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U.S. Federal Court Declines to Decide COVID-19 Workplace Safety Suit

A federal court recently dismissed a suit brought by meat processing workers that asked the court to force the plant owner to comply with workplace safety guidance issued by the Centers for Disease Control and Prevention (“CDC”) and the Occupational Safety and Health Administration (“OSHA”) related to COVID-19.

Important Takeaways For Employers:

  • This is one of the first court decisions involving workplace safety and COVID-19. It suggests the courts may rely on the doctrine of primary jurisdiction and similar doctrines to avoid deciding cases involving COVID-19 safety issues and instead shift the decision-making authority to the agencies that issue or enforce the workplace and public health and safety laws.
    • The defendants successfully argued that the court should dismiss the Complaint on the doctrine of primary jurisdiction.  Based on this doctrine, the court decided that OSHA, not the court, should decide the matter.
    • The court declined to address the issue in part

Back to Work: Governor Pritzker Announces the Restore Illinois Reopening Plan

On Tuesday, May 5, Governor J.B. Pritzker announced a reopening plan for the state of Illinois. The Restore Illinois plan is divided into five phases, with the first two phases reflecting the restrictions imposed by the stay-at-home orders and the three subsequent phases pertaining to gradual reopening. Gov. Pritzker noted that the state is currently in Phase Two, which corresponds to the stay-at-home order modification that was issued on April 30. Because the stay-at-home order is set to expire on May 29, the earliest a transition to Phase Three could take place is May 30 unless the order is modified further. Before moving on to each subsequent phase, regions must meet certain health care metrics focused on case numbers, testing capacity, and contact tracing capacity.

The following chart provides a summary of each of the five phases:

Importantly, the Restore

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

Shutdown, Shelter in Place, and Back to Work Orders in the U.S.: Current Status

The United States has seen a wave of unprecedented restrictions on the way we do business and conduct our daily lives, designed to control the risks posed by COVID-19.  These changes have caused uncertainty and disruption in the business community, as well as up and down supply chains.

We are helping our clients across the country, and internationally, answer the key questions raised by these new orders:

  • Can I continue to operate some or all of my facilities?
  • What do I need to do to ensure that my employees can continue to come to work safely?
  • What do I need to do to ensure that I get the goods and services that I need to continue operating?
  • How do I manage the employment and HR implications of a limited or complete closure?
  • Are there any programs offering financial relief?

The map below represents the different orders across the

To Record or Not To Record, That is the Question: Questions and Answers Regarding U.S. Federal OSHA Recordkeeping and Reporting Requirements During the COVID-19 Crisis

The federal Occupational Safety and Health Act and its implementing regulations require employers to record certain work-related injuries and illnesses. Due to the prevalence of community transmission of COVID-19, deciding whether an employee’s COVID-19 illness is work-related, and therefore recordable, is more challenging than ever for employers. In addition to the federal Occupational Safety and Health Administration’s (OSHA) existing recordkeeping requirements found at 29 Part 1904, OSHA released an interim enforcement policy on April 10, 2020 (Enforcement Guidance for Recording Cases of COVID-19) (April 10 OSHA Guidance) clarifying that OSHA will exercise its enforcement discretion to interpret the recordkeeping requirements to mean that most employers (other than those in the healthcare, emergency response, and correctional institution industries) are only required to make a decision about whether an employee’s COVID-19 illness is work-related if there is objective evidence of such work-relatedness that is reasonably available to the employer. The following questions and answers aim

Back to Work: Practical Considerations from the U.S. Federal Reopening Guidelines

April 24, 2020

Categories

On April 16, the White House and the CDC released guidelines for a phased reopening of the U.S. economy. Most states and localities have been under “stay at home” or “shelter in place” orders since mid-March, and many jurisdictions are now considering how and when to lift these restrictions. The federal guidelines provide a broad blueprint for what a phased reopening could look like.

The guidelines anticipate that states and regions will move at different speeds, and that the recommendations will be tailored to each state or region’s individual circumstances. Several states, including New York, California, Ohio, Georgia, and Texas, have already announced their own plans for reopening.

Phased Reopening

The federal guidelines suggest that states implement the following phased approach to reopening:

The guidelines note that in all phases of reopening, individuals should continue to

U.S. Businesses Challenge Government Orders in Attempt to Continue Operations

Shelter-in-place and social distancing have become the new normal as we try to combat the spread of the coronavirus-19/COVID-19 in the U.S.  Many state governments have implemented stay-home or shelter-in-place orders to try to “flatten the curve” and protect citizens’ safety.

But as time passes, businesses are also concerned.  Under many such executive orders, a business that is not deemed “essential” or “life-sustaining” may be required to stop in-person operations, and we’re starting to see an uptick in local enforcement, including cease and desist letters and revocation of occupancy permits.   

Some shuttered businesses have started to bring their claims to court.  Business plaintiffs have filed cases in at least 8 states to date, challenging government action on constitutional grounds. **

Below is a summary of the prominent claims and factual allegations featured in these complaints.  Please note that because these cases were filed just in this past two weeks, the ultimate viability of

Back to Work: Governor Gavin Newsom Issues Guidance for Reopening California

California Governor Gavin Newsom was the first U.S. governor to impose a statewide stay at home order. He has now reported that his aggressive action appears to have flattened the curve of COVID-19 cases in the state, and many are now looking to Newsom for guidance on easing restrictions and getting people back to work.

Last week Newsom laid out a framework for lifting California’s stay at home order. He said the state must first be able to:

  • Closely monitor and track potential cases of COVID-19,
  • Prevent infection of high-risk people,
  • Increase surge capacity at hospitals,
  • Provide enough personal protective equipment to protect first responders,
  • Develop therapeutics to help treat patients,
  • Ensure physical distance at schools, businesses and child care facilities, and
  • Develop guidelines for when to ask Californians to stay home again if the governor modifies the stay at home order and the virus surges.

Newsom has

Nationwide Implications of CDC and NJ Updated Workplace Requirements

Recent state and federal developments are a reminder that the COVID-19 landscape is continually changing and demonstrate that businesses must remain alert and nimble as they address rapidly evolving mandates from both the federal and state sectors in the COVID-19 environment. Specifically, in the last week: (1) the Centers for Disease Control (“CDC”) issued interim guidance1 for critical infrastructure workers; and (2) an April 8, 2020 the Governor of New Jersey signed a new Executive Order2 expanding the state’s Stay-at-Home restrictions.

Businesses that continue to operate under Stay-at-Home orders can expect evolving requirements intended to keep workplaces safe. The New Jersey order is an example of just one state with recent changes; however, it is not alone. Many states are modifying their orders or issuing new guidance as the nation continues to learn more about COVID-19 and as the business community tries to understand and adjust to the orders. One of the

Immunity from Liability under the U.S. PREP Act for Medical Countermeasures during the SARS-CoV-2/COVID-19 Pandemic

Key Points

  • HHS Declaration Provides Immunity: During a public health emergency, the Secretary of HHS can issue a Declaration providing broad tort immunity for “Covered Persons” engaging in “Recommended Activities” with “Covered Countermeasures.”
  • Covered Persons: The entities covered include, among others, manufacturers and distributors.
  • Recommended Activities: Under the Declaration, the activities covered include “the manufacture, testing, development, distribution, administration, and use of the Covered Countermeasures.”
  • Covered Countermeasures: This will include diagnostics, treatment, vaccines and other prevention modalities, masks and other medical equipment that are FDA-approved or cleared, licensed under the PHS Act, or authorized for emergency use by the FDA. Note that NIOSH-approved masks are now included.
  • Willful Misconduct: This is not protected by the Act.
  • FDA Loosens EUA Requirements: Given the shortage of materials, especially masks, the FDA has indicated that it wants to help applicants through their EUA process, even if they are new to medical device manufacturing. In other words, if
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