BUTLER SNOW CORONAVIRUS HUB

Business and Legal Considerations for the Global Pandemic in 2022

Butler Snow continues to monitor the latest developments in the Covid-19 pandemic. Our online Coronavirus Hub continues to be updated to provide our clients and friends with updated information regarding the impact of the pandemic on their business and their legal risks and obligations. Our latest insights on various pandemic-related issues are below. To view previous updates and analyses, please click here.

Commercial Litigation Updates

The Fifth Circuit Court of Appeals Just Slammed the Door on Texas Businesses Seeking Insurance Coverage for Lost Revenue Due to COVID-19

In a pair of opinions issued last month, the Fifth Circuit Court of Appeals held that Texas businesses’ COVID-19 related income loss was not covered by standard business income and extra expense (“BI/EE”) endorsement in commercial property insurance policies.  Terry Black’s Barbeque, L.L.C v. State Automobile Mutual Insurance Co., 22 F.4th 450 (5th Cir. 2022); Aggie Investments, L.L.C. v. Continental Casualty Co., No. 21-40382, 2022 WL 257439 (5th Cir. Jan. 26, 2022).  In doing so, the Court followed seven other circuits, which held that such business income loss did not trigger coverage under similar BI/EE endorsements because the insureds did not claim any “direct physical loss” of property.  Terry Black’s, 22 F.4th at 456 (listing cases from the Second, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits).

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Health Law Updates

CMS’ Phase 1 Deadline for Vaccine Mandate to Take Effect for Most Remaining States Monday

Following the Supreme Court’s decision in Biden v. Missouri, CMS will require those states previously subject to federal district court injunctions to be compliant with the “Phase 1” requirements of its Interim Final Rule (“IFC”) as of February 14, 2022. These states include Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, West Virginia and Wyoming. As elaborated in our prior guidance following the Supreme Court’s ruling, Phase 1 requires that the staff of health care providers subject to the IFC must have received, at a minimum, their first dose of a primary series or a single dose COVID-19 vaccine or been granted a lawful exemption prior to providing any care, treatment, or other services for the facility and/or its patients. “Staff” is broadly interpreted by the IFC to include facility employees, licensed practitioners, students, trainees, volunteers, and individuals who provide care, treatment, or other services for the facility and/or its patients under contract or other arrangements. Providers must also have developed and implemented appropriate policies and procedures to ensure staff compliance.

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CMS’ Phase 1 Deadline for Vaccine Mandate to Take Effect for Certain States Tomorrow

Following the Supreme Court’s decision in Biden v. Missouri, CMS will require several states to be compliant with the “Phase 1” requirements of its Interim Final Rule (“IFC”) as of January 27, 2022. These states include California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington, and Wisconsin. As elaborated in our prior guidance following the Supreme Court’s ruling, Phase 1 requires that the staff of healthcare providers subject to the IFC must have received, at a minimum, their first dose of a primary series or a single dose COVID-19 vaccine or been granted a lawful exemption prior to providing any care, treatment, or other services for the facility and/or its patients. Providers must also have developed and implemented appropriate policies and procedures to ensure staff compliance.

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Supreme Court Stays CMS-Vaccine Injunctions: What’s Next for Health Care Providers

On January 13, 2022, the Supreme Court issued dual decisions impacting the CMS (Centers for Medicare & Medicaid Services) and OSHA (Occupational Safety and Health Administration) vaccine mandates in Biden v. Missouri and NFIB V. OSHA. The decisions granted a stay as to the preliminary injunctions of two district courts against CMS’ Interim Final Rule (“IFC”) and determined a stay of OSHA’s Emergency Temporary Standard (“ETS”) was justified—effectively allowing the CMS-vaccine mandate to proceed while blocking implementation of the OSHA ETS. Butler Snow’s Labor & Employment Practice Group has published a separate and informative alert addressing the OSHA ruling, read it here.

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Labor & Employment Updates

Federal Contractor Vaccine Mandate Remains on Hold

Employers across the country were provided guidance on vaccine mandates by the United States Supreme Court (“SCOTUS”) last week. In a 6-3 decision, SCOTUS blocked the Department of Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) requiring private employers with 100 employees or more to vaccinate-or-test for COVID-19 from taking effect. In a separate decision, the Court allowed the Centers for Medicare and Medicaid Services (CMS) Interim Final Rule, requiring COVID-19 vaccination of staff working at health care facilities that receive Medicare and Medicaid money from the federal government, to remain in force. However, the Biden administration issued a third vaccine mandate, applicable to certain federal contractors, as part of its Path Out of the Pandemic initiative. The federal contractor mandate has been challenged, but it was not addressed in last week’s ruling from SCOTUS, and its fate remains uncertain. Following the events of recent days, federal contractors are no doubt wondering what will become of the mandate established by President Biden’s Executive Order 14042.

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SCOTUS Stays OSHA ETS But Allows CMS Mandate to Proceed

The wait is finally over. Today, January 13, 2022, the Supreme Court of the United States (SCOTUS) rendered two much-anticipated opinions announcing whether federal regulations mandating workplace COVID-19 precautions should be stayed pending a definitive decision on the merits of each.

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