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Redefining Extraordinary Circumstances in the Wake of COVID-19: Finding Consistency in Difficult Times

Humanity has largely embraced the “we are in this together” mentality from a health crisis perspective. Yet, even as world leaders scramble to contain the COVID-19 pandemic, we have yet to fully grasp the follow-on impact from the pandemic and particularly, how it will affect world economies. For this “second phase” of the world’s response to the pandemic, the ultimate question is whether business and financial counter-parties will equally share the risk of loss. Bankruptcy judges have jurisdiction to fashion remedies for parties in their courtroom, but Congress and COVID-19 have left them no choice but to rule on issues immediately in front of them without the ability to limit the impact of their decisions on other market players. With a goal of tempering the COVID-19 related damage, recent difficult decisions in U.S. Bankruptcy Courts have invoked unprecedented results, but employing U.S. Bankruptcy Courts as our method of policing the economic impact of the pandemic may disproportionately impact risk-shifting.

Our economy relies on numerous players, all of whom are impacted (and impact one another): (a) unemployed people can neither pay their rent nor inject discretionary spending to restart retail and other industries; (b) retail tenants that do not generate income cannot pay their rent, resulting in commercial landlords/property owners potentially defaulting on their mortgages; (c) lenders with overdrawn revolvers cannot (or will not) further extend credit to defaulting borrowers; (d) companies that are cash-strapped cannot pay employees, landlords or lenders. Stated simply, there will be an echoing breakage if a disproportionate amount of the

U.S. COVID-19: California Announces Phased-In Reopening, Starting With Curbside Pickup

California Gov. Gavin Newsom announced on Monday that certain low-risk retail businesses will be allowed to reopen on a limited basis if they meet state guidelines and conditions to be announced on Thursday, including by allowing curbside pickup as early as this Friday.

Newsom said shops that sell items such as clothing, books, music, toys and sporting goods, as well as florists, are as among those who will be allowed to reopen on a limited basis if they meet the state guidelines.  Associated manufacturers that support the retail industry would also be allowed to begin production.

Whether a particular retail location can reopen, and under what conditions, also depends on the county and city where it’s located.  Six Bay Area counties announced last week that their shutdown orders will continue through the end of May: These include Alameda, Contra Costa, Marin, San Francisco, San Mateo, Santa Clara, and the City of Berkeley.  Los Angeles’s county’s order is set to expire May 15, after which the county is expected to phase in reopenings.

Governor Newsom in his briefing acknowledged that counties and cities have the right to issue orders that may be stricter than the state’s order.  However, he said some counties will be allowed to move further into the reopening process depending on certain criteria, including the stability of Covid-19 hospitalizations and the state’s ability to conduct more testing and contact tracing.

The California Retailers Association’s COVID-19 web page links to a summary of county and city orders within

COVID-19 in 19: Workplace Temperature Screening: Who, Where and How

The notion that U.S. employers would engage in broad-scale temperature screening of employees and visitors would have once been unthinkable. But the realities of COVID-19 are changing the workplace, as least for the time-being. With the encouragement of the CDC and certain state and local governments, and a green light from the EEOC, many employers are implementing daily temperature screening as one means of keeping their employees healthy. As part of our continuing series of 19-minute teleconferences on the impacts of COVID-19, join us as we discuss best practices for temperature screening and highlight potential issues employers should keep in mind.

Event Details

Date Tuesday, May 5, 2020 Time 1 p.m. to 1:19 p.m. PDT 2 p.m. to 2:19 p.m. MDT 3 p.m. to 3:19 p.m. CDT 4 p.m. to 4:19 p.m. EDT

Register to attend >

U.S. COVID-19: Illinois Employers Take Note: Key Employment Provisions of the Illinois COVID-19 Executive Order Effective May 1, 2020

On April 30, 2020, Governor Pritzker issued Executive Order 2020-32, effective May 1, extending social distancing requirements and, among other things, issuing new guidelines for Illinois employers.

The key employment-related aspects of the Executive Order are as follows:

  • All employers are required to evaluate which employees are able to work from home, and are encouraged to facilitate remote working when possible.
  • All employers that have employees who are physically reporting to a work site must post this guidance from the Illinois Department of Public Health and the Office of the Illinois Attorney General regarding workplace safety during the pandemic.
  • When working, all individuals who are able to medically tolerate a face covering (which includes “a mask or cloth face-covering”) are required to cover their nose and mouth with a face covering when in a public place and unable to maintain a six-foot social distance. This includes public indoor spaces such as stores.
  • All employers operating Essential Businesses and Operations and engaged in Minimum Basic Operations must take proactive measures to ensure compliance with “Social Distancing Requirements.”
    • Social Distancing Requirements include: “maintaining at least six-foot social distancing from other individuals, washing hands with soap and water for at least 20 seconds as frequently as possible or using hand sanitizer, covering coughs or sneezes (into the sleeve or elbow, not hands), regularly cleaning high-touch surfaces, and not shaking hands.”
    • In addition, employers should, where possible:
      • Provide employees with “appropriate face coverings” and require that employees wear face

Motions to Dismiss Granted in ADA Gift Card Cases

A New York federal court has granted motions to dismiss in four separate cases alleging that the failure to offer gift cards in Braille violates the ADA. The rulings by U.S. District Court Judge Gregory H. Woods (Southern District of New York) all hold that the plaintiffs in those cases failed to state a claim for violation of the ADA, and also lack standing.  The rulings allow plaintiffs to file an amended complaint within 15 days.

As we previously reported, the lawsuits were among more than 100 such complaints alleging that failure to offer gift cards in Braille violates Title III of the Americans with Disabilities Act.

ADA Does Not Require Offering Braille Gift Cards

Judge Woods issued the first opinion last Thursday, and the following day issued rulings in the other three cases referencing that opinion. Judge Woods concluded that the complaints failed to state a claim because the ADA does not require retailers to create specialty goods for the visually impaired.  In doing so, Judge Woods rejected the three theories advanced by plaintiff: (1) that gift cards are goods that need to be accessible; (2) that gift cards are places of public accommodation that must be independently accessible; and (3) that plaintiff was denied access to the defendant’s services when it denied plaintiff a Braille gift card.

With respect to the first theory, Judge Woods concluded that Title III prohibits a public accommodation from discriminating based on disability when providing “access to” whatever goods and services the

COVID-19 in 19: U.S. Employer Guidance for Reopening the Workplace

Increased discussion of reopening the U.S. economy has raised numerous questions as employers prepare to return their employees to the workplace. In just the last week, President Trump’s White House issued its Opening Up America Again three-phased approach for re-opening the economy, the Equal Employment Opportunity Commission issued guidance about returning to work, and the states of Texas, Georgia, South Carolina and Vermont have issued plans to rescind their shelter in place orders in phases – all while other states have extended their shelter in place orders. While there is no single roadmap to reopening in these continuing uncertain times, employers should begin to consider what measures will help ensure a safe, orderly return to business.

Join us for this 19-minute discussion on these and other rapidly changing guidelines.

Event Details

Date Tuesday, April 28, 2020 Time 1 p.m. to 1:19 p.m. PDT 2 p.m. to 2:19 p.m. MDT 3 p.m. to 3:19 p.m. CDT 4 p.m. to 4:19 p.m. EDT

Register for the teleconference >

Proposed House Bill Could Save Cannabis Businesses Suffering During the COVID-19 Crisis

April 24, 2020

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The Emergency Cannabis Small Business Health and Safety Act (the “Act”), introduced by House Reps. Earl Blumenauer (D-OR) and Ed Perlmutter (D-CO), could help an industry which employs at least 250,000 Americans amid the coronavirus pandemic. Despite being designated an “essential service,” cannabis businesses, and those businesses serving the cannabis industry, are largely shut out from receiving financial assistance under the recently passed CARES Act. The lack of equal access leaves an industry already suffering disproportionate financial burdens under normal conditions, especially vulnerable. The Act as proposed clears the way for cannabis businesses to apply for and receive access to federal programs such as the Paycheck Protection Program and the U.S. Small Business Administration Economic Injury Disaster Loan Program, which offer forgivable federal loans for business expenses, including, payroll, rent, debt obligations and utility payments. Given that cannabis remains federally illegal as a Schedule I drug, it remains to be seen whether the Act will be passed and the necessary aid distributed. However, the Act is a light at the end of an otherwise gloomy tunnel for an industry providing medical services to thousands of Americans daily.

U.S. COVID-19: Preparing a Reopening Plan – Five Steps to Take Right Now

As state governments and businesses look towards restarting the economy, the consensus is that as the U.S. gradually re-opens, the look and feel of businesses will change dramatically. Before the world can return to its full pre-COVID-19 normal, this interim period between the lifting of shelter in place orders and the broad distribution of vaccines or effective treatments is projected by experts to last at least one, and possibly as long as two years. This client communication will focus on public facing businesses which must significantly change their operations to reduce the risk of coronavirus transmission. Non-healthcare businesses which have frequent contact with the general public, such as retailers, are deemed by the Occupational Safety and Health Administration (OSHA) to be medium exposure risk. Before such businesses re-open, they should have a comprehensive reopening plan addressing the following:

1. Monitor Best Health Practices and Guidelines

The Centers for Disease Control (CDC) sets national standards and guidelines for responding to COVID-19. The CDC uses its website to communicate with the public, which is updated frequently as their recommendations change based on circumstances. CDC recommendations are widely deemed to be standard practice for the United States, and cover a range of topics such as social distancing, treatment of surfaces and use of materials; they also contain specific guidance for both healthcare and non-healthcare related businesses. While the guidelines have changed over time as the situation has evolved, reliance on their recommendations offers a measure of protection as the CDC guidelines are the

U.S. COVID-19: New CDC Guidance Allows Potentially-Exposed “Critical Infrastructure Workers” to Remain at Work – with Precautions

April 23, 2020

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The Centers for Disease Control and Prevention (“CDC”) recently issued guidance applicable to “critical infrastructure workers,” and safety precautions employers should take when those workers are potentially exposed to COVID-19.

The CDC has generally recommended that any individual who has recently been in close contact with a person with COVID-19 (someone in their household or family member) should “self-quarantine” at home for at least 14 days, self-monitor for symptoms consistent with COVID-19, and check his or her temperature twice a day. Some employers have been applying this guidance to their employees, instructing any employee with a potential exposure to self-quarantine at home for 14 days.

Recognizing that certain essential businesses and functions need to continue operating even during the pandemic, the CDC has now updated its guidance for “critical infrastructure workers,” as defined by the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (“CISA”). Personnel (including contracted vendors) in 16 different sectors of work are considered “critical,” including:

  • Federal, state, & local law enforcement;
  • 911 call center employees;
  • Janitorial staff and other custodial staff; and
  • Other designated workers in the following sectors: chemical, commercial facilities, communications, critical manufacturing, dams, defense industrial base, emergency services, energy, financial services, food and agriculture, government facilities, healthcare and public health, information technology, nuclear reactors, materials and waste, transportation systems, and water and wastewater.

Under the new guidance, critical infrastructure workers may be permitted to continue working following a potential exposure to COVID-19. A potential exposure means being in a household or

Coronavirus: UK Job Retention Scheme online portal now open / employee consent

April 20, 2020

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Online portal

Today, the UK Coronavirus Job Retention Scheme (‘CJRS’) online portal has opened for employers to make applications for furlough grants.  You can find the portal here.

Claims can only be made in respect of furloughed employees who were on an employer’s PAYE payroll on or before 19 March 2020 and who were notified to HMRC on an RTI submission on or before 19 March 2020.  Employees who were employed as at 28 February 2020 and on payroll (that is, notified to HMRC on an RTI submission on or before 28 February 2020) and who were made redundant or stopped working for the employer after that date, but prior to 19 March 2020, will also qualify for the CJRS if the employer re-employs them and puts them on furlough.

In relation to claims made under the CJRS, employers should retain all records and calculations in respect of its claims, including records of the amount claimed for each furloughed employee and the period for which each employee is furloughed.

If an employer is furloughing less than 100 employees, in addition to providing certain employer-related details, it is required to enter various employee-specific information. This includes the employee’s name, National Insurance number, claim period and claim amount, and payroll/employee number (optional).  If an employer is furloughing 100 or more employees, it can upload a file with the above information rather than input it directly into the portal.  HMRC will accept .xls .xlsx .csv .ods file types.

Is the California Attorney General Delaying or Loosening Enforcement of the CCPA due to Covid-19? (United States)

April 17, 2020

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Not at this time.

In light of Covid-19, many companies are deciding whether they can (or should) put their compliance plans on hold in order to handle more pressing matters. As things currently stand, the California AG has not indicated that there will be any delay in enforcement, slated to begin on July 1, 2020. Although there is a large push from the business community to delay, an unidentified advisor from the AG’s office recently stated that their office is “committed to enforcing the law upon finalizing the rules or July 1, whichever comes first.”

While the AG’s position could change as the Covid-19 pandemic continues to evolve, companies should assume the deadline for enforcement will remain in place and should continue moving toward full compliance (to the extent practical) with the CCPA by July 1.  Although enforcement is slated to begin in July, it is important to remember that compliance began on January 1, 2020. To the extent priorities need to be established, companies should consider the following:

  • Make sure to comply with deadlines for responding to data subject access, deletion, opt-out requests.
  • Review your publicly-facing documents (e.g., privacy notices) for compliance with the CCPA. If the final regulations have not come out by May 15, 2020, begin the process of reviewing and revising based upon the then-current draft of the regulations. At this point, and presuming that there are no further proposals, that would be the Second Modified Proposed Regulations.
  • Make sure that you have a cookie-compliance strategy,
  • U.S. Economic Stimulus Under the Main Street Lending Program

    April 16, 2020

    Categories

    On April 9, 2020, the Federal Reserve (the “Fed”) announced that it is taking additional action to provide up to $2.3 trillion in loans to support the economy through various programs, including the Main Street Lending Program (“MSLP”).  The Fed intends that the MSLP will ensure credit flow to small and mid-sized businesses by providing support to businesses that were in good financial standing prior to the COVID-19 crisis, on terms and conditions to be set by the Federal Reserve Board.  Funds for MSLP were appropriated pursuant to Section 4027 of Title IV of the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”), and the program is being established under Section 13(3) of the Federal Reserve Act (12 U.S.C. § 344).

    MSLP consists of two facilities:

    • The Main Street New Loan Facility (“MSNLF”) for unsecured term loans originated on or after April 8, 2020; and
    • The Main Street Expanded Loan Facility (“MSELF”) for upsize tranches of secured or unsecured term loans originated before April 8, 2020 (provided the upsize is on or after April 8, 2020).

    As detailed below, the collateral packages and maximum loan sizes are the primary differences between the two facilities.

    A Federal Reserve Bank will commit to lend funds (in an amount expected to result in up to $600 billion in MSLP loan purchases) to a special purpose vehicle (“SPV”) that the Department of the Treasury (“Treasury”) will capitalize with a $75 billion equity investment using its Exchange Stabilization Fund, made available under Section 4027 of

    Preparing to Return U.S. Employees to the Workplace

    April 15, 2020

    Categories

    Preparing to Return U.S. Employees to the Workplace

    April 15, 2020

    Authored by: BCLP

    As we approach the one month anniversary of the first “stay-at-home” orders, many are asking when we can get back to work and what will it look like when we do?  In response, companies are beginning to consider the logistics of returning employees to the workplace.  Just as the “stay-at-home” orders vary widely from state to state, any regulatory return to work orders issued by the states, or any guidance issued by any federal agencies, will likely vary widely as well. Employers with multiple locations may again find themselves juggling different requirements in different facilities, with no single approach fitting an entire multi-location business.

    Though “stay-at-home” states have not yet issued guidance on how or when they will allow non-essential businesses to begin operating again, such a return could commence at any time.  In order to assist companies with preparing in the absence of regulatory guidance, we have developed the following suggestions for employers’ consideration as they plan to return employees to the workplace and seek to be positioned to do so, when permissible, as efficiently and quickly as possible:

    • Be prepared to comply with the CDC’s Guidelines in effect at the time of a return to work. For current example, employers should ensure they have sufficient handwashing stations and supplies, tissue disposal options and appropriate postings regarding sanitation and hygiene.
    • Consider improved infection control/sanitization practices for high-touch areas such as equipment, machinery, restrooms and breakrooms, and sanitization materials for workers and visitors.
    • It is likely that in every

    US COVID-19: Workplace Temperature Screening: How To Develop and Implement A Screening Protocol

    April 14, 2020

    Categories

    The notion that U.S. employers would engage in broad-scale temperature screening of employees would have once been essentially unthinkable.  But the realities of COVID-19 are changing the workplace, as least for the time-being.  With the encouragement of the Centers for Disease Control and Prevention (“CDC”) and some state and local governments, and in light of the blessing of the Equal Employment Opportunity Commission (“EEOC”), more employers are now considering the implementation of daily temperature screening[1] before employees enter the workplace.

    In Part 1 of our two-part series on temperature screening, we addressed the question of whether employers may (or must) implement a temperature screening protocol.  Here, in Part 2, we address the question of how to implement such a protocol, i.e. what procedures for temperature screening in the workplace should employers implement? Below are a number of issues for employers to consider:

  • Decide who will be screened. Some employers are screening only critical infrastructure workers who were or may have been exposed to a person suspected or confirmed to have COVID-19.  Other employers are screening all employees, and often are also screening any contract workers and visitors who enter the workplace, unless doing so would be virtually impossible (e.g., a grocery store screening all customers).  Although deciding who will be screened is essentially a business decision, at all times, employers must ensure that employees are selected for screening on a nondiscriminatory basis.
  • Decide who will do the screening. The options for who will do the screening range from the employee taking their own temperature and showing
  • US COVID-19: Employee Temperature Screening: What Employers Need To Consider When Deciding Whether To Implement a Screening Process

    April 14, 2020

    Categories

    In light of concerns about the spread of the novel coronavirus in the workplace, employers are confronting important questions pertaining to the screening of employees for COVID-19 symptoms, including as it pertains to taking employees’ temperatures: May (or must) we screen employees for fevers, and if so, how should we implement such a practice?

    In Part 1 of this two-part blog series, we address issues relating to the decision of whether employers may (or must) implement a temperature screening protocol.  In Part 2, we will provide guidance on how to do so.

    Non-Discriminatory Temperature Screening Is Permitted

    Taking an employee’s temperature is considered a medical exam under the Americans with Disabilities Act (“ADA”) and would normally be subject to strict restrictions. However, the federal Equal Employment Opportunity Commission (“EEOC”) has expressly stated in updated guidance that employers are permitted to screen employees for fevers due to the COVID-19 pandemic.  Some state agencies are following suit; for example, the California Department of Fair Employment and Housing recently issued guidance indicating that temperature checks are permissible and non-discriminatory under the present circumstances, so long as they are conducted on all personnel entering a facility.

    Federal Guidance Supports Temperature Screening In Certain Circumstances

    At the federal level, the Centers for Disease Control and Prevention (“CDC”) has advised all employers to consider “community level spread” of COVID-19 when determining appropriate workplace precautions, stating that workplaces in communities with minimal to moderate community spreading should, among other things, “[c]onsider regular health checks (e.g.,

    COVID-19 in 19: Proactively Safeguarding Your Business from Potential Allegations of Price Gouging in the U.S.

    April 10, 2020

    Categories

    Continuing in our series of concise COVID-19 teleconferences, BCLP’s Susan Brice and Zeke Katz will briefly discuss the evolving impact of price gouging laws at the state and federal level in the United States, and what businesses can do in order to best protect themselves from price gouging claims, investigations and penalties.

    Date Monday, April 13, 2020 Time 1 p.m. to 1:19 p.m. PDT 2 p.m. to 2:19 p.m. MDT 3 p.m. to 3:19 p.m. CDT 4 p.m. to 4:19 p.m. EDT

    Register

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