictions Amidst COVID and Politics: What's Going On and What to Do July 9, 2020

Practice Overview

Overview

To help our clients and communities navigate the growing impact of the coronavirus (COVID-19) pandemic, Baker Donelson's Coronavirus Task Force is monitoring the rapidly changing situation and updating this site with helpful and current resources. The Task Force includes leading professionals from multiple Baker Donelson practice areas with a range of experience in the many operational, legal, regulatory and governmental issues that are vital to ensuring our clients receive comprehensive guidance on how to respond to their unique challenges.

A Message From Our CEO: Baker Donelson has a comprehensive business continuity plan that ensures our Firm's continued operation and uninterrupted service to our clients throughout the duration of this public health crisis. Our hope is that the duration will be limited, but regardless of how long it lasts, we will have ample resources to service our clients and keep our people safe. Your partnership, friendship and trust mean more now than ever. We look forward to continuing to serve you and we wish safety and good health to everyone. – Timothy M. Lupinacci

Coronavirus (COVID-19) Updates

(This page will be updated often with new information.)

September 21

  • Washington Budget and Appropriations Outlook
    The Senate has not passed any FY21 Appropriations Bills as of the Labor Day break. The problem relates to the parallel consideration of the next round of COVID funding. The Republicans have insisted on assurances from the Democrats that no COVID or Police Reform Amendments would be considered as amendments to the regular bills. The Democrats have been unwilling to give such assurances given the difficulty the Senate has experienced in advancing the next round of COVID bills.
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  • CARES Act: Next Steps
    The COVID-19 pandemic – the size, scale, and relative absence of knowledge as to how best to treat, prevent, and monitor – has resulted in a host of different initiatives.
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  • The Status of State CARES Act Funding
    The Coronavirus Aid, Relief, and Economic Security (CARES) Act provided $150 billion to the Department of Treasury to be issued to states and local governments through the Coronavirus Relief Fund (CRF), also referred to as "State CARES Act funding."
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  • FEMA Actions: Interim Policy on "Coronavirus (COVID-19) Pandemic: Work Eligible for Public Assistance"
    FEMA has issued an Interim Policy on "Coronavirus (COVID-19) Pandemic: Work Eligible for Public Assistance" that appears to limit the costs incurred to prevent the spread of COVID-19 that are eligible for FEMA funding. The Interim Policy applies to work performed on or after September 15, 2020, and states that it has extended the deadline for performing emergency eligible work and will give notice of the deadline completing eligible work 30 days prior to establishment of the deadline."
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  • Tax Extenders: What Is Likely To Be Expanded or Modified?
    The Coronavirus Aid, Relief, and Economic Security (CARES) Act has provided important benefits for taxpayers in many ways.The Coronavirus Aid, Relief, and Economic Security (CARES) Act has provided important benefits for taxpayers in many ways.
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  • Liability Protection Provisions in the New Republican COVID Relief Package
    Throughout the summer, Senate Majority Leader McConnell has emphasized that any additional COVID relief package would include COVID-related liability protections. While negotiations on an additional COVID package between the White House and Congress sputtered over August, on Tuesday, September 8, McConnell introduced a Republican so called "skinny" relief bill that included liability protections along with extension of the Paycheck Protection Program (PPP) funding, unemployment assistance, child care support, and other education funding.
    Read More

September 9

  • CMS Amps Up Penalties on Long Term Care Facilities for Failing to Report COVID-19 Data and Mandates Staff Testing for the Virus
    Effective September 2, 2020, the Centers for Medicare and Medicaid Services (CMS) implemented an interim final rule with comment period to bolster its regulatory authority in addressing a number of issues relating to CMS's response to the COVID-19 public health emergency (PHE). Among other provisions, this wide-ranging rule contains two notable directives that nursing homes and other federally regulated long term care (LTC) facilities should be aware of and that will directly impact operations: (1) an increase in civil monetary penalties (CMP) for failure to timely report information relating to COVID-19; and (2) a new requirement for LTC facilities to conduct COVID-19 testing of residents and staff. The directive regarding civil monetary penalties is applicable for one year beyond the expiration of the PHE. CMS believes that the urgency of the PHE constitutes good cause to waive the normal notice-and-comment process, and the agency has already issued some guidance to LTC facilities and surveyors describing the implementation of the testing provision. We also note that, while the federal government is setting standards under the rule regarding testing frequency, individual states may also require more frequent testing by law, rule or order. Comments must be received no later than 5 p.m. ET on November 1, 2020.
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  • Navigating COVID-19: Tax Nexus, Withholding Taxes, and State Unemployment Taxes
    COVID-19 has caused many companies to introduce or expand a remote work policy for employees, either in a temporary capacity or in a more permanent one. With a large number of companies' employees working remotely, several important tax issues need to be considered and addressed. Baker Donelson's Tax attorneys have fielded numerous calls from companies, as well as accountants and other professionals, to address these concerns. Three of the most significant issues include income tax nexus, withholding taxes, and state unemployment taxes.
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September 1

  • Executive Order "Deferring" Taxes: Notice 2020-65 Postures Guidance
    The President's Memorandum on Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster, dated August 12, 2020 (Order), directs the Secretary of the Treasury "to defer the withholding, deposit, and payment" of the employee's share of FICA taxes funding Social Security for the period of September 1, 2020, through December 31, 2020 (Deferral Period). That Order also directed the issuance of guidance to implement the Order. Since the Order was issued on Wednesday, August 12, there have been concerns expressed from many different business sectors regarding the need for prompt and clear guidance addressing a number of issues related to this Order as it seemed to place an undue burden on employers. Just one such issue is whether employers will be responsible for the unpaid deferred taxes with respect to employees who are no longer with the employer when the deferred taxes are to be withheld and deposited.
    Read More

August 31

  • DOL Releases New FFCRA Child Care Guidance
    Late last week, the Department of Labor (DOL) answered three questions related to being eligible for leave under the Families First Coronavirus Response Act (FFCRA) for child care needs. The new guidance addresses difficult questions facing employers and employees as we venture into the fall school semester and parents potentially face several more months of school closures and distance learning. You may recall that at the end of last month, the DOL issued updated guidance which made clear that parents with children at home due to the child's school or place of care "mov[ing] to online instruction or to another model in which children are expected or required to complete assignments at home" are eligible for FFCRA leave. The DOL explained that in the event the "physical location" where the child "received instruction or care is now closed," that school or place of care is considered "closed" under the definitions articulated by the FFCRA. The DOL made clear that this is the case regardless of whether some or all instruction provided to the child is through "distance learning" or a similar format.
    Read More

August 26

  • "ZOOM-ing" In on Virtual Trials: Four Key Considerations for Success
    COVID-19 has touched nearly every aspect of personal and professional life. The legal profession has not been spared, with nearly every court in the country implementing systems to reduce the number of in-person court appearances. While some cases are being postponed, others are moving forward utilizing virtual meeting platforms, such as Zoom, which allow the parties to present their case remotely.
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  • Remote Depositions: A Great Tool for Litigators During Coronavirus
    Litigators can strike a balance between actively moving their cases forward and adhering to coronavirus guidance and orders by remotely conducting depositions. To conduct a successful remote deposition, litigators should consider the following factors.
    Read More

August 24

  • Tennessee Joins States Extending Immunity to Businesses for COVID-19 Liability Issues
    On August 17, 2020, Tennessee Governor Bill Lee signed legislation (S.B. 8002 / H.B. 8001) passed in a special session called by the Governor to address a stalemate between the Tennessee House and Senate on the scope of liability protection for businesses (including health care providers and schools) for COVID-19-related claims. The separate Houses of the Legislature were unable to agree upon retroactivity provisions in competing versions of the bill during the regular session. The leadership in both Houses, working with the Governor, were able to resolve their differences in a special session, which resulted in legislation providing a broad array of protections to Tennessee health care providers, businesses and schools on this issue. The legislation became effective on August 18, 2020.
    Read More

August 20

  • S.A.L.T. Select Developments – Tax Payment and Return Filing Responsibilities, Supplement #9
    Due to COVID-19, the Internal Revenue Service announced extensions of deadlines to pay various taxes and file various tax returns, with such extensions generally being through July 15, 2020. Those IRS extensions, followed in whole or in part by many states, were very helpful to taxpayers. While these IRS extensions have now expired, many states continue to adjust their tax and related requirements to address specific objectives such as raising revenues to assist with depleted governmental budgets, providing incentives to support business employers, and to assist taxpayers generally in dealing with the realities of COVID-19. This special edition reviews certain updates by several states which may be important to taxpayers.
    Read More

August 18

  • What Georgia's COVID-19 Pandemic Business Safety Act Means for Your Business's Liability
    Georgia Governor Brian Kemp signed Georgia Senate Bill 359 into law last week. Georgia's COVID-19 Pandemic Business Safety Act (the Act) is an undoubted win for businesses, health care and otherwise, as Georgia's legislature cited the need for "additional flexibility to provide critical assistance and care during the unprecedented COVID-19 pandemic." In what is likely a sign of similar pieces of legislation and executive action to come, businesses in other states need to be on the watch for similar acts to be best prepared to face COVID-19 claims.
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August 14

  • COVID-19 Pandemic Trickles Into Some Aspects of SNF PPS FY 2021 Final Rule
    On August 5, 2020, CMS issued its final rule updating FY2021 payment rates used under the prospective payment system (PPS) for Skilled Nursing Facilities (SNFs). The FY 2021 payment rates will be implemented to reflect the use of the Patient Driven Payment Model (PDPM) case-mix classification system from October 1, 2020 through September 30, 2021. The rule also made notable updates to the payment system's wage index as a result of CMS' adoption of OMB's 2018 statistical area delineations. Additional policies made changes to the case-mix classification code mappings used under the SNF PPS, minor revisions in the regulatory text, and an update to the SNF value-based purchasing (VBP) program that affects Medicare payment to SNFs. The changes set forth in the final rule will be effective October 1, 2020.
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August 12

  • Executive Order "Deferring" Taxes: What Are The Employer's Options?
    On August 8, 2020, President Trump issued the Memorandum on Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster (Order). The Order directs the Secretary of Treasury to defer the "withholding, deposit, and payment" of the employee's share of FICA taxes funding Social Security for the period of September 1, 2020, through December 31, 2020 (Deferral Period). Under the Order, that deferral "shall be made available with respect to any employee the amount of whose wages or compensation, as applicable, payable during any bi-weekly pay period generally is less than $4,000, calculated on a pre-tax basis, or equivalent amount with respect to other pay periods."
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August 4

  • Potential Provider Protections: How the Proposed SAFE TO WORK Act Impacts Liability Claims Against Health Care Providers
    On July 27, 2020, Senate Republicans unveiled the "Safeguarding America's Frontline Employees To Offer Work Opportunities Required to Kickstart the Economy Act," or the "SAFE TO WORK Act" (the Act).1 The proposed legislation is intended to "establish necessary and consistent standards for litigating certain claims specific to the unique coronavirus pandemic," to "prevent the overburdening of the court system with undue litigation," to "encourage planning, care, and appropriate risk management" by businesses, health care providers, and others, to "prevent litigation brought to extract settlements and enrich trial lawyers rather than vindicate meritorious claims," and to "protect interstate commerce from the burdens of potentially meritless litigation," among other purposes. The Act offers extremely broad liability and immunity protections to businesses, schools, and, in a separate section, "health care providers."
    Read More

July 30

  • OSHA Expected to Issue More COVID-19 Citations in Light of Recent Lawsuit
    The Occupational Safety and Health Administration (OSHA) has increased pressure on health care facilities, and long term care providers specifically, by issuing COVID-19-related citations and initiating COVID-19-related investigations.
    Read More

July 27

  • S.A.L.T. Select Developments – Tax Payment and Return Filing Responsibilities, Supplement #8
    Due to COVID-19, the Internal Revenue Service announced extensions of deadlines to pay various taxes and file various tax returns, with such extensions generally being through July 15, 2020. Those IRS extensions, followed in whole or in part by many states, were very helpful to taxpayers. While these IRS extensions have now expired, many states continue to adjust their tax and related requirements to address specific objectives such as raising revenues to assist with depleted governmental budgets, providing incentives to support business employers, and to assist taxpayers generally in dealing with the realities of COVID-19. This special edition reviews certain updates by several states which may be important to taxpayers.
    Read More

July 16

  • COVID-19 (and Other) Relief for the Marine Industry
    Representatives Sean Patrick Maloney (D-NY) and Peter DeFazio (D-OR) have recently introduced the Maritime Transportation System Emergency Relief Act (MTSERA) to provide financial relief to the maritime industry for losses due to COVID-19 or other natural disasters or emergencies, which are defined as any natural disaster such as a hurricane or flood, as well as any catastrophic failure from an external cause that impacts the U.S. maritime industry. The bill specifically states that the COVID-19 pandemic shall be treated as an emergency for purposes of funding under this Act.
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  • Tips for Trusting Teleworkers with Trade Secrets
    As more and more American workers are logging into their jobs remotely, many employers have been forced to enact teleworking policies on a massive scale. Some of these work-from-home policies may have been implemented in a haphazard way so that employees could begin working remotely within a matter of days. The need for speed in sending employees home may have left some employers without time to consider the potential impact of massive-scale teleworking on a company's protected confidential information. Due to the increased risk that employees may be able to expose confidential trade secrets to unauthorized individuals based on the nature of remote working, it is important that employers remain vigilant in protecting confidential and trade secret information.
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  • DOL Regulations Address Potentially Overlooked Employee Protections Against Discrimination and Retaliation Contained in the EPSLA and the EFMLEA
    By now, most employers are hopefully aware of the new employee leave requirements of the Families First Coronavirus Response Act (FFCRA), which became effective on April 1, 2020 and will last through December 31, 2020. More specifically, Division E of the FFCRA, the Emergency Paid Sick Leave Act (EPSLA), entitles certain employees to take up to two weeks of paid sick leave for qualifying absences related to the COVID-19 pandemic while Division C, the Emergency Family and Medical Leave Expansion Act (EFMLEA), permits certain employees to take up to 12 weeks of expanded family and medical leave, ten of which must sometimes be paid, for specific reasons related to the pandemic. Considering the widespread discussion of the major provisions of the FFCRA, it would be hard for an employer to have missed these leave requirements. Not as widely reported, however, are the non-discrimination and anti-retaliation provisions contained in the same legislation.
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July 15

  • Spotlight on Alabama: Alabama Announces $100 Million Small Business Grant Program
    On July 8, 2020, Governor Ivey announced the launch of "Revive Alabama," a new $100 million grant program to assist small businesses in Alabama affected by the ongoing coronavirus pandemic. The grant program is funded from amounts received by the state from the federal CARES Act.
    Read More

July 14

  • Home Health COVID-19 Telecommunications Technology Expansions are Here to Stay
    On June 25, 2020, Centers for Medicare and Medicaid Services issued a proposed rule to make permanent all the flexibilities concerning the use of technology and telecommunications systems introduced for home health providers during the COVID–19 Public Health Emergency.
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  • Directors and Officers: Key Considerations for Continued Response to COVID-19
    As COVID-19 cases spike in many jurisdictions throughout the Southeast, corporations are forced to quickly adapt to an ever-changing environment. Despite the need to act quickly, corporate boards must remain mindful of, and diligently adhere to, their legal duties owed to the corporation and its shareholders. As discussed below, boards should ensure that they fulfill their duties in approving the corporation's continued response to the COVID-19 pandemic.
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July 13

  • CARES Act Coronavirus Relief Fund Compliance: Enter the OIG
    On July 2, 2020, the U.S. Department of Treasury Office of Inspector General (OIG) issued a memorandum providing a glimpse into how it will monitor the receipt, disbursement, and use of financial assistance from the Coronavirus Relief Fund or CRF. Congress provided $150 billion for the CRF through the CARES Act to provide much needed funding to state, local, and tribal governments, the District of Columbia, and U.S. territories navigating the impact of the COVID-19 outbreak. Treasury made direct CRF payments to governmental entities with populations over 500,000 with the expectation that those recipients would transfer funding to local units of government that did not meet the 500,000 population threshold. The funds may be used for expenses necessary to address the COVID-19 pandemic, including, e.g., testing and contact tracing; support for public and private hospitals; economic support to individuals and small businesses; support for distance learning; and improving telework capabilities. Now, roughly 90 days following the deadline for recipients to submit the certifications required to receive the funds, OIG has issued additional guidance on reporting and record retention requirements. OIG will require recipients to submit their first interim report by the end of this week — July 17, 2020.
    Read More

July 9

  • OSHA Issues Guidelines for Oil and Gas Industry Workers and Employers
    The Occupational Safety and Health Administration (OSHA) recently issued guidelines for oil and gas workers and employers during the Coronavirus (COVID-19) pandemic. While similar to guidelines issued previously by various governmental authorities, this guidance is specific to oil and gas industry workers and employers.
    Read More

July 7

  • Paycheck Protection Program Extended; SBA Releases Borrower Data
    On July 4, President Trump signed S. 4116 extending the deadline for applying for a loan under the Paycheck Protection Program (PPP) from June 30 to August 8, 2020. Other than extending the deadline for applying for a PPP loan, S.4116 makes no statutory changes to the PPP or borrower eligibility although as noted below, SBA continues to ease certain eligibility requirements.
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July 1

  • EPA Plans to Terminate COVID-19 Enforcement Flexibility Policy
    The EPA announced on June 22, 2020, that "in the near future" it will terminate its policy from earlier this year granting industries discretion from meeting compliance obligations under environmental regulations as a result of COVID-19. On March 26, 2020, the EPA issued a policy directive that said it does not intend to enforce against violations where compliance is not possible as a result of COVID-19. The EPA indicated that, while entities should attempt to comply with compliance obligations, if it is not practical to do so as a result of COVID-19 they are only obligated to "act responsibly under the circumstances in order to minimize the effects and duration of any non-compliance caused by COVID-19," and "return to compliance as soon as possible." The response to EPA's loosening of enforcement led to extensive controversy, with several state attorneys general filing suit against the EPA and U.S. Senate Democrats expressing strong concerns.
    Read More

June 30

  • COVID-19 Economic Downturn: Consider a Special Litigation Committee to Protect Your Company from Meritless Shareholder Derivative Suits
    COVID-19 has forced significant changes to the way business is conducted, often requiring corporations to adjust quickly in the face of challenging conditions. Moreover, economic downturn frequently results in increased commercial litigation, some of which may involve meritless shareholder derivative suits. These suits are sometimes brought by shareholders seeking to blame management or the board of directors for the corporation's losses that were caused by market forces. As will be discussed below, formation of a Special Litigation Committee (SLC) can be an effective way to minimize the impact of these frivolous suits.
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  • DOJ Compliance Guidance Update: Flexibility and Data Centric Programs
    Earlier this month, the Department of Justice (DOJ) updated its Evaluation of Corporate Compliance Programs guidance. The updated guidance does not suggest that corporations will be rewarded for deemphasizing or not financially supporting effective compliance programs during these difficult and uncertain times. Rather, the guidance states that an evaluation of the efficacy of compliance programs should "address the sufficiency of the personnel and resources within the compliance function." One measure of the sufficiency of personnel and resources is funding. If funding cuts are made in compliance areas, those cuts need to be offset with increased efficiency and process improvements. And DOJ emphasizes its own flexibility in evaluating corporate compliance programs and recognizes that one size does not fit all. There must be "a reasonable individualized determination in each case." Thus, factors to be considered by DOJ include a company's "size, industry, geographic footprint and regulatory landscape."
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June 29

  • Human Resources and Employment Counsel Beware: Increase in Malware Attacks Raising New Concerns for Employers
    Human resources can no longer just rely on their IT and legal counsel to focus on the concerns and issues surrounding cyberattacks. As more companies re-open and unemployment rates grow, cyber criminals are continuing to exploit the global crisis in a myriad of ways. Cyberattacks are the best example of how this exploitation can create chaos. The month of May saw an increase in the record of cyberattacks, including employment-themed campaigns.
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  • CORONAVIRUS: Recent Policy and Guidance Updates on FEMA Public Assistance
    Building upon our prior alerts for the COVID-19 Pandemic, including guidance on eligible medical care costs and alternate care sites, the FEMA streamlined application and specific tips for hospitals and other medical providers applying for FEMA funds, we now provide an update on recent developments that impact consideration of a claim to the FEMA Public Assistance (PA) program.
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June 25

  • What Health Care Organizations Need to Know about Updated DOJ Compliance Guidance
    The Criminal Division of the Department of Justice (DOJ) recently issued a revised version of its "Evaluation of Corporate Compliance Programs" (Compliance Program Guidance). First issued in February 2017, the guidance is designed to assist prosecutors in decision making when conducting investigations of a corporation, contemplating whether to bring charges, or in negotiating a plea or other agreement. It is often used by companies as a road map on how to design, focus, evaluate and refine their own compliance programs. The updated guidance (Guidance Update) makes various, sometimes subtle, revisions to the Compliance Program Guidance that health care entities – even those with robust and mature compliance programs – should consider in evaluating their own compliance programs.
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  • S.A.L.T. Select Developments – Tax Payment and Return Filing Responsibilities, Supplement #7
    Due to COVID-19, the Internal Revenue Service (IRS) announced extensions of deadlines to pay various taxes and file various tax returns. Although some of these extension dates are different, most are automatically granted to July 15, 2020. However, the IRS announcements may not govern tax payment and return filing requirements imposed by states. This special edition reviews updates by several states which may be important to taxpayers.
    Read More

June 24

  • A Challenge to EPA's Enforcement and Compliance Assurance Program in the Wake of COVID-19
    On March 26, 2020, the U.S. Environmental Protection Agency ("EPA") issued a memorandum loosening enforcement for non-compliance of certain environmental laws and regulations as a result of the COVID-19 pandemic. Essentially, EPA indicated that while entities should make every effort to comply with environmental compliance obligations, if compliance is not reasonably practical as a result of burdens caused by COVID-19, such entities should attempt to "act responsibly under the circumstances in order to minimize the effects and duration of any non-compliance caused by COVID-19," and "return to compliance as soon as possible."
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June 23

  • Update on HHS Provider Relief Fund Payments and Reporting Requirements
    On June 9, 2020, the Department of Health and Human Services (HHS) announced additional payments under the COVID-19 Provider Relief Fund to reimburse providers for health care related expenses and revenue losses attributable to COVID-19. These new distributions will provide $25 billion in payments to safety net hospitals and Medicaid/CHIP providers and follows the roughly $100 billion already issued. The announcement also includes plans to issue $10 billion to hospitals through a second High Impact Distribution.
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June 18

  • SBA Issues New Paycheck Protection Program Forgiveness Applications and Forgiveness Guidance
    As a result of the passage of the Paycheck Protection Program Flexibility Act (the "Flexibility Act"), the SBA has issued two new Forgiveness Applications and provided additional guidance on forgiveness under the Paycheck Protection Program. The Forgiveness Applications, instructions and other guidance are available on the US Treasury website and the SBA website. We previously discussed provisions of the Flexibility Act in an alert issued on June 5. The new Forgiveness Applications and additional guidance were expected due to the changes made by the Flexibility Act. Many borrowers will benefit from the new, streamlined Forgiveness Applications.
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June 17

  • Navigating PPP, Employer Tax Deferral, and Tax Credits Under the FFCRA and CARES Act
    The President, Congress, the Treasury Department, the SBA and the IRS have been busy enacting and interpreting legislation intended to provide assistance to employers during the coronavirus pandemic, including the much-discussed Paycheck Protection Program (PPP).
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  • COVID-19: Is Your Business Protected by Louisiana's Limited Liability Legislation?
    Governor John Bel Edwards has signed a set of bills that will limit the liability for Louisiana businesses and governmental entities from (most) COVID-19-related claims for injuries or death. House Bill 826 (now Act No. 336) provides that no individual (natural or juridical) or governmental entity will be liable for civil damages resulting from exposure to COVID-19 in the course of business, unless there is evidence that the business or governmental entity was not in substantial compliance with applicable COVID-19 procedures and the injury or death was caused by the business or governmental entity's gross negligence. Of note, the bill recognizes the probability of multiple sources of applicable safety procedures from the federal, state, and local levels, and provides that the business/governmental entity only needs to substantially comply with any one applicable set of procedures.
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  • COVID-19: Much-Needed Liability Relief for Louisiana's Restaurant Industry
    At a time when restaurants across Louisiana are struggling financially due to the COVID-19 lockdown, the Louisiana Legislature has provided some much-needed relief from civil liability during its 2020 Regular Session.
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  • A General Counsel's View on Advising Through COVID-19
    Corporate legal departments have been faced with unique challenges as a result of COVID-19. We asked Clark Atlanta University (CAU) General Counsel Jennifer L. Ervin to provide insight for other in-house counsel on how to serve internal corporate clients despite the ever-changing legal landscape in light of new laws and guidance.
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  • A Baker's Dozen: Tips from In-House Counsel
    The current normal requires intentionality and flexibility. Below, in-house counsel from various organizations share a Baker's Dozen tips on how to manage and work through remote work, home life, and other impacts of COVID-19.
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  • How Leaders Can Retain Diverse Talent During the COVID-19 Pandemic
    As COVID-19 continues to fuel uncertainty and financial loss, resulting in furloughs, layoffs, terminations, reduced salaries, and other tough business decisions, recent headlines provide fresh perspectives on the reality that the last time this country faced a significant crisis – the 2008 Recession – a disproportionate number of lawyers of color were the first to experience layoffs and terminations as workloads declined. Businesses, including law firms, that are not intentional and vigilant about how short-term, economic-based employment decisions could impact their diverse talent could easily repeat history. Consequently, while maintaining diverse and inclusive work environments is critical during the current pandemic, retaining diverse talent is equally important.
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  • Revisiting 2020 Goals During the COVID-19 Pandemic
    Where do you see yourself on December 31, 2020? In a time of social distancing, working from home, and having more "free" time than we could have anticipated at the beginning of this year, this is a question more of us should consider. We are primed for self-reflection and taking time to set professional and personal goals for not only the remainder of 2020 but for this new decade. Regardless of your position or where you work, here are some best practices to help you take advantage of your "free" time.
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June 11

  • Congress CARES (Act): Expect Oversight Investigations
    Congressional activity is already underway to begin oversight related to the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Based on historical trends and the current political environment, oversight and resulting investigations by Congress will likely increase. Those inquiries will come from multiple sources, often overlapping in focus and objective. This alert provides an overview of the CARES Act provision for oversight, a brief summary of Congressional investigative authority, and some general advice about what to do if a letter/subpoena arrives from Congress.
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June 8

  • Organ Transplant Rates Remain Low: What Hospitals Need to Know to About Their Obligation to Help
    It may come as no surprise that, in the wake of the COVID-19 pandemic, the national organ transplantation rate has plummeted. Despite CMS's recently published guidance identifying transplants as Tier 3b procedures that should not be postponed, and even as elective surgeries resume, transplant rates remain abysmal.
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June 5

  • Congress Makes Significant Changes to Paycheck Protection Program
    Since the Small Business Administration (SBA) and United States Treasury (Treasury) issued the first Interim Final Regulations on April 2, 2020 under the Paycheck Protection Program (PPP), borrowers, potential borrowers and even members of Congress have raised questions over whether the PPP, as implemented, would provide the relief borrowers need and Congress intended when it enacted the Coronavirus Aid, Relief and Economic Security Act (CARES Act). Questions arose such as whether the PPP requirement that 75 percent of the forgivable amount1 be used for payroll costs provided sufficient flexibility for businesses with higher fixed costs and whether the two-year note term mandated by the SBA and Treasury allowed a sufficient time for repayment of non-forgiven amounts.
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June 4

  • From the Classroom to Court: Tuition Reimbursement Lawsuits
    Following the move by institutions of higher learning to an online learning environment as a result of COVID-19, students nationwide are filing class action lawsuits demanding tuition reimbursement. The students’ complaints allege online learning is an inadequate substitute for their traditional classroom education and that the institutions breached their contracts when they moved classes online and then enriched themselves with tuition revenue they should have returned to the students. Many of the complaints allege the institutions should have pro-rated the spring 2020 semester tuition and reimbursed the students for services not provided.
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  • Long Term Care Facilities Face Stricter CMS Enforcement Actions for COVID-19 Deficiencies
    On June 1, 2020, the federal Centers for Medicare and Medicaid Services (CMS) issued both a a press release detailing its expansion of enforcement actions against skilled nursing facilities and nursing facilities (LTC Facilities) with infection control deficiencies; and new guidance for states about COVID-19 reporting and infection control. The two releases describe how COVID-19 data collected from individual LTC Facilities will be made available to the public, the timeline by which states will conduct surveys of LTC Facilities, and set out enhanced penalties for infection control deficiencies identified during the surveys.
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  • COVID-19 Expected to Create a Tidal Wave of Workers' Compensation Claims: Is Your Business Ready for the Tsunami?
    When managing the 2019 novel Coronavirus (COVID-19) pandemic, employers who are already navigating the ever-changing landscape of federal, state, and local laws frequently overlook the potential liability and costs associated with increasingly complex workers' compensation claims. The number of workers' compensation claims are expected to balloon exponentially, thanks in no small part to COVID-19. Workers' compensation claims can implicate a host of other laws, including federal and state employment and discrimination laws as well as the Occupational Health and Safety Act of 1970 (OSHA). Employers are already beginning to see a host of new claims associated with diagnosed cases of COVID-19 purportedly from workplace exposure.
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June 3

  • Spotlight on Tennessee: Governor Announces Relief Payments to Small Business
    On June 1, 2020, Tennessee Governor Lee announced the Tennessee Business Relief Program for small businesses affected by the pandemic. That Program will be funded with $200 million from the federal Coronavirus Relief Funds provided to the state, and payments under the Program to small businesses will be administered through the Tennessee Department of Revenue.
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June 2

  • S.A.L.T. Select Developments – Tax Payment and Return Filing Responsibilities, Supplement #6
    Due to COVID-19, the Internal Revenue Service (IRS) announced extensions of deadlines to pay various federal taxes and file various federal tax returns, including Notice 2020-18 (March 21, 2020), Notice 2020-20 (March 27), and Notice 2020-23 (April 8). Although some of these extension dates are different, most are automatically granted to July 15, 2020. However, the IRS Notices may not govern tax payment and return filing requirements imposed by states. This special edition reviews specific updates by several states regarding short-term taxpayer responsibilities as a result of the pandemic.
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May 26

  • How Will the Coronavirus Pandemic Impact Litigation and Dispute Resolution in the Future?
    The practice of law certainly has changed significantly since ancient Greek and Roman times, when unregulated groups of "advocates" presented cases on behalf of ordinary citizens. In the 21st century, technology has been at the forefront of these continuing changes in legal practice. The economic shutdown resulting from the coronavirus pandemic, however, has made the importance of technology even more prominent in the legal system. From the U.S. Supreme Court holding its first oral arguments by phone (with a toilet apparently flushing in the background) to trials, depositions and mediations being held via videoconference, judges, lawyers and other participants in the legal system must accept technology more than ever. So, with such acceptance, it seems inevitable that some aspects of the legal system currently being conducted remotely may become the norm, presenting both opportunities and challenges for clients and their lawyers.
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May 21

  • Regulators Issue Small Dollar Lending Principles
    Earlier in March, the Federal Reserve Board (FRB), Federal Deposit Insurance Corporation (FDIC), National Credit Union Administration (NCUA) and Office of the Comptroller of the Currency (OCC and collectively with the FRB, FDIC and NCUA, the "Regulators") issued a joint statement encouraging supervised institutions to offer small dollar loans to both consumers and small businesses in response to COVID-19. The Regulators offered little specific guidance on implementing and administering a small dollar lending program (SDLP) in a cost-effective manner while maintaining compliance with applicable law.
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May 19

  • CMS's Second Interim Final Rule Further Expands Telemedicine, Service Availability and Payment Flexibilities Related to the COVID-19 Pandemic
    CMS recently issued its second round of changes to the Medicare regulations in response to the COVID-19 Public Health Emergency. CMS published its first interim final rule with comment period addressing the PHE in the April 6, 2020 Federal Register, effective March 31, 2020.
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May 18

  • Small Business Administration Issues Initial PPP Loan Forgiveness Application
    On Friday, May 15, 2020, the Small Business Administration (SBA) issued a Paycheck Protection Program Loan Forgiveness Application form (the "Forgiveness Application"), which provides the first guidance on how the SBA will require borrowers to seek forgiveness for Paycheck Protection Program (PPP) loans. The Forgiveness Application provides the SBA's initial perspective on the qualifications for loan forgiveness under the CARES Act.
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  • COVID-19 – Cybersecurity Risks for Health Care and Research Institutions are Heightened
    The health care industry and research organizations searching for vaccines and/or improved treatment protocols are on the front lines of the battle against COVID-19. There are obvious inherent risks to treating COVID-19 patients and performing research on infectious diseases, exposure to the virus chief among them. Another risk for COVID-19 health care providers and researchers that has been exacerbated by the COVID-19 crisis is the threat of cyber-attack.
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  • Wisconsin's Supreme Court Strikes Down Executive Branch's COVID-19 Stay-at-Home Order
    Governors, mayors, and other members of executive branches are contemplating leaving COVID-19 emergency stay-at-home orders, which have entered their third month, in place for months to come. This has led to public protests and push-back from the legislative and judicial branches. The latest example is from Wisconsin, where public protests against the stay-at-home orders have recently mounted and where the Supreme Court recently ruled in favor of the legislative branch by striking down a COVID-19 stay-at-home order issued by the executive branch.
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May 15

  • Reopening Louisiana Businesses: Not Quite Business as Usual
    The Louisiana State Fire Marshal has issued guidance for Louisiana businesses and organizations to assist them in complying with Governor Edwards' Phase One re-opening of businesses. The update specifically pointed out that these instructions/limitations do NOT apply to essential businesses – only those non-essential businesses that are not prohibited from re-opening.
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May 14

  • Return to Work Analysis for Vulnerable Employees During COVID-19
    As phased reopening of the economy occurs during COVID-19, some employees may be fearful to return to work. While fear alone is not a sufficient legal basis to remain at home, a medically vulnerable employee or an employee caring for a medically vulnerable individual may be entitled to benefits under the Families First Coronavirus Response Act1 or an accommodation under the Americans with Disabilities Act. The Family Medical Leave Act should be considered as well.
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  • COVID-19 Health Care Provider Immunity Update
    As the COVID-19 pandemic continues to dominate the legal landscape, approaches to establishing immunities for health care providers have rapidly evolved. Since mid-March, 23 states and the District of Columbia, through executive orders and/or legislation, have given health care providers limited grants of immunity for care provided to patients during the pandemic. When combining these new state actions with existing laws protecting health care providers from liability during states of public emergency, at least 33 states and the District of Columbia currently offer some level of immunity with respect to care provided during the pandemic.
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May 13

  • Welcome News on PPP Need Certification: Safe Harbor for Loans Below $2 Million, More Clarity for Loans Above $2 Million
    Earlier today, the Small Business Administration (SBA) issued FAQ 46 that provides additional guidance related to the certification of need that is required for a Paycheck Protection Program (PPP) loan. As we discussed in a prior alert, on April 23, 2020 (20 days after applications could first be submitted for a PPP loan), the SBA issued FAQ 31 that significantly increased the requirements surrounding an applicant's certification that "current economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant." When it initially issued FAQ 31, the SBA also created a Safe Harbor Deadline of May 7, 2020 to return PPP loans, which was then later extended to May 14, 2020. Borrowers that return a PPP loan by the Safe Harbor Deadline will be deemed to have certified in good faith their need for the loan.
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  • New FEMA Guidance on Eligible Medical Care Costs and Alternate Care Sites
    Building upon our prior Alerts summarizing the President's March 13 nationwide emergency declaration for the COVID-19 pandemic and subsequent state and territory specific Major Disaster Declarations, and information provided regarding the resulting eligible emergency protective measures costs, including specific tips for hospitals and other medical providers applying for these funds, we now provide an update on eligibility of medical costs available pursuant to the Federal Emergency Management Agency (FEMA) Public Assistance (PA) Program. FEMA Assistant Administrator, Keith Turi, approved FEMA Policy FP 104-010-04 on May 9, 2020, which provides details on eligible reimbursement for medical care costs. FEMA followed this policy with the Fact Sheet issued on May 12, 2020 to provide more information regarding FEMA's reimbursement for temporary and expanded medical facilities (Alternate Care Sites).
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  • Overview of HHS Provider Relief Fund Payments and Updated Guidance
    On May 1, 2020, the Department of Health and Human Services (HHS) announced additional payments under the COVID-19 Provider Relief Fund to reimburse providers for health care related expenses and revenue losses attributable to COVID-19. The new distributions provide $12 billion to 395 hospitals with high numbers of COVID-19 admissions and $10 billion to rural providers. The payments follow $50 billion already distributed to providers based on revenues.
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  • Reopening New Orleans: Laissez Les Bon Temps Rouler? Not So Fast!
    Mayor LaToya Cantrell has announced that the City of New Orleans will move to its Phase One Re-Opening on May 16 at 6 a.m. What will this look like? Some restrictions will remain in place while others will be relaxed.
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  • File Your Patents & Trademarks NOW!
    As businesses and offices prepare to reopen, the United States Patent and Trademark Office (USPTO) shows its ongoing support for innovation and entrepreneurship during the novel coronavirus outbreak. Silver linings for trademark owners and patent applicants are highlighted below.
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May 8

  • CMS Publishes Rule and Guidance Requiring Long Term Care Facilities to Conduct Additional COVID-19 Reporting to CDC and Residents
    The federal Centers for Medicare and Medicaid Services (CMS) has published a new interim final rule and additional guidance and FAQs that, among other portions applicable to other health care providers, address the new requirement that Medicare and Medicaid certified skilled nursing facilities and nursing facilities (LTC Facilities) not only report communicable diseases, health care-associated infections, and potential outbreaks to State and Local health care departments, but also report COVID-19 data to the federal Centers for Disease Control and Prevention (CDC) and to their residents.
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  • S.A.L.T. Select Developments – Tax Payment and Return Filing Responsibilities, Supplement #5
    Due to COVID-19, the Internal Revenue Service (IRS) announced extensions of deadlines to pay various federal taxes and file various federal tax returns, including Notice 2020-18 (March 21, 2020), Notice 2020-20 (March 27), and most recently, Notice 2020-23 (April 8). Although some of these extension dates are different, most are automatically granted to July 15, 2020. However, the IRS Notices may not govern tax payment and return filing requirements imposed by states. This special edition reviews specific updates by several states regarding short-term taxpayer responsibilities as a result of the pandemic.
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May 7

  • WEBINAR – Medical Care in a World of COVID-19: What Texas Physicians and Health Care Facilities Need to Know as We Reopen the Economy
    Join Baker Donelson's health care team as we explore what medical practices and health care facilities, including ambulatory surgery centers, should be doing and preparing for as the U.S. economy reopens post-COVID-19.
    Watch

May 6

  • SBA Extends Safe Harbor Deadline to May 14, 2020 and Confirms that Foreign Affiliate Employees Must be Counted for Size Purposes
    Late on May 5, 2020 the Small Business Administration (SBA) issued another round of Frequently Asked Questions (FAQs) that extended the Safe Harbor Deadline to return Paycheck Protection Program (PPP) loan funds from May 7, 2020 to May 14, 2020. Significantly, the SBA also confirmed that its rules regarding foreign affiliates are applied to PPP applicants in the same manner as its other programs. Loan applicants should closely review the most updated version of the SBA's FAQs and talk to their counsel about the best way to proceed.
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  • WEBINAR – Force Majeure Boot Camp: The Tools You Need to Contractually Manage Potential COVID-19 Impacts on Your Construction Projects
    In this webinar we will discuss how force majeure and related provisions are addressed in the common construction contract forms and under common law in the absence of a contractual provision. We will also explore some of the necessary considerations for future contracts where impacts associated with COVID-19 are known or reasonably foreseeable.
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May 5

  • EPA and CDC Guidance on Cleaning and Disinfecting Public Spaces, Workplaces, Businesses and Schools
    As part of Opening Up America Again, the U.S. government's plan in response to the COVID-19 pandemic, the U.S. Environmental Protection Agency (EPA) and the Centers for Disease Control and Prevention (CDC) released joint guidance on April 29, 2020 on cleaning and disinfecting practices for public spaces, workplaces, businesses and schools. The guidance states that some of the practices can also be applied to home settings.
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May 1

  • Federal Reserve Board Expands Main Street Lending Program
    On April 30, 2020, the Federal Reserve Board (FRB) announced an expansion in the scope and eligibility of the Main Street Lending Program (MSLP). The FRB previously provided term sheets on two facilities under the MSLP and requested public comments. In response to the thousands of public comments received, the FRB has revised the existing MSLP programs and added a third.
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April 30

  • Reopening Considerations for Retail & Mixed-Use Property Owners
    COVID-19 shelter-in-place and stay-at-home restrictions are beginning to expire or loosen, allowing businesses in retail and mixed-use properties to resume or expand their day-to-day operations. In preparation, owners of retail and mixed-use properties (and their property managers) should be evaluating and, where appropriate, modifying typical operational practices at their properties. As they prepare for the resumption of business at retail and mixed-use projects, property owners and managers may wish to consider taking some of the following steps.
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  • CMS Alerts Nursing Homes of Additional COVID-19 Reporting Requirements to CDC and Residents
    On April 19, 2020, the Centers for Medicare and Medicaid Services (CMS) announced that in addition to requiring that nursing homes report communicable diseases, healthcare-associated infections, and potential outbreaks to State and Local health care departments, CMS will soon require that nursing homes report this data to the Centers for Disease Control and Prevention (CDC) through the National Healthcare Safety Network (NHSN). The impending rule will also impose new requirements for COVID-19 reporting to residents and their representatives: nursing homes will have to keep their residents and residents' representatives timely informed of the facilities' status and mitigation efforts surrounding COVID-19.
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  • Chipotle's Record $25 Million Fine Sends Tough Message as the Restaurant Industry Begins Reopening
    Chipotle Mexican Grill Inc. agreed to pay a $25 million criminal fine, the largest ever in a food safety case, to resolve criminal charges related to the company's involvement in foodborne illness outbreaks that sickened more than 1,100 people between 2015 and 2018, the Department of Justice announced last week. This news is a wake-up call for the nation's restaurant industry as it prepares to reopen this week in several states amid concerns about employee and customer safety. The message is simple: despite the burdens of reopening under "social distancing" guidelines, this is no time for restaurants to cut corners on food safety, particularly with food inventories that pre-date the shutdown and working capital stretched to the breaking point.
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  • WEBINAR – Virtual Mediation – Tips for a Successful Online Mediation
    Online mediations are the "new normal" for most parties during this COVID-19 crisis, and may continue into the foreseeable future. As mediation sessions begin to be hosted on platforms such as Webex and Zoom, learn some tips for ensuring your mediation session runs smoothly. Kelly Overstreet Johnson, a long-time mediator, will walk you through her tips and tricks to ensure a seamless online mediation session for you and your clients.
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April 29

  • Increased Scrutiny of Paycheck Protection Program Loans Coming
    The Paycheck Protection Program (PPP) created by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) has proven to be very popular with businesses and nonprofit organizations throughout the United States, so much so that Congress had to replenish the initial funding of $349 billion with an additional $310 billion through the Paycheck Protection Program and Health Care Enhancement Act.
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  • At the Crossroads: Legal Considerations Where Government Investigations Overlap with Tort Risk in Long Term Care
    In roughly the seventh week after a majority of states and the federal government issued emergency declarations or "lock down" executive orders, the true impact of COVID-19 is only beginning to be fully transparent. In long term care facilities, such as skilled nursing facilities (SNFs) and assisted living facilities (ALFs), the collection and close proximity of some of the most at-risk and vulnerable patients to a sickness that is still not fully understood has felt some of the gravest impact. News reports from across the country leave little doubt as to the disproportionate effect this industry, its patrons and their families have felt.
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  • WEBINAR – Return to Work Protocol – What Employers Need to Know
    As state and local governments consider relaxing or rescinding "stay-at-home," "shelter-in-place," and related executive orders, employers who have been forced to reduce their workforces, shutdown, or otherwise make significant changes in their operations due to these orders must now decide when and how to return their employees and resume operations.
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April 28

  • No Time to Rest: HHS Marches Ahead with Interoperability and Information Blocking Updates
    On April 21, 2020, the U.S. Department of Health and Human Services released a series of announcements signaling its intention to finalize and enforce certain aspects of the Office of the National Coordinator (ONC) Cures Act Final Rule and the Centers for Medicare and Medicaid Services (CMS) Interoperability and Patient Access Final Rule. The announcements provide little breathing room for health care providers, payers, and IT companies currently responding to the COVID-19 public health emergency. Although organizations now have additional time to develop and implement compliance strategies, they should not abandon ongoing efforts to address the interoperability and information blocking rules.
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  • CMS Announces Changes to Five Star Quality Rating System for Nursing Homes and Responds to FAQs
    On April 24, 2020, CMS announced that, due to the interruption of routine inspections and shift to targeted inspections, it would temporarily hold the health inspection domain for the Nursing Home Five Star Quality Rating System constant as of March 3, 2020. CMS expressed concern that there would likely be an over-weighting for those facilities inspected on or after March 4, 2020, when its targeted program was first implemented, which could potentially mislead consumers. CMS has not indicated when it will again update the health inspection domain.
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  • Key Takeaways from Knoxville and Knox County Phased Reopening Plan
    On April 27, 2020, a joint city/county task force convened by the Knox County Health Department released "A Community Strategy for Phased Reopening," a comprehensive and collaborative plan for the gradual, phased-in reopening of businesses in Knox County and the City of Knoxville starting May 1, 2020. We highlight in this Alert the most pertinent items within the Plan for consideration by affected businesses.
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April 27

  • FEMA Releases "Streamlined" Project Application in 33-Page Guidance Document
    The President has now approved 56 major disaster declarations under the Stafford Act, one for each of the 50 states, five territories, and Washington, D.C., giving FEMA the authority to reimburse eligible applicants for costs incurred related to the COVID-19 pandemic. FEMA has now issued its Streamlined Project Application that will form the basis for how these entities apply for funding under FEMA's Public Assistance Program. The "simplified" application includes four sections and six supplemental schedules, the applicability of which can be determined using a table provided in FEMA's guidance document. This alert provides a summary of the application process.
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  • State and Local Enforcement of Executive Orders on the Rise as Businesses Reopen Across America: Be Prepared to Respond
    In the challenging world of COVID-19, state executive orders governing day-to-day business operations across industries have become commonplace. While traditional investigations may have slowed as regulators and investigators are also under stay-at-home orders, robust enforcement efforts by federal, state and local authorities of COVID-19-related executive orders and local public health laws already have begun across the country and are expected to increase as states begin to reopen businesses and modify current restrictions. These enforcement actions typically stem from a company's failure to comply with social distancing and other related requirements in the workplace, and often are brought to the attention of regulators by an employee or competitor complaint. Like other state laws, a violation of an executive order can lead to significant fines, the shutdown of a business or even imprisonment.
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April 24

  • Long Term Care Liability During the COVID-19 Pandemic: Ways State Governments Can Ensure Protection
    Long term care facilities and providers are bearing the brunt of caring for the nation's largest and most vulnerable populations of COVID-19 patients. And they're doing so in the face of considerable uncertainty, insufficient supplies, and staffing shortages. One of the most significant concerns of facilities and providers caring for long term care residents during the coronavirus pandemic is legal liability exposure. As matters now stand in most states, this risk will continue long after the virus curve flattens and the nation develops a "new normal" for post-pandemic life. Long term care facilities and providers can take practical steps to reduce, but not to fully eliminate, their significant exposure to risks in caring for this vulnerable patient population. The most effective risk mitigation measures, of course, are federal and state protections.
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  • Alabama Malpractice Liability and Immunities During COVID-19 Pandemic
    With the rapid and expansive spread of the COVID-19 pandemic, Alabama health care providers may face a shortage of critical supplies, including ventilators and dialysis machines, which would require difficult decisions regarding which patients should receive treatment with those supplies. Recently implemented protocols have expressly called for the rationing and reallocation of supplies in a way that aims to save the most lives. Accordingly, Alabama health care providers may be concerned about the potential legal liability that may arise from implementing the protocols. Fortunately, the federal government and the state of Alabama are equipped with the ability to limit liability for providers and offer immunity in certain situations. Providers should be aware of the liability limits and immunities and take necessary steps to protect themselves.
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  • WEBINAR – Small Business Loans: Options, Insights and Questions Answered
    Please join Noah Kressler and Nyka Scott as they co-present, with the New Orleans Business Alliance in partnership with Gulf Coast Bank & Trust Company, resources available to business owners in the midst of COVID-19.
    Watch

April 23

  • New Health Care Provider Opportunities in Fourth COVID-19 Bill and HHS Plans to Distribute Additional Funds
    On April 23, 2020, the House of Representatives passed the Paycheck Protection Program and Health Care Enhancement Act, which previously passed the Senate on April 21, 2020, and is expected to be signed into law by the President. The legislation is the fourth emergency stimulus legislation enacted by Congress to address COVID-19 and is being referred to as "stimulus 3.5," as it provides additional funding to programs enacted under the third stimulus bill, the CARES Act.
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  • Trump's "Suspension of Immigrants" is Relatively Limited and Brief, for Now
    President Trump's April 22, 2020 Proclamation narrowly delays for 60 days the issuance of immigrant visas for certain categories of family and employment-sponsored immigrants and diversity lottery winners. It has no effect on a wide range of other immigrants or any temporary visitors and workers.
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April 22

  • Coronavirus: Force Majeure and Managing Your Business Risk, Part III: Moving Forward – How to Negotiate Future Contracts
    Until the recent COVID-19 pandemic, whether you included a force majeure clause in a contract, and more specifically, what that language meant, likely drew little attention. For better protection in the future, careful analysis of your specific business, and the types of factors that would cause performance interruption, cancellations or undue delay, must be addressed.
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  • Class Action Lawsuits Attack Banks' Implementation of CARES Act Lending Program
    As a result of the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act), more than 1.6 million businesses received $349 billion in forgivable loans to pay their employees and certain other operating expenses during the COVID-19 crisis. Now many of the banks involved in making those loans through the Small Business Association are facing actual and threatened class action lawsuits arising out of the implementation of the Paycheck Protection Program (PPP).
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  • New CMS Guidance for Long Term Care Facilities with COVID-19 Residents
    As long term care (LTC) facility cases of COVID-19 continue to rise, the Centers for Medicare and Medicaid Services (CMS) remains vigilant in its efforts to regulate the delivery of adequate care to those residents with COVID-19, while protecting those residents without the disease.
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April 21

  • Tidal Wave of COVID-19 Lawsuits on the Way
    As the "new normal" sinks in with social distancing and government-imposed shutdowns, some businesses are struggling to stay afloat. Now, many are about to be slammed with a tidal wave of litigation as consumers and injured parties seek compensation for COVID-related losses. A recent flurry of class action and other mass filings gives us a hint of what lies ahead – and they appear to be only the tip of the iceberg. This article will summarize the developing litigation landscape and provide guidance for businesses that may find themselves in the crosshairs.
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  • Is a COVID-19 Infection Recordable or Reportable to OSHA? It Depends.
    On Friday, April 10, 2020, OSHA issued Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19), answering certain questions about whether employers need to be recording confirmed COVID-19 infections on Form 300 under 29 CFR Part 1904. Essentially, OSHA divides employers into two categories: (1) employers in the health care industry, emergency response organizations, such as ambulance services, firefighters and law enforcement, and correctional institutions; and (2) all other employers.
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  • Estate Planning to Take Advantage of Low Applicable Federal Rates
    For those with significant assets, the current economic environment, although scary, is also an estate planning opportunity. The applicable federal rate (AFR), which is used to determine the minimum interest rate for related party loans, is 0.91 percent for short-term loans and 0.99 percent for mid-term loans in April 2020, and is set to go down to .25 percent for short-term loans and .58 percent for mid-term loans in May 2020. This is an especially good time for transfer techniques that are keyed to AFR.
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  • Estate Planning is for Everyone
    No matter the size of your estate, an estate plan can help to take care of both you and your family. We recommend reviewing your estate plan at least every five years or if you have had a major change in your family structure, such as a birth, death, or divorce.
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  • Include Health Care Planning in Your Estate Planning
    The COVID-19 pandemic has given all of us a chance to take inventory of our lives and consider the "what ifs" of our health care situation. Advance care planning is for everyone. As we have seen, COVID-19 can impact anyone, no matter your age or state of health. Likewise, anyone can suffer a brain injury or neurocognitive impairment from automobile accidents, anesthesia accidents or cardiac arrest. Advance care planning optimizes end-of-life care when the patient is unable to make health care decisions. Advance care planning is a recurring process because patients often change their end-of-life treatment preferences unpredictably. Periodic conversations with your health care provider and legal counsel are helpful as you change stages of life and/or health.
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April 20

  • CARES Act – Recipients Must Identify, Understand, and Comply with Grant and Contract Requirements
    Numerous commentaries predict an outbreak of False Claims Act investigations and cases related to allegations of misuse, fraud, waste, and abuse of funding provided under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). Such predictions are surely accurate. With the tremendous sums of money at issue and the likely difficult economic conditions faced by many recipients, there are countless opportunities and temptations to misuse CARES Act funds.
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  • Louisiana Economic Development Launches its Small Business Loan Program
    Louisiana Economic Development (LED), in partnership with The Louisiana Loan Portfolio Guaranty Program (LPGP), has launched its Loan Guaranty Program providing loans to Louisiana's small businesses suffering from COVID-19. The Louisiana Bankers Association members will offer the loans, which will be administered by the Louisiana Public Facilities Authority. The LPGP will create a loan guaranty fund of up to $50 million and LED will guarantee 20 percent of the pool allocated to each participating bank.
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April 17

  • OSHA's Guidance on Preparing Workplaces for COVID-19
    The Occupational Safety and Health Administration (OSHA) has set forth the following guidelines for all employers in order to reduce the risk of exposure to the novel coronavirus, which is the virus that causes COVID-19, in workspaces across the country. The guidelines can be simplified into a four-step plan.
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  • Part 2: Can the Government Do That? – But I Own that Beach and It Is My Backyard!
    Over the past month, our vocabularies have expanded to include new terms like: "COVID-19," "coronavirus," "epidemiologist," "stay at home," and "shelter in place." Now, private landowners are reintroducing governments to terms like "due process," "private property rights," and "just compensation." More than 20 owners of the Gulf of Mexico private beach-front property are reminding Walton County, Florida, of those terms as they challenge the constitutional validity of the county’s COVID-19 order that prohibits "any person" using "the beaches within Walton County."
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  • Spotlight on Tennessee: Governor Lee Issues Executive Order Permitting Remote Execution of Legal Documents
    On April 9, 2020, Tennessee Governor Bill Lee issued Executive Order No. 26, "An Order Suspending Provisions of Certain Statutes and Rules in Order to Facilitate Remote Notarization and Witnessing of Documents" (sometimes, the "Order"). The Order specifically permits remote execution and notarization of many documents commonly used in estate planning, including trusts, wills, living wills, and durable health care powers of attorney. Documents commonly used in real estate transactions such as deeds are also specifically authorized to be executed remotely. The Order also provides more generally that "other legal documents" may be executed remotely.
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April 16

  • COVID-19 Trade Update: FEMA Implements Export Controls for PPE as CBP Issues Guidance Restrictions
    On April 3, 2020, President Trump issued a Presidential Memorandum directing the Department of Homeland Security, through the Federal Emergency Management Agency (FEMA), to utilize the Defense Production Act to restrict the export of scarce domestic materials being used to respond to the spread of COVID-19, including certain personal protective equipment (PPE). Effective Tuesday, April 7, FEMA implemented this Order through a Temporary Final Rule (the TFR) that restricts U.S. exports of five specific categories of PPE products that were previously designated by the Department of Health and Human Services (HHS) as "scarce or threatened materials." U.S. Customs and Border Protection (CBP) has since issued its own internal guidance on the TFR that provides further detail on the scope of the restrictions as well as key exclusions for certain U.S. exporters.
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  • EPA Releases Interim Guidance on Site Field Work Under Superfund, RCRA, and Other Programs
    On April 10, 2020, the U.S. Environmental Protection Agency (EPA) issued a Memorandum regarding "Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19." The EPA acknowledged that response field activities are underway at sites across the country under a number of EPA programs, in particular the Superfund program, RCRA corrective action, TSCA, the Oil Pollution Act, and the Underground Storage Tank program. The purpose of the interim guidance is for response actions related to cleanup and emergency response sites where EPA is the lead agency or has direct oversight of responsibility for the work. This interim guidance is necessitated by the challenges posed by the COVID-19 situation and is intended to ensure that continuing on-site activities are consistent with protection of public health and safety, and maintaining EPA’s ability to respond as needed to environmental emergencies.
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  • Three Key Takeaways for Health Care Employers from April 14, 2020 CDC Guidance
    On April 14, 2020, the Centers for Disease Control and Prevention (CDC) updated its various guidance on COVID-19 in health care settings. In addition to other helpful information about infection control and personal protective equipment (PPE), the CDC addressed three important employment issues related to health care employees. The guidance and links to the separate documents are below. The guidance addressing strategies for mitigating health care personnel (HCP) shortages is particularly important for long term care providers, who should follow it as closely as possible, so they can point to their adherence in response to lawsuits alleging they did not adequately staff the facility.
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  • S.A.L.T. Select Developments – Tax Payment and Return Filing Responsibilities, Supplement #4
    Due to COVID-19, the Internal Revenue Service (IRS) announced extensions within which to pay various federal taxes and file various federal tax returns, including Notice 2020-18 (March 21, 2020), Notice 2020-20 (March 27), and most recently, Notice 2020-23 (April 8). Although some of these extension dates could be different, most of the extensions are automatically granted to July 15, 2020. However, the IRS Notices may not govern tax payment and tax return filing requirements imposed by states. This special edition reviews similar reactions thus far by several states regarding short-term tax payment and return filing responsibilities implemented as a result of the pandemic.
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April 15

  • FCC Rolls Out $200 Million COVID-19 Telehealth Program
    On April 2, 2020, the Federal Communications Commission released a Report and Order establishing the COVID-19 Telehealth Program (Program). The Program will provide $200 million in funding made available as part of the CARES Act to help eligible health care providers provide connected care services to patients in their homes or mobile locations in response to the coronavirus pandemic. Funding under the Program can be used to purchase telecommunications services, broadband connectivity services, information services, and devices necessary to provide connected care services, whether for treatment of coronavirus or other health care conditions during the pandemic. The Program is not a grant program. To receive disbursements, eligible health care providers must apply and be approved for participation.
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April 14

  • Forgive and Forget? Important Practical Advice for Borrowers Receiving a PPP Loan and Seeking Forgiveness
    While small businesses across the country are looking for much needed relief and assistance in the wake of COVID-19, they are focusing on pressing topics like payroll, keeping bills paid, and the immediate needs of their employees, customers and owners. The rush to access government funds, like the Paycheck Protection Program (PPP), Economic Injury Disaster Loans (EIDL), and other funds is often accompanied by a flurry of paperwork, the proverbial "fine print" and constantly changing agency guidance on process, eligibility requirements, and disqualifiers. For most business owners, the threat of losing the business is a more pressing concern than some theoretical threat of enforcement due to an improperly completed application or a misunderstanding on how the proceeds may be used once received.
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  • Franchise Disclosure Documents and COVID-19 Impact
    Franchisors renewing their Franchise Disclosure Documents (FDD) for 2020 with the intent of actively resuming franchise sales activity may be wrestling with how best to disclose the impact of the COVID-19 Pandemic on their business. Since essentially all jurisdictions have shelter in place or safe at home quarantine orders in effect, and there is no official guidance on when these orders will be lifted, the FDD is virtually an educated guess at what evolution will take place in its franchise business model during the continuance and aftermath of the public health emergency.
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April 10

  • HHS Pays $30 Billion in CARES Act Emergency Relief Payments to Health Care Providers
    Health care providers are beginning to receive payments from the Department of Health and Human Services (HHS) to address expenses and revenue losses related to coronavirus (COVID-19). On April 10, 2020, HHS announced the distribution of $30 billion from the $100 billion emergency fund created under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, the third COVID-19 stimulus bill enacted by Congress.
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  • SEC Signals How Examinations Will Focus on Compliance with Reg BI and Form CRS
    The countdown to June 30, 2020 is on – the deadline by which broker-dealers with retail customers must comply with Regulation Best Interest (Reg BI), and broker-dealers and investment advisers must comply with Customer Relationship (Form CRS) requirements with respect to their retail customers/investors.
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April 9

  • Coronavirus: Force Majeure and Managing Your Business Risk Part II: Dispute Resolution – How to Assess Options in Breach of Contract Matters
    As discussed in Part I of our commercial contracts series, we addressed the implications of force majeure clauses and why the language chosen by the parties and incorporated into their contract is of the utmost importance. The force majeure language may be boilerplate in nature and not result in the specificity needed to cover the COVID-19 pandemic, or your contract may have no force majeure clause at all, so the limited common law defenses to performance of impracticability or frustration of purpose would likely apply. Given the uncertainties and economic realities businesses are facing, the first step you should take is to reach out to the other party and try to negotiate a path going forward. The other party is likely equally unsettled and concerned about what the future holds. While the language in the contract may or may not be what you would hope had this crisis been predicted, consider how the parties can work together to modify the contract despite its language. Recognizing the challenges faced by all, adopting a voluntary and business-like approach will likely be the most beneficial initial strategy under these unique circumstances.
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  • New Readiness Grant for Small and Rural Hospitals in Tennessee
    On Monday, April 6, Tennessee Governor Bill Lee announced in COVID-19 Bulletin #13 that the State of Tennessee will allocate $10 million to support small and rural hospitals that are facing financial strain due to the ongoing response to COVID-19. These funds will be distributed by the State's Department of Finance & Administration in the form of small and rural hospital grants. These grants are available up to $500,000 per hospital as patient volumes decline and new federal funds become available. The applications for these grants are currently active, and the State plans to accept applications until early May or until funds are expended – whichever occurs first.
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  • USDA Opens Second Application Window for Distance Learning and Telemedicine Grant Program
    The U.S. Department of Agriculture (USDA) Deputy Under Secretary for Rural Development Bette Brand announced that USDA is opening a second application window for funding under the Distance Learning and Telemedicine (DLT) grant program. The USDA is providing this second window for those who were unable to meet the initial deadline of April 10, 2020 due to the COVID-19 National Emergency.
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  • WEBINAR – Your Questions Answered Part 2: Understanding Employer Rights and Obligations Under the New DOL Regulations on Paid COVID-19 Leave
    The Emergency Family and Medical Leave Expansion Act and the Emergency Paid Sick Leave Act became effective on April 1, 2020, yet employers are still left with many questions. Since our last webinar, the DOL published additional information in FAQs and issued regulations on April 1.
    Watch

April 8

  • CMS Interim Final Rule Expands Telemedicine Services and Bends Coverage and Payment Rules for Range of Patient Care Services During Pandemic
    In a rapid and remarkable response to COVID-19, The Centers for Medicare & Medicaid Services (CMS) has altered a wide range of coverage and payment rules applicable to hospitals, practitioners and suppliers. In an interim final rule published in the Federal Register on April 6, 2020, at 85 Fed. Reg. 19230, CMS has recognized that the elderly Medicare population is particularly vulnerable due to age and co-morbidities and that providers need to be able to furnish services in ways that help to reduce exposure risks for patients and practitioners alike.
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  • WEBINAR – COVID-19 Outbreak: Understanding the Physician Self-Referral Law 1135 "Blanket" Waiver
    Join Kristin M. Bohl, Kristin C. Carter, and Julie Kass as they discuss the nationwide waivers applicable to the physician-self referral (Stark) law during the COVID-19 public health emergency. This webinar will focus on the scope of the waivers that provide hospitals, laboratories and other designated health services entities flexibility regarding physician arrangements during this time period.
    Watch
     
  • WEBINAR – COVID-19 and the Hospitality Industry: Key Restructuring Issues for Hotels and Restaurants
    Join Baker Donelson Shareholders Joel R. Buckberg, J. David Folds, and Jan M. Hayden for a discussion of how franchisors, landlords and hotel and restaurant owners can navigate the challenges posed by COVID-19.
    Watch

April 7

  • SBA's Paycheck Protection Program: Additional Guidance Issued on April 6
    On March 27, President Donald Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act), which among other COVID-19 relief items, provides $349 billion in Paycheck Protection Program (PPP) loans for small businesses as well as other businesses and non-profit organizations that meet certain criteria. On April 2, the Small Business Administration (SBA) issued an interim final rule implementing the PPP.
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  • Health Care Provider Liability During the COVID-19 Pandemic: Ways to Ensure Protection
    This Alert explores the authority and efforts of the federal government, as well as of various state governments, to limit the scope of potential liability of health care providers resulting from the care of patients during this period of crisis. Some of these limits and immunities exist in long-standing statutes and regulations that are applicable to the present emergency. Others have been put in place recently in direct response to the COVID-19 crisis. Providers need to be aware of all of them, and they also need to take practical steps to protect themselves against future liability claims.
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  • Understanding FDA Terminology in the COVID-19 Pandemic
    Over the last several weeks it has become apparent that there is a great deal of confusion about FDA regulated products including drugs, diagnostics, medical devices (including personal protective equipment) and prevention strategies of various types. This confusion arises because most people, including the press and public, and even some in the very highest offices within government, do not understand the hierarchy of the FDA’s well-established regulatory process.
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  • The Department of Homeland Security Issues Additional Guidance on Who is an "Essential" Construction Worker
    On March 28, the U.S. Department of Homeland Security's Cybersecurity and Infrastructure Security Agency (CISA) issued new guidance that identifies specific areas where construction workers will typically be considered "essential" and therefore, can work during the COVID-19 pandemic. CISA initially released guidelines on March 19 in response to shelter-in-place orders issued by the governors of California, New York, and Illinois. The most recent guidance was issued in response to shelter-in-place orders issued in all but a handful of states.
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  • CMS Approves Georgia's Section 1135 Waiver Request for Medicaid and PeachCare for Kids
    On April 2, 2020, Georgia Governor Brian Kemp and the Georgia Department of Community Health announced that the Centers for Medicare and Medicaid Services approved Georgia's Section 1135 waiver request. The waivers will provide health care providers and members flexibility with certain requirements of Medicaid and PeachCare for Kids so that they may better combat the public health emergency presented by COVID-19.
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  • WEBINAR – COVID-19: Cybersecurity and Data Privacy Considerations for Financial Institutions
    Join Matt White and Alex Koskey for this complimentary webinar discussing how financial services firms can navigate through the cybersecurity and data privacy challenges posed by the coronavirus (COVID-19) outbreak. These unprecedented times have affected us all in innumerable ways. As financial institutions attempt to navigate these waters, there are a variety of issues that need to be addressed.
    Watch

April 6

  • Tips for Working With Your Lender in These Uncertain Financial Times
    From the C-suite of Fortune 500 companies to the corner mom-and-pop business, everyone is worried about the financial future of their business. After a decade of unprecedented economic growth, our economy has been humbled by a virus. Entire industries have been shut down as we shelter in place or stay at home in record numbers. Many businesses will soon need accommodations from their lenders. As businesses' financial situations deteriorate, some relationships will be transferred from the familiar loan officer to the lender's "special asset group" or "loan recovery department." In either case, it could lead to fear and anxiety.
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  • Cybersecurity Concerns when Considering Furloughs
    Due to the changing and challenging economic circumstances brought on by COVID-19, companies are now having to consider furloughing employees. All companies must consider how they will handle such moves with respect to their information technology infrastructure. The confidential information on IT systems should be protected during this time, especially with regard to customer information, personal information of customers and employees, trade secrets and other confidential information (all "Confidential Information") maintained by organizations. Human resources professionals handling these issues must consult with their management team, including IT, to consider this complex but very significant issue.
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  • Fair Pricing in Times of Need: Price Gouging Controls Expanded at Federal and State Levels in Response to COVID-19
    The COVID-19 pandemic has sparked great and inspiring humanitarian aid efforts but has also brought out some baser human instincts: email scams and frauds are rampant and there is much buzz about hoarding and price gouging of critical services and goods. The United States Department of Justice (DOJ) and many states have targeted these activities to protect consumers and to assure critical supplies get where they are needed. In particular, the U.S. Attorney General has formed a COVID-19 Hoarding and Price Gouging Task Force to address concerns on the federal level and many states have prohibitions against price gouging in emergency situations. All are encouraging the reporting of concerns and a complaint could lead to investigation and enforcement action. Business owners should protect their legitimate business activities by knowing about these enforcement mechanisms, what the general prohibitions are, and how to avoid pitfalls. This Alert explains the Task Force aims and outlines the price gouging prohibitions in several states in the Baker Donelson footprint.
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  • Can the Government Do That? – New Class Action Challenges Pennsylvania's COVID-19 Order as Unconstitutional
    Why can't I open my business? Where is my due process? The public health risks of COVID-19 are very real. But, the question remains whether some of the COVID-19 shutdown orders have taken private property for "public use, without just compensation" in violation of the Fifth Amendment? The forthcoming wave of litigation challenging these orders as unconstitutional is likely to test the extent of the government's police powers to protect the health, safety, and welfare of its citizens during a health pandemic.
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April 5

  • Summary of Key Points from SBA's April 3 Additional Guidance for Affiliation Rules Under the Paycheck Protection Program
    On Friday, March 27, 2020, President Donald J. Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act), which among other COVID-19 relief items, provides $349 billion in Paycheck Protection Program (PPP) loans for small businesses as well as other businesses and non-profit organizations that meet certain criteria. On March 30, 2020 Baker Donelson issued an alert describing the SBA's loan eligibility requirements, including affiliation rules and how those rules could impact eligibility for PPP loans. On April 2, 2020, the SBA issued an Interim Final Rule addressing further eligibility items, along with a draft application which we summarized in an alert. Late on April 3, 2020 the SBA issued further PPP Affiliation Guidance that supplements the April 2 Interim Final Rule and a summary addressing Affiliation Rules Applicable to SBA Paycheck Protection Program (PPP Loan Affiliation Rules).
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April 3

  • CARES Act Paycheck Protection Program Applications Now Available: Guidance for Lenders and Borrowers
    On April 2, the Small Business Administration (SBA) issued an Interim Final Rule (the Rule) implementing the Paycheck Protection Program (PPP) created under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). The Act and the PPP became law on March 27, but many of the specifics of the implementation and administration of PPP loans was left to the Department of Treasury and SBA to decide. The Rule clarified and expanded guidance from the Treasury Department in the form of information sheets addressed to lenders and borrowers, an overview, and an application. Notably, the Rule clarified the loan terms from the text of the Act. The interest rate for all loans has been set at 100 basis points (1 percent), the term set at two years, and payment deferments set for six months.
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  • DOE Extends 85-804 Indemnification to Contractors Supporting COVID-19 Response
    On March 26, the Secretary of Energy authorized Department of Energy (DOE) contracting officers to extend indemnification under Public Law 85-804 to contractors and subcontractors performing assignments directed or authorized by DOE or the National Nuclear Security Administration (NNSA) in response to COVID-19.
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  • Food Producers and Manufacturers Face Uncertain Future as COVID-19 Pandemic Drags On
    During the current COVID-19 pandemic, the United States food industry has done an admirable job keeping food on the table of Americans with few shortages or disruptions reported, thanks in part to federal regulators easing up on enforcement of often burdensome food regulations. As the pandemic became mainstream, the Department of Homeland Security acted quickly to explicitly designate food and agriculture as essential critical infrastructure that must be preserved and protected in the interest of national security. But as the virus has now spread nationwide and the number of cases has soared, we are seeing strains on the system as food producers and their employees scramble to adjust to the new normal of COVID-19.
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  • HHS Issues Notice of Designation of Scarce Materials or Threatened Materials Subject to COVID-19 Hoarding Prevention Measures
    On March 25, 2020, the Department of Health and Human Services (HHS) issued a Notice of Designation of Scarce Materials or Threatened Materials Subject to COVID-19 Hoarding Prevention Measures Under Executive Order 13910 and Section 102 of the Defense Production Act of 1950. This Notice designates certain health and medical resources as scarce or threatened materials that are subject to hoarding prevention measures authorized under Executive Order 13910 and the Defense Production Act (the Act).
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  • Does the Florida Governor's Executive Order Stay Commercial Foreclosure Cases?
    On April 2, Florida Governor Ron DeSantis issued Executive Order Number 20-94 (the "Order"), which purports to "suspend and toll any statute providing for a mortgage foreclosure cause of action under Florida law for 45 days." While it appears that the intent and spirt of the Order is that it apply to "single-family mortgages" as is recited in several paragraphs of the preamble of the Order, Section 1 of the Order does not explicitly limit its application to single family mortgage foreclosures. Section 2 of the order, which addresses eviction actions, is limited solely to residential tenancies, which implies that the Governor could have limited Section 1 to single-family residential mortgages if that was his intent. The fact that he did not use similar language in Section 2 leads to a reasonable interpretation that both residential and commercial mortgage foreclosure actions are stayed for 45 days.
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  • S.A.L.T. Select Developments – Tax Payment and Return Filing Responsibilities, Supplement #3
    Federal Treasury Secretary Steven Mnuchin previously announced a 90-day deferral for individuals and many businesses in making certain tax payments to the IRS. Separately, recently published IRS Notice 2020-18 has advised that the April 15 due date for return filing purposes will be moved to July 15 to coincide with the 90-day payment deferral and that there is no limitation on the amount of the payment that may be postponed to July 15. This special edition reviews similar reactions thus far by several states regarding short-term tax payment and return filing responsibilities implemented because of this pandemic.
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April 2

  • Coronavirus: Notification to Tenants of a Confirmed Coronavirus
    Now that our communities have seen the rapid spread of novel coronavirus and the resulting COVID-19 disease, many landlords are asking for advice regarding if or how they should be communicating positive cases to other tenants or employees. Baker Donelson has researched the applicable law and best practices and provides this information to support our landlord clients. The enclosed information should be tailored to your specific situation and you should seek the advice of your counsel to address particular needs.
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  • Can the Government Commandeer My Hotel to Fight COVID-19?
    With the COVID-19 pandemic in full swing, can the government take private hotel rooms to expand the capacity to care for individuals with or exposed to the virus?
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  • Florida Stay at Home Order: What Florida Businesses Need to Know
    On April 1, 2020, Governor Ron DeSantis issued Executive Order Number 20-91 in response to the COVID-19 pandemic, requiring all persons in Florida to limit their movements and personal interactions outside of their homes to only those necessary to obtain or provide "essential services" or conduct "essential activities." The order is effective as of 12:01 AM on Friday, April 3, 2020 and is intended to minimize person-to-person transmission of COVID-19 in Florida via social distancing measures and encourages Florida individuals to work from home.
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April 1

  • Coronavirus: USPTO and U.S. Copyright Office Extend Deadlines due to COVID-19 Pandemic
    On March 31, 2020, the U.S. Patent and Trademark Office (USPTO) and the U.S. Copyright Office both announced grace periods for certain fees and deadlines during the coronavirus (COVID-19) public health emergency. Leaders of both offices cited the Coronavirus Aid, Relief, and Economic Security (CARES) Act, the $2 trillion relief bill signed by the President on March 27.
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  • FEMA Extends Filing Deadlines Due to COVID-19 Pandemic
    On March 30, 2020, FEMA headquarters issued a memorandum to its Regional Administrators advising that the agency is extending filing deadlines for Public Assistance net small project overrun requests, first and second appeals, and requests for arbitration. The deadlines established by 44 C.F.R. § 206.204 (small project overruns), 44 C.F.R. § 206.206 (appeals), 44 C.F.R. § 206.209 (arbitration), and FEMA's § 423 Arbitration Fact Sheet will be extended until May 30, 2020.
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March 31

  • CMS Issues Physician Self-Referral Law Blanket Waivers Under Section 1135
    On March 30, 2020, the Centers for Medicare & Medicaid Services (CMS) issued physician self-referral law "blanket waivers" under Section 1135 of the Social Security Act (Section 1135). The waivers are effective nationwide as of March 1, 2020. They provide broad relief from sanctions under the physician self-referral law for activities related to addressing COVID-19 purposes during the public health emergency as declared by the President and HHS Secretary Alex Azar.
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  • CMS Issues Guidance for Medicare Providers and Suppliers to Apply for Accelerated Payments to Address COVID-19 Financial Challenges
    The Centers for Medicare and Medicaid Services (CMS) issued guidance on March 28, 2020, outlining how Medicare providers and suppliers can access accelerated and advanced Medicare payments to address financial burdens during the coronavirus (COVID-19) public health emergency. The guidance implements a provision in the CARES Act, the third stimulus bill recently enacted by Congress.
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  • Coronavirus: 5 Lessons Learned from Tennessee Governor's Executive Orders to Stay at Home
    Governor Bill Lee announced the implementation beginning April 1 and continuing through April 14 of two executive orders closing certain nonessential businesses and urging his citizens to stay at home. But the Governor made clear this order is no mandate to shelter in place. Unlike his counterparts in Virginia and North Carolina, Governor Lee's order is one of encouragement, not requirement.
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  • WEBINAR – Coronavirus: Privacy, Security and Telehealth for Long Term Care Providers
    There is no question that COVID-19 has brought unprecedented change to our world. The temporary relaxation of HIPAA's requirements is one of many examples of the government's efforts to address the public's health care needs during this crisis.
    Watch
     
  • PODCAST – COVID-19: Understanding HIPAA Relief Provisions for Telehealth (AUA Inside Tract Podcast - Episode 92)
    More providers than ever are using telehealth services to continue seeing and treating patients during the COVID-19 pandemic. The federal government has taken a number of measures to ease the way for this transition, including issuing waivers for certain provisions of the Health Insurance Portability & Accountability Act (HIPAA). Alisa Chestler of Baker Donelson discusses what providers need to know.
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March 30

  • CARES Act: Understanding SBA's Loan Eligibility Requirements, Including Affiliation Rules
    On Friday, March 27, 2020, President Donald J. Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act), which among other COVID-19 relief items, provides $349 billion in Paycheck Protection Program loans for small businesses as well as other businesses and non-profit organizations that meet certain criteria. Prior to the passage of the CARES Act, Disaster Declarations made available separate small business loans through the Small Business Administration (SBA) Economic Injury Disaster Loan Program (EIDL).
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  • CARES Act Expands the Small Business Reorganization Act – Lenders Beware
    The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) expands a new law that streamlines the Chapter 11 bankruptcy process for small businesses to include a larger group of small businesses. The Small Business Reorganization Act of 2019 (SBRA) went into effect in February 2020. Under the original provisions of SBRA, a small business debtor filing under SBRA could not have more than $2,725,625 in noncontingent, liquidated, secured, and unsecured debts as of the petition date, excluding debts owed to affiliates or insiders. The CARES Act, signed into law by President Trump on March 27, expands the debt cap to $7,500,000 (effective for only one year), which will greatly increase the number of debtors who can utilize the debtor-friendly provisions of SBRA. It is widely expected that SBRA will increase the small business debtor's ability to successfully reorganize, retain control of its business, and reduce the procedural costs and burdens ordinarily associated with Chapter 11 filings.
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  • U.S. Immigration System Plagued by Coronavirus
    As the White House extends its social distancing guidelines another month through April 30 in recognition of the still-increasing pace of COVID-19 infections and deaths in the U.S., it appears that many U.S. immigration implications will continue or increase for the foreseeable future. We summarize them, to date, below. We don't mention expected expirations of special situations, because no one really knows when they will end. Travel remains generally unadvisable, and planning international placements is more than difficult. Here is a roundup of the implications so far.
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  • Coronavirus: CARES Act Takes Significant Step Toward Modernizing Part 2
    Congress significantly eased restrictions on disclosing information that identifies substance use disorder (SUD) patients, while simultaneously strengthening protection for SUD patients from discrimination and liability based on their treatment, in legislation signed into law March 27, 2020.
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  • S.A.L.T. Select Developments – Tax Payment and Return Filing Responsibilities, Supplement #2
    Federal Treasury Secretary Steven Mnuchin previously announced a 90-day deferral for individuals and many businesses in making certain tax payments to the IRS. Separately, recently published IRS Notice 2020-18 has advised that the April 15 due date for return filing purposes will be moved to July 15 to coincide with the 90-day payment deferral, and that there is no limitation on the amount of the payment that may be postponed to July 15. This special edition reviews similar reactions thus far by several states regarding short-term tax payment and return filing responsibilities implemented because of this pandemic.
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  • Coronavirus: FMCSA Acts to Protect Against CDL and CLP Expirations
    On March 24, in response to COVID-19's impact on state driver licensing agencies, medical examiners, and the operators of commercial motor vehicles (CMVs), the Federal Motor Carrier Safety Administration (FMCSA) issued a grant of waiver from certain regulations applicable to commercial driver's licenses (CDL), commercial learner's permits (CLP), and certain related federal regulations effective March 20 through June 30. The pandemic has left many CDL and CLP holders unable to renew their CDLs and CLPs and obtain new medical certificates. FMCSA acted to ensure continued transportation of essential supplies, equipment, and persons by an adequate supply of licensed and trained commercial drivers.
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  • WEBINAR – CARES Act: Understanding SBA Loan Programs
    Our webinar provides an overview of the CARES Act as it relates to the Paycheck Protection Program (PPP) and the Economic Injury Disaster Loan Program (EIDL).
    Watch
     
  • WEBINAR – Coronavirus: Issues Affecting the Oil and Gas Industry
    Companies involved in the oil and gas industry, challenged by the depressed market ahead of the COVID-19 pandemic, are now facing a rapidly declining situation. What is on the horizon?
    Watch

March 29

  • The IRS Wants to Help
    The Internal Revenue Service (IRS) has just announced a "sweeping series of steps" to help taxpayers address the challenges of COVID-19 related issues. The IRS "People First Initiative," announced Wednesday March 25, 2020, includes the following two overarching aspects: 1.) Easing of certain payment related matters; and 2.) Postponement of certain compliance actions. These create some interesting opportunities and much needed relief for taxpayers.
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March 27

  • Coronavirus: Significant Tax Provisions in the CARES Act for Businesses and Individuals
    President Trump signed the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act) today, providing liquidity and other economic relief to individuals, families, and businesses facing the hardships of the coronavirus (COVID-19) pandemic. As part of the legislation, there are important tax provisions, which are in addition to the previous actions taken by President Trump and Congress in response to COVID-19.
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  • Third Coronavirus Stimulus Package Includes Considerable Funding for Health Care Providers and Other Health Care Provisions
    The CARES Act appropriates significant funding to federal agencies, both to allow federal, state, and local governments to support COVID-19 treatment and prevention and to directly provide financial support to health care providers.
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  • CARES Act: Understanding SBA Loan Programs to Determine Eligibility and Best Fit for Your Company
    As a result of the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act), multiple avenues of relief will be available to small businesses through programs administered by the Small Business Administration (SBA). Notably, the size limits for consideration as a "small business concern" have been changed, making many more entities eligible for assistance through programs administered by the SBA.
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  • Coronavirus: Tips for Hospitals Navigating State Emergency Management and FEMA Funding
    As the COVID-19 outbreak response intensifies and the number of patients continues to grow, stakeholders are working hard to strengthen the health care community and ensure that sufficient capacity is available to meet the need. The President's unprecedented nation-wide national emergency declaration on March 13, 2020 notes that, "It is incumbent on hospitals and medical facilities throughout the country to assess their preparedness posture and be prepared to surge capacity and capability." This includes establishing additional intensive care unit (ICU) beds, procurement of additional personal protective equipment (PPE), and augmentation of professional staff.
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  • Coronavirus: Implications for EPA's Enforcement and Compliance Assurance Program
    On March 26, 2020, the U.S. Environmental Protection Agency (EPA) issued a Memorandum entitled "COVID-19 Implications for EPA's Enforcement and Compliance Assurance Program," in response to the COVID-19 pandemic. In an unprecedented action, the EPA essentially suspended all environmental enforcement action with certain limited exceptions. The policy is retroactive for any applicable noncompliance as of March 13, 2020.
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  • PODCAST – Managing Teams Remotely - Part One of the Work from Home Series (DRI)
    Managing Teams Remotely: Part One of the Work from Home Series Our speakers talk about managing your team remotely to maximize success. In this current climate surrounding COVID-19 and the many shelter in place orders, many lawyers and staff are working from home for the first time. This podcast discusses how to motivate, manage, and cultivate a successful remote team that can enhance client service, retain key employees, and meet internal goals for success.
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March 26

  • Coronavirus: What the Georgia Governor's Shelter-in-Place Order Means for Health Care Providers
    As Georgians continue to grapple with the effects of the consistently rising number of COVID-19 cases, Governor Brian Kemp issued two Executive Orders in an attempt to slow the impact of the highly contagious disease on the health care system and protect Georgia’s most vulnerable populations.
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  • WEBINAR - Addressing Employers' Concerns About Coronavirus
    How should employers prepare for what may be coming? Should certain policies be suspended or modified during this period, and if so, which ones? Should employers pay those employees not allowed to work because of exposure or contagion concerns? Should employers implement other changes now, or should employers wait and see what develops? This webinar explores these issues and other related concerns.
    Watch

March 25

  • Coronavirus: Managing Your Business Risk – Applicability of Force Majeure to COVID-19
    Do you have a contract where performance is likely an issue? Does it contain a force majeure clause? Is COVID-19 covered by your contract's force majeure clause? How does this affect your business? A force majeure clause in a contract excuses or delays a party's contractual obligations if a "Force Majeure Event" takes place. The definition of what constitutes a "Force Majeure Event" can vary widely from contract to contract.
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  • Coronavirus: DOL Issues Initial Q&A Guidance and Fact Sheet on the Families First Coronavirus Response Act
    Yesterday, the U.S. Department of Labor issued initial guidance in response to general questions posed by employers about the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA) of the Families First Coronavirus Response Act (FFCRA). Today, the DOL released a Fact Sheet for employers that also provides helpful information, as well as a model notice employers may use to notify employees about these laws. The DOL is expected to issue regulations in April 2020, but the Fact Sheet and Q&A guidance clarifies certain aspects of the EFMLEA and EPSLA. Below are highlights from the Q&A, which is available on the DOL's COVID-19 and the Workplace webpage.
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  • S.A.L.T. Select Developments – Tax Payment and Return Filing Responsibilities, Supplement #1
    Federal Treasury Secretary Steven Mnuchin previously announced a 90-day deferral for individuals and many businesses in making certain tax payments to the IRS. Separately, recently published IRS Notice 2020-18 has advised that the April 15 due date for return filing purposes will be moved to July 15 to coincide with the 90-day payment deferral, and that there is no limitation on the amount of the payment that may be postponed to July 15. This special edition reviews similar reactions thus far by several states regarding short-term tax payment and return filing responsibilities implemented because of this pandemic.
    Read More
     
  • Coronavirus: Identifying Essential Activities and Businesses under Harris County Stay Home Order
    A large number of Texas' biggest urban cities and counties are ordering residents to stay indoors and work from home. On March 24, Harris County Judge Lina Hidalgo, in a joint press conference with City of Houston Mayor Sylvester Turner, issued a "Stay Home, Work Safe" Order requiring residents of Harris County (the largest county in the state) to remain in their homes in an attempt to flatten the spread of coronavirus. Specifically, residents of Harris County should stay at home, only leaving to perform Essential Activities or to provide or perform Essential Governmental Functions or to operate Essential Businesses.
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  • WEBINAR - Coronavirus and Financial Institutions: What Banks and Lenders Need to Know
    This complimentary webinar discusses how financial services firms can navigate through the challenges posed by the Coronavirus (COVID-19) outbreak.
    Watch

March 24

  • Coronavirus: FEMA Simplifying the Public Assistance Process to Expedite Payment
    While communities that regularly experience natural disasters like hurricanes, tornadoes, and earthquakes are familiar with FEMA's Public Assistance process, the President's recent declaration of a nationwide emergency under the Stafford Act encompasses every state, including tens of thousands of eligible applicants (if not more) for disaster assistance, many of which are navigating unfamiliar territory. Recognizing the logistical and bureaucratic challenges this unprecedented response effort will bring, FEMA is actively working to develop a simplified application and funding process. In this alert, we provide an overview of the Public Assistance process for COVID-19 – for new and experienced applicants.
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  • Coronavirus: Resources Materials Available for Small Business Administration Economic Injury Disaster Loans
    While Congress continues to debate stimulus bills and how best to assist small businesses, the Small Business Administration's Economic Injury Disaster Loan (EIDL) Program is now available to small businesses in most if not all areas of the country – including all 50 states, Puerto Rico, the United States Virgin Islands, Guam and the Northern Mariana Islands. The EIDL Program provides loans to small businesses in an amount of up to $2,000,000 per borrower that carry an interest rate of 3.75 percent and are repayable over a term of up to 30 years. Proceeds of the loans may be used to pay existing fixed debt, employee payroll, accounts payable and other expenses of operation.
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  • Coronavirus: Identifying Essential Activities and Essential Businesses under Atlanta's Stay at Home Order
    On March 23, 2020, Atlanta Mayor Keisha Lance Bottoms issued a "Stay at Home" order (the "Order") to curb the spread of COVID-19. The Order states that it "shall be effective at midnight" on Tuesday, March 24, 2020. The Order directs all residents living within the jurisdictional limits of the City of Atlanta to stay at their place of residence and maintain social distancing of at least six feet from any other person when they are outside. However, there are exemptions for Essential Activities, Health Care Operations, Essential Infrastructure, Essential Governmental Functions, and Essential Businesses.
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  • WEBINAR – Your Questions Answered: What Does the Families First Coronavirus Response Act Mean for Employers?
    Coronavirus (COVID-19) is impacting businesses across industries, sizes and locations. There are numerous developments in federal, state and local leave laws impacting employers. On Wednesday, the federal government passed the Families First Coronavirus Response Act (the Act), creating paid family and sick leave benefits for eligible employees who require leave due to covered needs relating to COVID-19.
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March 23

  • Coronavirus: Significant HIPAA Relief in Telehealth Context Due to COVID-19 Response
    There is no question that COVID-19 has brought unprecedented change to our world. The temporary relaxation of HIPAA's requirements is one of many examples of the government's efforts to address the public's health care needs during this crisis. Over the last month, the Office for Civil Rights (OCR) has issued temporary waivers and associated guidance regarding HIPAA and telehealth services rendered during the public health emergency. The most recent guidance was released on Friday, March 20, 2020 (the Enforcement FAQs and OCR Press Release), and it confirms the loosening of the HIPAA requirements first described in the Notification of Enforcement Discretion issued on March 17, 2020 (the Notification). These temporary measures are intended to encourage the use of telehealth services and enable social distancing.
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  • Coronavirus: What Lenders Should Do Now
    With cash flow, liquidity, and credit tightening drastically across industries, and in the face of historically low interest rates, lenders will face several new and unique challenges over the coming months as the full effects of the coronavirus pandemic are felt throughout the economy. Baker Donelson's Commercial Restructuring and Bankruptcy Group is monitoring and responding to the challenges of this changing environment for the benefit of our clients.
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  • Coronavirus: Executive Order Relaxes Regulatory Requirements on Health Care Facilities, Physicians, and Pharmacists in Georgia
    On March 20, 2020, Georgia Governor Brian Kemp issued an Executive Order "Reducing Regulations to Assist the State's Response to the Spread of COVID-19" (the Order). The purpose of the Order is to reduce "certain restrictions on the State's health care system." In the Order, the Governor exercised his power under the "Emergency powers of Governor" statute (O.C.G.A. § 38-3-51(d)(1)) to suspend any regulatory statute prescribing the procedures for conduct of state business, or the orders, rules, and regulations of any state agency, if strict compliance would interfere with necessary action in addressing the Public Health Emergency presented by COVID-19. This Order directs three important Georgia health care agencies in the state (the Georgia Composite Medical Board, the Georgia Board of Pharmacy, and the Georgia Department of Community Health) to relax and/or eliminate a variety of requirements related to the provision of health care during the emergency.
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  • Coronavirus: Identifying Essential Workers under Louisiana's Stay-at-Home Order
    On March 22, 2020, Governor John Bel Edwards issued a "Stay at Home" order that will take effect at 5:00 PM on Monday, March 23, 2020. The Order directs residents to shelter at home and intends to limit unnecessary movement to non-essential services. Essential workers are permitted to continue to work, and are identified in this article.
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  • Coronavirus: Important OMB Guidance About Government Contract Performance Issues During COVID-19 Crisis
    On March 20, 2020, the Deputy Director for Management at the U.S. Office of Management Budget (OMB) issued important guidance to federal government agencies about how they should handle various contract performance issues resulting from the novel coronavirus (COVID-19).
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  • Coronavirus: CISA Issues Guidance on Essential Critical Infrastructure During COVID-19 Response
    As state governors in California, New York, and Illinois issued "Stay at Home" Orders and limited activity to essential activities, services, and businesses, the Cybersecurity and Infrastructure Security Agency (CISA) issued a Guidance on March 19, 2020 intended to assist state and local officials in ensuring continuity of critical functions, while safeguarding economic and national security during the COVID-19 response. Under the Homeland Security Act of 2002, CISA is responsible for providing strategic guidance and coordination of federal effort to ensure the security and resilience of U.S. critical infrastructure.
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  • Coronavirus: How Louisiana's Stay-at-Home Order May Affect the Construction Industry
    On March 22, 2020, in response to the COVID-19 pandemic, Governor Edwards issued Proclamation Number 33 placing all individuals within the State of Louisiana, with limited exceptions, under a general stay-at-home order. Individuals are directed to stay home unless they are performing certain essential activities, like obtaining food, medicine, or medical care. Individuals whose job functions are deemed essential are also excepted and may continue to work. The Governor's order takes effect Monday, March 23, 2020 at 5:00 p.m. and runs through Monday, April 13, 2020 at 5:00 p.m.
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  • Coronavirus: Maryland's COVID-19 Public Health Emergency Protection Act of 2020 Establishes Protections for Employees and Businesses
    Maryland's Emergency Management Agency Act grants the Governor the authority to establish protections for the people of Maryland during a state of emergency.1 Accordingly, Governor Larry Hogan signed the COVID-19 Public Health Emergency Protection Act of 2020 (COVID-19 Act) into law on March 19, 2020. The COVID-19 Act contains three key provisions that address (1) employees' access to unemployment insurance benefits, (2) the termination of employees during the COVID-19 pandemic, and (3) alternative workweeks for employees of State-owned or operated health care facilities.
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  • Coronavirus: D.C. Council Passes Emergency Legislation to Amend the D.C. Unemployment Compensation Act and D.C. Family and Medical Leave Act in Response to COVID-19 Pandemic
    On March 17, 2020, the Council of the District of Columbia (the Council) unanimously passed the COVID-19 Response Emergency Amendment Act of 2020 (the Act) to expand existing protections for workers and businesses in the District that have been affected by the coronavirus pandemic. This emergency legislation was signed into law by Mayor Muriel Bowser on March 17, 2020 and will remain in effect until June 15, 2020. The Act will require a second vote by the Council to ensure that it remains in effect for an additional 270 days.
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  • Coronavirus: Lenders Navigate Providing Relief to Borrowers and Acting Prudently to Manage Lending Risk
    We've heard from representatives of both federal and state banking regulators that they intend to work with banks as banks work with their customers in addressing the potential business impacts of COVID-19 (coronavirus). The regulators are encouraging financial institutions to take prudent steps to assist customers and communities affected by the global health pandemic. For example, banks can receive credit under the Community Reinvestment Act for lending to low- and moderate- income borrowers and small businesses. In addition, lenders – banks and unregulated financial institutions – are receiving numerous requests from borrowers for payment and other relief from commercial loan obligations. It is important that lenders carefully consider the position they will take in response to these requests.
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  • Coronavirus: HRSA Issues Guidance Outlining Flexibility to 340B Providers
    The Health Resources and Services Administration's (HRSA) Office of Pharmacy Affairs (OPA) has created a COVID-19 Resources page on its website providing information for 340B drug pricing program stakeholders. In particular, the guidance addresses flexibility that HRSA may afford to providers participating in the 340B program (covered entities) related to program compliance, eligibility, and registration during the COVID-19 public health emergency.
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  • Coronavirus: Interim CDC Guidance on Preventing Spread in Retirement Communities and Independent Living Facilities
    Very late last week, the CDC issued interim guidance titled "Preventing the Spread of COVID-19 in Retirement Communities and Independent Living Facilities" aimed at owners, administrators, operators, workers, volunteers, visitors, and residents of retirement communities and independent living facilities (ILFs) that are not health care facilities. This guidance was last reviewed by the CDC on March 20, 2020. Below is a summary of the CDC interim guidance as well as suggested best practices for senior housing providers as they navigate COVID-19 issues in their communities.
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  • COVID-19 Pandemic – Regulatory Guidance for the Ocean, Inland and Offshore Maritime Sectors
    All aspects of the maritime industry, from global ocean-going shipping to domestic inland brown water transportation and offshore energy, have been and will continue to be profoundly affected by the COVID-19 crisis, perhaps even more than other industries given that mobility and inter/trans-national movement of people and goods are their very lifeblood. Unsurprisingly, the regulatory response from the myriad federal agencies has been, and will continue to be, dynamic and evolving.
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March 22

  • Coronavirus: Oil and Gas Industry – Essential Workers under Louisiana's Stay-at-Home Order
    On March 22, 2020, Louisiana Governor John Bel Edwards issued a proclamation declaring that "all individuals within the state of Louisiana are under a general stay-at-home order and are directed to stay home unless performing an essential activity." Essential oilfield workers appear exempt from the proclamation, which can be accessed here. Section 3(C) of the proclamation lists various essential worker activities, but does not expressly reference the oil and gas industry. However, the proclamation also refers to the U.S. Department of Homeland Security, Cybersecurity & Infrastructure Security Agency (CISA) for an outline of other essential workers not listed.
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March 20

  • Coronavirus: FEMA Guidance on Eligible "Emergency Protective Measures" and Sheltering
    Building upon our prior alert summarizing the effects of the President's March 13 nationwide emergency declaration, we now provide an update on the type of assistance potentially available pursuant to FEMA's Public Assistance Program. States and local governmental entities and certain private non-profits can now apply for funding for "eligible emergency protective measures taken to respond to the COVID-19 emergency at the direction or guidance of public health officials." FEMA has now published a Fact Sheet providing guidance as to what emergency protective measures may be considered eligible and a separate Fact Sheet on eligible sheltering costs.
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  • Coronavirus: Latest Tax Provisions Implemented in Coronavirus Pandemic Resource Response as of Friday Morning, March 20, 2020
    The President and Congress are taking emergency actions to provide liquidity and other financial relief to taxpayers in response to the coronavirus pandemic. Tax relief has played, and will continue to play, a substantial role in such actions. In fact, a third stimulus bill is being developed which is anticipated to provide even more immediate relief.
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  • Coronavirus: Health Care Provisions in The CARES Act
    On Thursday, March 19, Majority Leader Mitch McConnell introduced the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act), which contains provisions to provide emergency assistance for individuals, families and businesses. Senator McConnell has begun discussions with Democrat Leader Schumer and is hopeful an agreement can be reached on a final package to be considered by the U.S. Senate within the coming days. While the legislation covers a variety of issues, what follows is a summary of some of the key health care provisions along with links to the more detailed lists prepared by the committees of jurisdiction. Should you require further information, please do not hesitate to let us know. We fully expect this will not be the final action related to the current crisis.
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  • Coronavirus: Relief for Behavioral Health Providers in Agency Waivers, Guidance
    As federal agencies scramble to provide regulatory relief from the fall-out of the coronavirus pandemic taking hold in the United States, several waivers and bulletins provide guidance specifically applicable to substance use disorder and mental health treatment providers. Here is a round-up of the agency activity relevant to the behavioral health industry that we've seen so far.
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  • Coronavirus: Review Your Business Interruption Insurance Policy Now
    As our nation deals with the far-reaching consequences of the coronavirus (COVID 19), the impact will range from grocery store shortages, school closings, and many businesses closing or reducing hours or services, to casinos closing in many jurisdictions, all for the benefit and safety of their employees, customers, and the general public. As closures increase, we will see many of these impacted businesses pursuing claims on their business interruption policies, which protect businesses from interruptions in their respective operations.
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  • Coronavirus: DEA Allows Delivery of Medication-Assisted Treatment Drugs to Quarantined Patients
    A waiver granted by the Drug Enforcement Administration may provide a solution for long term care providers with opioid-addicted residents who are unable to access medication-assisted treatment due to coronavirus-induced quarantine.
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  • Coronavirus: Florida Small Business COVID-19 Bridge Loans
    On March 17, 2020, on the heels of ordering a month-long shutdown of bars and nightclubs designed to slow the spread of COVID-19, Florida Governor Ron DeSantis announced the activation of the Florida Small Business Emergency Bridge Loan Program. Administered by the Florida Department of Economic Opportunity, the program offers emergency bridge loans to small businesses impacted by the virus. Perhaps most critically in this time of uncertainty, the program does not (at least as of March 20) contain any requirement for a personal guaranty or collateral.
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  • Coronavirus: Georgia Governor Declares Public Health Emergency to Combat COVID-19
    On March 13, with uncertainty as to the impact of coronavirus (COVID-19) on the United States, President Trump declared a national emergency citing the need to open access to as much as $50 billion in aid and lower legal barriers in an attempt to respond to the pandemic. The move comes as the U.S. Surgeon General and American College of Surgeons issued guidelines as a further means of insulating hospitals against an expected surge in COVID-19 cases nationwide.
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  • Coronavirus: Texas Governor Issues Executive Orders to Combat COVID-19
    Texas Governor Greg Abbott issued Executive Order GA-08 related to COVID-19 on March 19, 2020 at 11:50 a.m. local time. The Executive Order includes four orders that are in accordance with the federal guidelines issued by the Centers for Disease Control and Prevention (CDC) and President Trump and serve to mitigate the spread of COVID-19 in Texas. The executive orders are effective as of March 20, 2020 at 11:59 p.m. and remain in effect until April 3, 2020.
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  • Coronavirus: Impact on Water Treatment
    The rapid and intense escalation of the COVID-19 pandemic has impacted business operations on a global scale. We have been repeatedly advised by the CDC, World Health Organization and others to practice "social distancing" and to work remotely where possible. Over the past 48 hours, several counties have gone beyond mere advisories and issued "shelter in place" edicts via Public Health Orders. These Orders limit activity, travel and business functions to only the most essential needs. The term "shelter in place" means to stay in your home and not leave unless necessary for an expressly defined "essential activity" or to work for an "essential business."
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  • WEBINAR – Coronavirus in Long Term Care: Incorporating CMS Guidance into Response Strategies
    With new cases of coronavirus (COVID-19) identified daily and seniors being at high risk of infection and adverse outcomes, long term care providers play an important role in responding to the pandemic and remain a highly regulated part of the health care delivery system.
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March 19

  • Coronavirus Legislative Recap
    As we have noted in prior Alerts, Congress has passed several pieces of legislation designed to provide important relief around various aspects of the coronavirus health crisis in the past two weeks. See below for a brief recap of these bills.
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  • HHS Authorized to Direct Production and Distribution of National Health Supply Chain
    After invoking the Defense Production Act for the COVID-19 pandemic, President Trump issued an "Executive Order on Prioritizing and Allocating Health and Medical Resources to Respond to the Spread of Covid-19" on March 18, 2020. The Executive Order includes the finding that personal protective equipment and ventilators meet criteria to be considered "scarce and critical material essential to the national defense" under the DPA, which has previously been applied to emergencies and critical infrastructure matters.
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  • S.A.L.T. Select Developments – Tax Payment and Return Filing Responsibilities
    Federal Treasury Secretary Mnuchin has recently announced a 90-day deferral for individuals and many businesses in making certain tax payments to the IRS. However, it appears that the IRS will not be changing return due dates, although extensions are still available. This update reviews similar reactions thus far by several states regarding short-term tax payment and return filing responsibilities implemented because of this pandemic virus.
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  • Coronavirus: What Public Companies Should Consider Doing Now
    Public companies are grappling with a myriad of current and potential future issues caused by the COVID-19 pandemic relating to their financial reporting requirements, disclosure obligations and holding their annual meetings of stockholders, among other challenges. In light of these issues, public companies should consider the following.
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  • Coronavirus: What Government Contractors Should Do Now to Address Possible Delays or Suspensions of Work
    The coronavirus (COVID-19) outbreak has caused business disruption across the globe and government contractors are not immune. The U.S. Government and the medical community's fight to contain COVID-19 requires a broad-based commitment to social distancing and self-quarantines, which directly impacts contract completion times and employee productivity. Contractors should now review the Federal Acquisition Regulation (FAR) clauses included in their contracts related to delays, suspensions, and changes to ensure that they know their rights and how to protect their rights by providing the required written notice and adequate documentation.
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  • Coronavirus: How Louisiana Businesses Can Apply For SBA Economic Injury Disaster Loans
    On March 17, 2020, Louisiana Governor John Bel Edwards officially requested the Small Business Administration to provide Economic Injury Disaster Loans to all Louisiana parishes. Effective immediately, Louisiana businesses may now apply for these loans.
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  • Coronavirus: FDA Offers Guidance for Food Industry Stakeholders
    On March 18, 2020, the United States Food & Drug Administration (FDA) held a call to answer questions from food industry stakeholders related to the impact of Coronavirus Disease 2019 (COVID-19), with an emphasis on food safety and food supply.
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  • S.A.L.T. Select Developments – Tax Payment and Return Filing Responsibilities
    Federal Treasury Secretary Mnuchin has recently announced a 90-day deferral for individuals and many businesses in making certain tax payments to the IRS. However, it appears that the IRS will not be changing return due dates, although extensions are still available. This special edition reviews similar reactions thus far by several states regarding short-term tax payment and return filing responsibilities implemented because of this pandemic virus.
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  • Watch – COVID-19: The Employment View
    COVID-19 is on everyone's mind – employers should implement the common sense steps recommended by the CDC and medical experts, while staying vigilant of the need to regularly evaluate their workplaces to protect employees and their business interests. Many employers have questions about leave, remote work, wage and hour issues, unemployment eligibility, and recent federal and state law COVID-19 developments.
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March 18

  • President Signs the Families First Coronavirus Response Act into Law
    On March 14, 2020, the House passed HR 6201, the Families First Coronavirus Response Act. The Act, among other things, would amend the Family and Medical Leave Act (FMLA) to provide paid emergency leave to eligible employees and would require covered employers to provide paid sick leave to employees in need of such leave due to the coronavirus pandemic. The Act also provides reimbursable tax credits to covered employers for the costs associated with providing this paid leave and sick time.
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  • Defense Production Act is Invoked by President Trump
    On March 18, 2020, President Donald Trump announced his invocation of the Defense Production Act (DPA), which authorizes the President to direct industries to produce critical equipment. The Trump Administration has not yet provided details as of the time of this alert on how the DPA will be applied specifically within the context of COVID-19, but it was invoked presumably to address shortfalls in health care supplies in the face of the coronavirus (COVID-19) pandemic.
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  • Coronavirus: Privacy and Cybersecurity Considerations for Financial Institutions
    Financial institutions are continuing to address the immense business impact of coronavirus (COVID-19). The Federal Financial Institutions Examinations Counsel (FFIEC) has issued its updated guidance on pandemic planning and regulators have encouraged financial institutions to work with customers affected by COVID-19. However, special attention must be paid to privacy and cybersecurity implications as financial institutions refine business continuity plans. The following is a brief overview of some of the key privacy and cybersecurity issues financial institutions should be considering in managing the increased risk created by COVID-19.
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  • Coronavirus: Expanded Coverage of Medicare Telehealth Services During Pandemic
    The Coronavirus Preparedness and Response Supplemental Appropriations Act, which was enacted on March 6, 2020, allows the Secretary of the United States Department of Health and Human Services (HHS) to waive certain restrictions on Medicare coverage for telehealth services. On March 17, 2020, the Secretary issued waivers that will apply retroactively from March 6, 2020 until the end of the COVID-19 public health emergency. The new expanded coverage allows beneficiaries to receive telehealth services without having to travel to a health care facility.
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  • Coronavirus: Construction Industry Impacts
    In early March, COVID-19 seemed like a distant threat, but we are now all too well aware of its rapid intercontinental spread. In the less than three months since the first case out of Wuhan, China was reported to the World Health Organization (WHO) on December 31, 2019, COVID-19 has spread to every continent, except Antarctica, and has been declared a pandemic and national, state, and local emergency. To date, more than 205,000 cases have been reported worldwide, with approximately 6,500 of those in the United States. Concerns about COVID-19 have impacted multiple facets of our day-to-day lives, from business and school closings and restrictions on travel and public gatherings, to stock market volatility.
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  • Coronavirus: Temporary Child Care Solutions Could be Subject to Extensive State Regulations
    The ultimate impact of the coronavirus (COVID-19) cannot be predicted at this time; however, the disruption of commerce and family life has commenced in the United States. The sudden lack of reliable child care providers such as grandparents and daycare facilities has thrown carefully orchestrated family plans out the window. While the federal government has taken financial action such as making low-interest loans available to small businesses affected by the pandemic, it has yet to provide a solution for child care as schools and daycare facilities close their doors across the nation. There is no national mandate or consensus on daycare facility closures. For example, in Georgia, Governor Brian Kemp has suggested daycare facilities close if they feel it is prudent, but has not mandated closure. News reports have noted that in Ohio, Governor Mike DeWine plans to eventually close all daycare facilities in the state. Kentucky's governor, Andrew Beshear, has alerted residents that all daycare centers in the state must close on Friday, March 20.
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  • Insights from First Securities Fraud Class Action Suit Against a Drug Manufacturer Developing a COVID-19 Vaccine
    The claims made in McDermid, et al. v. Inovio Pharmaceuticals, Inc., et al., No. 2:20-cv-01402-GJP (E.D. Pa., filed March 12, 2020), a securities fraud class action, illustrate why publicly traded companies, and particularly drug manufacturers, must exercise great care when publicizing their activities, as their statements may be used against them by investors seeking damages who contend they were misled into buying stock. McDermid, who invested in Inovio Pharmaceuticals, Inc. (Inovio), now seeks to represent a class of investors who bought or acquired Inovio common stock (NASDAQ: INO) between February 14, 2020, and March 9, 2020, at purportedly artificially inflated prices that resulted from public statements made on behalf of Inovio. He names Inovio and its CEO as defendants, claiming they are liable for having made false and misleading statements in violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and SEC Rule 10b-5. While McDermid is making his claims through private litigation, claims of this nature often spawn investigations by the United States Securities and Exchange Commission and can lead to parallel administrative, civil, and even criminal proceedings, along with significant fines, penalties, and restitution orders
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  • WEBINAR – Coronavirus in Long Term Care: Overview of FAQ for Employers
    Coronavirus (COVID-19) has spread across the country and may be in our communities for months to come. Long term care, post-acute care, and senior living (collectively, LTC) facilities care for the most vulnerable among us, and must therefore be prepared to protect their residents, patients, and employees from this threat.
    Watch
     
  • Online Security Tips for Working from Home
    Read the Federal Trade Commission's blog posting on this important topic, that businesses should be on top of, for all those working remotely.

March 17

  • Coronavirus: Nationwide Emergency Declaration – Access to Disaster Relief Fund
    On Friday, March 13, 2020, President Donald J. Trump declared a nationwide emergency under the Stafford Act. This unprecedented action allows Federal Emergency Management Agency (FEMA) to provide funding to state and local governments and eligible non-profit entities in response to the outbreak of the coronavirus (COVID-19). These entities, including non-profit hospitals, clinics, and nursing homes (among others), may receive Disaster Relief Funds appropriated by Congress to reimburse the cost of emergency measures to protect the public health and safety. Congress will enact, and the President will direct, additional measures within the next week. This article provides a summary of what we know to date as to what the emergency declaration means for eligible entities.
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  • Supplemental Coronavirus Legislation H.R. 6201 - Families First Coronavirus Response Act
    On March 14, 2020, the House passed H.R. 6201, known as the Families First Coronavirus Response Act. An issue arose regarding a needed "technical amendment" that required further action by the House. That work was completed last night, and the bill was finally sent to the Senate. Today the Senate Majority Leader announced the Senate would stay in session to consider the House passed Second Stimulus. It is expected the Senate will pass the House bill as is and initiate work on a far broader and more comprehensive stimulus.
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  • Coronavirus: Small Business Administration to Make Economic Injury Disaster Loans Available in Response to Pandemic
    Although the ultimate impact of the coronavirus (COVID-19) cannot be predicted, the pandemic has and will continue to affect commerce in the United States as well as abroad. Disruptions to the supply chain for imported goods, diminished customer demand and increased costs for operation are all affecting businesses in the United States. Among the hardest hit will be small businesses which have the least cushion for absorbing the economic consequences of the pandemic.
    Read More
     
  • Coronavirus: HHS Announces Limited Waivers of HIPAA Penalties and Sanctions
    On March 16 and 17, the United States Department of Health and Human Services (HHS) Office for Civil Rights (OCR) announced limited waivers of penalties and sanctions with respect to certain HIPAA requirements due to the ongoing COVID-19 outbreak. The waivers provide some relief to hospitals with respect to certain aspects of the Privacy Rule and to all health care providers seeking to provide telehealth services.
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  • Coronavirus: Impact on Moving People and Immigration
    As governments around the world react with increasing vigor to flatten coronavirus curves, employers must urgently re-evaluate travel plans and immigration maintenance. While the absolute number of infections and deaths worldwide so far appears less than those imposed by other influenzas, government policymakers are anticipating the prospect of quickly spiraling real numbers of very sick people overwhelming medical capabilities with drastic scenarios they desperately want to avoid. This is leading governments to impose limitations on travel and services, especially internationally, that are unprecedented in modern times.
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  • Coronavirus: Implications for Business Interruption Insurance Coverage
    Bars and restaurants are closing. Airline travel is discouraged. Supply chains are interrupted. Hotels and motels are empty. Because of its impact on every segment of the economy, the coronavirus (COVID-19) pandemic undoubtedly will spawn coverage disputes and litigation over the availability of insurance coverage for resulting economic loss. With regard to business interruption coverage, two issues likely will be front and center.
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  • National Institute of Standards and Technology (NIST) through their Cybersecurity Insights blog posted about "Preventing Eavesdropping and Protecting Privacy on Virtual Meetings". They provide us a great reminder, during this time of increased remote work, to become more security-conscious in our online interactions. https://www.nist.gov/blogs/cybersecurity-insights/preventing-eavesdropping-and-protecting-privacy-virtual-meetings

March 16

  • Coronavirus: Regulators Encourage Banks to "Work with Customers"
    Both the FDIC and the OCC issued letters on Friday responding to bankers' requests to acknowledge that the regulators will provide some leniency to banks as they work with their customers in addressing the potential business impact of COVID-19 (coronavirus). More specifically, the regulators are encouraging financial institutions to take prudent steps to assist customers and communities affected. They recognize that efforts to work with customers and communities affected by the coronavirus can be consistent with safe and sound banking practices and in the public interest.
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  • Coronavirus: Impact on Office, Retail and Industrial Leases
    The intensity with which the COVID-19 outbreak and the response to it has escalated continues to impact both landlords and tenants under commercial leases. It is safe to say that landlords and tenants will be viewing certain routine boilerplate language in leases differently in the future. Right now though, the COVID-19 pandemic's impact on businesses and business operations is raising uncertainty under commercial leases about issues best addressed with proactive assessment from tenants and landlords regarding their lease obligations, with a particular eye toward the following lease provisions.
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  • House Passes Coronavirus Bill with Immediate Impact on Employers Upon Enactment
    On March 14, 2020, the House passed H.R. 6201 known as the Families First Coronavirus Response Act (the Act). While there are reported talks about potential "technical corrections" to the Act that may warrant a second vote by the House, it is anticipated that any such changes will be addressed and that the Act will be considered by the Senate and possibly signed into law soon. The current version of the legislation provides paid leave, establishes free testing for the coronavirus, protects public health workers, and provides benefits to children and families. Employers should watch the Act closely because the provisions contained therein, including three key provisions relating to the workplace, would take effect immediately upon enactment. This alert will provide a brief overview of the current version of these key provisions.
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March 15

  • The UK Government has updated its foreign travel advice with respect to travel to the United States by UK citizens. The Foreign and Commonwealth Office advises against all but essential travel to the United States due to the travel restrictions imposed by the United States that will go into effect at midnight on March 17 in response to the outbreak of the novel coronavirus (COVID-19). A link to the full advisory and other information to assist UK citizens traveling to the United States, including services that are offered, may be found here: https://www.gov.uk/foreign-travel-advice/usa

March 14

  • Health Care Providers: President's Emergency Declaration Paves Way for Additional Regulatory Flexibility
    With the emergency declaration under the National Emergencies Act related to the coronavirus (COVID-19) on March 13, 2020, President Trump paved the way for CMS to temporarily waive certain Medicare, Medicaid, and Children's Health Insurance Program (CHIP) requirements. The President's declaration is intended to provide much needed regulatory relief to our nation's hospitals and other care providers who treat government program beneficiaries. These actions are authorized under Section 1135 of the Social Security Act, which allows the Centers for Medicare & Medicaid Services (CMS) to temporarily waive or modify certain requirements to ensure that sufficient health care items and services are available to meet the needs of government program beneficiaries (Section 1135 Waivers).
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March 13

  • CMS and CDC Guidance for Addressing Coronavirus Risk in Long Term Care: Practical Considerations for Implementation
    As new confirmed COVID-19 cases emerge daily in the United States and countries around the world, the various federal agencies tasked with overseeing health care have issued a steady stream of guidance that aims to assist health care providers in managing risks related to the outbreak. Increasingly, the available evidence shows that the elderly are among those most likely to be affected by severe forms of the disease. Thus, providers that serve this vulnerable population – including, most particularly, nursing facilities, but also including assisted living facilities and home-based providers – are well-advised to ensure that they are taking all necessary and appropriate steps to protect their residents and patients.
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  • The Coronavirus Challenge: What Hospitality Businesses Should Consider Doing Now
    As the novel coronavirus continues to spread, the landscape is constantly changing. New information is coming to light faster than it can be internalized and the economy, at the moment, is in constant flux. To date, the hospitality industry has borne the brunt of this upheaval. In these trying circumstances, it is important for hotels, restaurants, transportation servicers and travel companies to focus on implementing sensible policies to limit not only the spread of the virus, but also mitigate the risk of any potential legal liability.
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  • Coronavirus: What Multi-Family Housing Complexes Need to Do Now
    If you own or operate a multi-family housing complex, addressing the rapidly spreading COVID-19 virus is crucial. Baker Donelson is staying up-to-date on the latest advice for the sector from the CDC and national housing groups and we have highlighted the following actions for our multi-family clients. Avoid "failure to prepare" liability by acting now!
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  • Coronavirus: Small Business Administration to Make Economic Injury Disaster Loans Available in Response to Pandemic
    Although the ultimate impact of the coronavirus (COVID-19) cannot be predicted, the pandemic has and will continue to affect commerce in the United States as well as abroad. Disruptions to the supply chain for imported goods, diminished customer demand and increased costs for operation are all affecting businesses in the United States. Among the hardest hit will be small businesses which have the least cushion for absorbing the economic consequences of the pandemic.
    Read More

March 11

  • Coronavirus: Implications of an Emergency Declaration
    As the situation continues to unfold, the outbreak of the coronavirus (COVID-19) in the United States is prompting increased federal and state action. There is much confusion regarding the implications of an emergency declaration and the significance of individual state emergency declarations. This article provides a summary of the current landscape and general recommendations that affected entities should consider in the event they may be eligible for federal or state reimbursement funding for costs incurred related to this outbreak.
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  • Coronavirus: Key Aspects of $8.3 Billion Spending Package
    The Coronavirus Preparedness and Response Supplemental Appropriations Act was signed by the President on March 6 and provides $8.3 billion in multi-year funds to combat the growing public health threat. The Act funds a comprehensive response to COVID-19, which includes funding for federal, international, and local preparedness and response capabilities.
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  • Coronavirus: New Guidance for Medicare Advantage and Part D Plans
    On Monday, March 9, 2020, the Centers for Medicare and Medicaid (CMS) released information on permissible flexibilities and obligations that are in effect during a disaster and emergency resulting from COVID-19.
    Read More

March 10

  • Coronavirus: What K-12 Schools Should Do Now
    The outbreak of the coronavirus (COVID-19) in the United States is prompting leaders to shut down schools from Washington State to New York City after parents or students tested positive for the virus. Many schools in all parts of the country are watching information on the spread of the coronavirus closely to determine how to navigate this evolving situation. This article provides action items for schools to think through and implement now.
    Read More

March 9

  • Coronavirus and Financial Institutions Preparedness: What Banks Should Do Now
    All financial institutions should regularly review and update their business continuity plans (BCPs), but with the increased possibility of business disruption caused by the spread of coronavirus (COVID-19), financial institutions should ensure adequate pandemic planning is in place as a supplement to a BCP.
    Read More

March 5

  • WEBINAR: Coronavirus (COVID-19): What Your Business Should Do Right Now
    Join Baker Donelson for a complimentary webinar on March 11 to learn about how you can safeguard your business from the impact of the Coronavirus (COVID-19) outbreak.
    Register Here

March 3

  • Don't Forget About Cyber Hygiene During Coronavirus (COVID-19) Outbreak
    As organizations prepare for certain contingency work arrangements in response to the coronavirus (COVID-19) outbreak, companies must also focus attention on ensuring appropriate cyber hygiene. Companies are anticipating more individuals working remotely from the safety of their own homes to avoid contracting the virus and other companies are planning for potential quarantines and school closings. The flexibility of working remotely, however, involves real cybersecurity risks that companies should be aware of and work to mitigate in the face of the COVID-19 outbreak. With increased remote work, there is increased risk of employees accessing data through unsecured and unsafe Wi-Fi networks, using personal devices to perform work, and not following general security protocols established by the company. As individuals are approved or otherwise authorized to work remotely, there must be a multi-departmental focus on maintaining proper controls. Management should be coordinating with the Human Resources (HR) and Information Technology (IT) departments to establish security controls and ensure employees are properly trained on those controls in the remote work context.
    Read More

February 28

  • Legal Implications of the Impact of Coronavirus (COVID-19) on Business in Italy, including labor and employment, privacy, commercial contracts, and other business transactions
    provided by Rodl & Partner Italy.
    Read More. For updated information click here: https://www.roedl.com/insights/.

February 25

  • UPDATE – New CDC Travel Restrictions for South Korea, Italy and Japan
    Recently, the CDC raised its travel advisory for travel to South Korea to Level 3, its highest level, recommending that travelers avoid all nonessential travel to South Korea. The CDC also raised its travel advisory for travel to Italy and to Japan to a Level 2. Under a Level 2 advisory, the CDC has confirmed that both Italy and Japan are experiencing sustained community spread of the COVID-19 virus. As a result, the CDC recommends that high risk travelers (i.e., elderly, immunocompromised, or pregnant) should consider postponing nonessential travel. Others should take special precautions when traveling to these countries, including avoiding contact with sick people and exercising good hygiene practices (washing hands frequently and avoiding touching your face/eyes with your hands). The CDC also has noted that other countries in Southeast Asia, including Singapore, Taiwan, Thailand, and Vietnam, also are experiencing "apparent community spread" of the virus. However, because the virus spread is not sustained or widespread enough, the CDC has not issued a travel notice yet.

February 24

  • UPDATED Factory Reopening Schedule
    The Hubei provincial government announced late last week that the date for businesses to reopen throughout the province has been pushed back until March 11 (originally February 21). While most provinces have allowed businesses to reopen, some are still struggling to return to 100% capacity due to difficulties in obtaining raw materials and components due to issues with their upstream suppliers returning to full capacity and some employees from Hubei are unable to return to work due to continuing travel restrictions. The closer the factory to Hubei, the more likely it is experiencing extended downtime and delays in returning to full capacity. We recommend that you communicate with your suppliers to determine capacity and ability to comply with contractual obligations, including quantity and time for delivery. Be prepared to compromise in the short term in order to receive some, if not all, of your orders in a reasonably timely manner. The virus outbreak has pushed many Chinese companies, already suffering from the US/China trade war, to the breaking point. Therefore, take the time to verify that your supplier can perform before sending payment/deposits.

February 20

  • Handling Packages and Raw Materials from China
    A recent article published by a major news outlet suggests that the COVID-19 virus may live on certain untreated surfaces for many days. This has prompted questions regarding the safety of handling products and raw materials arriving from China now that factories and companies are returning to work.

    An expert health care professional with whom we have consulted on the medical aspects of the COVID-19 outbreak indicated that the article we cited references data for SARS and MERS – not the novel coronavirus causing COVID-19.  She also instructed us to be very cautious in how we apply data from these other viruses to this current situation, as these are unique pathogens with their own characteristics. In addition, she indicated that an article identified within the news story specifically provides that "data on the transmissibility of coronaviruses from contaminated surfaces to hands were not found".  The health care professional also indicated that to her knowledge, there is currently no evidence that spread of the virus from surfaces/objects to humans is a driver of the ongoing epidemic in China.   
     
    The Center for Disease Control FAQ page also includes helpful information:

    Q: Am I at risk for COVID-19 from a package or products shipping from China?

    A: There is still a lot that is unknown about the newly emerged COVID-19 and how it spreads. Two other coronaviruses have emerged previously to cause severe illness in people (MERS-CoV and SARS-CoV). The virus that causes COVID-19 is more genetically related to SARS-CoV than MERS-CoV, but both are betacoronaviruses with their origins in bats. While we don’t know for sure that this virus will behave the same way as SARS-CoV and MERS-CoV, we can use the information gained from both of these earlier coronaviruses to guide us. In general, because of poor survivability of these coronaviruses on surfaces, there is likely very low risk of spread from products or packaging that are shipped over a period of days or weeks at ambient temperatures. Coronaviruses are generally thought to be spread most often by respiratory droplets. Currently there is no evidence to support transmission of COVID-19 associated with imported goods and there have not been any cases of COVID-19 in the United States associated with imported goods. Information will be provided on the Coronavirus Disease 2019 (COVID-19) website as it becomes available.

    If you have medical questions related to COVID-19, the CDC FAQ page is an excellent resource for current health related information regarding the COVID-19 virus and should help dispel many of the myths that tend to be propagated during times of outbreak.

    With that in mind, we reiterate the importance of continuing to educate your employees by providing them with correct, updated information regarding the COVID-19 outbreak. If any of your employees continue to express concerns regarding handling products or raw materials arriving from China, consider offering them gloves and encouraging them to wash their hands after handling products and before touching their eyes and noses. If the employees expressing concerns are immunocompromised or pregnant, you could try to find other work for them to do on a temporary basis, or allow them to take an unpaid leave of absence until this situation resolves. There is no legal requirement for doing so at this juncture (and you would never want to force an employee in this situation to take leave), but this may be a better for your business than having an employee in this situation disrupting operations or unduly stressed by the fear of contracting the illness, unfounded as that fear may be.

February 19

  • An online tracker developed by Johns Hopkins University delivers information and tracks cases of COVID-19 in real-time. The tracker pulls data from a variety of sources, including the WHO, CDC and China’s National Health Commission

February 17

  • Verify that China Business has Reopened and is Operating at Full Capacity
    Most provinces in China have allowed companies to reopen since the Lunar New Year holiday. The city of Wenzhou in Zhejiang Province will permit businesses to reopen beginning February 17, 2020. Beijing, Hainan, and Sichuan Province are permitting companies to have flexibility concerning when to reopen. The port city of Tianjin has not announced a date when companies will be permitted to reopen. Hubei Province has announced that businesses will be able to reopen on February 21, 2020. However, we believe this date is fluid and should be confirmed closer to February 21. It also is important to note that there are still a number of regional travel restrictions in place that will prevent some number of employees from returning to work. In addition, companies may be required to satisfy certain requirements/obtain approvals from provincial and/or local governments and landlords before they are allowed to reopen. Also, many companies have run short of raw materials/components as a result of the extended holiday. Due to the sheer number of companies trying to reopen, missing employees, and a lack of raw materials/components, your supplier or customer may not be able to reopen or return to full capacity for several weeks after the date announced by the government. Due to this lag in obtaining approval to reopen and the economic hardships experienced by companies as a result of the virus, we are hearing about an increase in fraud by suppliers claiming that they are open and requesting deposits for orders when, in fact, the suppliers remain closed or have shut down permanently. As we have said many times before, "trust but verify" before sending deposits to your suppliers.
     
  • Update on Ocean Cargo Delivery from China
    While cargo is beginning to move again from China, delivery times are being impacted. Due to a major decrease in demand for shipping (because China factories are slow to return to business), ocean carriers are removing vessels out of rotation or diverting vessels from Southern China to other ports located in Southeast Asia. Verify shipping times in advance and modify your supply agreements accordingly.

February 16

  • Application of Force Majeure and COVID-19 (novel coronavirus)
    Expect claims to excuse performance by your Chinese supplier or customer under the force majeure provision of your contracts. The China Council for the Promotion of International Trade has established an application process by which a Chinese party may obtain a force majeure certificate. While persuasive, the certificate, alone, is not sufficient to excuse performance. The supplier or customer must still demonstrate that the facts of the particular case warrant application of force majeure under applicable governing law or applicable contract. If your contract is governed by Chinese law or must be adjudicated in China, overriding state interest it is unlikely that a Chinese court or arbitrator will sanction a Chinese supplier or customer that is unable to perform in accordance with the terms of any contract. Even if your contract is governed by non-Chinese law or may be adjudicated outside of China, it also is unlikely that any judgment against a Chinese supplier or customer will be enforced in China under the current circumstances. In the short term, you should consider reaching some sort of settlement of the dispute and/or find alternative sources of supply outside of China.
     
  • Cybersecurity Attacks using COVID-19 to steal data are on the increase
    Attackers are exploiting the COVID-19 outbreak by sending malicious e-mails aimed at various groups, including businesses located in geographic areas impacted by the virus and industries that may be impacted by shipping disruptions. Based on recent reports, the attack includes a malicious Microsoft Word document that exploits an old vulnerability and installs AZORult, an information stealing malware. Security experts are advising that recipients of COVID-19 related e-mails treat such e-mails with extreme caution before opening the e-mails or attachments.
     
  • Current Travel Restrictions Between China and U.S.
    Effective February 5, 2020, President Trump signed an executive order suspending entry into the US of all foreign nationals who have visited China at any time during the 14 days prior to arrival in the US, except immediate family members of US citizens. In addition, all US citizens entering the US after visiting Hubei Province in China at any time during the 14 days prior to their arrival in the US are subject to a mandatory quarantine of up to two weeks.
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