P ROTECTING Y OUR B USINESS & E MPLOYEES F ROM THE I MPACT OF C - - PowerPoint PPT Presentation

PROTECTING YOUR BUSINESS & EMPLOYEES FROM THE IMPACT OF COVID-19

March 19, 2020

PRESENTERS

Brian R. Carnie Labor & Employment Michael J. deBarros Insurance Coverage Jessica C. Engler, CIPP, US Data Security & Privacy Edward Hardin, Jr. Labor & Employment

• R. Chauvin Kean

Business & Corporate Michael D. Lowe Labor & Employment and Construction

PREFACE & DISCLAIMER

The opinions expressed in this presentation and on the following slides are solely those of the presenters and not necessarily those

• f Kean Miller LLP or its clients. The contents of this webinar

does not constitute legal advice. To the extent you require advice about any particular set of circumstance, COVID-19 related or

• therwise, we recommend that you contact our presenters, whose

contact information will be available at the conclusion of this presentation.

RESPONDING TO A SUSPECTED OR

CONFIRMED CASE

What should/can we do if we suspect an employee is sick,

• r has had “close contact” with someone with COVID-19?
• Determine if self-quarantine is necessary, and for how long
• Precautionary steps to protect others in workplace
• Work from home options/risks (attendance as non-

essential?)

• What if s/he tests positive?

EMPLOYEE SAFETY

Employee screening procedures?

• Questionnaires (recent travel, symptoms, COVID-19

diagnosis)

• Facility access restrictions
• Can you take employee’s temperature?

– May depend on locale of facility – Is COVID-19 widespread in the area?

EMPLOYEE RELATIONS

• Privacy Concerns …
• Wage and Hour Issues …
• Benefits …
• Worker’s Compensation …
• Unemployment Insurance …
• Discrimination Concerns …
• Closures and Layoffs …
• Union Considerations …

FAMILY FIRST CORONAVIRUS RESPONSE ACT

• Current status
• Changes to the Family Medical Leave Act

(“FMLA”)

• Emergency paid sick leave

COVID-19 TASKFORCE (LABOR & EMPLOYMENT ATTORNEYS)

Brian Carnie Direct: 318.562.2652 Chelsea Caswell Direct: 225.382.3405 Ed Hardin Direct 225.382.3458 Scott Huffstetler Direct: 225.389.3747 Erin Kilgore Direct: 225.389.3712 Michael Lowe Direct: 318.562.2653 Zoe Wilde Vermeulen Direct: 504.620.3367 David Whitaker Direct: 504.620.3358

DATA PROTECTION CONCERNS FOR A REMOTE WORKFORCE: ADMINISTRATIVE

• Remote Work Policies – If you have one,

use it; seek guidance if updating policies; implement BYOD policies.

• Stress Test Current Remote Systems -

Can your current system handle a remote workforce?

• Keep IT Resources Healthy
• Limit Access on a “Need to Know” Basis
• Use VPNs
• Encrypt Personally Identifiable

Information

• Monitor Information Transfer – Time,

location, outside accounts, unusual increases in activity, etc.

• Update the Incident Response Plan
• Prepare the Remote Data Incident

Response Team

• Ensure Unity in Messaging
• Data Protection Laws Still Apply –

HIPAA, GDPR, CCPA, etc.

• Only Collect the Personal

Information Needed to Assess the Risk – Proportionality is key.

DATA PROTECTION CONCERNS FOR A REMOTE WORKFORCE: COMPANY-WIDE MEASURES

• Reminders to Safeguard –

Confidential information, trade secrets, IP, client data, personal information, etc.

• Secure WiFi Networks – Password

protected; updated regularly. Do not use public networks.

• Secure Personal Devices – Robust

BYOD policies, or provide company equipment.

• Avoid Personal Email Accounts and

Personal Cloud Storage Accounts

• Secure Conference Call Lines –

Avoid online and free conference call services.

• Prohibit “Remember Password”

Tools

• Cautiously Donate – Beware of

newly formed charities, aggressive tactics, etc. Confirm legitimacy before donating.

• Stay vigilant against phishing

schemes and other fraud

BUSINESS AND CORPORATE MATTERS

Contractual Obligations

• What if my company can’t meet its

performance obligations under the contract?

• FIRST:

– Read your contract!

• Each will be different
• May contain force majeure

provisions

Example Force Majeure Text:

• “If performance or such delay or

hindrance is due to strikes, lockouts, acts of God, governmental restriction, enemy act, civil commotion, unavoidable fire or

• ther casualty, or other cause of a

like nature beyond the reasonable control of Landlord or Tenant, then performance of such work, service or

• ther act shall be excused for the

period of such delay, and the period for the performance of such work, service or other act shall be extended for a period equivalent to the period

• f such delay.”

BUSINESS AND CORPORATE MATTERS

• What if my contract doesn’t specifically mention

“pandemics” or government restrictions?

– La. Civ. Code articles 1873-1878 will govern:

• CC 1873: “An obligor is not liable for his failure to

perform when it is caused by a fortuitous event that makes performance impossible.” – Fortuitous Event and Force Majeure have been used interchangeably in Louisiana jurisprudence – Key  Performance must be impossible!

BUSINESS AND CORPORATE MATTERS

• Fortuitous Event:

– CC 1875: an event “that, at the time the contract was made, could not have been reasonably foreseen.” – Examples:

• an act of God; war,

invasion; extreme weather events; and epidemic, famine, plague, or other natural calamities.

• When is performance

impossible?

– Circumstances must be preventative to the extent that a party cannot complete its obligations. – Substitute goods and services if possible (record your attempts!). – Partial performance.

BUSINESS AND CORPORATE MATTERS

• Liability:

– Typically liable for its failures to perform – BUT  if due to fortuitous event (or FM contractual situation), which has made performance impossible, THEN … not liable

• Termination vs. Amendment:

– CC 1876: If the entire performance owed is impossible, the contract is dissolved by operation of law – However, suggest an amendment to contract!

INSURANCE COVERAGE FOR COVID-19 LOSSES

What policies should I be looking at?

• Loss of business income and/or Damage to your own

property?

– Commercial Property

• Claims or lawsuits?

– Liability policies, such as:

• General liability, Pollution Liability, Workers’

Compensation, Employment Practices Liability, D&O, etc.

COVERAGE UNDER PROPERTY POLICIES

Typical Coverages:

• Direct physical damage to scheduled locations
• Extra expenses (to move office to another location)
• Loss of business income during the “period of

restoration”

BUSINESS INTERRUPTION COVERAGE (PROPERTY POLICIES)

Typical Hurdles to Coverage:

• Requirement of “direct physical damage to covered property”
• Exclusions

– “Exclusion for Loss Due To Virus Or Bacteria” and similar – Pollution Exclusions

• Duty to mitigate damages (i.e., removal/sanitation of

Coronavirus)

BUSINESS INTERRUPTION COVERAGE (PROPERTY POLICIES)

Potential Solutions to “Physical Damage” Requirement:

• Presence of COVID-19 in your business location or in one of your supplier’s

locations could constitute “direct physical damage to covered property.”

• Physical damage as a result of a lack of office maintenance or a lack of power
• r other utilities to the office as a result of COVID-19?
• Some types of property policies (mainly sold to businesses in the hospitality

and health care industries) provide insurance coverage for losses caused by “communicable or infectious diseases” without requiring physical damage to insured property

• Civil authority coverage may not require physical damage to covered

property.

• Some forms of political risk insurance may not require physical damage to

covered property.

BUSINESS INTERRUPTION COVERAGE (PROPERTY POLICIES)

Potential Solutions to Exclusions:

• While exclusions for Bacteria and Fungi are common,

exclusions for viruses are not common in these policies.

• New Jersey Legislature Considering Bill To Force Insurers

To Pay COVID-19 Business Interruption Claims Expressly Excluded By ISO’s “Virus” Exclusion.

• COVID-19 may not be seen as a “pollutant, irritant, or

contaminant” for purposes of insurance (e.g., Doerr test).

COVERAGE FOR CLAIMS OR LAWSUITS?

Examples

• Product liability suits against airline companies for failing to install high-

efficiency particulate air-recirculation filters in their aircrafts.

• Negligence suit against a childcare or day-care facility when one infected

child in their care gets other children sick.

• Suit for improper detention / quarantine of 3rd parties (cruise line suit).
• Suit by employee against employer tested too aggressively.
• Suit by employee against employer for failing to provide a workplace free

from “recognized hazards”.

• Suit by employee against employer for inconsistent treatment

(restrictions/testing done on some but not others) – age, race, gender, etc.

• Suit by employee against employer for violation of Family and Medical Leave

Act or state law equivalents.

COVERAGE FOR CLAIMS OR LAWSUITS?

Liability policies

• General liability policies (“CGL”) – Typically cover property damage or bodily injury

claims filed by third-parties (non-employees) against your company. Also cover your company for personal injury offenses such as false detention and imprisonment.

• Worker’s compensation policies – Typically cover claims for bodily injury brought

against a company by its own employees.

– Hurdle: Coverage for “occupational diseases” but NOT “ordinary diseases of life”.

• Employment practices liability policies – Coverage against claims by employees

alleging discrimination, wrongful termination, harassment, etc. Can cover OSHA and FMLA “retaliation” claims. Mixed coverage for wage and hour claims.

• D&O – Claims against directors and officers typically by employees or shareholders

(e.g., failure to place insurance covering COVID-19 losses, failure to implement reasonable procedures for responding to COVID-19, etc.)

• Pollution and Remediation Policies – Sometimes hybrid (cover 1st party & 3rd party

losses).

QUESTIONS?

A recording of this webinar along with a PDF of the presentation will be emailed to all viewers

CONTACTS

Brian R. Carnie

Labor & Employment Phone: 318.562.2652 brian.carnie@keanmiller.com

Michael J. deBarros

Insurance Coverage Phone: 225.382.3445 michael.debarros@keanmiller.com

Jessica C. Engler, CIPP, US

Data Security & Privacy Phone: 504.620.3361 jessica.engler@keanmiller.com

Edward Hardin, Jr.

Labor & Employment Phone: 225.382.3458 edward.hardin@keanmiller.com

• R. Chauvin Kean

Business & Corporate Phone: 504.293.5767 chauvin.kean@keanmiller.com

Michael D. Lowe

Labor & Employment and Construction Phone: 318.562.2653 michael.lowe@keanmiller.com