Reopening the Workplace and Insurance Issues in
Description: Reopening the Workplace and Insurance Issues in the COVID-19 Pandemic AGENDA 2 Practical Considerations For Employers As We Reopen The Workplace Sarah Bouchard Michael Burkhardt Potential Insurance Coverages Brad Nes White Collar and
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slide1. Reopening the Workplace and Insurance Issues in the COVID-19 Pandemic<br>
slide2. AGENDA 2 Practical Considerations For Employers As We Reopen The Workplace
Sarah Bouchard
Michael Burkhardt
Potential Insurance Coverages
Brad Nes
White Collar and Litigation Risks
Raechel Kummer
Questions<br>
slide3. Preparation for Phase I Return 3<br>
slide4. Key Action Steps 4 Key Actions for Return Social Distancing Screening Protocols Safety Measures Preparedness/
Continuity Plans COVID-19 Monitoring Travel Policy Training and Enforcement Accommodations<br>
slide5. Social Distancing Physical workspace modifications (e.g., separating desks, modifying open floor plans, closing common areas)
Limiting in-person interactions and physical contact (e.g., no non-essential travel, no in-person meetings)
Update employee schedules (e.g., staggered scheduling, telework for less essential personnel)
Training employees on social distancing policies and protocols, including where to go with complaints 5<br>
slide6. Safety Measures 6 Infectious Control Procedures
For example, require frequent hand washing, limit sharing of equipment PPE Procedures
For example, require workers and visitors to wear face coverings Workplace Sanitization Procedures
For example, provide hand sanitizer, require frequent sanitization of high-touch areas Current/Updated Guidelines
Follow current/updated guidelines of local DOH, reopening orders, CDC, and OSHA for maintaining a clean and safe workplace Transportation
Consider alternatives to public transportation or stipends for parking to limit need for public transportation<br>
slide7. Screening Protocols 7<br>
slide8. Accommodations Develop/update accommodations policies for vulnerable employees
Consider accommodations for other employees unable to work (those living with someone at high risk, those with childcare or eldercare responsibilities)
Develop policy for employees who fear returning to work or refuse to return to work 8<br>
slide9. Training and Enforcement Develop training on return to work expectations and procedures
Update/develop complaint procedures on enforcement/discipline/accommodations
Develop enforcement policy including discipline for those who refuse to wear face coverings, refuse to engage in social distancing 9<br>
slide10. COVID-19 Monitoring Establish procedure to address workplace exposure (e.g., separate and send home workers who appear to have symptoms consistent with COVID-19, clean and disinfect workplace)
Develop procedures for contact tracing/notification of known exposure consistent with ADA and state laws 10<br>
slide11. Travel Policy Revise/implement new travel policy consistent with federal/state/local requirements (e.g., what will be considered essential travel?)
Procedures for monitoring travel and quarantine procedures for return from travel
Consider monitoring personal/vacation travel 11<br>
slide12. Preparedness/Continuity Plans 12 Develop management/HR succession plans in the event that any leadership team is sidelined. Consider whether to require vaccination once a vaccine is developed. Review and revise current pandemic response plans in order to respond to another potential outbreak of the virus.<br>
slide13. Return to Work Products for Employers 13<br>
slide14. Potential Insurance Coverages<br>
slide15. Potentially Applicable Insurance Coverages Goals of Insurance Section:
Provide an understanding of potentially available insurance for business losses and liabilities arising from COVID-19
Outline steps to preserve claims, including notice to the insurer and documenting statements/proofs of loss
Discuss the pros and cons of filing & pursuing a coverage claim 15<br>
slide16. Potentially Applicable Insurance Coverages Important Considerations:
Coverage will depend on policy language, the specific circumstances of the claim, and applicable state law
Filing a notice of claim and proof of loss is necessary to protect rights
Future events may impact claims for coverage – future regulatory actions and court decisions that are unknown today 16<br>
slide17. Business Interruption/Time Element Coverage Protects the insured against losses of business income resulting from “physical loss or damage” to insured property by a covered peril
Debate about what constitutes “physical loss or damage” 17<br>
slide18. Civil or Military Authority Coverage Covers loss of business income during the time in which access to a covered location is prohibited by a civil or military order following damage to the property of others 18<br>
slide19. Additional Coverages Event Cancellation
Liability Coverage
General Liability
Directors & Officers (D&O) Insurance
Workers’ Compensation 19<br>
slide20. Preserving Claims; Recovering Insurance Proceeds Notice to Carrier
Proofs/Statements of Loss
Coverage Litigation 20<br>
slide21. Conclusions and Recommendations Consult With Coverage Counsel
Analyze The Pros And Cons of a Claim
Make an Individual Decision
Heed the Urgency 21<br>
slide22. White Collar and Litigation Risks<br>
slide23. White Collar Risks and Concerns On March 16, 2020, the Attorney General issued a memorandum to the US Attorneys regarding protecting our justice system during the COVID-19 crisis.
The AG directed all US Attorneys to “prioritize the detection, investigation, and prosecution of all criminal conduct related to the current pandemic”
The AG warned that “there have been reports of fraud, reports of phishing emails from entities posing as the World Health Organization or the Centers for Disease Control and Prevention, and reports of malware being inserted onto mobile apps designed to track the spread of the virus.”
DOJ’s Consumer Protection Branch, Antitrust Division, and Fraud Section are all focused on prosecuting fraud in the pandemic.
We also anticipate that State Attorney Generals will be focused on enforcement efforts related to the pandemic as well. 23<br>
slide24. Antitrust Laws Remain In Effect During COVID-19 We have specific guidance for antitrust considerations during the pandemic, available at https://www.morganlewis.com/pubs/covid19-antitrust-considerations-the-boundaries-of-industry-collaboration 24<br>
slide25. Resources for Employers View our Now. Normal. Next Resource Page and our COVID-19 Resource Page for resources on coping with the post-pandemic reality Subscribe to receive our Daily Digest of Coronavirus COVID-19 alerts > 25<br>
slide26. Sarah E. Bouchard Sarah E. Bouchard
Philadelphia
T +1.215.963.5077
F +1.215.963.5001 Sarah Bouchard helps companies respond to workplace crisis situations. She litigates highly sensitive and complex harassment, whistleblower, noncompetition, and trade secret matters across the United States. As co-leader of the firm’s whistleblower group, Sarah routinely handles litigation and litigation avoidance related to regulatory issues under the Sarbanes-Oxley Act, Dodd-Frank Act, False Claims Act, and Foreign Corrupt Practices Act. She leads the firm’s Title IX taskforce, focusing on issues of discrimination and sexual harassment in the education setting. She is adept at leading internal investigations related to workplace misconduct, including sexual harassment, and advising employers on appropriate responses and remediation measures, and defending companies in employment lawsuits and related matters. 26<br>
slide27. Michael S. Burkhardt Michael S. Burkhardt
Philadelphia
T +1.215.963.5130
F +1.215.963.5001 Michael S. Burkhardt represents employers in a wide range of labor and employment disputes, including employment discrimination class actions, systemic discrimination investigations, and multiplaintiff litigation. He handles FLSA and state wage and hour actions, as well single-plaintiff disability, sex, age, and race discrimination claims. He also represents clients in whistleblower and wrongful discharge claims. Michael has experience in all areas of employment litigation and counseling, particularly EEOC systemic investigations, class action litigation, noncompetition litigation; and compensation, promotion, and hiring analyses 27<br>
slide28. W. Brad Nes W. Brad Nes
Washington, D.C.
T +1.202.739.5779
F +1.202.739.3001 W. Brad Nes is a seasoned trial lawyer representing clients in complex commercial, insurance recovery, and business tort disputes. He has successfully tried jury and bench trials in state and federal courts and has secured arbitration awards before domestic and international tribunals. Brad has also argued as lead counsel before the US Court of Appeals for the District of Columbia Circuit. Active in firm management, he currently serves as the assignment partner for the Washington litigation practice and is a member of the Washington office’s Hiring Committee. Brad was recently recognized as "Litigator of the Week" by AmLaw Litigation Daily and as a "Legal Lion" by Law360 for winning a precedent setting jury trial on behalf of PBS. 28<br>
slide29. Raechel Keay Kummer Raechel Keay Kummer
Washington, D.C.
T +1.202.373.6235
F +1.202.739.3001 Raechel Kummer focuses on complex litigation and high-stakes governmental and internal investigations. Raechel has litigated a range of matters before state and federal trial and appellate courts, including the US Supreme Court. Raechel argued as lead counsel in the US Court of Appeals for the Seventh and Eleventh Circuits, and successfully represented the District of Columbia as a lead defense counsel in multiple jury trials. 29<br>
slide31. 31<br>
slide2. AGENDA 2 Practical Considerations For Employers As We Reopen The Workplace
Sarah Bouchard
Michael Burkhardt
Potential Insurance Coverages
Brad Nes
White Collar and Litigation Risks
Raechel Kummer
Questions<br>
slide3. Preparation for Phase I Return 3<br>
slide4. Key Action Steps 4 Key Actions for Return Social Distancing Screening Protocols Safety Measures Preparedness/
Continuity Plans COVID-19 Monitoring Travel Policy Training and Enforcement Accommodations<br>
slide5. Social Distancing Physical workspace modifications (e.g., separating desks, modifying open floor plans, closing common areas)
Limiting in-person interactions and physical contact (e.g., no non-essential travel, no in-person meetings)
Update employee schedules (e.g., staggered scheduling, telework for less essential personnel)
Training employees on social distancing policies and protocols, including where to go with complaints 5<br>
slide6. Safety Measures 6 Infectious Control Procedures
For example, require frequent hand washing, limit sharing of equipment PPE Procedures
For example, require workers and visitors to wear face coverings Workplace Sanitization Procedures
For example, provide hand sanitizer, require frequent sanitization of high-touch areas Current/Updated Guidelines
Follow current/updated guidelines of local DOH, reopening orders, CDC, and OSHA for maintaining a clean and safe workplace Transportation
Consider alternatives to public transportation or stipends for parking to limit need for public transportation<br>
slide7. Screening Protocols 7<br>
slide8. Accommodations Develop/update accommodations policies for vulnerable employees
Consider accommodations for other employees unable to work (those living with someone at high risk, those with childcare or eldercare responsibilities)
Develop policy for employees who fear returning to work or refuse to return to work 8<br>
slide9. Training and Enforcement Develop training on return to work expectations and procedures
Update/develop complaint procedures on enforcement/discipline/accommodations
Develop enforcement policy including discipline for those who refuse to wear face coverings, refuse to engage in social distancing 9<br>
slide10. COVID-19 Monitoring Establish procedure to address workplace exposure (e.g., separate and send home workers who appear to have symptoms consistent with COVID-19, clean and disinfect workplace)
Develop procedures for contact tracing/notification of known exposure consistent with ADA and state laws 10<br>
slide11. Travel Policy Revise/implement new travel policy consistent with federal/state/local requirements (e.g., what will be considered essential travel?)
Procedures for monitoring travel and quarantine procedures for return from travel
Consider monitoring personal/vacation travel 11<br>
slide12. Preparedness/Continuity Plans 12 Develop management/HR succession plans in the event that any leadership team is sidelined. Consider whether to require vaccination once a vaccine is developed. Review and revise current pandemic response plans in order to respond to another potential outbreak of the virus.<br>
slide13. Return to Work Products for Employers 13<br>
slide14. Potential Insurance Coverages<br>
slide15. Potentially Applicable Insurance Coverages Goals of Insurance Section:
Provide an understanding of potentially available insurance for business losses and liabilities arising from COVID-19
Outline steps to preserve claims, including notice to the insurer and documenting statements/proofs of loss
Discuss the pros and cons of filing & pursuing a coverage claim 15<br>
slide16. Potentially Applicable Insurance Coverages Important Considerations:
Coverage will depend on policy language, the specific circumstances of the claim, and applicable state law
Filing a notice of claim and proof of loss is necessary to protect rights
Future events may impact claims for coverage – future regulatory actions and court decisions that are unknown today 16<br>
slide17. Business Interruption/Time Element Coverage Protects the insured against losses of business income resulting from “physical loss or damage” to insured property by a covered peril
Debate about what constitutes “physical loss or damage” 17<br>
slide18. Civil or Military Authority Coverage Covers loss of business income during the time in which access to a covered location is prohibited by a civil or military order following damage to the property of others 18<br>
slide19. Additional Coverages Event Cancellation
Liability Coverage
General Liability
Directors & Officers (D&O) Insurance
Workers’ Compensation 19<br>
slide20. Preserving Claims; Recovering Insurance Proceeds Notice to Carrier
Proofs/Statements of Loss
Coverage Litigation 20<br>
slide21. Conclusions and Recommendations Consult With Coverage Counsel
Analyze The Pros And Cons of a Claim
Make an Individual Decision
Heed the Urgency 21<br>
slide22. White Collar and Litigation Risks<br>
slide23. White Collar Risks and Concerns On March 16, 2020, the Attorney General issued a memorandum to the US Attorneys regarding protecting our justice system during the COVID-19 crisis.
The AG directed all US Attorneys to “prioritize the detection, investigation, and prosecution of all criminal conduct related to the current pandemic”
The AG warned that “there have been reports of fraud, reports of phishing emails from entities posing as the World Health Organization or the Centers for Disease Control and Prevention, and reports of malware being inserted onto mobile apps designed to track the spread of the virus.”
DOJ’s Consumer Protection Branch, Antitrust Division, and Fraud Section are all focused on prosecuting fraud in the pandemic.
We also anticipate that State Attorney Generals will be focused on enforcement efforts related to the pandemic as well. 23<br>
slide24. Antitrust Laws Remain In Effect During COVID-19 We have specific guidance for antitrust considerations during the pandemic, available at https://www.morganlewis.com/pubs/covid19-antitrust-considerations-the-boundaries-of-industry-collaboration 24<br>
slide25. Resources for Employers View our Now. Normal. Next Resource Page and our COVID-19 Resource Page for resources on coping with the post-pandemic reality Subscribe to receive our Daily Digest of Coronavirus COVID-19 alerts > 25<br>
slide26. Sarah E. Bouchard Sarah E. Bouchard
Philadelphia
T +1.215.963.5077
F +1.215.963.5001 Sarah Bouchard helps companies respond to workplace crisis situations. She litigates highly sensitive and complex harassment, whistleblower, noncompetition, and trade secret matters across the United States. As co-leader of the firm’s whistleblower group, Sarah routinely handles litigation and litigation avoidance related to regulatory issues under the Sarbanes-Oxley Act, Dodd-Frank Act, False Claims Act, and Foreign Corrupt Practices Act. She leads the firm’s Title IX taskforce, focusing on issues of discrimination and sexual harassment in the education setting. She is adept at leading internal investigations related to workplace misconduct, including sexual harassment, and advising employers on appropriate responses and remediation measures, and defending companies in employment lawsuits and related matters. 26<br>
slide27. Michael S. Burkhardt Michael S. Burkhardt
Philadelphia
T +1.215.963.5130
F +1.215.963.5001 Michael S. Burkhardt represents employers in a wide range of labor and employment disputes, including employment discrimination class actions, systemic discrimination investigations, and multiplaintiff litigation. He handles FLSA and state wage and hour actions, as well single-plaintiff disability, sex, age, and race discrimination claims. He also represents clients in whistleblower and wrongful discharge claims. Michael has experience in all areas of employment litigation and counseling, particularly EEOC systemic investigations, class action litigation, noncompetition litigation; and compensation, promotion, and hiring analyses 27<br>
slide28. W. Brad Nes W. Brad Nes
Washington, D.C.
T +1.202.739.5779
F +1.202.739.3001 W. Brad Nes is a seasoned trial lawyer representing clients in complex commercial, insurance recovery, and business tort disputes. He has successfully tried jury and bench trials in state and federal courts and has secured arbitration awards before domestic and international tribunals. Brad has also argued as lead counsel before the US Court of Appeals for the District of Columbia Circuit. Active in firm management, he currently serves as the assignment partner for the Washington litigation practice and is a member of the Washington office’s Hiring Committee. Brad was recently recognized as "Litigator of the Week" by AmLaw Litigation Daily and as a "Legal Lion" by Law360 for winning a precedent setting jury trial on behalf of PBS. 28<br>
slide29. Raechel Keay Kummer Raechel Keay Kummer
Washington, D.C.
T +1.202.373.6235
F +1.202.739.3001 Raechel Kummer focuses on complex litigation and high-stakes governmental and internal investigations. Raechel has litigated a range of matters before state and federal trial and appellate courts, including the US Supreme Court. Raechel argued as lead counsel in the US Court of Appeals for the Seventh and Eleventh Circuits, and successfully represented the District of Columbia as a lead defense counsel in multiple jury trials. 29<br>
slide31. 31<br>