By now we all know the “new normal” of navigating a pandemic. For lawyers advising companies, these COVID-challenged times required a quick refresher on the intricacies of concepts like contracts, liability, and risk – and a search for answers to brand new questions.
In a new memoir from PLI Press, COVID-19 and Other Pandemics: Business and Legal Challenges, Public Health and Safety Regulatory Experts James T. O’Reilly and Philip Hagan provide background and analysis for lawyers to use. The paper is the first to address these complex, evolving questions. It combines practical advice with the latest scientific research and guidance from key government agencies.
Here are some key points that companies – and their lawyers – should consider as they begin to assess the impact of COVID-19 and prepare for its long-term consequences:
Contracts are the key. If you haven't brushed up on force majeure since studying law, now is a good time to reconsider this and other contract concepts. A chapter on “COVID-19, Contracts and Frustration Protection” provides an overview of contract law for companies whose operations may have been interrupted by the pandemic when they, their suppliers or third parties were unable to fulfill contracts. In addition to clauses on force majeure, O'Reilly and Hagan investigate issues of predictability and the defense against non-performance such as impossibility, impracticability and frustration of the purpose.
Employers should continuously assess risks and liabilities in their work areas. OSHA has made recommendations on how companies can assess the risk of the spread of COVID-19 in their workplaces and develop systems to prevent it from spreading. These include both technical controls such as workspace redesign and office air filtration systems updates, as well as administrative controls that reduce person-to-person contact through "staggered work shifts, downsizing operations, providing remote services, and other measures to reduce exposure . "In the paper, O'Reilly and Hagan adapt these and other recommendations into actionable guidelines.
The book provides an overview of liability claims in the workplace as well as an overview of potential employer liability for employees who contract the virus in the workplace. The authors discuss possible theories of liability employers should be aware of and the obvious difficulties that the parties will encounter. In this context, they also address the complexities of contact tracing in terms of employer liability and evidence of infection. In addition, they discuss liability risks not only posed by employees who become infected with the virus, but also from customers and other members of the public who become infected with the virus. The authors provide an overview of certain crime concepts, explain the employee compensation programs and again rely on or lack of OSHA guidelines and explain the interplay of these concepts in relation to employer's liability.
Focus on the active response. Regardless of their type of business, all employers should have active response plans that minimize potential COVID-19 risks to their employees and customers, according to the authors. The CDC and other government agencies offer guidelines that can be included in business scenarios.
Plan for “black swans”. In other words, expect the unexpected. Now that a rare event with extreme global consequences has indeed occurred, companies will strive to structure contracts and business plans based on risk scenarios. When advising companies on planning and liability, keep these "black swan" events in mind and develop strategies accordingly.
Click here to download a free chapter on COVID-19 and Other Pandemics: PLI Business and Legal Challenges.
Visit PLI's coronavirus development page to access related webcasts and on-demand programming.
The Practicing Law Institute is a non-profit learning organization dedicated to keeping lawyers and other professionals at the forefront of knowledge and expertise. PLI was chartered by the regents of the University of New York State and founded in 1933 by Harold P. Seligson. The organization offers high quality, accredited, ongoing legal and professional education programs in a variety of formats offered by more than 4,000 volunteer schools, including prominent lawyers, judges, investment bankers, accountants, business consultants, and US and international government regulators. PLI publishes a comprehensive library of papers, course manuals, answer books and journals, which are also available on the PLI PLUS online platform. The essence of PLI's mission is commitment to the pro bono community. Watch the upcoming PLI live webcasts here.