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Governor Signs S.B. 300 Providing Immunity for Physicians, Hospitals and Other Providers

By Phillips Murrah Healthcare Attorney Mary Holloway Richard

Since the first emergency orders signed by Governor Stitt, Oklahoma physicians, hospitals and other healthcare providers have anticipated the emergency granting of some measure of statutory immunity to support care during the COVID-19 pandemic.  On April 20, the Governor amended Emergency Order 2020-13 but stopped short in filling the gap needed to support the healthcare system at this challenging time leaving the task to the legislature upon its return this month.

Oklahoma Opioid Decision by Phillips Murrah healthcare attorney Mary Holloway

Mary Richard is recognized as one of pioneers in health care law in Oklahoma. She has represented institutional and non-institutional providers of health services, as well as patients and their families.

On May 6, the Senate approved S.B. 300 granting limited immunity to providers on the front lines of this epidemic.  The bill provides for civil immunity “…for any loss or harm to a person by an act or omission by the facility or provider that occurs during the COVID-19 public health emergency…” so long as the act or omission did not result from the provider’s or facility’s “willful or wanton misconduct” in providing the services.  The grant of immunity excludes immunity from liability for provision of services to people who do not have suspected or confirmed COVID-19 diagnoses at the time the care was provided.  The grant of immunity expires on October 31, 2020, unless amended by the legislature.

The statute adopts the following definition of Health Care Providers from the Catastrophic Emergency Powers Act 63 O.S. §6104(6):

  • Physicians

  • Dentists

  • Pharmacists

  • Physician Assistants

  • Nurse Practitioners

  • Registered and Other Nurses

  • Paramedics

  • Laboratory Technicians

  • Ambulance and Emergency Medical Workers

The statute also adopts the following expansive definition of Health Care Facilities also from 63 O.S. §6104(5) of the Catastrophic Health Emergency Powers Act:

  • Hospitals

  • Ambulatory Care Facilities

  • Outpatient Facilities

  • Public Health Clinics and Centers

  • Dialysis Centers

  • Intermediate Care Facilities

  • Mental Health Centers

  • Residential Treatment Facilities

  • Skilled Nursing Facilities

  • Special Care Facilities

  • Medical Laboratories

  • Adult Day Care

These facilities, not an exclusive or complete list, may be proprietary or non-proprietary, non-federal buildings.  Further, property used in connection with such facilities may be included such as pharmacies, offices and office buildings for persons engaged in the health care professions, research facilities and laundry facilities.

The statute defines “Health care services” as those provided by a health care facility or provider, or by an individual working under the supervision of such a facility or provider, related to “…the diagnosis, assessment, prevention, treatment, aid, shelter, assistance, or care of illness, disease, injury or condition.”

In summary, the act provides for immunity for civil liability for loss or harm to a person with a suspect at or confirmed COVID-19 diagnoses caused by the provider or facility during the pandemic as long as the act or omission occurred during the course of treatment including decision-making, staffing, capacity of space of equipment in response to the epidemic and as long as the act or omission was not the result of the gross negligence or willful or wanton misconduct of the provider or facility.  The statute do not grant such immunity to providers of services to individuals who do not have suspected or confirmed cases of COVID-19.


For more information on this alert and its impact on your business, please call 405.552.2403 or email me.

Keep up with our ongoing COVID-19 resources, guidance and updates at our RESOURCE CENTER.

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Returning to Work – A Post-Pandemic Workplace Safety Guide

By Phillips Murrah Attorneys Janet Hendrick and Phoebe Mitchell

As stay-at-home orders have begun to expire in recent weeks, more than half of the states – including Oklahoma and Texas – have lifted restrictions on businesses. With many Americans returning to work after months at home due to the COVID-19 virus pandemic, employers should be aware of claims relating to workplace reentry. Employers can anticipate novel causes of action, including lawsuits alleging a failure to provide a safe workplace.

Phillips Murrah Director Janet Hendrick portrait

Janet Hendrick is an experienced employment litigator who tackles each of her client’s problems with a tailored, results-oriented approach.

For example, in New York, nurses’ unions have filed multiple lawsuits against the state, claiming “grossly inadequate” protections against the virus in the workplace. These suits likely mark a trend, as employees may attempt to hold their employers liable for lost work, hospitalizations, and even deaths caused by COVID-19, especially where employees may have contracted the virus in the workplace.

The Occupational Safety and Health Administration (OSHA), the federal agency charged with regulating workplace safety, has not issued new guidance relating to airborne diseases in response to the coronavirus pandemic. Instead, the agency has relied on its “general duty” clause, which mandates that employers provide a place of employment “free from recognized hazards that are causing or likely to cause death or serious physical harm” to their employees.  This simply means that employers have a general duty to provide a safe working environment for their employees.

On April 10, 2020, OSHA did issue new guidance regarding recording cases of COVID-19 in the workplace. Under the Occupational Safety and Health Act, employers must record instances of illnesses contracted in the workplace, or “occupational illnesses.” OSHA’s new guidance provides that COVID-19 is a recordable illness, and employers will be responsible for recording cases of COVID-19 in the workplace if three criteria are met:  (1) the case is a “confirmed case” of COVID-19 as defined by the CDC; (2) the case is “work-related” as defined by 29 C.F.R. § 1904.5; and (3) the case involves one or more of the general recording criteria set forth in 29 C.F.R. § 1904.7.

Phillips Murrah attorney Phoebe B. Mitchell portrait

Phoebe B. Mitchell is a litigation attorney who represents individuals and both privately-held and public companies in a wide range of civil litigation matters.

(1) “Confirmed case”

The CDC defines a confirmed case of COVID-19 as “an individual with at least one respiratory specimen that tested positive for SARS-CoV-2, the virus that causes COVID-19.”

(2) “Work-related”

As defined by OSHA regulations, a case is “work-related” if “an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness.”

(3) General recording criteria

As defined by OSHA regulations, a case meets one or more of the general recording criteria if it results in any of the following: “death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness.” Further, the case also meets the general recording criteria if it “involves a significant injury or illness diagnosed by a physician or other licensed health care professional, even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness.”

Because of community transmission of COVID-19, the guidance states that the only employers who must make the above work-relatedness determinations with relation to cases of COVID-19 in the workplace are the healthcare industry, emergency response organizations (which includes emergency medical, firefighting and law enforcement services), and correctional institutions. OSHA will not require other employers to make these same work-relatedness determinations, unless there is objective evidence that a COVID-19 case may be work-related, and the evidence was readily available to the employer. The guidance is intended to help employers focus on implementation of good hygiene practices and mitigation of COVID-19’s effects in the workplace, rather than forcing employers to make difficult work-relatedness decisions where there has been community spread.

Based on this OSHA guidance and the inevitable surge of litigation in the post-pandemic US, employers should act now to both protect their employees and minimize potential liability.

Before employees return to the workplace, employers should:

1) Create and implement concrete polices and guidelines regarding workplace hygiene, social distancing, face covering usage and reporting of symptoms

2) Monitor employees to ensure compliance with new COVID-19 policies

3) Encourage employees to stay home if they are sick

4) Allow at-risk employees to work from home where possible

5) Allow employees to return to work in phases where possible

6) Close off common areas in the workplace, such as break rooms, in an effort to encourage social distancing

 


For more information on this alert and its impact on your business, please call:

Janet Hendrick is a Shareholder in the Dallas office of Phillips Murrah who specializes in advising and representing employers. (click name for profile page) Contact her by phone, 214.615.6391 or by email.

Phoebe Mitchell is an Associate in the Oklahoma City office of the firm. (click name for profile page) Contact her by phone, 405.606.4711, or by email.

Phillips Murrah’s labor and employment attorneys continue to monitor developments to provide up-to-date advice to our clients during the current COVID-19 pandemic. Keep up with our ongoing COVID-19 resources, guidance and updates at our RESOURCE CENTER.

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CARES Act and independent contractors – How businesses can mitigate risk related to CARES Act unemployment claims

By Phillips Murrah Attorney Martin J. Lopez III 

Below is an expanded version of a Gavel to Gavel column that appeared in The Journal Record on May 14, 2019.

attorney Martin J Lopez III

Martin J. Lopez III is a litigation attorney who represents individuals and both privately-held and public companies in a wide range of civil litigation matters.

Businesses should identify and mitigate risk related to CARES Act independent contractor unemployment claims

In response to the COVID-19 national emergency, Congress has taken the extraordinary measure to allow independent contractors, gig-workers, and self-employed individuals access to unemployment insurance benefits for which they are generally ineligible. This article is geared towards businesses that regularly use independent contractors who may file claims for unemployment insurance benefits—discussing the risks involved and how businesses can mitigate those risks.

Background Regarding Relevant CARES Act Provisions

On March 27, 2020 President Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). Among other provisions, the CARES Act significantly expands the availability of unemployment insurance benefits to include workers affected by the COVID-19 national public health emergency who would not otherwise qualify for such benefits—including independent contractors. This increased accessibility to unemployment insurance benefits theoretically provides an avenue for a state unemployment agency to find an independent contractor applicant to be an employee. Such a finding introduces the risk of the state unemployment agency assessing unpaid employment and payroll taxes for those a business previously treated as independent contractors. Tangentially, such a finding could serve to establish or bolster independent contractors’ claims in wage and hour litigation.

To qualify as a “covered individual” under the Pandemic Unemployment Assistance (“PUA”) provisions of the CARES Act, a self-employed individual must self-certify that she is self-employed, is seeking part-time employment, and does not have sufficient work history or otherwise would not qualify for unemployment benefits under another state unemployment program. Further, the self-employed individual must certify that she is otherwise able to work and is available for work within the meaning of applicable state law, but is “unemployed, partially unemployed or unable or unavailable to work” because of one of the following COVID-19 related reasons:

  • The individual has been diagnosed with COVID-19 and is seeking a medical diagnosis;
  • A member of the individual’s household has been diagnosed with COVID-19;
  • The individual is providing care for a family member or member of the individual’s household who has been diagnosed with COVID-19;
  • A child or other person in the household for which the individual has primary caregiving responsibility is unable to attend school or another facility that is closed as a direct result of the COVID-19 public health emergency and such school or facility care is required for the individual to work;
  • The individual is unable to reach the place of employment because of a quarantine imposed as a direct result of the COVID-19 public health emergency;
  • The individual is unable to reach the place of employment because the individual has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • The individual was scheduled to commence employment and does not have a job as a direct result of the COVID-19 public health emergency;
  • The individual has become the breadwinner or major support for a household has died as a direct result of COVID-19;
  • The individual has to quit his or her job as a direct result of the COVID-19 public health emergency;
  • The individual’s place of employment is closed as a direct result of the COVID-19 public health emergency.

If the individual meets the above criterion, she is a “covered individual” and is eligible for unemployment assistance authorized by the PUA provisions of the CARES Act. Such assistance was available beginning January 27, 2020 and provides for up to thirty-nine (39) weeks of unemployment benefits extending through December 31, 2020. Covered individuals’ unemployment benefits are calculated state-by-state, according to each state’s conventional unemployment compensation system. In addition, under the PUA provisions of the CARES Act, covered individuals may receive an additional $600 for each week of unemployment until July 31, 2020.

What Businesses Can Do to Protect Themselves

To counteract the risks discussed above, I recommend a business implement the following best practices when responding to a claim of unemployment by an independent contractor:

  • respond proactively to unemployment claim notices for independent contractors;
  • state clearly in the response that the relevant individual-claimants were independent contractors and not employees of the business;
  • affirmatively state that each independent contractor claimant was an independent contractor to whom the business occasionally (or routinely) provided work, but that it is unable to provide the same volume (or any) work to the individual at present because of the COVID-19 national emergency;
  • specify in the response that the individual’s eligibility for unemployment benefits must be entirely predicated on the PUA provisions of the CARES Act allowing for independent contractor participation in the program; and
  • provide the claimant’s independent contractor agreement to the state unemployment agency.

In providing this information and documentation to the state unemployment agency, the business will be able to demonstrate its independent contractor relationship with the individual. Together with the fact that these individuals’ eligibility to receive unemployment income rests exclusively on relevant CARES Act provisions, the business should be well-positioned to avoid the typical risks that can result from a successful unemployment claim by an independent contractor.

Martin J. Lopez III is an attorney at the law firm of Phillips Murrah.

Phillips Murrah presents COVID-related employment law update for Petroleum Alliance

On the morning of April 22, Phillips Murrah Director Kathryn D. Terry presented an in-depth labor and employment videoconference about changes to employment rules resulting from new COVID-19-related federal legislation.

Chairman David Le Norman hosted the broadcast, and Phillips Murrah Director Elizabeth K. Brown, who is also a PAO Director, helped kick off the presentation. This was the forth episode of the The Petroleum Alliance of Oklahoma’s Morning Fuel webinar series.

Topics covered in this presentation

The topics include three new major components of recent changes, which include Emergency Paid Sick Leave (EPSL) and Expanded Medical Family Leave (EFMLA) as related to the Family First Coronavirus Response Act (FFCRA).

Important subtopics that Kathy discusses in this video include:

  • What are EPSL qualifiers?
  • What are EPSL benefits?
  • How should EPSL and EFMLA be documented?
  • How is EFMLA different from FMLA?
  • Other miscellaneous issues and FAQs

To watch, click on the video presentation below:


Kathryn Terry portrait

Kathy Terry is a litigator who practices in the areas of insurance coverage, labor and employment law and civil rights defense. She also represents corporations in complex litigation matters.

For more information on this presentation and its impact on your business, please call or email me:

Kathryn D. Terry
DIRECTOR
405.552.2452
kdterry@phillipsmurrah.com

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House Sends Amended Coronavirus Response Act to Senate with Significantly Reduced Employee Paid Leave Protections – Vote Expected Today

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By Lauren Barghols Hanna

Phillips Murrah attorney Lauren Hanna

Lauren Barghols Hanna

Late last evening, the U.S. House of Representatives passed an amended version of the Families First Coronavirus Response Act, originally passed by the House on Saturday.  Although the amended bill was labeled as “technical corrections,” it makes broad substantive changes to the paid leave protections originally provided to employees.

Some provisions remain the same.  The amended Act still applies to all private employers with fewer than 500 employers.  Paid sick time will still be permitted to employees regardless of tenure, while employees with at least 30 days on the job will be eligible for the amended FMLA leave connected to the coronavirus.

However, the amended Act made several important revisions, primarily acting to reduce and restrict the benefits previously afforded employees:

Paid Sick Time (up to 80 hours/2 weeks paid leave)

  • Secretary of Labor now has the authority to issue regulations exempting small employers (fewer than 50 employees) from providing paid sick leave
  • Clarifies that paid leave time available only to workers who are unable to work or telework due to a more-tightly defined coronavirus-related absence
  • Healthcare professionals and emergency responders may be excluded from eligibility
  • Introduces new caps to paid sick time ($511/day and up to $5,110 for employee’s illness/quarantine and $200/day and up to $2,000 total for all other qualifying leave)
  • New cap for tax credit permitted for self-employed individuals

Paid FMLA Leave (up to 10 additional weeks of paid leave related to coronavirus emergency)

  • Extended paid FMLA leave is no longer available to employees for their own COVID-19 treatment or quarantine or care for their family members.
  • Paid FMLA leave available only to employees who are unable to work or telework due to caring for a minor child due to school closing or childcare unavailability
  • Healthcare professionals and emergency responders may be excluded from eligibility
  • Tightens the definition of “parent” to remove prior coverage for employees caring for next of kin and grandchildren
  • Paid leave capped at 2/3 of an employee’s wages, up to $200/day or $10,000 total

The bill is set to be taken up by the Senate this morning, with some reports indicating that the Senate is prepared to adopt it in its current form, allowing President Trump to enact it without the delay of a typical reconciliation process.

Phillips Murrah’s labor and employment attorneys continue to monitor new developments and stand ready to assist your company timely and efficiently implement these new paid leave obligations as soon as the final bill is signed into law.

 

Coronavirus 2020: Current Guidance for US Employers

Janet Hendrick

Janet Hendrick is an experienced employment litigator who tackles each of her client’s problems with a tailored, results-oriented approach.

By Phillips Murrah Attorneys Janet Hendrick and Phoebe Mitchell

Around the globe, the number of confirmed Coronavirus cases has risen to over 81,000. Although 95% of these confirmed cases are located in China, the number in the United States has grown to 53.[1] With many unanswered questions about the virus, including concrete information on how it is contracted and spread, employers must grapple with responding to the possible repercussions of Coronavirus in the workplace.

What is Coronavirus?

According to the World Health Organization (WHO), Coronavirus is a virus that can cause respiratory issues, with symptoms ranging from those similar to the common cold, to more serious issues, such as difficulty breathing resulting in hospitalization. The elderly and those with preexisting medical problems are more likely to develop serious symptoms from Coronavirus. The incubation period, or the period of time between catching the virus and showing symptoms of the disease, ranges from 1-14 days. COVID-19, the particular strain of Coronavirus that is the subject of the current global outbreak, was previously unknown before its initial diagnosis in Wuhan, China, in December 2019. There is currently no vaccine or specific antiviral medicine to prevent or treat Coronavirus.

Phoebe B. Mitchell is a litigation attorney who represents individuals and both privately-held and public companies in a wide range of civil litigation matters.

Prevention

  • The WHO recommends the following preventative measures:
  • Regularly and thoroughly clean your hands
  • Maintain at least 3 feet distance between yourself and anyone who is coughing and sneezing
  • Avoid touching eyes, nose and mouth
  • Cover your mouth and nose with your bent elbow or a tissue when you cough or sneeze
  • Stay home if you feel unwell
  • Seek medical attention if you have a fever, cough and difficulty breathing

Considerations for Employers

Under the General Duty Clause of the Occupational Safety and Health Act (OSHA), employers must furnish “employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to…employees.” Although OSHA has published a general guidance for employers regarding Coronavirus, it has not published any standards specific to Coronavirus in the workplace. However, activities such as nonessential business travel to China or other areas affected by the virus could violate the General Duty Clause.  Employers should consider preventative measures to stop the spread of Coronavirus, such as providing hand sanitizer to employees and encouraging sick employees to stay home.

When an employer suspects that an employee has been exposed to Coronavirus, either by traveling to an affected area or through contact with an affected person, the employer should require the employee, including those under required or self-quarantine, to work from home, where possible, during the 14-day incubation period. For employees who cannot work remotely, employers should allow the employee to take leave consistent with the employer’s normal leave of absence policies, including permitting employees to utilize any available paid leave.   There is no requirement, however, to provide impacted employees with any additional paid leave.

Impacted employees may be eligible for job-protected unpaid leave under the Family and Medical Leave Act.  Employees who test positive for Coronavirus most likely meet the FMLA’s definition of “serious health condition” and are thus entitled to FMLA leave.  These employees may also meet the definition of a “qualified individual with a disability” under the Americans with Disabilities Act (ADA), and its state equivalents, in which case the employer, assuming covered by the ADA, must engage in the interactive process to determine if leave or another reasonable accommodation is required.

Leave eligibility for potentially affected employees who do not show symptoms of Coronavirus is less clear.  Certainly there is no requirement under the ADA or state equivalents to accommodate employees who are not ill.  And while employees are not generally entitled to FMLA leave to avoid contracting an illness, if the employee is under the continuing treatment of a health care provider, the employee may meet the test for a “serious health condition” under the FMLA. Remember that “serious health condition” includes certain forms of “continuing treatment.” “Continuing treatment” takes many forms, including a period of incapacity of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition that also involves (i) treatment two or more times within 30 days of the first day of incapacity by a health care provider or (ii) treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider. “Continuing treatment” also includes any period of absence to receive multiple treatments by a health care provider for a condition that would likely result in a period of incapacity of more than three consecutive days in the absence of medical intervention or treatment.  For employees who take leave, employers should require medical clearance before allowing the employee to return to work.

Employers should also be aware that all 50 states have laws that address quarantine and isolation.[2]

These laws grant authority to certain state government entities to control the spread of communicable illnesses, thus allowing the state government to mandate quarantines or isolation. Some of the state quarantine laws also impose a penalty on persons who escape or attempt to escape a mandated quarantine.

As with all employment law considerations, consistency is critical:  employers should treat impacted employees consistently to avoid any claim of discriminatory treatment. Any policy or employer action addressing communicable illnesses such as Coronavirus should address all such illnesses and should be applied equally to all individuals to ensure that no protected class of employees is disproportionally affected.

Employers should consult with their employment counsel for additional guidance on addressing concerns about the Coronavirus in the workplace.  Phillips Murrah’s labor and employment attorneys continue to monitor developments to provide up-to-date advice to our clients.

Janet Hendrick is a Shareholder in the Dallas office of Phillips Murrah who specializes in advising and representing employers.  Phoebe Mitchell is an Associate in the Oklahoma City office of the firm.


[1] Coronavirus disease 2019 (COVID-19) Situation Report – 37, World Health Organization (February 26, 2020), https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200226-sitrep-37-covid-19.pdf?sfvrsn=2146841e_2.

[2] State Quarantine and Isolation Statutes, National Conference of State Legislatures, (February 27, 2020), https://www.ncsl.org/research/health/state-quarantine-and-isolation-statutes.aspx.