Burns White is working with clients to navigate the evolving business, legal and operational issues associated with the COVID-19 pandemic. Our firm’s lawyers and professionals are at the forefront of the most critical issues facing a wide array of industries during this unprecedented crisis. Our firm is committed to assisting clients to mitigate risk, implement best practices, and prepare for the challenges ahead.
The On-Demand COVID-19 Series is hosted by knowledgeable attorneys in their fields, providing updates and information on the various ways the pandemic is affecting a wide range of industries.
On-Demand COVID-19 Series
- Banking & Financial Services
- Bankruptcy & Creditors' Rights Services
- Employment Practices Liability
- Ethics and Legal Malpractice
- Healthcare Law
- Mass Tort & Toxic Tort Litigation
- Retail & Hospitality Law
- Transportation & Logistics
Banking and Financial Services Law
Frequently Asked Questions about the SBA’s Paycheck Protection Program
Access the American Bankers Association’s most recently updated FAQ’s regarding the SBA’s Paycheck Protection Program.
While the SBA Guidance continually has shifted in response to feedback from financial institutions and participants, this summary is a very useful tool for the present moment.
PA CARE Package Announced
On March 30, 2020, Attorney General Josh Shapiro announced the launch of the PA CARE Package. The program will focus on partnering with banks throughout the Commonwealth and ensure consumers impacted by the COVID-19 pandemic are eligible for economic relief.
Bankruptcy and Creditors’ Rights Services
Third Circuit Issues Guidance on “Unfairness” in Chapter 11 Cramdown
In the bankruptcy case of In Re: Tribune Company, et al., 2020 WL 5035797, the Third Circuit recently issued a decision determining that a Chapter 11 plan could be crammed down and confirmed over the objection of dissenting unsecured creditors who sought to fully enforce the terms of prepetition subordination agreements in their favor. In doing so, the Court was required to analyze cramdown confirmation in the face of 11 U.S.C. §510(a) (pertaining to subordination agreements), along with the meaning of unfair discrimination in 11 U.S.C. §1129(b)(1).
CARES Act’s Impact on the Bankruptcy Code
The CARES Act, signed into law by President Trump on March 27, 2020, not only created significant small business loan initiatives, it modified and amended provisions of the U.S. Bankruptcy Code. These CARES Act changes which will immediately impact the bankruptcy landscape for small businesses and individual debtors alike.
U.S. Treasury Issues Interim Final Rule on Paycheck Protection Program
The U.S. Treasury has now issued an Interim Final Rule (“IFR”) on the implementation of the Paycheck Protection Program (“PPP”) created by the CARES Act at section 1102. The IFR is effective immediately, with comments to be solicited from the public in the near future.
Bankruptcy and Creditors’ Rights COVID-19 Update
Summary on current funding initiatives for businesses in the CARES Act and Pennsylvania COVID-19 Economic Relief efforts.
Employment Practices Liability
COVID-19 Vaccine: What Employers Need To Know
With the Pfizer and Moderna COVID-19 vaccines now in wide-scale deployment, and with a single-dose vaccine from Johnson & Johnson apparently nearing FDA emergency authorization, the federal government’s current goal is to provide all adult Americans with access to one of these vaccines by the end of summer. While uncertainties remain, this is still good news, as it should lead to a sharp decline in serious and fatal infections while also allowing most companies to get back to business as usual.
COVID Relief Bill Extends Optional FFCRA Leave Through March 31, 2021
On December 21, 2020, Congress approved the Consolidated Appropriations Act, 2021. President Trump signed the bill on December 27, 2020. While the bill extends tax credits for eligible employers who voluntarily choose to allow employees to take leave under the Families First Coronavirus Response Act (FFCRA) through March 31, 2021, the new legislation does not require employers to provide the Emergency FMLA or the Emergency Paid Sick Leave time off under the FFCRA past December 31, 2020.
Employee Payroll Tax Withholding Deferral
On August 8, 2020, President Trump issued a Presidential Memorandum directing the Secretary of the Treasury (Secretary) to use his authority pursuant to Section 7508A of the Internal Revenue Code (Code) to defer the withholding, deposit, and payment of certain payroll tax obligations.
FAQ: Employee Personal Travel During COVID-19
The 2019 novel Coronavirus (COVID-19) is presenting challenging issues for employers as many employees and their families travel for summer vacations. Despite the risks, many employees are not canceling their travel plans. Notably, the situation is and will remain fluid. The following frequently asked questions (FAQ) may assist employers in addressing issues resulting from employee personal travel.
Coronavirus and the Americans with Disabilities Act: How Small and Mid-Size Businesses Can Help Protect Themselves from Litigation
As the reported Coronavirus death and hospitalization rates begin to level in the country’s most hard-hit areas, a collective restlessness, surely amplified by welcoming spring weather, has pushed Americans in droves to city parks and still technically shuttered beaches. Even in the most devastated states, like New York and New Jersey, there is an increasingly boisterous call to ease restrictions on certain businesses, whereas Georgia’s reopening has been met with raucous appreciation by some residents eager to end their lockdown.
Creating a Safe and Healthy Workplace for Employees During and After COVID-19
Recently, the White House issued a set of federal guidelines for reopening the U.S. economy with a three-phase, state-by-state approach. As a result, many employers are considering how to prepare their workplace and workforce for a return to work. This article discusses the actions that employers should consider in creating a safe environment for employees to return to work in the office.
Returning Employees to the Office After COVID-19 Shutdowns
COVID-19 has shuttered the doors of almost every business office in the Northeast. Employers have furloughed employees and cut salaries to save costs. The non-furloughed employees are working from home. The state governments have started to issue multi-step plans to return employees to work, but with no exact dates. However, employers who are running non-essential business that have been shuttered should be developing a process of returning employees to their office buildings now.
COVID-19: What Employers Need to Know and FAQs on Federal Labor and Employment Laws
The Coronavirus, or COVID-19, has been designated a pandemic. A pandemic is a global epidemic. The U.S. Department of Health and Human Services (HHS), Centers for Disease Control and Prevention (CDC), and the World Health Organization (WHO) are the definitive sources of information about influenza pandemics. Pandemic planning and responsiveness includes individual employer’s plans about how to manage employees and to continue operations. This bulletin is intended to provide employers with guidance on how to address workplace issues presented by COVID-19.
Ethics and Legal Malpractice
Coronavirus Ethics Tips for Pennsylvania Lawyers
The COVID-19 crisis has brought unique challenges to all lawyers, significantly changing the way we practice law. But in the midst of all these changes, lawyers’ ethical duties to their clients remain. What steps should you take to maintain your ethical obligations to your clients during this pandemic? Here are several tips for navigating this uncharted territory.
WHITEPAPER: Analysis of Pennsylvania Governor Tom Wolf’s Executive Order Extending Immunity to Healthcare Professionals Responding to COVID-19
On May 6, 2020, Governor Wolf issued an Executive Order [hereinafter “Order”] to “Enhance Protections for Healthcare Professionals.” The Order decrees on two general areas:
- It broadly relaxes or suspends regulatory requirements pertaining to licensure and certification of healthcare professionals and EMS personnel.
- It grants limited Immunity to individuals licensed or certified to provide healthcare services, regardless of whether they are paid or volunteer, for “emergency services activities” or the “provision of disaster services activities” in response to COVID-19.
This paper explores the practical effect of the Order on claims against healthcare providers.
In summary, although there are a few positive declarations in the Order, it is mostly illusory, with no practical protections for those within the proverbial litigation crosshairs. Currently, traditional medical malpractice defenses remain the strongest protection on anticipated COVID claims.
Governor Tom Wolf’s Executive Order Granting Limited Immunity to Healthcare Providers
On Wednesday, May 6, 2020, Pennsylvania Governor Tom Wolf issued an Executive Order granting limited Immunity to healthcare providers involved is emergency services for the COVID-19 pandemic. The executive order is attached.
The Governor’s office issued a press release, describing that the intent of the Executive Order as:
Grants immunity to any individual who holds a license, certificate, registration or certification to practice a health care profession or occupation in Pennsylvania and who is engaged in providing COVID-19 medical and health treatment or services during the COVID- 19 disaster emergency response. Immunity does not extend to acts or omissions that constitute a crime, gross negligence, or fraud, malice, or other willful misconduct;
Extends immunity to those medical professionals in Pennsylvania that provide services in any health care facility as defined by the Health Care Facilities Act, as well as any nursing facility, personal care home, assisted living facility or any alternate care site, community-based testing site or non-congregate care facility used for the purpose of conducting emergency services activities or the provision of disaster services activities related to the Commonwealth’s COVID- 19 disaster emergency response;
Affirms immunity for any person, organization or authority allowing real estate or other premises used for emergency services without compensation in the case of death, injury, or loss or damage to the property of any person who is on the premises for the purpose of those emergency services; and
Suspends or removes a host of regulatory barriers that would otherwise impede or prevent out-of-state, retired or other qualified practitioners from providing services where needed in the Commonwealth.
The Governor relied upon an existing Immunity statute applicable to governmental entities engaged in emergency services. The Order may raise issues on interpretation, such as the scope of emergency services covered under the immunity statute. It may also raise constitutional challenges, as the order designates private healthcare providers as agents of the Commonwealth under the existing governmental immunity law. That designation may be challenged as exceeding the Governor’s authority. We will address these issues and the overall effect of the Order in a forthcoming analysis.
What is the “Standard of Care” in a Pandemic? Medical Malpractice Defense in Response to a Public Health Emergency
In this unprecedented COVID-19 pandemic, healthcare providers have been forced to walk a fine line between their longstanding and well-documented professional standards of care and a new time-sensitive crisis standard of care in the face of limited resources, new and unusual practice settings, and unfamiliar and ever-changing patient care needs.
New Jersey Issues Executive Order 112 to Protect Healthcare Providers
On April 1, 2020, Governor Phil D. Murphy issued Executive Order 112. The broad-ranging decree was designed to provide legal protections to healthcare providers responding to the State’s COVID-19 response. Central to that intent is a “qualified immunity” to healthcare professionals. This advisory addresses specific issues that may arise with Executive Order 112’s application to future litigation.
States Respond to COVID-19 to Protect Healthcare Workers
At least three states have responded to the COVID-19 state of emergency by enacting added protections for healthcare providers in the course of treatment of such patients, and many more are expected to follow.
Mass Tort and Toxic Tort Litigation
Am. Sub. H.B. 197
On Friday March 27, 2020, Ohio Governor Mike DeWine signed into law Am. Sub. H.B. 197, a COVID-19 response bill, which tolled all statutes of limitations and statutory time limitations and deadlines in the Ohio Revised Code and the Ohio Administrative Code. This temporary law change ensures that Ohio judges have the authority they need to toll statutorily established time requirements for civil and criminal cases.
Am. Sub. H.B. 197 implements emergency measures for COVID-19 issues facing Ohio. Specifically relating to legal suits, the bill tolls the following statutory deadlines, among others, during the emergency period of March 9, 2020 through July 30, 2020:
All statutes of limitations for criminal offenses
All statutes of limitations for civil cases
Time within which discovery must be completed
Time within which a party must be served
“Any other criminal, civil, or administrative time limitation or deadline under the Revised Code
The bill notes that tolling expires on July 30, 2020 or “on the date the period of emergency ends,” whichever is sooner. This allows for minimal interruption of court deadlines.
Am. Sub. H.B. 197 will present a unique issue for any cases that may be filed within the next year. If there are any causes of action that accrue during this tolling period, knowledge of this bill will be necessary to compute both the appropriate statute expiration date and the time in which a defendant must be served.
Use the button below to access a full copy of Am. Sub. H.B. 197.
Ohio Supreme Court Order
In conjunction with the enactment of Am. Sub. H.B. 197, on Friday March 27, 2020, the Ohio Supreme Court issued an order tolling the time requirements as established by all Supreme Court promulgated rules, including the Ohio Rules of Appellate Procedure, the Ohio Rules of Civil Procedure, the Rules of Practice of the Supreme Court of Ohio, among others. Notwithstanding the tolling of the time requirements, a court may still require filing in accordance with existing rules, and issue orders setting a specific schedule in a case or requiring parties to file documents by a specific date, if it pertains to a situation that requires “immediate attention.” In addition, the order mandates that “social distancing must be observed during the emergency period in all court proceedings and in each court in order to mitigate the spread of COVID-19.”
The March 27, 2020 order was issued by the Ohio Supreme Court “to establish a temporary measure promoting uniformity and continuity” among Ohio courts and to ensure the “continued and effective operation of the judicial system during the emergency period[.]”
Use the button below to access the full March 27, 2020 order.
Cuyahoga County Court Of Common Pleas Responses to COVID-19
The courts in Ohio remain open. In Cuyahoga County, in particular, Administrative Judge Brendan Sheehan has reduced the docket, restricting it to only criminal and emergency matters. The reduced docket is expected to last until April 10, 2020, with extensions to come if necessary. Cuyahoga County has also suspended all jury trials through April 16, 2020, again with extensions if necessary.
Cuyahoga County Asbestos Docket
On March 26, 2020, a telephonic meeting with Judge Hanna, who oversees the Cuyahoga County Asbestos Docket, made clear that the Court will do its best to keep its cases moving forward. Alternative means of conducting hearings and depositions are being encouraged, including telephonic attendance or video-conferencing. The Court anticipates being flexible with deadlines, and will be adjusting its docket on a case-by-case basis. Realistically, the earliest jury trials are expected to be conducted in September 2020.
Retail and Hospitality Law
Law Permitting Alcohol Home Delivery for Beer Breweries and Restaurants During, and After, the COVID-19 Crisis
As with most Pennsylvania businesses, the present COVID-19 crisis has been enormously stressful and rapid fire for many restaurants, beer breweries, and other establishments selling alcohol within the Commonwealth. The developments have been constant, and sometimes feel unclear. However, the Pennsylvania Liquor Control Board’s guidance, coupled with recent alcohol law liberalization in the Commonwealth, has cleared a path for home delivery of alcohol to customers during, and after, this crisis. Accordingly, home delivery provides Pennsylvania establishments with flexibility to continue selling its product to customers during the pandemic.
COVID-19 and Third Party Liability Claims in the Retail and Hospitality Industry
One of the biggest risks posed to the retail and hospitality industry by the COVID-19 crisis is the potential for third-party lawsuits from invitees (guests, customers, and patrons) arising out of a business’s handling of the virus. Retail and hospitality businesses should prepare for claims brought by guests or patrons alleging that it was negligent in its response to COVID-19. Potential claims include failure to properly clean or maintain its premises to prevent the presence of the virus at the business, that the business knew an employee was infected with COVID-19 and didn’t take requisite precautions such as properly notifying its patrons; or that a business wrongfully quarantined an employee or tenant; or that it disclosed private information, resulting in physical injury, emotional distress, loss of use of property or personal injury.
Transportation and Logistics
Effects of the COVID-19 Pandemic on the Trucking Industry and the Response from the FMCSA
Trucks move roughly 71.4% of the nation’s freight by weight. According to the U.S. Department of Transportation, as of May 2019, the number of for-hire carriers on file with the Federal Motor Carrier Safety Administration (FMCSA) totaled 892,078, private carriers totaled 772,011, and other interstate motor carriers totaled 84,930. Suffice it to say that without the commercial trucking industry, much of the country’s population would have a difficult time obtaining everything from produce at their local supermarket to packages they ordered online.