3-19-20 Woods Oviatt Gilman Creates a Multidisciplinary Crisis Resource Group
Posted on March 19, 2020
CORONAVIRUS (COVID-19) MULTIDISCIPLINARY CRISIS RESOURCE GROUP
Woods Oviatt Gilman LLP has assembled a multidisciplinary crisis resource group of attorneys at the firm to advise clients on all aspects of the legal implications of the COVID-19 (coronavirus disease 2019) outbreak including regulatory, labor and employment, insurance, contractual liquidity, commercial, litigation real estate and family wealth and estate issues. Our attorneys are prepared to assist clients in the successful navigation of the significant, unique and demanding challenges they face, both now and in the days to come, as a result of COVID-19. The attorneys in our crisis resource group practice in a variety of disciplines and, together, their relevant experience enables them to provide thoughtful, practical, proactive and comprehensive guidance to our clients as they confront the substantial issues impacting their businesses as a result of the COVID-19 public health emergency. Below is a partial list of the issues we know are confronting our clients and for which we have been, and will continue to be, available to provide advice:
Complying with business operation restrictions imposed by regulations, guidelines, directives, laws and orders of the State of New York and its governmental agencies and local governments and their agencies, including determining actions or decisions required with respect to business operations, the impact on contractual commitments and managing waivers, enforcement matters and licensing concerns.
Labor and Employment
Complying with State and Federal labor and employment laws, both current and those being enacted in direct response to COVID-19, that impact employer rights and obligations as a result of COVID-19, including but not limited to, the following:
- Workplace health and safety under the Occupational Health and Safety Act (including recently issued updated guidance to better prepare workplaces for the COVID-19 outbreak) and other laws, rules and regulations designed to safeguard employees and mitigate the spread of COVID-19, including implementing, in accordance with applicable State and Federal law, Center for Disease Control guidance and other public health protocols and guidelines, telework arrangements, travel restriction guidelines, employee exposure and sickness protocols and additional infection prevention measures.
- Complying with all pertinent State, Federal and local wage laws, including payment obligations to exempt and non-exempt employees during business slowdowns or closures (including requiring use of vacation or leave without pay during business closures), imposing restrictions on employees' ability to work, requiring or encouraging employees to telework and obligations imposed by collective bargaining agreements.
- Complying with the Family and Medical Leave Act, including applicability to COVID-19 exposed and infected employees or employees with COVID-19 exposed or infected family members, employees caring for children home from school or child care, requesting employees to self-quarantine, seeking medical information from employees before returning to work, modifying paid sick leave policies.
- Complying with the Americans with Disabilities Act and corresponding State regulations following COVID-19 Pandemic Designation, including protocols for seeking employee temperatures and inquiring regarding employee health conditions or symptoms.
- Complying with the New York Paid Family Leave Act for workers who take leave to care for a family member infected with COVID-19.
- Implementing work-force adjustments in compliance with New York and Federal WARN Acts.
- Advising with respect to New York State unemployment insurance rights and obligations, including consideration of New York's Shared Work program.
- Analysis of COBRA obligations related to the continuation of health insurance for covered employees as a result of termination, layoff or a reduction in hours.
- Determining whether self-insured health care plans subject to ERISA may impose cost-sharing requirements with respect to COVID-19 testing and screening.
- Determining whether, under New York workers' compensation law, an employee’s contracting of COVID-19 may be compensable to the employee.
- 401(k) and 403(b) Plan considerations, including employee communications and hardship withdrawals to cover COVID-19 treatment or expenses and losses due to COVID-19.
- Compliance with privacy and data protection policies and regulations, including privacy issues facing employers that provide self-funded or self-administered health benefits to their employees and, therefore, must comply with the Health Insurance Portability and Accountability Act of 1996 (HIPAA) privacy rule.
Evaluating and providing counsel with respect to business interruption, property and casualty, workers’ compensation and other forms of insurance coverage, including applicable endorsements, exclusions and limitations to address direct and indirect losses due to COVID-19, including assessing available insurance coverage and insurance claims so that they can be made on a timely basis.
Existing Commercial Contracts
Managing commercial contracts and associated rights and obligations impacted by the fall-out from COVID-19, including the following:
- Analysis of and exercise of rights with respect to material adverse change or material adverse effect provisions, and required notices;
- Exercise of force majeure provisions as a legal basis for excusing nonperformance under commercial contracts, including reviewing relevant contract language and providing any required notices;
- Identifying other key provisions of material contracts (e.g., representations/warranties, covenants, conditions, "change in law" clauses and termination rights) implicated COVID 19 and related events; and
- Analyzing potential future breach and/or default consequences and evaluating proactive actions to avoid or mitigate the consequences.
Risk Allocation with New Commercial Contracts
Negotiation of commercial contracts being entered into now with respect to appropriate allocation of risk in light of potential continued decline in business environment due to COVID-19.
Liquidity - Credit Facilities and Capital Calls
Reviewing and advising on terms of credit facilities and collateral documents and negotiating with lenders waivers, amendments and restructuring terms and reviewing and advising clients with respect to capital call provisions in partnership and limited liability company agreements.
Commercial Real Estate
- Advising commercial real estate clients about the ramifications of COVID-19 on following issues:
- time of the essence and force majeure provisions in purchase and sale agreements, lease agreements and other real estate agreements;
- real estate due diligence, closing efforts, and financing, including the effect of travel bans, self-quarantines and closures;
- disclosure obligations to potential buyers if tenants or employees have been diagnosed with COVID-19 or areas in the building that may have been affected;
- legal obligations of landlords and tenants with regards to asking employees to clean affected areas;
- tenants’ right to withhold rent if a landlord is not providing required services or the tenant cannot access its premises; and
- property managers with regard to implementation of plans for notification, enhanced cleaning and interruptions in operations in accordance with health guidelines and applicable laws.
Litigation and Disputes
Managing litigation, arbitration and other dispute proceedings and otherwise taking steps to protect clients’ interests as appropriate including claims relating to breach of contract, negligence, products liability, directors and officers liability, insurance coverage, condemnation and other COVID-19 related issues.
Family Wealth and Estate Planning
Assisting clients with preparing and executing Durable Powers of Attorney (for access to financial resources and related decision making authority), Living Wills and Health Care Proxies (for the ability to make and communicate health care decisions for someone who is otherwise unable to make those decisions), assistance with long term care planning for individuals who may be subject to long term effects from COVID-19 related illness, and other planning concerns.
Please contact your Woods Oviatt attorney or the following attorneys regarding COVID-19 related issues:
COVID-19 Multi-resource Crisis Group Co-Leaders
Gordon E. Forth, Esq.
Chris R. Rodi, Esq.
Cell: 585- 472-6474
Government Business Regulations:
John F. Liebschutz, Esq.
Employment and Labor:
Gordon S. Dickens, Esq.
Lorisa D. LaRocca, Esq.
Donald (Dan) O’Brien, Esq.
Gregory Broikos, Esq.
Christopher R. Rodi, Esq.
Cell: 585- 472-6474
Katarina B. Polozie, Esq.
Liquidity - Capital Calls
Christian J. Henrich, Esq.
Liquidity - Credit Facilities:
W. Stephen Tierney, Esq.
William F. Savino, Esq.
Litigation and Disputes:
Warren B. Rosenbaum, Esq.
Brian Capitummino, Esq.
Kristopher J. Vurraro, Esq.
Benjamin Keller, Esq.
Family Wealth and Estate Planning
Philip L. Burke, Esq.
David P. Shaffer, Esq.