BUTLER SNOW CORONAVIRUS HUB

Business and Legal Considerations for the Global Pandemic

Butler Snow continues to actively monitor the fast-moving developments related to Coronavirus (COVID-19). As you know, the World Health Organization has now declared the virus a worldwide pandemic. As the situation continues to evolve almost by the hour, the need for accurate and timely information becomes more important than ever. As such, we have created an online Coronavirus Hub to provide our clients and friends with updated information regarding the impact of the pandemic on their business and their legal risks and obligations.

We appreciate your trust and confidence as we assist with these challenging issues. Our thoughts are with you, your loved ones and organizations as we all navigate this public health crisis together.

CARES Act Updates

CARES Act – Retirement Plan Distribution and Loan Rules Liberalized

With the economic fallout from the public health measures taken to mitigate the spread of the SARS-CoV-2 virus and COVID-19 disease, many employers have had to resort to unprecedented employment actions, including terminating, furloughing, or laying off employees, and dramatically altering historic employment benefit plans and perks.

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Important Tax Provisions in the CARES Act

The Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) includes several tax provisions in addition to the other voluminous economic stimulus provisions.  A summary of key tax provisions in the CARES Act is as follows.

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Congress Passes the Coronavirus Aid, Relief, and Economic Security Act

On Friday, March 27, the United States Congress passed an unprecedented $2 trillion economic stimulus package to benefit the U.S. economy. The bipartisan agreement comes after several days of intense negotiations and provides emergency financial assistance for individuals, families, and businesses affected by the Coronavirus pandemic. The legislation includes a plan to send $1,200 checks to many Americans, unemployment insurance for those who lose their jobs in the crisis, a $500 billion Treasury fund to shore up industries damaged by coronavirus and $349 billion in small business loans.

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Forgivable Loan Relief Offered to Small Businesses Under CARES Act

On March 25, 2020, the Senate passed the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act), which provides crucial support and relief for businesses, including $349 billion for Small Business Administration (SBA) loans under its 7(a) loan program.

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Commercial Litigation Updates

The Emergency Management Assistance Compact – More Important Now Than Ever

Many Americans have heard of the Stafford Act, 42 U.S.C. § 5121, et seq., which empowers the federal government to provide states certain types of monetary and non-monetary assistance, in instances of declared emergency.  However, far fewer Americans have heard of the Emergency Management Assistance Compact (“EMAC”), approved by Congress in Public Law 104-321, pursuant to Article I, section 10 of the United States Constitution.  See id.  (“[n]o State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State.”)

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COVID-19 Has Businesses Examining Their Insurance Policies for “Business Income”/“Civil Authority” Coverage

When the Governor of Louisiana issued a COVID-19 proclamation postponing or canceling certain gatherings of 250 or more people, the owners of the Oceana Grill, a restaurant in the heart of the French Quarter, filed a lawsuit that will be of interest to many businesses.

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An Unfortuitous, Fortuitous Event: Coronavirus (COVID-19) and Force Majeure in Louisiana

Butler Snow attorneys are advising clients on numerous legal issues relating to the Coronavirus and its consequences including, among others, the invocation and enforceability of force majeure provisions in contracts.  While Butler Snow attorneys are well-versed in all states where our firm is present, this article is intended to address the interpretation of contractual force majeure provisions in Louisiana as well as the scheme for addressing “fortuitous events” in the Louisiana Civil Code.

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Practical Advice for Business: How to Deal with Coronavirus Impact on Commercial Transactions

Supply shortages, stressed customers, government actions, and other disruptions during the COVID-19  crisis are affecting you. Your suppliers may be failing to deliver goods and services to you as promised.  You may find it increasingly hard to meet your own contracts with your customers.

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Potential Coronavirus Impact on Commercial Transactions & Real Estate: Thinking Ahead

As concerns continue to be raised and addressed with respect to the Coronavirus, businesses should be alert to the real potential that they may face commercial challenges from potential disruptions related to its existence, spread and containment.  Suppliers may delay delivery of products or raw materials or otherwise fail or be unable to perform contractual obligations or even try to charge higher prices.

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Federal Reserve Actions Updates

Summary of Certain Federal Reserve Actions Taken Since Outbreak of COVID-19 Pandemic

The Federal Reserve System (the “Fed”) is the central bank of the United States and primarily interacts with banks and financial institutions to conduct monetary policy and promote the stability of the U.S. financial system. The Fed has taken a variety of actions to help minimize the adverse effects of the COVID-19 pandemic.

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Government Relations Updates

State Policy Updates from Government Relations Practice

Click for state policy updates from our Government Relations practice.

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Health Law Updates

National

CMS Issues Blanket Stark Law Waivers

On March 30, 2020 (retroactively effective as of March 1, 2020), CMS issued blanket – nationwide – waivers of sanctions under the Stark Law in response to the COVID-19 public health emergency.

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CMS Grants Additional Tennessee 1135 Waivers

On March 13, 2020, pursuant to section 1135(b) of the Social Security Act, the Secretary of the United States Department of Health and Human Services (HHS) invoked his authority to waive or modify certain requirements as a result of the consequences of the COVID-19 pandemic, as determined by the Centers for Medicare & Medicaid Services (CMS). In addition to the blanket waivers issued by CMS on March 13 for many Medicare provisions, on March 25 and March 27 CMS granted the following waivers requested by Tennessee and the Tennessee Hospital Association related to federal Medicaid and Medicare requirements:

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CMS Breathes Life into HHS EMTALA Waiver

On March 30, 2020, CMS announced its “Hospitals Without Walls” initiative, which, among other things, invokes the HHS EMTALA waiver effective immediately.  Specifically, the CMS Hospitals Without Walls Initiative waives enforcement of EMTALA to permit hospitals, psychiatric hospitals, and critical access hospitals to perform medical screening exams at locations offsite from the hospital’s campus to prevent the spread of COVID-19, so long as it is not inconsistent with the state emergency preparedness or pandemic plan.

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UPDATE: NIH Provides Grant Guidance Considering COVID-19 Impact on Research

Recognizing the impact that COVID-19 can have on research and the NIH grant application process, the NIH has issued 5 pieces of guidance between March 9 and 16, 2020 addressing various impacts of COVID-19 on NIH research grants.

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COVID-19: Expansion of Telemedicine Services and Rural Health Clinics

On March 17, 2020, in response to the COVID-19 emergency, Medicare announced that it will reimburse physicians and other certain healthcare providers for telehealth service visits at the same amount as in-person visits regardless of where the patient is located. While the restrictions for telehealth services offered by fee-for-service providers have been relaxed, geographic and site restrictions for telehealth services provided by rural health clinics still apply.

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CMS Grants Additional Mississippi and Louisiana 1135 Waivers

As we reported in another item posted here, on March 13, 2020, pursuant to section 1135(b) of the Social Security Act, the Secretary of the United States Department of Health and Human Services (HHS) invoked his authority to waive or modify certain requirements as a result of the consequences of the COVID-19 pandemic, as determined by the Centers for Medicare & Medicaid Services (CMS).

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FDA Issues Guidance for Clinical Trial Sponsors and Investigators Regarding Impact of COVID-19 on Clinical Trials

The FDA this month released guidance surrounding the conduct of clinical trials involving medical products during the COVID-19 pandemic.

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COVID-19 Testing Costs Covered

On Wednesday, March 18, the President signed the Families First Coronavirus Response Act after the United States Senate passed HR 6201. This legislation contains a number of provisions that remove cost-barriers to COVID-19 testing, including:

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CMS Flexes Rules for Telemedicine During COVID-19 Emergency

Physician offices across the country are rescheduling routine care clinic visits in an effort to protect patients, healthcare providers and workforce. The government is working to remove obstacles that would interfere with transitioning these clinic visits to telehealth services. Yesterday, Medicare announced that it will reimburse physicians and other certain healthcare providers the same amount as in-person visits regardless of where the patient is located.

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CMS Issues Multiple Waivers of Federal Regulations to Support Crisis Care

On March 13, 2020, the Centers for Medicare and Medicaid Services (CMS) issued blanket waivers of certain requirements following the President’s National Emergency Declaration. Current waivers are briefly summarized below.  Forthcoming Butler Snow articles will provide greater details and analysis of certain waivers and pending guidance as that becomes available. In addition to the blanket waivers, providers may seek specific waivers directly from CMS.

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Mississippi

Mississippi Department of Health and Mississippi Medical Licensure Board – Postponement of Elective Medical Procedures and Non-Essential Medical Visits

On March 19, 2020, the Mississippi Department of Health (“MSDH”) issued a press release advising that “elective medical procedures and non-essential medical visits must be postponed.”

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Mississippi Governor Expands Telehealth for Medicaid

On Thursday, March 19, Mississippi Governor Tate Reeves announced the expansion of Medicaid coverage for telehealth services, in an effort to limit unnecessary travel, clinic visits, and possible exposure – through April 30, 2020.

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Miss. State Board of Medical Licensure Issues Telehealth Waivers to Combat COVID-19

The Mississippi State Board of Medical Licensure issued a proclamation on Sunday, March 15, announcing measures to combat the spread of the novel coronavirus. The proclamation allows for the temporary suspension or modification of any rule or regulation put in place by a state agency.

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Louisiana

Louisiana Governor Eases Licensure Requirements for Out-of-State Health Care Professionals to Provide Health Care in Louisiana Hospitals During Coronavirus Emergency

On March 31, in further response to the public health emergency that he declared on March 11, Louisiana Governor John Bel Edwards issued a proclamation announcing further measures to combat the spread of the novel coronavirus in Louisiana.

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Louisiana Department of Health Directs Louisiana Healthcare Providers to Transition All Services to Telehealth When Medically Appropriate

On March 19, in further response to the public health emergency that he declared on March 11, Louisiana Governor John Bel Edwards issued a proclamation announcing additional measures to combat the spread of the novel coronavirus in Louisiana and specifically encouraging the use of telehealth.  See Louisiana Governor Encourages the Use of Telehealth During Coronavirus Emergency.

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Update: Louisiana Department of Health Notice on Elective Medical and Surgical Procedures and Other Healthcare Services

On March 21, in an effort to prevent the further spread of the novel coronavirus and to preserve personal protective equipment (PPE) and to utilize hospital staffing, equipment, and bed capacity for the transition to the coronavirus emergency, the Louisiana Department of Health issued an updated notice mandating that, effective immediately, all medical and surgical procedures be postponed until further notice subject only to the certain exceptions.

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Louisiana Governor Issues Statewide Stay At Home Order; Medicine and Non-Elective Medical Care and Treatment May Still Be Obtained

On March 22, Louisiana Governor John Bel Edwards issued a statewide stay at home order effective from March 23, at 5 pm, through April 13, unless earlier terminated.

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Louisiana Governor Encourages Use of Telehealth During Coronavirus Emergency

On March 19, in further response to the public health emergency that he declared on March 11, Louisiana Governor John Bel Edwards issued a proclamation announcing additional measures to combat the spread of the novel coronavirus in Louisiana.

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Tennessee

Tennessee Governor Lee Releases Executive Order No. 20 with Focus on Health Care

On March 26, 2020, Tennessee Governor Bill Lee signed Executive Order No. 20, with immediate effect.  Executive Order No. 20 amended and significantly expanded the health care specific sections of Executive Order No. 15, dated March 19, 2020, which has been previously summarized and posted on our COVID-19 website (see https://www.butlersnow.com/2020/03/gov-lee-releases-executive-order-15-with-focus-on-health-care/).

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Tennessee Governor Issues Executive Order #18

On March 23, 2020, Governor Bill Lee issued Executive Order #18, which restricts medical facilities from performing non-emergency procedures in order to conserve essential items needed to facilitate the response to COVID-19.

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Gov. Lee Releases Executive Order #15 With Focus on Health Care

Late yesterday, Governor Lee conducted his daily 3:00 Press Conference and Update regarding COVID-19 and discussed his just released Executive Order #15. The order is extensive and is heavily focused on the health care industry. Many provisions in statutes and rules are suspended along other necessary measures to facilitate the treatment and containment of COVID-19.

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Tennessee TennCare Permits Telehealth For Patients at Home

On March 17, 2020, TennCare published guidance regarding testing and telehealth services pertinent to healthcare providers that serve TennCare beneficiaries. Effective immediately and lasting until April 30, 2020, all of TennCare’s health plans – Amerigroup, BlueCare Tennessee, and UnitedHealthcare Community Plan (“UHC”) – are allowing “home” as an originating site in response to the COVID-19 national emergency.

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Tennessee Board of Licensing of Health Care Facilities Issues Policies Related to Treatment and Containment of COVID-19

On March 13, 2020, the Tennessee Board of Licensing of Health Care Facilities issued Policy Memorandum #82 entitled “Interpretation and Temporary Waiver of Rules Related to Treatment and Containment Of COVID-19”. Policy Memorandum #82 remains in effect until October 7, 2020 or an earlier date determined by the Board.

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Labor and Employment Updates

My Employee (May) Have COVID-19. What Do I Record for OSHA?

COVID-19 has caused a tidal wave of new considerations for companies, causing a wide-ranging ripple effect in the way American businesses operate. Given the projected statistics of the number of Americans who will eventually be infected with the virus throughout the U.S., it is inevitable that many (more) American workers will contract COVID-19. At all times, but particularly during the coronavirus pandemic, employers must remain mindful of OSHA workplace injury and illness recording requirements.

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COVID-19 and the Worker Adjustment and Retraining Notification Act

While most of us have been focused on the new federal laws in the form the Families First Coronavirus Response Act and CARES Act the past few weeks, employers must not forget some of the old laws that can be implicated as action is taken to combat a slack in business or loss of business altogether due to the Coronavirus pandemic. One old federal law in particular is the Worker Adjustment and Retraining Notification Act of 1988 (more popularly known as WARN) as employers are often left with little choice but to significantly cut employee work hours, layoff or furlough employees, or unfortunately close the business completely during the economic downturn.

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Steps Employers Should Take When Responding to an Employee’s COVID-19 Diagnosis

As the number of individuals being tested and diagnosed with COVID-19 continues to increase, the likelihood that an employee will report a confirmed diagnosis also increases.   Employers should take steps now to understand COVID-19 in order to respond appropriately to an employee’s diagnosis.

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Workers’ Compensation and COVID-19

The swift economic upheaval and health impact of the COVID-19 outbreak in the United States and around the world is unprecedented in the last century. President Trump proclaimed the COVID-19 outbreak in the United States to be a national emergency that began March 1, 2020.

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EEOC Answers Questions About COVID-19 Issues in the Workplace

On March 27, 2020, the EEOC answered employers’ questions related to the intersection of COVID-19 with the Americans with Disabilities Act (ADA), the Genetic Information and Nondiscrimination Act (GINA), the Age Discrimination in Employment Act (ADEA), Title VII, the Pregnancy Discrimination Act (PDA) and the Rehabilitation Act. The entire question and answer session may be seen here:  https://www.youtube.com/watch?v=i8bHOtOFfJU

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Podcast: International Travel During the Pandemic

Butler Snow attorney Todd P. Photopulos was interviewed on the Employment Law Alliance’s Employment Matters Podcast about the impact of the COVID-19 pandemic on US business immigration law and policy.

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Frequently Asked Questions Regarding the Families First Coronavirus Response Act (FFCRA)

Butler Snow’s Labor & Employment attorneys have compiled some of the most frequently asked questions we have received regarding the FFCRA.  Employers should be aware that there are still many unanswered questions regarding the FFCRA and how it will be interpreted and enforced.  For many of the questions we have received, there currently is not a certain answer.  The questions and answers below are based on the information available at this time and may be updated as the situation develops.

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Mississippi Expands Unemployment Benefits to Workers Affected by COVID-19

Based on guidance from the U.S. Department of Labor and Mississippi Governor Tate Reeves, the Mississippi Department of Employment Security (“MDES”) is modifying the existing unemployment compensation rules to allow workers to file claims for unemployment benefits who are:

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COVID-19: Impact on Business Immigration FAQs

The current National Emergency is resulting in rapid changes to US immigration law and policy. We are monitoring those changes and will continue to update these FAQs with new developments.

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UPDATE: President Signs Families First Coronavirus Response Act

President Trump signed into law the economic stimulus bill aimed at curbing the impact of COVID-19 on businesses and individuals.   Earlier this week, the U.S. House of Representatives unanimously passed a corrected version of the COVID-19 response bill, H.R. 6201, the Families First Coronavirus Response Act. The U.S. Senate overwhelmingly passed that same bill earlier today.  The Act will go into effect no later than 15 days after the date of enactment.

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NLRA Considerations During COVID-19 Pandemic

As if employers and their HR personnel do not have enough to deal with, all must be mindful of the protections and prohibitions found under the National Labor Relations Act (“NLRA”) when addressing the many employment-related issues brought on by the coronavirus.  Whether you have a union or not, the NLRA can be implicated when making difficult employment decisions in order to ride out the virus wave.

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Developing Workplace Policies and Procedures To Combat Coronavirus (COVID-19) – A Common Sense Approach – Updated March 18, 2020

The solution to preparing for the Coronavirus in your workplace is based in common sense and should be treated just like any other important area of any business.  Employers should develop a policy outlining the company’s plan to deal with an outbreak amongst its workforce and develop and implement clear and concise procedures for implementing the policy.  The CDC provides employers with a common sense list of recommended strategies to implement now. 

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Mississippi Governor Issues Two Executive Orders to Help Combat COVID-19

Mississippi Governor Tate Reeves issued two executive orders on March 16, 2020, to address the COVID-19 pandemic.

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Top COVID-19 Issues Business Clients Ask Attorneys

When it comes to COVID-19, clients are interested in not only protecting their employees, but also have concerns about how to handle business disruptions. When it comes to protecting their workforce, most employers want to know how much they can inquire about an employee’s health and whether they can require an employee to stay home. Another concern is whether an employer can require an employee that recently visited an affected region to stay home for a period of time. Based upon guidance from the Equal Opportunity Employment Council, an employer may send employees home if they display symptoms of illness during seasonal influenza or similar illnesses like COVID-19.

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COVID-19 FAQ for Employers

As the situation regarding COVID-19 continues to evolve, we will continue to monitor frequently asked questions from employers and prepare our best guidance based on the information currently available. We will continue to update this list of questions and supplement the answers as the situation continues to develop.

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Other Business Updates

Waivers of Liability in the COVID-19 Era: Proactive Steps Businesses Should Consider to Protect Against Possible Future Liability

The current coronavirus (also known as “COVID-19”) pandemic has changed how industries across the United States and the world are conducting business. It has cast uncertainty and apprehension into even the most routine commercial interactions. Despite these circumstances, many industries continue to provide their customers with essential services necessary for continued economic stability and public safety. On one hand, continuing operations means businesses are supplying integral services and helping prop up the American economy during a time of economic downturn. On the other hand, these businesses are operating in unchartered territory, which carries costs and risks of its own.

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MDEQ Guidance to the Regulated Community Regarding Compliance with Regulatory Requirements During the COVID-19 Pandemic

On April 2, 2020, Chris Wells, the Interim Executive Director of the Mississippi Department of Environmental Quality, issued guidance to the regulated community regarding compliance with regulatory requirements during the COVID-19 Pandemic.  Read the guidance below.

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Working Remotely During COVID-19: Data Security Risks

Many employees are working remotely during the COVID-19 pandemic. The COVID-19 pandemic has led to specific data security risks. Phishing emails are the leading cause of business data breaches. We have seen the following phishing emails specific to the COVID-19 pandemic.

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Homeowners Liability Insurance Coverage for Coronavirus-Related Claims

The coronavirus has quickly spurred significant changes in most people’s daily lives and routines.  In light of the widespread closure of public places and a growing number of safer-at-home orders, nearly everyone has found themselves spending much more time at home.  Residential deliveries have surged, and many Americans have construed social distancing guidelines to permit small gatherings of friends and families inside homes.  But what if an insured with coronavirus exposes someone to the virus?  Or what if a guest becomes infected with coronavirus at an insured’s home?  These interactions could result in an uptick of homeowners liability insurance claims arising from an insured causing someone to be exposed to COVID-19.

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What You Need to Know About “Shelter in Place” Orders

More cities and states are issuing “shelter in place” orders (or at least recommendations) to combat the spread of COVID-19. Some states are banning gatherings of various sizes and limiting the number of people who can go to work. This Article will address what businesses can do to comply with these orders and protect their workplace, and it will also provide resources relevant to affected jurisdictions.

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Travel Insurance Amid The COVID-19 Pandemic

Months and months ago you planned a wonderful vacation to Italy, or you scheduled an important business trip to Spain, or a cruise around the Greek Isles, or a shopping trip to New York, or a college assessment in California, or a trip to Disney World.  When you made your reservations, you noticed a “strong suggestion” that you purchase travel insurance to “protect your trip” in case anything happened before or during the excursion.  Being a prudent traveler, you bought the coverage, hoping it would not be needed.

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SBA Economic Injury Loans – Coronavirus

The U.S. Small Business Administration (SBA) recently designated the Coronavirus (COVID-19) pandemic as a disaster qualifying for its Economic Injury Disaster Loan Program in states and territories approved by SBA through a disaster declaration (Disaster Declaration) after requests by a state’s or territory’s Governor.

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Insurance Issues with Coronavirus

As the health crisis continues, one issue that companies will likely face is the issue of renewing their insurance.

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Product Liability Updates

CPSC Regulations Still Apply During COVID-19 Pandemic

Over the last few weeks, the COVID-19 pandemic has wreaked havoc on small and large companies in the United States and throughout the world.  The pandemic has forced companies to drastically alter their daily operation procedures to comply with state and federal mandates aimed at slowing the spread of COVID-19.

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HHS Declares Liability Immunity for Certain COVID-19 “Countermeasures”; Response Act Expands Protections for Mask Makers

Earlier this week, we discussed current trends and future implications of COVID-19 on businesses operating in the products arena, noting the most direct impact so far on the pharmaceutical and medical device spaces.  Recognizing the potential liabilities this products sector could face in the future, on March 17, 2020 the Secretary of Health and Human Services (“Secretary”) issued a “PREP Act Declaration” proclaiming legal immunity for manufacturers and suppliers of certain products used to combat COVID-19.  The following day, Congress passed, and the President signed, the Families First Coronavirus Response Act, H.R. 6201, which expands protections for makers of masks not previously covered under the PREP Act.  Businesses in these spaces should be aware of these developments.

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COVID-19 and Product Liability: Current Trends and Future Implications

While some businesses should anticipate challenges accompanying uncertainty in meeting production and sales goals, others whose products are directly or tangentially related to the medical field should remain steadfast in following best practices and in-place protocols while satisfying increasing demand so as to avoid unnecessary risk down the road.

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Public Finance Updates

COVID-19 and Secondary Market Disclosure

Our thoughts are with you, your loved ones and organizations as we all navigate this public health crisis together. We are providing this alert to our public finance clients and other professionals regarding COVID-19 and its potential impact on secondary market disclosure.

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Tax Updates

Mississippi DOR Responds to Requests to Relief

On March 26, 2020 the Mississippi Department of Revenue issued a response to requests for relief. The response covers four main areas:

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Employer Payroll Tax Credits Under the Families First Coronavirus Response Act

The Families First Coronavirus Response Act (the “Act”) provides for paid sick leave and expands certain provisions of the family and medical leave act (“FMLA”) to provide support for employees that are absent from work due to the impact of COVID-19.  (For a summary of the Act, click here.)

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