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

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

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 practice

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

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

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

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
  

As shelter-in-place orders began to sweep across the United States, many store shelves emptied and, in some instances, prices for certain products skyrocketed, including products that are essential to everyday living and staying safe during the COVID-19 crisis.

As a result, one of the many hot-button business, and corresponding legal, issues to arise out of the COVID-19 crisis is price gouging. Price gouging occurs when sellers raise their prices for goods and services to take advantage of the consequent increased demand for those items, often during emergencies. Price gouging has ensued following large scale natural disasters such as hurricanes or wildfires, where sellers have drastically elevated prices for basic necessities, safety equipment and medical supplies that were in high demand following those catastrophic events. As many consumers, businesses and state attorneys general are aware, allegations of price gouging for those same items have been prevalent in the midst of the

Effective March 21, 2020, at 5 pm, Illinois joined six other States in implementing a Stay at Home Order to address the COVID-19 outbreak. The Order states that all businesses that are not Essential Businesses and Operations must cease all activities except for Minimum Basic Operations. This alert provides

Recommendations on immediate steps your business can take to operate under the Order and still protect public health.

• Determine whether some or all business operations qualify as Essential Businesses and Operations. If so, document the basis for the exemption and make sure that you inform your employees that your business will stay open. See summary of the Essential Business and Operation below.
• If you do not fall within Essential Businesses and Operations, make sure that your plan to keep your business going is consistent with Minimum Basic Operations: (A) it is limited to necessary activity to maintain inventory, preserve physical condition of facilities and
  

Each situation is unique and we can help you craft a warning that fits your individual factual scenario.  But here are a few questions to consider first.

• Prior to learning about the infected person’s presence at your premises, what were you doing to limit the spread of the virus?
• What parts of the premises were visited by the infected person and how long was he or she at the premises (do you know what he or she touched, if anything)?
• How soon after the infected person visited the premises did you discover they were positive for COVID-19?
• What steps did you take upon learning of this information and when did you take these steps?

With this information, you can draft a warning that addresses these and other salient points.  Here is a hypothetical example.

• You have been implementing the CDC and local guidance for businesses as it evolves.