COVID-19 Checkups: Managing Your Business Through the Pandemic

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Transbay Law Group, PC

Redwood City, CA

Practice Areas

Business, Securities, Real Estate, Commercial Real Estate

Businesses are adopting new Workplace Policies to keep their company’s afloat, meet deadlines and keep their staffs safe and productive. Without careful planning, COVID-19’s disruptions to supply chains and impacts on Employees, Customers and Vendors can decimate your Company’s value and even viability. Transbay Law Group is ready to help your Business respond to the COVID crisis, navigate uncharted waters, maintain operations and stand ready to capture new opportunities in the months ahead.

As fiduciaries, Managers and Boards are required to keep themselves informed about their Company’s risks, operations and compliance with Workplace rules and the law. Companies that operate without detailed Workplace Policies and COVID strategies risk legal action from a broad range of parties. What are your obligations for keeping stakeholders safe, systems secure, facilities clean and the enterprise operational. How does COVID-19 impact HR matters, facilities management, leasing matters, corporate communications and regulatory compliance?

Transbay Law Group’s lawyers are uniquely qualified to rapidly answer a broad range of regulatory, contractual, transactional and litigation exposure issues in the COVID-19 environment in a rapidly changing environment.

To discuss the Legal and Business implications for your Company, contact Stuart Hays, our Managing Partner at (650) 520-9771 who will deliver you to a qualified member of our COVID-19 practice group.

Employee Safety, Workplace Rules and Compensation

- Can Businesses require Employees to disclose their health, symptoms, exposure of family members?

- Do Businesses have to comply with HIPAA privacy laws?

- Can Businesses take employees’ temperatures or collect other health-related data?

- Are there restrictions on any data collection involving COVID-19 risks? What are the risks?

- Are privacy or security risk assessments required or advisable?

- What are the confidentiality or privacy rules for naming impacted employees?

- What are the proper COVID-19 security measures to ensure information is secure?

- How do Layoffs, Leaves, Terminations and Furloughs Impact Employee Benefit Plans and Insurance?

- Can Businesses continue Employees benefit coverage if Terminated, does COBRA apply?

- Does Health Insurance cover COVID-19 testing or treatment?

- Does COVID-19 infection qualify as a disability? What if employees are unable, or prohibited from working due to COVID-19?

- Can Employees take hardship distributions from their 401(k) plans? Can employees contribute sick days or vacation time to other employees?

- Can employees be subject to mandatory quarantine imposed by governmental authorities (and, if so, by whom)?

- What information should be reported to the various state and federal authorities?

Contractual Breach/Supply Chain Considerations

- How do Businesses Address Supply Chain Disruptions and Threats of Litigation?

- Does COVID-19 trigger force majeure clauses and excuse non-performance? For how long? What about “Time is of the Essence? clauses”

- Who is Responsible if Suppliers cannot Supply do to the COVID-19 outbreak?

- What is the most efficient way to resolve disputes?

- Can Collaborate with Competitors during the Crisis?

- Should you Try to Allocate Among Customers?

- Can Market-Clearing Practices be Considered, “Gouging?”

Corporate and Transactional Considerations

- How can Board Members and Senior Management perform and discharge their fiduciary duties to shareholders and others? To whom do they owe a fiduciary duty?

- What fiduciary duties are owed in light of COVID-19? To whom? What if they are breached?

- Is COVID-19’s impact “Material” for purposes of SEC disclosures statements? How does it impact the Company’s business including financial condition, supply chain, liquidity, results of operations.

- How does a Company prepare a plans for Succession, Emergencies, Continuity, Loss of Key Employee. Are Crises Management Plans Required? Prudent?

- What are your Company’s Quarantine and Cash-Flow risks? Do Government Action/Inaction Mitigate them?

- Are Hostile Takeovers a Risk?

- Should Business add COVID-10 Risk Factors to Offering Memoranda? And SEC Filings?

- Are COVID-19 impacts covered by Insurance?

Mergers & Acquisitions

- Do Force Majeure or other Savings Clauses Excuse Non-Performance of Contract Obligations?

- Should Due-Diligence Checklists address COVID-19 issues?

- Can M&A Agreements include Detailed COVID-19 representations and warranties?

- Should “Material Adverse Conditions” and “Closing Conditions” clauses be revised to address COVID-19 conditions?

- Can Purchase Agreements be Revised to add Price Adjusters and/or Ratchets based on changing COVID-related conditions? Could such Clauses be added After Closing?

- How can a Seller address Buyer concerns about Purchasing during the COVID situation?

- What Privacy Issues are Magnified as Employees Work-From-Home?

Healthcare Providers

- Should/Must healthcare providers notify health authorities about patients or employees known or suspected of COVID-19 infection?

- Should/Must healthcare providers disclose that they have treated COVID-19 patients?

- Does a state of emergency allow healthcare providers disclose/discuss patients with COVID-19?

- Should healthcare providers ration masks, swap tests, antibody tests? ICU access?

- Can Providers refuse Treating COVID-19 Patients or Suspected Patients?

- Are COVID-19 Screenings and/or Treatments Reimbursable? Are the Medically Necessary?

- Do Healthcare Providers assume Risks when Quarantining Patients or Employees?

- Are Healthcare Providers obligated to document and report COVID Positive/Negative Diagnoses, Test Results and/or Temperatures?

- How can Hospitals and Providers mitigate their Risks of Class Action Lawsuits?

Real Estate

- Does the COVID-19 epidemic impact “Time is of the Essence” clauses in Real Estate Purchase and Sale Agreements?

- Are “Material Adverse Effect” clauses triggered by the COVID-19 crises? Could they Excuse Financial or Acquisition Non-Performance?

- How Can Financing Agreements be Revised/Amended to address the COVID-19 situation?

- Is Force Majeure a defense to Non-performance?

- Do Work-From-Home (WFH) policies add privacy and/or regulatory compliance issues?

Transbay Law Group, PC is providing these questions for educational purposes only. This does not constitute legal advice or create an attorney/client relationship. Do not act upon the information herein with obtaining advice from Transbay Law Group, PC or other qualified and experienced advisers. The information herein is not intended to be used to avoiding any federal, state or local tax penalties.

© 2020 Transbay Law Group, PC

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