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Employer Alert: OSHA Emergency Temporary Standard is Imminent

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By Angela M. Buchanan

Last June, OSHA adopted an emergency temporary standard (“ETS”)—29 C.F.R. Part 1910, Subpart U, 86 Fed. Reg. 32376 (June 21, 2021)—that set forth numerous requirements for healthcare employers aimed at combatting the spread of COVID-19. On September 9, 2021, as part of his COVID Action Plan, President Biden directed OSHA to issue a new and broader ETS requiring all private employers with 100 or more workers to mandate COVID-19 vaccination or a weekly test for all employees. Since that time, OSHA has been working towards meeting President Biden’s directive, and, on October 12, 2021, OSHA sent a draft ETS requiring either vaccination or weekly testing of workers for employers with 100 or more employees to the White House’s regulatory office for approval. The White House is expected to review and approve the new ETS quickly.

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Angela M. Buchanan is a litigator who primarily focuses her practice on complex commercial litigation and disputes.

According to Ann Rosenthal, Senior Advisor at OSHA, the ETS will be published “in the coming weeks.” If the new ETS is like the healthcare ETS in its implementation schedule, the new standard will take effect shortly after its publication in the Federal Register. By way of comparison, the healthcare ETS has some provisions that became mandatory 15 days after publication, while compliance with others was required a month after publication. 29 C.F.R. § 1910.502(s)(2). The ETS can remain in effect for six months.

Violations of the new ETS would likely be considered either “serious” or “willful.” The current maximum penalty for a “serious” violation is $13,653 per violation. The current maximum penalty for a “willful” violation is $136,532. 29 C.F.R. § 1903.15(d), 86 Fed. Reg. 2964 (Jan. 14, 2021).

Preemptively, Governor Abbott responded to the expected ETS on October 11, 2021 by issuing Executive Order GA-40, stating that no entity in Texas can “compel” any individual, including any employee or consumer, to receive a COVID-19 vaccination who objects “for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.”  The order establishes a maximum criminal penalty of $1,000.

Governor Abbot’s Order highlights the fact that the new ETS is likely to be challenged.  States, companies, and others will like challenge the ETS on the grounds that the required prerequisites for OSHA issuing an ETS are not met. Specifically, to make an ETS, OSHA must determine (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.” 29 U.S.C. § 655(c)(1). In the ten times OSHA has issued an ETS, the courts have fully vacated or stayed the ETS in four cases and partially vacated the ETS in one case.

Whether or not the ETS is eventually challenged, Companies still need to prepare for the new ETS mandates by proactively reviewing and updating their COVID-19 vaccination policies.  Phillips Murrah’s Labor and Employment attorneys regularly advise employers on complex issues relating to COVID-19 vaccination polices and OSHA standards.


For more information about how the information in this article may impact your business, please call 469.485.7341 or email By Angela M. Buchanan.

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Continuation of Pandemic-Related Remote Work as an ADA Accommodation: Lessons from the EEOC’s First Lawsuit

EEOC lawsuit graphicBy Janet Hendrick

Employers can glean valuable takeaways from the EEOC’s recent lawsuit against a facility management company, the EEOC’s first case alleging disability discrimination for an employer’s refusal to allow an employee to continue to work from home following pandemic-related remote work.  On September 7, 2021, the EEOC filed suit in federal court in Atlanta against ISS Facility Services, Inc. alleging that it unlawfully denied Ronisha Moncrief’s request for remote work as a reasonable accommodation under the Americans with Disabilities Act.  Moncrief, a health and safety manager for the company who has a pulmonary condition, sought treatment after she became sick at work.  Her doctor recommended that she work from home and take frequent breaks while working.  Around this time, due to the COVID-19 pandemic, ISS implemented rotating staff schedules, so that Moncrief and others worked from home four days a week.

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Janet Hendrick is a Shareholder and a member of the Firm’s Labor and Employment Practice Group.

In June 2020, ISS required all staff to return to the facility five days a week. When Moncrief requested continued work from home as a disability accommodation, ISS denied her request.  According to the lawsuit, and of critical importance, other health and safety managers were allowed to continue working from home. A month later, Moncrief’s supervisor recommended that Moncrief be terminated due to performance issues and ISS terminated Moncrief shortly after. According to the lawsuit, and again of critical importance, Moncrief had not previously been informed that her performance warranted termination.  Although the EEOC attempted conciliation of Moncrief’s charge of discrimination, that failed and the EEOC filed the lawsuit.

Although the lawsuit is in very early stages, here are some valuable takeaways for employers:

  1. Promptly address and document performance issues
    •  One glaring issue in this case, assuming the allegations are true, is that Moncrief claims to have been unaware that her performance could land her on the chopping block. Be sure your managers are managing.  This requires addressing performance issues in a timely manner, including documenting the issues and communicating the issues and possible repercussions to the employee.  Managers frequently ignore performance issues or sugar-coat communications, leading to terminated employees claiming they never had a chance to improve. Timely documentation of performance issues serves as key evidence for employers accused of not adequately informing an employee of possible termination.
  1. Assess accommodation requests on a case-by-case basis
    • The EEOC has repeatedly cautioned employers to avoid a “one-size-fits-all” blanket approach to disability accommodations. Instead, employers are expected to conduct an individualized analysis of each accommodation request. Further, in light of the ISS Facility lawsuit, denials of remote work requests may garner heightened scrutiny, particularly if the employee at issue has worked remotely for a “trial period” during the pandemic.
  1. Treat similarly situated employees consistently
    • When it comes to disability accommodations, employers who treat employees in the same or similar positions inconsistently create unnecessary legal risk.
    • If an employer allows one employee to work from home but denies remote work to another employee with the same or a similar position, the employer better be ready to explain the disparity There may be justification for the different treatment, but it gives an appearance of an unjustified denial of an accommodation.
  1. Ensure job descriptions are updated and robust
    • Job descriptions tend to be among the lowest priorities for often-harried human resources professionals. But accurate (i.e., updated), robust job descriptions can be some of the best evidence an employer can offer if an employee challenges that a task is not an “essential” job function. This is often a key issue in disability discrimination cases, as the employee must be able to perform all “essential job functions” with or without a “reasonable accommodation” to come with the protection of the ADA as a “qualified individual with a disability.” Courts routinely defer to an employer’s judgment as to whether a job function is “essential” and often rely on a written job description.
    • Employers who take the time and resources to periodically review and update job descriptions can reap the benefits if facing this type of challenge. Bonus points for including such nontraditional requirements as reliable, predictable attendance and regular attendance at the assigned office or work facility, as long as the employer can back these up as truly “essential” if challenged.

Phillips Murrah’s Labor and Employment attorneys regularly advise employers on complex issues relating to ADA accommodations and performance management and can help strengthen job descriptions and other key employment documents.


For more information on this alert and its impact on your business, please call 469.485.7334 or email Janet A. Hendrick.

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Biden orders private companies and healthcare institutions to mandate employee vaccines

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By Lauren Barghols Hanna

Yesterday afternoon, President Biden announced a series of executive actions and new federal rules to increase the number of vaccinated American workers. Noting that COVID-19 has killed more than 650,000 in the last 18 months, President Biden announced several expected executive orders and a forthcoming emergency OSHA rule. The expected rule will mandate that all companies with more than 100 workers require their employees to either be fully vaccinated or submit to weekly COVID-19 screening tests. By executive order, President Biden will mandate vaccines for health care workers, federal employees and federal contractors. If federal employees refuse vaccination without a valid medical reason or sincerely-held religious belief, they may be subject to disciplinary action, up to and including termination of employment.

President Biden vowed to “protect vaccinated workers from unvaccinated co-workers” and to “reduce the spread of COVID-19 by increasing the share of the workforce that is vaccinated in businesses all across America.” Until President Biden’s September 9th speech, he had appeared hesitant to enact federally-mandated vaccine requirements–instead relying on individual corporate vaccine incentive programs to encourage vaccine compliance. In his speech, President Biden conveyed the urgent importance of corporate and federal vaccine mandates to increase individual employee vaccination rates. His new orders are likely motivated by the rapid spread of the COVID-19 delta variant, the FDA’s recent full approval of the Pfizer-BioNTech COVID-19 vaccine, and the effort to achieve critical herd immunity to ensure continued economic recovery and minimize the likelihood of incubating potentially-severe variants among the unvaccinated population.

To ensure larger employers enact “vaccination or weekly testing” policies, President Biden ordered the Occupational Safety and Health Administration (OSHA) to draft a rule requiring even private employers with 100 employees or more to enact such policies to maintain critical OSHA compliance. OSHA has indicated that it intends to take enforcement action against private companies that do not comply with the vaccine mandate, with potential fines of up to $14,000 per violation.

Regardless of the number of employees, private hospitals and other healthcare institutions that accept Medicare and Medicaid reimbursements also will be required to enact similar mandatory vaccine policies, along with other federal contractors and federal agencies. In addition to these orders, President Biden also encouraged state governors to mandate vaccinations and/or weekly testing for entertainment venues, and private and public schools to “make sure we are keeping students safe.”

Across all industries, approximately two-thirds of America’s workforce will be impacted by one or more of President Biden’s orders and requested rules related to mandated COVID vaccinations and/or regular screening tests.

Phillips Murrah will continue to monitor the publications of these promised orders and provide additional implementation guidance as it becomes available.


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Lauren Barghols Hanna is an attorney in Phillips Murrah’s Labor & Employment Practice Group.

For more information on this alert and its impact on your business, please call 405.606.4732 or email me.

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As Dallas businesses scramble to comply with murky mask mandate, Governor files court challenge

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By Janet A. Hendrick

On the heels of Dallas County Judge Tonya Parker’s August 10, 2021 temporary restraining order nullifying Governor Abbott’s July 2021 prohibition on mask mandates within Dallas County, Dallas County Judge Clay Jenkins issued an order mandating masks for many Dallas employers effective August 12, 2021.  In addition to requiring universal indoor masking for all Dallas County public schools and childcare centers, and in buildings owned or operated by Dallas County, and encouraging masks in all public indoor spaces, the order requires “all commercial entities in Dallas County providing goods or services directly to the public” to develop, implement, and post a health and safety policy. The policy must include at a minimum universal indoor masking for all employees and visitors to the entity’s premises or other facilities and may also include other mitigating measures designed to control and reduce the transmission of COVID-19, such as temperature checks or health screenings. Businesses that fail to comply within three days risk fines of up to $1,000 per violation.

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Janet Hendrick is a Shareholder and a member of the Firm’s Labor and Employment Practice Group.

Although the language regarding “commercial entities” appears to be limited to only those businesses that provide “goods or services directly to the public,” the FAQs on the Dallas County website broadly state that “[b]usinesses operating in Dallas County must develop a Health and Safety Policy and this policy must mandate that all employees and visitors wear a mask while on any property owned or operated by the business.”

Lack of clarity in Judge Jenkins’ order means businesses within Dallas County must decide whether to comply, even if they do not arguably provide goods or services directly to the public, or risk fines. The most risk-averse route for Dallas County businesses is to (1) mandate masks for all employees and visitors, and (2) prepare a health and safety plan that includes the mask mandate and any other transmission-mitigating measures the business chooses to include.  Employers that choose this path should post the health and safety plan prominently near the entrance to their premises before midnight on August 14, 2021 to avoid the possibility of a fine for noncompliance.

Just hours after Judge Jenkins’ issued his order, Texas Governor Greg Abbott and Attorney General Ken Paxton filed a mandamus petition with the Dallas Court of Appeals to strike down the order.  A hearing is set for August 24, 2021 before Judge Parker, at which point she will decide whether to turn the temporary restraining order into a temporary injunction pending a trial.


We will continue to monitor developments regarding the Dallas County order and are available to discuss its implications and requirements.

  • To contact Janet A. Hendrick, please call 469.485.7334 or email.
  • To contact Michele C. Spillman, please call 469.485.7342 or email.

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OSHA issues COVID-19 Emergency Temporary Standard for healthcare employers

OSHA-Temp-Standard-GraphicBy Janet A. Hendrick and Phoebe B. Mitchell

On June 10, 2021, the Occupational Safety and Health Administration (OSHA) issued its long-awaited Emergency Temporary Standard (ETS) regarding mandatory safety standards for COVID-19 for healthcare employers pursuant to President Biden’s January 21, 2021 Executive Order. The ETS outlines what healthcare employers must do to protect healthcare workers from COVID-19. OSHA also issued voluntary guidelines for employers outside of the healthcare sector.

The rule is designed to protect workers who face the highest risk of contracting COVID-19 in the workplace – namely, those working in healthcare settings where suspected or confirmed COVID-19 patients may be treated. This includes employees in hospitals, nursing homes, and assisted living facilities; emergency responders; home healthcare workers; and employees in outpatient care facilities. The ETS exempts fully vaccinated workers from masking, distancing, and barrier requirements in well-defined areas where there is no reasonable expectation that any person with COVID-19 will be present.

Here are the key requirements of the ETS:

  • Written COVID-19 Plan: Healthcare employers with more than 10 employees must develop and implement a written plan that designates a safety coordinator who has the authority to ensure compliance with the ETS. The plan must include a workplace-specific hazard assessment and involve non-managerial employees in the hazard assessment and plan development. Additionally, the plan must include policies and procedures to minimize the risk of transmission of COVID-19 between employees.
  • Patient Screening and Management: Employers must limit and monitor points of entry to settings where direct COVID-19 patient care is provided. Employers must also screen and triage patients, clients, other visitors and non-employees.
  • Personal Protective Equipment (PPE): Employers must provide and ensure that each employee wears a facemask when indoors or in a vehicle with other employees for work purposes. Employers must provide and ensure that each employee working directly with suspected or confirmed COVID-19 patients use respirators and other PPE to prevent exposure to the virus.
  • Social Distancing: Employers must keep people six feet apart when indoors.
  • Physical barriers: Employers must install cleanable or disposable barriers at each work location in non-patient care areas where employees are not separated by six feet.
  • Vaccination: Employers must provide reasonable time and paid leave for vaccination and vaccine side effects.
  • No Cost: All requirements of the ETS must be implemented at no cost to the employees.

The rule will take effect when it is published in the Federal Register and healthcare employers must comply with the majority of the guidelines 14 days after publication.

Phillips Murrah’s labor and employment attorneys continue to monitor developments regarding COVID-19 rules in the workplace to provide up-to-date advice to our clients.


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Janet Hendrick is a Director and member of the Firm’s Labor and Employment Practice Group.

For more information on this alert and its impact on your business, please call 214.615.6391 or email me.

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Employment Law Update: EEOC’s Latest Guidance on COVID-19 Vaccines

By Janet A. Hendrick and Kim Beight Kelly

Covid vaccine imageOn May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) published 21 updated FAQs supplementing its guidance on workplace COVID-19 vaccination policies.  This represents the EEOC’s first comprehensive update of its guidance regarding COVID-19 since December 2020, prior to large-scale vaccine availability.  Notably, the EEOC prepared this update prior to the CDC’s May 13, 2021 announcement that fully vaccinated individuals need not wear masks or socially distance in certain scenarios.  Nonetheless, the EEOC’s update provides much-anticipated guidance for employers that require or encourage employees to be vaccinated.  Key takeaways include the following:

  • Reasonable Accommodation.  Employers may generally require workers who physically enter the workplace to receive a COVID-19 vaccination, but the employer must reasonably accommodate employees who are unable or unwilling to receive a vaccine because of a disability or sincerely held religious belief, practice, or observance unless those accommodations pose an undue hardship on the employer. Employees need not cite specific laws to engage the employer in an interactive process to explore accommodations, but must let the employer know that he or she requires an exemption.  As a best practice, employers wishing to institute a mandatory vaccination policy should prepare their managers to appropriately handle exemption requests.
  • Disparate Impact. Though an employer may require employee vaccinations, it must bear in mind that even a seemingly neutral policy may be discriminatory in practice toward protected groups of employees who face greater barriers to vaccination.  Employers should be careful to administer their policies in a non-discriminatory manner and when in doubt, vet its policy with counsel before rollout.
  • Incentives. Employers may offer incentives to employees who receive vaccines.  But available incentives differ based on who administers the vaccine.  If an employer merely requests proof of vaccination, then there is no disability-related inquiry under the Americans with Disability Act (ADA) and the request is allowable.  If the employer itself administers the vaccine or arranges for a third party to administer it, then the incentive must not be so substantial as to be coercive.  This is because the required pre-vaccine medical screening questions are prohibited under the ADA unless voluntary; if the incentive is coercively substantial, then the screening questions will not be considered voluntary.  Until the EEOC offers more detailed guidance on incentives, employers must choose incentives based on their own judgment and risk tolerance level.  The most conservative practice would be to either keep incentives very simple (e.g. cash less than $100) or to steer clear of administering vaccines itself.
  • Confidentiality. Employers must keep employee medical information confidential. While requesting proof of vaccination is not a medical inquiry, employee information–such as a copy of a vaccination card–is medical information that an employer must maintain confidentially as it would any other medical-related documentation (e.g. in a separate file with limited accessibility).

We will continue to post updates on new COVID-19-related guidance from the EEOC and other federal and state agencies on our website. For more information, consult with a Phillips Murrah labor and employment attorney.


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Janet Hendrick is a Director and member of the Firm’s Labor and Employment Practice Group.

For more information on this alert and its impact on your business, please call 214.615.6391 or email me.

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Employer tax considerations for remote work

international remote work graphic headerBy Jessica N. Cory

Over the last year, the COVID-19 pandemic resulted in a number of changes for employers, from navigating the PPP loan process to implementing new sick and family leave policies.  One major change has been a massive experiment in telecommuting, with the number of American workers working at least part-time from home more than doubling.  According to a recent Gallup poll,[1] over 50% of U.S. workers continue to report they are working remotely all or part of the time.  Moreover, of those working remote at least part of the time, approximately 44% reported they would prefer to stay remote even after COVID-19 is no longer a threat.  This interest in ongoing remote work possibilities is consistent with an earlier Pew Research Center survey, which found that among employed adults who say the responsibilities of their job can mostly be done from home, 54% would like to continue working from home after the coronavirus outbreak ends.[2]

Phillips Murrah attorney Jessica Cory

Jessica N. Cory represents businesses and individuals in a wide range of transactional matters, with an emphasis on tax planning.

Given employee interest in continuing to telework, it is important for employers interested in offering remote work as a benefit to evaluate their policies now.  One important employer-side piece of a teleworking policy is potential tax exposure.  During the pandemic, many jurisdictions enacted policies, whether formally or through informal guidance, to prevent employers from becoming entangled in additional tax obligations as a result of employees temporarily teleworking away from an employer’s physical office as a result of COVID-19 restrictions.  Moving forward, however, many of these temporary reprieves have or will soon expire.  U.S. employers should thus carefully consider the tax implications of allowing an employee to work in other jurisdictions, whether in another state where the employer does not otherwise have a taxable presence or even internationally.

From a tax perspective, what should be considered in determining whether to allow employees to work remotely across state lines?

 If an employee wants to work remotely from another state, where an employer does not currently conduct business, an employer must carefully consider the potential tax consequences for both the employee and the employer.  For example, when it comes to the employee, there may be an impact on the employee’s take home pay if more than one state requires income tax withholding from the employee’s check.  This could arise in multiple situations, such as where an employee works part-time in the employer’s office in State A and part-time from home in State B, or where the employer’s home state has adopted a “convenience of the employer” test, which imposes income tax on remote-out-of-state employees where the employee is working for an office based in that state.[3]

From the employer’s perspective, permitting remote work across state lines may result in more than simply increased payroll tax compliance costs, from the withholding obligations that must be met in new states.  For instance, in each case, an employer must also consider whether merely having an employee teleworking from a particular state obligates the employer to register to do business in that state or even potentially creates sufficient economic nexus for a corporate income or business franchise type tax to apply to some portion of the employer’s income.

 Do similar considerations apply to an employee working remotely in an international jurisdiction?

International teleworking, similar to working across state lines, will involve a jurisdiction-specific tax analysis. However, an international remote work situation can be even more complicated, requiring an employer to look at multiple levels of authority, from tax treaties to the foreign country’s domestic laws.  Accordingly, employer policy should allow for a case-by-case evaluation of any proposed international remote work and make clear that the employee will be responsible for bearing the economic burden to the extent the company is required to withhold and remit foreign income taxes on his or her wages, or foreign social security type payments.

In considering a proposed international teleworking situation, there are two primary tax issues with which a company needs to concern itself:

  • Whether the employee’s presence in the foreign country creates an economic nexus between the company and the foreign country, sufficient for the foreign country to tax all or part of the company’s income
  • Whether the company be required to withhold and remit foreign income tax from the employee’s wages

To answer these questions, the first source of relevant authority would be a bilateral tax treaty between the United States and the foreign country, if any.  To the extent such a treaty exists, it should provide guidance on both of these issues. Otherwise, the answer will be found in the foreign country’s tax laws.

For example, under the Model Income Tax Treaty published by the Organization for Economic Cooperation and Development (OECD),[4] upon which many tax treaties are based, a company will be subject to tax in the foreign treaty-party country only if the employee’s presence in the country creates a “permanent establishment,” or “PE,” in that country.  For purposes of the Model Income Tax Treaty, a PE is defined as a “fixed place of business.”  Commentary to the treaty indicates that an employer’s home office can office can create a PE for the company, but whether it does so will be a facts and circumstances-based analysis.  Individual tax treaties and the domestic law of foreign countries may provide for harsher or more lenient treatment.

One factor that may prove particularly relevant is the duration of the proposed international remote work assignment.  For example, the analysis would be very different for an employee who wants to telework in a treaty country for several weeks while on vacation versus an employee that wants to relocate to a treaty country for months at a time. In the latter case, an analysis would also need to be made of the nature of the employee’s work, such as whether the employee has contracting or other decision-making authority on behalf of the company, leading to a stronger case being made for the company conducting business through the employee’s “home office.”

A tax treaty, where applicable, should also provide guidance on the second question, with respect to whether the teleworking employee will be subject to tax while in the foreign country, and thus whether an employer will have an obligation to withhold and remit foreign income taxes for that employee. Under many income tax treaties, including the Model Income Tax Treaty, an individual working in a treaty-party country will only become subject to tax in that country if he or she remains for more than 183 days.  Accordingly, employer policy could allow shorter stints abroad in a treaty country, but not stays over a set amount of days (for example, 160, to create a buffer before hitting the 183 day threshold).  By contrast, in a non-treaty jurisdiction, an employer could face a withholding obligation from day one.

 For employers looking to offer remote work as an ongoing benefit, the potential tax pitfalls described above should be viewed as important considerations, not a barrier to teleworking.  With proper planning and the adoption of well-though company policies, an employer may be well-placed to offer either domestic or international remote work as a benefit to its employees, potentially improving employee retention and productivity and providing the employer with a broader pool of employee candidates.  A qualified tax attorney can assist in providing the necessary guidance to employers looking to craft a remote work policy that would allow employees to work out of the employer’s home state.


For more information on this alert and its impact on your business, please call 405.552.2472 or email me.

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

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[1] L. Saad & A. Hickman, Majority of U.S. Workers Continue to Punch In Virtually, Gallup (Feb. 12, 2021), https://news.gallup.com/poll/329501/majority-workers-continue-punch-virtually.aspx.

[2] K. Parker, J. Menasce Horowitz, & R. Minkin, How the Coronavirus Outbreak Has – and Hasn’t – Changed the Way Americans Work, Pew Research Center (Dec. 9, 2020), https://www.pewresearch.org/social-trends/2020/12/09/how-the-coronavirus-outbreak-has-and-hasnt-changed-the-way-americans-work/.

[3] See, e.g., Arkansas Dep’t of Finance and Admin., Legal Opinion No. 20200203, imposing Arkansas income tax on a computer programmer working remotely for an Arkansas-based employer from Washington state (“Akransas Code Annotated § 26-51-202 levies the Arkansas income tax on the income received by a nonresident from an occupation carried on within Arkansas.  Your client is carrying on an occupation in the state of Arkansas, albeit from an out-of-state location.  Although your client performs her work duties in Washington state, those activities impact computer systems and computer users in Arkansas … Those activities constitute the conduct of an occupation in this state.”

[4] OECD, Model Tax Convention on Income and on Capital 2017 (Full Version) (Apr. 25, 2019), https://www.oecd.org/ctp/model-tax-convention-on-income-and-on-capital-full-version-9a5b369e-en.htm.

USDOL seeks to overturn two proposed FLSA rules: Independent Contractor Rule and Joint Employer Rule

USDOL header employee classification graphicBy Byrona J. Maule and Phoebe B. Mitchell

In January, the United States Department of Labor (DOL) issued a notice of proposed rulemaking regarding the classification of independent contractors. Now, just months into President Biden’s term, his administration seeks to overturn both this proposed rule and the DOL’s final rule regarding joint employers.

Independent Contractor

The proposed independent contractor rule, discussed at length here, significantly changed the legal analysis involved for employers deciding how to classify their employees. In stating its intention to rescind the new independent contractor rule, the DOL stated that the new “economic reality test,” which is not used by courts or the department, is not supported by longstanding case law or the text of the Fair Labor Standards Act (FLSA). Further, the DOL commented that the new rule minimizes the traditional factors utilized by courts in classifying workers, making it less likely to establish that a worker is an employee under the FLSA. Worker classification is an important issue for employers as it determines which workers are entitled to benefits and the overtime protections under the FLSA.

The DOL did not provide guidance on a replacement for the proposed rule. President Biden has stated his support for a uniform independent contractor test modeled after California’s “ABC” test. The “ABC” test considers a worker to be an employee unless their employer establishes all three of the following:

  1. The worker is free from control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of such work and in fact;
  2. The worker performs work that is outside of the “usual course” of the hiring entity’s business; and
  3. The worker is customarily engaged in an independently established trade, occupation or business of the same nature as the type of work performed for the company.

Joint Employer

The DOL’s joint employer rule clarified an employee’s joint employer status, such as when an employee performs work for his or her employer that simultaneously benefits another individual or entity. The rule, which took effect on March 16, 2020, was subsequently challenged by 17 states and the District of Columbia in a lawsuit filed in the Southern District of New York. The lawsuit claimed that the new joint employer rule violated the Administrative Procedure Act. The Southern District of New York agreed, holding that the new rule was contrary to the FLSA.

The March 16, 2020 final rule included several elements that were not consistent with the DOL’s prior joint employer rule, including:

  • a four-factor balancing test to determine when a person is acting directly or indirectly in the interest of an employer in relation to the employee;
  • a provision that an employee’s economic dependence on a potential joint employer does not determine whether it is a joint employer; and
  • a provision that an employer’s franchisor, brand and supply, or similar business model and certain contractual agreements or business practices do not make joint employer status under the FSLA more or less likely.

Jessica Looman, the DOL Wage and Hour Division Principal Deputy Administrator stated that “The Wage and Hour Division’s mission is to protect and respect the rights of workers. Rescinding these rules would strengthen protections for workers, including essential front-line workers who have done so much during these challenging times.”

The DOL is seeking public input until April 12, 2021 on its proposal to rescind these two rules.

Phillips Murrah’s labor and employment attorneys continue to monitor developments to provide up-to-date advice to our clients regarding the DOL’s new rules.


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For more information on this Employment Alert and its impact on your business, please call 405.552.2453 or email me.

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OSHA issues updated guidance on workplace COVID-19 prevention programs

By Lauren Symcox Voth

The Occupational Safety and Health Administration (“OSHA”) published updated COVID-19 guidance for businesses on Friday, Jan. 29, 2021. The guidance, Protecting Workers:  Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, (“Guidance”) outlines obligations for employers to comply with OSHA’s General Duty Clause during the pandemic and draws on previously published OSHA and Centers for Disease Control guidance.[1]  OSHA emphasizes the need for employers’ to plan and prepare to protect employees in the workplace from COVID-19.  The Guidance states that it does not create any new legal requirements for employers, but instead provides more detail on “existing mandatory safety and health standards.”  OSHA implies the Guidance may be used for purposes of enforcing employer compliance with COVID-19 prevention programs.

Stock image of industrial worker wearing a mask

(Adobe Stock)

OSHA recommends employers include employees in the development of company prevention programs.  OSHA takes a stronger stance on masking requirements for employees and anyone entering the workplace, physical distancing of employees and non-employees, installing barriers to protect employees, and improved ventilation to prevent the spread of COVID-19 in buildings.

OSHA considers the following to be essential to an effective COVID-19 prevention program.  Many of these elements have been in place for employers for several months.  Companies can benefit from documenting these elements to ensure a cohesive and complete COVID-19 prevention program.  A comprehensive COVID-19 Prevention Program should address the following elements:

  1. Assignment of a workplace coordinator, centralizing responsibility and communication from the company to employees regarding COVID-19 issues.
  2. A Company assessment of hazards in order to identify where and how workers might be exposed in the workplace.
  3. Identify the combination of measures that will limit the spread of COVID-19 in the workplace, which includes prioritizing what controls are most effective and least effective. For example, sending home people with a known exposure, physical distancing, improving ventilation, and cleaning routines.  The Guidance states face coverings should include “at least two layers of tightly woven fabric” and “Employers should provide face coverings to workers at no cost”.
  4. Consider protections for workers at higher risk for severe illness through supportive policies and practices. This element may overlap with an employer’s federal obligations under the Americans with Disabilities Act, Family Medical Leave Act, or state statutory obligations for accommodating disabled employees to protect them from the risk of contracting COVID-19.
  5. Establish a system for communicating effectively with workers in a language they understand. This includes communicating to employees about COVID-19 hazards and a method for employers to receive communications from employees, without fear of reprisal or discrimination.  The communication plan should allow employees to report illness, exposures, hazards, and closures related to COVID-19.
  6. Educate and train workers on company COVID-19 policies and procedures using accessible formats and in a language employees understand. This includes education on COVID-19, prevention policies, and making sure employees understand their rights to a safe and healthful work environment.
  7. Instruct workers who are infected or have potential exposure to stay home, isolate or quarantine to prevent or reduce the risk of spreading COVID-19. OSHA states that absences to prevent or reduce the spread of COVID-19 should be non-punitive.
  8. Minimize the negative impact of quarantine and isolation on workers. OSHA believes this can be achieved by employers permitting remote work or allowing employees to work in areas isolated from others.  OSHA also encourages implementation, or allowing the use of, paid sick leave policies for time off work.  In some states employees may be entitled to COVID-19 related leave.  Although the paid leave requirements in the Families First Coronavirus Response Act expired on December 31, 2020, employers may continue these leave policies and can find more information here [insert link to PM article].  Employers should continue to watch for further changes in federal and state paid leave requirements in 2021.
  9. Isolate, send home and encourage medical attention for employees who show symptoms.
  10. Perform enhanced cleaning and disinfection after people with suspected or confirmed COVID-19 have been in the facility. This may include closing areas, opening doors or windows, waiting to clean, and using disinfectants appropriate to clean COVID-19.
  11. Provide state and local guidance on screening and testing.
  12. Record and report COVID-19 infections and deaths on the company’s Form 300 logs according to OSHA standards. Outbreaks should also be reported to the local health department for contact tracing.  Employers are also prohibited from retaliating or discriminating against employees who speak out about unsafe working conditions or report infection or exposure to COVID-19 in the workplace.
  13. Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19-related hazards.
  14. Make a COVID-19 vaccine or vaccination series available at no cost to all eligible employees.
  15. Employers should not distinguish between workers who are vaccinated and those who are not. This means that vaccinated employees must still comply with all COVID-19 protective policies including but not limited to physical distancing, masking, and other steps necessary to limit transmission.
  16. Apply all other applicable OSHA standards and requirements (i.e. respiratory protection, sanitation, etc.) to ensure that the company provides a safe and healthful work environment free from recognized hazards that can cause serious physical harm or death.

The Guidance provides additional detail for implementing these essential elements to a COVID-19 prevention program, including procedures for isolating infected or potentially infected employees, physical distancing guidelines, physical barrier guidelines, face coverings, cleaning and ventilation improvements.

This OSHA Guidance is likely the first of many updates to COVID-19 prevention procedures for employers in 2021.  Employers should review the full Guidance for more information on COVID-19 prevention programs and keep watch for more information from OSHA, the U.S. Department of Labor, and the Equal Employment Opportunity Commission regarding employer obligations.

[1] The General Duty Clause requires employers to provide employees with a work environment “free from recognized hazards that are causing or likely to cause death or serious physical harm.”  OSH Act of 1970, §5(a).


Attorney Lauren Symcox Voth

For more information on this alert and its impact on your business, please call 405.606.4740 or email me.

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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Sign of the Times: Department of Labor publishes guidance on electronic postings and telemedicine visits in light of pandemic changes

By Janet A. Hendrick

Janet Hendrick

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

Recognizing ongoing changes the COVID-19 pandemic has brought to the way we work and receive medical treatment, the Wage and Hour Division of the United States Department of Labor issued employer guidance on December 29, 2020 on two issues:  electronic posting of required employment law notices and when a televisit with a health care provider counts as an in-person visit under the Family and Medical Leave Act. DOL’s guidance comes in the form of Field Assistance Bulletins, which provide guidance to the Wage and Hour Division field staff.

Field Assistance Bulletin No. 2020-7:  Electronic Statutory Postings

DOL published this guidance in response to “questions from employers regarding the use of email or postings on an internet or intranet website, including shared network drive or file system, to provide employees with required notices of their statutory rights.”  The bulletin provides guidance as to when these forms of electronic notice satisfy the notice requirements of the Fair Labor Standards Act, the Family and Medical Leave Act, the Employee Polygraph Protection Act, and the Service Contract Act.  DOL’s general view is that electronic postings should supplement, but not replace, physical postings in most cases.

Electronic communications graphicFirst, if a statute requires the posting of a notice “at all times,” DOL will only consider electronic posting an acceptable substitute where (1) all employees work exclusively remotely, (2) all employees ordinarily receive information from the employer electronically, and (3) all employees have access to the electronic posting at all times.  For employers that have both remote and on-site employees, the employer may supplement physical postings with electronic postings and in fact the DOL “would encourage both methods of posting.”

Second, if a statute, such as the Service Contract Act, permits employers to meet notice requirements by delivery of individual notices to each employee, an employer satisfies this requirement by emailing notices, but only if the employee customarily receives information from the employer electronically.  Otherwise, the employer must send a physical notice to satisfy the notice requirement.

Third, any electronic notice must be as effective as a physical, hard-copy posting to meet statutory requirements.  This means employees must be able to readily see a copy of the posting, which DOL says will “depend on the facts.”  At a minimum, DOL requires that the employees are capable of accessing the posting without having to request permission to view a file or access a computer.  DOL will not consider an employer to have complied with a posting requirement if:

  • The employer does not customarily post employee notices electronically;
  • The employer has not taken steps to inform employees where and how to access the notice electronically;
  • The employer posts the notice on an unknown or little-known electronic location, which DOL equates to “hiding the notice, similar to posting a hard-copy notice in an inconspicuous place, such as a custodial closet or little-visited basement”; or
  • The employees cannot easily determine which electronic posting applies to them and their worksite.

Following the general guidance, the bulletin provides further guidance specific to each relevant statute, with examples of when DOL will consider electronic postings compliant with the relevant statutory requirement.

Field Assistance Bulletin No. 2020-8:  Telemedicine and Serious Health Conditions under the FMLA

DOL’s Wage and Hour Division issued a frequently asked question (FAQ #12) in response to the COVID-19 pandemic that states “Until December 31, 2020, the WHD will consider telemedicine visits to be in-person visits . . ., for purposes of establishing a serious health condition under the FMLA.  To be considered an in-person visit, the telemedicine visit must include an examination, evaluation, or treatment by a health care provider; be performed by video conference; and be permitted and accepted by state licensing authorities.”  Bulletin 2020-8 provides guidance to DOL staff regarding telemedicine visits past December 31, 2020.

As a reminder, under the FMLA, eligible employees may take leave for their own or a family member’s “serious health condition.” A “serious health condition” requires either inpatient (overnight) care or “continuing treatment,” which in turn includes “examinations to determine if a serious health condition exists and evaluations of the condition.”  FMLA regulations provide that “treatment by a health care provider means an in-person visit to a health care provider,” and does not include a phone call, letter, email, or text message.”

Noting the rapid acceleration of telemedicine during the COVID-19 pandemic, and the Wage and Hour Division’s “experience . . . that health care providers are now often using telemedicine to deliver examinations, evaluations, and other healthcare services that would previously have been provided only in an office setting,” the bulletin states that “WHD will consider a telemedicine visit with a health care provider as an in-person visit,” provided certain criteria are met.

To be considered an in-person visit, the visit must include:

  • An examination, evaluation, or treatment by a health care provider;
  • Be permitted and accepted by state licensing authorities; and
  • Generally, be performed by video conference.

Phone calls, letters, emails, or text messages remain insufficient, alone, to satisfy the in-person visit requirement.

We will continue to post updates on new guidance from DOL and other federal agencies on our website.


For more information on how this DOL guidance may impact your business, please call 214.615.6391 or email Janet A. Hendrick.

For ongoing coverage of information related to COVID-19, please visit our COVID-19 Resource Center.  

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Employment Law Update: EEOC Issues Guidance Regarding COVID-19 Vaccine in the Workplace

By Phoebe B. Mitchell

On December 16, 2020, the EEOC published its highly anticipated guidance regarding the COVID-19 vaccine in the workplace. The guidance addresses employment law issues related to the vaccine under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act, and Title II of the Genetic Information Nondiscrimination Act (GINA).

Covid vaccine imageThe new guidance provides instruction for employers regarding situations where an employee indicates that he or she is unable to take the vaccine due to a disability. First, the employer should determine if the unvaccinated employee poses a “direct threat” to the workplace, meaning that the employee poses a “significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”

Employers should conduct an “individualized assessment” of the following four factors to determine whether a “direct threat” exists:

  1. Duration of the risk
  2. Nature and severity of the potential harm
  3. Likelihood that potential harm will occur
  4. Eminence of potential harm

Recall, however, that the EEOC has already classified COVID-19 as a “direct threat” in the workplace. Thus, it is unclear going forward how the EEOC will apply its previous “direct threat” determination to an employer-mandated vaccine requirement. Until additional clarifying information is published by the EEOC, employers should individually analyze each employee’s request for a reasonable accommodation using the above factors.

If a reasonable accommodation exists that would eliminate the risk that the unvaccinated employee poses a direct threat to the workplace, and the reasonable accommodation does not cause undue hardship on the employer, the employer should allow the unvaccinated individual to continue working, utilizing the reasonable accommodation. However, if an employer can show that the unvaccinated employee poses a “direct threat,” and the employer cannot provide a reasonable accommodation absent undue hardship, the employer may exclude the employee from the workplace. Exclusion from the workplace does not automatically mean an employer may terminate the unvaccinated employee. The EEOC guidance specifically states that allowing an employee to perform current work remotely is an acceptable reasonable accommodation for an unvaccinated employee.

The EEOC guidance also reminds employers of the importance of frontline supervisor training:

“Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability and know to whom the request should be referred for consideration.”

Employers whose managers and supervisors lack training on the proper response to reasonable accommodation requests may expose themselves to liability under the ADA. Further, the guidance cautions employers that disclosing information regarding reasonable accommodations or disabilities to anyone without a need to know violates the ADA.

Moreover, the guidance makes clear that pre-vaccination medical screening questions will likely elicit information about a disability from the patient. Thus, if an employer or a third-party contractor of the employer asks the pre-vaccination medical screening questions, the questions will be considered “disability-related” under the ADA. Therefore, employers must show that these disability-related screening questions are “job-related and consistent with business necessity.” To achieve this, an employer must have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and thus is not vaccinated will pose a direct threat to the health and safety of himself or others.

Additionally, the guidance clarified that, under Title VII, employers must provide a reasonable accommodation for employees who refuse the vaccine based on a sincerely held religious belief, practice or observance, unless the reasonable accommodation would cause an “undue hardship” on the employer. An “undue hardship” means anything more than a “de minimis” cost or burden on the employer. If the employer has an objective basis for questioning the religious nature or the sincerity of a belief, practice or observance, the employer may request additional information from the employee. If there is no reasonable accommodation available, an employer may lawfully exclude an employee who refuses the vaccine based on a sincerely held religious belief. Again, exclusion from the workplace does not mean an employer may automatically terminate the employee. As always, employers must determine if the employee has other rights under the Equal Opportunity Employment laws or other federal, state or local authorities.

Lastly, the guidance made clear that requiring the vaccine itself does not constitute a “medical examination under the ADA or implicate Title II of GINA. Employers should consult with their employment counsel for additional guidance on addressing concerns about the COVID-19 vaccine in the workplace. Phillips Murrah’s labor and employment attorneys continue to monitor developments to provide up-to-date advice to our clients.


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Employers should prepare for COVID-19 vaccine in the workplace

By Phoebe B. Mitchell

On December 11, 2020, the United States Food and Drug Administration (FDA) issued its first emergency use authorization (EUA) for the COVID-19 vaccine, which allows Pfizer-BioNTech, the manufacturer of the vaccine, to distribute the vaccine throughout the United States. This encouraging step for the United States in its fight against COVID-19 also raises several important questions for employers as the vaccine becomes more broadly available.

Covid vaccine imageWhile we wait for both full FDA approval and the United States Equal Employment Opportunity Commission’s (EEOC) anticipated employer guidance on the vaccine, we recommend that employers prepare now to address the legal issues that arise when the vaccine is accessible to the American workforce.

May Employers Mandate the COVID-19 Vaccine as a Condition of Employment?

Even though the EEOC has not yet issued formal guidance, the EEOC has stated that an employee who has COVID-19 or symptoms of COVID-19 poses a “direct threat” to the health and safety of the workplace. This means that a person with COVID-19 or symptoms of COVID-19 poses a significant risk of substantial harm to himself or others. The EEOC continues to use this standard to allow employers to exclude employees who have contracted COVID-19 or who are showing symptoms of COVID-19 from the workplace.

Until the FDA fully approves the COVID-19 vaccine, and the EEOC issues formal guidance regarding the vaccine in the workplace, employers should strongly encourage, rather than require, their employees to take the COVID-19 vaccine. After full FDA approval and guidance from the EEOC, we expect employers will be able to mandate that their employees take the COVID-19 vaccine as a condition of employment, subject to possible exceptions under the Americans with Disabilities Act and Title VII. In fact, mandatory flu vaccines are already common in the health care field, and many health care employers require their employees to take the flu shot each year or forfeit employment.

What Happens When An Employee Refuses the COVID-19 Vaccine?

If an employer requires the COVID-19 vaccine for all its employees, there are situations in which an employee’s refusal will require additional analysis to determine if the employee should be exempted from the mandate, including (1) where the refusing employee is a qualified individual with a disability, as defined by the Americans with Disabilities Act (ADA), (2) where the employee’s refusal is due to their sincerely held religious belief, and (3) where the refusing individual is subject to a collective bargaining agreement.

First, qualified employees under the ADA whose disability puts them at higher risk for an adverse reaction to the vaccine may be able to refuse the COVID-19 vaccine as a reasonable accommodation.  If an employee requests a reasonable accommodation in the form of refusing to take the COVID-19 vaccine, the ADA requires an employer engage in the interactive process with the employee to determine if the requested accommodation is reasonable and/or creates undue hardship on the employer. Because the EEOC has made clear that COVID-19 meets its “direct threat” standard, it is possible that, even with a qualified disability under the ADA, an employee cannot safely perform his or her job without the COVID-19 vaccine. Thus, COVID-19’s classification as a “direct threat” will unquestionably impact the interactive process for reasonable accommodations.

Next, under Title VII of the Civil Rights Act of 1964, which protects employees from religious discrimination, an employee may refuse to take the COVID-19 vaccine based on a sincerely held religious belief. The sincerely held belief must be religious, rather than political or philosophical. An employer who receives a request from an employee to refuse the vaccine based on religious reasons has the right to inquire further to determine whether the belief is truly a sincerely held religious belief. Even where an employee refuses a vaccine based on a sincerely held religious belief, courts recognize that an employer may lawfully refuse such an accommodation where it would cause the employer an undue hardship. For example,  courts have held that the spread of influenza, which could be caused by an employee’s failure to take the flu shot, constitutes a safety risk to a health care employer’s workforce and patients, thus posing an “undue hardship” on the health care employer. As a result of this reasoning, employers in fields where transmission of COVID-19 is highly likely may be able to terminate an employee for refusing to take the COVID-19 vaccine, even if the refusal is based in a sincerely held religious belief.

Lastly, if an employee is a party to a collective bargaining agreement, the employer should negotiate the mandatory vaccination provision with the employee’s union. Incorporation of the employer’s vaccination policy into the CBA will help ensure compliance and could avoid disputes.

May an Employer Terminate an Employee Who Refuses the Vaccine?

In order to terminate an employee who refuses the COVID-19 vaccine, an employer must have a uniformly applied policy regarding its mandate of the COVID-19 vaccine as a condition of employment. Thus, under a uniformly applied policy, employers may lawfully terminate an employee who has not requested a reasonable accommodation on the basis of a disability, refused on the basis of a sincerely held religious belief or who is not subject to a collective bargaining agreement for refusing the COVID-19 vaccine.  But as discussed above, even termination of an employee who requests accommodation because of a disability or religious belief may be lawful depending on the circumstances.  Employers should remember the importance of individually analyzing each situation.

Who Pays for a Mandated COVID-19 Vaccine?

If an employer mandates that its employees take the COVID-19 vaccine as a condition of employment, it is a best practice, and in the employer’s best interest, for the employer to pay the cost of the vaccine.

As always, it is imperative that employers uniformly apply policies to all employees. This information is subject to change based on further guidance regarding the COVID-19 vaccine in the workplace. Employers should consult with their employment counsel for additional guidance on addressing concerns about the COVID-19 vaccine in the workplace. Phillips Murrah’s labor and employment attorneys continue to monitor developments to provide up-to-date advice to our clients.


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For more information on this alert and its impact on your business, please call 405.606.4711 or email me.

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COVID-19 Update: Okla. Gov. Stitt issues new restrictions, U.S. DOL updates face mask FAQs

By Phoebe Mitchell and Martin Lopez III

COVID-19 Update: Oklahoma Governor Kevin Stitt Issues New Restrictions

Against the backdrop of surging numbers of COVID-19 cases in Oklahoma, Governor Stitt recently announced the Seventh Amended Executive Order 2020-20. In addition to the protective measures afforded by the previous iterations of the Executive Order, this newest version adds restrictions to restaurants and bars and institutes a mask mandate for those in government-owned buildings.

Face Coverings at WorkEffective November 17, 2020, restaurants and bars across the state of Oklahoma are required to institute proper social distancing measures. Specifically, restaurants and bars are now required to ensure a minimum of six (6) feet of separation between parties or groups at different tables, booths, or bar tops, unless the tables are separated by properly sanitized glass or plexiglass. In addition, Effective November 19, 2020, food or beverages of any kind shall not be sold, dispensed, or served for on-premises consumption after 11:00 p.m. daily. This new restriction does not affect a restaurant’s ability to operate via drive-thru windows or by curbside pickup after the 11:00 p.m. cutoff. Sales and service of food and non-alcoholic beverages may resume at 5:00 a.m. the next day, and the sale and service of alcoholic beverages for on-premises consumption may resume at 8:00am.

Effective November 17, 2020, all persons on property owned or leased by the State of Oklahoma—including both state employees and visitors to the property—are required to wear a mask or similar facial covering. Notable exceptions to this mask mandate are children under the age of ten (10), when a person is alone in an enclosed space, when an individual has a bona fide religious objections to wearing a mask or facial covering, and when an individual is eating or drinking.

U.S. Department of Labor Updates Frequently Asked Questions Regarding Cloth Face Coverings at Work

On the heels of the Centers for Disease Control and Prevention’s (CDC) recently issued scientific brief regarding the use of cloth masks to control the spread of COVID-19, the United States Department of Labor (DOL) updated its Frequently Asked Questions regarding the same issue.

The CDC’s scientific brief states that masks are principally intended to reduce the spread of the virus from asymptomatic or presymptomatic infected wearers who may not know they can infect others with COVID-19. This type of protection is called “source control.” Additionally, masks help to reduce inhalation of the virus by the wearer, protection dubbed “filtration for personal protection.” Thus, based on these findings, the CDC recommends community use of non-valved multi-layer cloth masks.

Even still, the Occupational Safety and Health Administration (OSHA) stated that “not enough information is available to determine whether a particular cloth face covering provides sufficient protection from the hazard of COVID-19 to be personal protective equipment (PPE) under OSHA’s standard.” Thus, at this time, OSHA does not consider cloth face coverings to be PPE. OSHA’s update is consistent with the CDC’s scientific brief, which states more research is needed to ascertain the exact protective effects of cloth masks.

OSHA still strongly encourages employees to wear face coverings at work, especially when in close contact with others, in order to reduce the spread of COVID-19.


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

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.

Martin Lopez III is an Associate in the Oklahoma City office of the firm. (click name for profile page) Contact him by phone, 4405.552.2418, 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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Clients seek lower costs for legal services

[VALUE] Clients, including in-house legal departments, are understandably focusing on lowering their legal expenses. They are looking to mid-market law firms like Phillips Murrah to achieve it.

Force majeure clauses and COVID-19

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on September 17, 2020.


By Phillips Murrah Attorney Kendra M. Norman

Kendra Norman Web

Kendra M. Norman represents individuals and businesses in a broad range of transactional matters.

Force majeure clauses are common clauses in contracts that allocate risk between parties and release a party from liability or obligations during unforeseeable or unpredictable events that are out of the party’s reasonable control.

These events can generally be referred to as acts of God or can be specifically listed in the agreement, often including events like war, strikes, riots or government actions. However, it should be noted that there is not a specific set of events that come under the definition of “acts of God” – this often depends on the context of the contract and the jurisdiction.

Force majeure clauses are ever-evolving and the language used has been influenced by events around us. Before 9/11, most force majeure clauses didn’t include terrorism as a force majeure event. This spurred litigation between parties regarding whether terrorism was an act of God that should be covered by the force majeure clause to excuse performance. Now, terrorism and terrorist attacks are often specifically set forth in force majeure clauses.

The conversation about force majeure clauses now revolves around whether the COVID-19 pandemic qualifies as an act of God and how this will affect contracts. As always, this depends on the type of contract, the language set forth in the contract, the context of the contract, the intent of the parties, and the governing law of the contract. Therefore, this determination is highly fact-specific and depends on several factors.

It is possible that COVID-19 could be considered an act of God in some contracts, or it could fall under force majeure clauses that contain specific references to disasters, national emergencies, government regulations or generally acts beyond the control of the parties. With the extraordinary potential consequences from COVID-19 yet to be determined, businesses should begin ascertaining whether their material contracts contain force majeure provisions and how such provisions may affect their rights and responsibilities going forward. However, given the widespread impact of COVID-19, it is possible that parties may be more likely to negotiate amendments to agreements that have been impacted by COVID-19 rather than forcing parties to rely on and litigate force majeure clauses.

Nevertheless, going forward, those entering into contracts should consider whether adding more specific terms such as epidemic, pandemic or infectious disease as force majeure events will be advantageous for them in the future.

Kendra Norman is an attorney with the law firm of Phillips Murrah.


Phillips Murrah’s 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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Breaking News: IRS issues guidance on Trump’s payroll tax deferral order

On Friday, August 28, 2020, the IRS and Treasury issued guidance implementing President Trump’s order to defer collection of some payroll taxes amid the coronavirus pandemic.

Phillips Murrah attorney Jessica Cory

Jessica N. Cory represents businesses and individuals in a wide range of transactional matters, with an emphasis on tax planning.

On August 8, 2020, President Trump issued a Presidential Memoranda, commonly known as an Executive Order (the “Order”), to defer the withholding, deposit, and payment of certain payroll taxes on wages paid from September 1, 2020 through the end of the calendar year.   The Order applies to any employee whose pretax compensation is less than $4,000 per biweekly pay period (or $104,000 per year, on an annualized basis).  The Order permits the employers of these eligible employees to temporarily suspend the 6.2% Social Security tax typically withheld from employees’ paychecks.

The Order has raised a number of questions for employers and payroll companies considering whether to implement the deferral.  For example, the National Payroll Reporting Consortium (“NPRC”) recently raised concerns about whether sufficient time is available to implement a deferral option by September 1, given the substantial programming changes that such an option would require. Because payroll systems are typically designed to use a single Social Security tax rate for the full year, for all employees, it may be challenging to change a reporting system to apply a different tax rate for part of the year, beginning mid-quarter, for only certain employees of certain employers.

In addition to practical challenges relating to implementation, the Order also raises liability concerns for both employees and employers, who are dually liable for unpaid payroll taxes under the Internal Revenue Code. Under Code Section 7508A, the Secretary of the Treasury can delay tax payments for up to a year during a presidentially-declared disaster, but no authority exists to authorize forgiveness of those deferred amounts. Accordingly, employees, employers, or both could be held liable for any deferred payroll taxes after the deferral period ends. This could represent a substantial burden. For example, for an employee earning $50,000 per year, the deferral would allow the employee to take home an additional $119 per paycheck during the deferral period. But, without Congressional action to authorize forgiveness of the deferred taxes, that employee—or his or her employer—would be facing a $1,073 tax liability in January.

Based on guidance released today from the Treasury Department in Notice 2020-65, employers who opt into the deferral program will be required to collect the deferred taxes ratably from their employees during a four month repayment period beginning on January 1, 2021, through increased withholding. Accordingly, during the repayment period, employers will be required to withhold 12.4% from their employees’ paychecks, rather than the normal 6.2%, to repay the payroll tax liability accumulated from September to December. The guidance does not indicate how an employer should collect the deferred taxes from an employee who terminates his or her employment prior to the end of the repayment period but indicates that employers may make other “arrangements … to collect the total [deferred tax amount] from the employee,” if necessary.

The guidance offered on Friday indicates that the Treasury intends to put the onus of repayment on the employer, with the employer potentially subject to interest, penalties, and additions to tax beginning on May 1, 2021, if the employer is unable to collect the accrued tax liability from its employees. Accordingly, given the voluntary nature of the deferral, the potential liability involved, and the costs and complexity associated with upgrading their payroll systems to accommodate the deferral, employers have a strong incentive to opt out and continue withholding for now.

To the extent an employer does want to participate in the tax deferral, the employer should consider establishing a procedure to allow eligible employees to opt in to the deferral. This procedure should require any employee opting in to provide the employer with a written and signed statement that:

  1. Acknowledges that any deferred taxes will come due in 2021.
  2. Authorizes the employer to withhold tax at a double rate, consistent with the guidance provided in Treasury Notice 2020-65, for those pay periods falling in the four-month repayment period.
  3. Agrees that in the event the employee’s employment is terminated prior to the end of the repayment period, for any reason, the employer can set off any remaining amount owed to the employee by the amount of outstanding deferred taxes, that the employee will be liable for any remaining amount, and the employee will reimburse the employer for any associated liability, including penalties and interest, as necessary.

Employers who decide to establish such an opt-in procedure should consult with counsel to ensure compliance with state labor laws.


For more information on this alert and its impact on your business, please call 405.552.2472 or email me.

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

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U.S. Dept. of Labor releases paid leave guidance for employees with children returning to school

Janet Hendrick

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

The U.S. Department of Labor issued additional guidance on Thursday, Aug. 28 regarding employees taking paid leave under the FFCRA. This update from the DOL comes soon after the United States District Court for the Southern District of New York issued an opinion invalidating four DOL regulations interpreting the FFCRA: (1) the “work-availability” requirement; (2) the definition of a “health care provider”; (3) the intermittent leave regulation; and (4) the documentation requirements.[1] Thus, the new guidance indicates that the DOL will follow and has adopted the New York Federal Court’s opinion.

For employees who have children returning or who have returned to school, DOL added the following three Families First Coronavirus Response Act Questions and Answers to help employers and employees understand under which circumstances employees may take paid leave of work.

  • My child’s school is operating on an alternate day (or other hybrid-attendance) basis. The school is open each day, but students alternate between days attending school in person and days participating in remote learning. They are permitted to attend  school only on their allotted in-person attendance days. May I take paid leave under the FFCRA in these circumstances? (added 08/27/2020)

Yes, you are eligible to take paid leave under the FFCRA on days when your child is not permitted to attend school in person and must instead engage in remote learning, as long as you need the leave to actually care for your child during that time and only if no other suitable person is available to do so. For purposes of the FFCRA and its implementing regulations, the school is effectively “closed” to your child on days that he or she cannot attend in person. You may take paid leave under the FFCRA on each of your child’s remote-learning days.

  • My child’s school is giving me a choice between having my child attend in person or participate in a remote learning program for the fall. I signed up for the remote learning alternative because, for example, I worry that my child might contract COVID-19 and bring it home to the family. Since my child will be at home, may I take paid leave under the FFCRA in these circumstances? (added 08/27/2020)

No, you are not eligible to take paid leave under the FFCRA because your child’s school is not “closed” due to COVID–19 related reasons; it is open for your child to attend. FFCRA leave is not available to take care of a child whose school is open for in-person attendance. If your child is home not because his or her school is closed, but because you have chosen for the child to remain home, you are not entitled to FFCRA paid leave. However, if, because of COVID-19, your child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, you may be eligible to take paid leave to care for him or her. See FAQ 63.

Also, as explained more fully in FAQ 98, if your child’s school is operating on an alternate day (or other hybrid-attendance) basis, you may be eligible to take paid leave under the FFCRA on each of your child’s remote-learning days because the school is effectively “closed” to your child on those days.

  • My child’s school is beginning the school year under a remote learning program out of concern for COVID-19, but has announced it will continue to evaluate local circumstances and make a decision about reopening for in-person attendance later in the school year. May I take paid leave under the FFCRA in these circumstances? (added 08/27/2020)

Yes, you are eligible to take paid leave under the FFCRA while your child’s school remains closed. If your child’s school reopens, the availability of paid leave under the FFCRA will depend on the particulars of the school’s operations. See FAQ 98 and 99.

These changes show that employer compliance with the New York Federal Court opinion is crucial – even for employers outside of that jurisdiction. The DOL could continue to release new guidance based on other Federal Court decisions examining FFCRA regulations.

[1] State of New York v. United States Dep’t of Labor, 20-CV-3020 (S.D.N.Y. 2020). A copy of the opinion is located at: https://www.fmlainsights.com/wp-content/uploads/sites/813/2020/08/State-of-NY-v.-USDOL.pdf.


For more information on this article and its impact on your business, please call 214.615.6391 or email Janet A. Hendrick.

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.

Stay informed with COVID-19 resources, guidance and updates at our RESOURCE CENTER.

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New York Federal Court invalidates department of labor FFCRA regulations creating potential nationwide ramifications

Courthouse in lower ManhattanBy Phoebe B. Mitchell

On August 3, 2020, the United States District Court for the Southern District of New York invalidated multiple Department of Labor (DOL) regulations interpreting the Families First Coronavirus Response Act (FFCRA), Congress’ response to the COVID-19 pandemic.  The FFCRA provides paid leave to employees unable to work during the coronavirus crisis. Congress charged the DOL with issuing FFCRA regulations, with the final regulations being published on April 1, 2020 (85 Fed. Reg. 19,326) (“Final Rule”). Shortly after, the State of New York sued the DOL, claiming it exceeded its statutory authority and unlawfully denied leave to eligible employees.  The Southern District of New York agreed with the State of New York, voiding four FFRCA regulations:

1) “Work-availability” requirement

2) Definition of “health care provider”

3) Intermittent leave

4) Documentation requirements

“Work-Availability” Requirement

The two major provisions of the FFCRA, the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA), apply to employees who are unable to work due to the COVID-19 pandemic. However, the DOL’s final rule implementing the FFCRA excludes employees who are unable to work because their employers do not have work for them.

The court stated that this limitation is “hugely consequential” for employees whose employers have temporarily shut down due to the pandemic, and thus, have no work for their employees. By invalidating this DOL regulation, the court held the DOL cannot require that employees actually be working in order to take FFCRA leave. In turn, this could subject employers, including employers who were forced to temporarily cease operations due to state or local orders, to claims by furloughed or laid-off employees.

Definition of “Health Care Provider”

Under the FFCRA, an employer may elect to exclude “health care providers” from leave benefits. Thus, the DOL’s definition of “health care provider” could have large ramification for many employers. In its final rule, the DOL defined “health care provider” as:

“anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, Employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions”

and

“any individual employed by an entity that contracts with any of these institutions described above to provide services or to maintain the operation of the facility  where that individual’s services support the operation of the facility, [and] anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.”

Final Rule at 19,351 (§ 826.25).

The court noted, and the DOL conceded, that this expansive definition, in practice, could include even an English professor, librarian or cafeteria manager at a university with a medical school. Thus, the court held that this definition could not stand. In so deciding, the court reasoned that even employees with “no nexus whatsoever” to healthcare services would be exempt from FFCRA leave.

Intermittent Leave

The DOL’s Final Rule significantly limited intermittent leave under the FFCRA. Intermittent leave means leave taken in separate periods of time, rather than one continuous period. Under the rule, an employee could only use intermittent leave if: (1) the employee and employer agree to the use of intermittent leave; and (2) the use is limited to the employee’s need to care for a child whose school or place of care is closed, or where child care is unavailable.

The court agreed that intermittent leave should not be allowed in situations where the employee is at high risk for spreading the virus to other employees. For example, if an employee is showing symptoms of COVID-19, or caring for a family member showing symptoms of COVID-19, the employee should not be allowed to take intermittent leave, but rather must take continuous paid sick leave until that leave is exhausted or the employee no longer has a reason to be on leave.

However, the court disagreed with the DOL’s interpretation that the employer and employee must agree to the use of intermittent leave. The court held that the regulation “utterly fails to explain why employer consent is required” for an employee to take intermittent leave. Thus, the court ruled that an employer’s consent is not required for an employee to take intermittent leave under the FFCRA.

Documentation Requirement

The DOL’s Final Rule requires employees to submit documentation to their employer prior to taking leave indicating the reason for leave, the duration of the requested leave, and, when applicable, the authority for the isolation or quarantine order qualifying them for leave.

In contrast, the FFCRA states that an employer may require an employee taking leave under the EPSLA to provide reasonable documentation after the employee’s first day of leave. Further, the statute provides that an employee taking leave under EFMLA must provide the employer with notice of leave as is practicable under the circumstances.

The New York court held that, due to the specific notice requirements set out in the statute, the DOL exceeded its authority in requiring that an employee provide documentation before taking leave. Striking down this regulation, however, did not affect the FFCRA’s original notice requirements mandating documentation after an employee takes leave under the statute.

While this decision came from a federal New York court, it could have nationwide ramifications. The decision could prompt the DOL to issue new regulations, which, of course, would be implemented across the United States. Alternatively, the DOL could choose to appeal the decision. Currently, it is unclear if this decision will be applied retroactively. As always, but especially In light of this decision, employers must be vigilant when making decisions regarding employee leave under the FFCRA.

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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Click to visit Phoebe Mitchell’s profile page.

For more information on this alert and its impact on your business, please call 405.606.4711 or email me.

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What is the status of evictions and foreclosures in Oklahoma amidst the COVID 19 pandemic?

By Gretchen M. Latham

In March 2020, the State Supreme Court entered an Order extending statutory deadlines, which included an extension of any answer deadline on pending civil cases. For foreclosure actions, that means many borrowers were given additional time to reply to a Petition in Foreclosure.

However, even though the State Supreme Court subsequently entered additional COVID 19 related orders, the deadline extension has now expired, and some lenders are resuming the foreclosure process. The same is true for eviction matters, which were not put on hold, but rather, the landlord was required to state whether the action at issue was subject to the CARES Act, which covered certain types of transactions.

Gretchen Latham Web

Gretchen M. Latham’s practice focuses on representing creditors in foreclosure, bankruptcy, collection and replevin cases.

The result of these events is that landlords and lenders are likely to begin resuming both evictions and foreclosures, but they should do so only if allowed under existing law and recent legislation.  The need to check on current status of legislation is becoming even more important, as lawmakers in Washington are looking to extend federal employment benefits and the moratorium on evictions.  The situation is ever-changing, and having a complete knowledge of the law is advisable before beginning any eviction or foreclosure.

This is especially true given the short timeline for evictions in Oklahoma. While many landlords opt to undertake these actions on their own – and are permitted to do so – now more than ever it is critical to be fully aware of the changing legal landscape and the uncertainty of when, or if, COVID 19 will be brought to a manageable level. Landlords are wise to be fully aware of their options when the hard decision to evict must be made.

The same is true for foreclosures, where lenders may be required to include a statement as to whether the mortgage loan in question is subject to the CARES Act and may have to provide the Court with additional information when seeking judgment.  For many loans, foreclosures were placed on hold for a period of time. However, this is not true of all loans and is not in place in every state. The differences between what one state has done vs. the choice of a different state can be confusing to lenders, making it essential for lenders to maintain contact with their attorney regarding the status of foreclosures in any given state.

For Oklahoma, some foreclosures are proceeding on schedule now that the extension of statutory answer deadlines has expired.  For lenders that have not yet resumed foreclosures actions in the Sooner State, the time has come to readjust the lawsuit timeline.

Lenders and landlords are wise to sit down with an attorney to talk over their options when these hard foreclosure and eviction decisions must be made.


To discuss your options, contact Gretchen Latham at the contact information below:

Gretchen M. Latham, Attorney
Phillips Murrah P.C.
EMAIL: gmlatham@phillipsmurrah.com
PHONE: 405.606.4774

Phillips Murrah

Phillips Murrah’s 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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Phillips Murrah PPE donation to OU Medicine follow-up

As part of Phillips Murrah’s efforts to assist in the Oklahoma City community’s response to the COVID-19 pandemic, our Firm once again partnered with NPR radio station KGOU. In addition to supporting KGOU’s ongoing work, Phillips Murrah raised $3000 for OU Medicine to assist in acquiring personal protective equipment (PPE) for front-line medical workers, as part of May’s #GivingTuesdayNow pledge drive.

On Wednesday, our Firm presented the donation to Anne Clouse, Chief Development Officer for OU Medicine. Due to COVID-19-related restrictions, Phillips Murrah Director Catherine L. Campbell and Healthcare practice leader Mary Holloway Richard presented a six-foot-wide check, designed with appropriate social distancing in mind.

Phillips Murrah OU Medicine PPF Check Presentation

Phillips Murrah Director Catherine L. Campbell (l) and Healthcare practice leader Mary Holloway Richard (r) presented a six-foot check to OU Medicine, designed with appropriate social distancing in mind.

“We are deeply grateful to Phillips Murrah for their generous gift to support OU Medicine’s COVID-19 response,” said Clouse. “Their donation will help support our healthcare workers taking care of patients on the frontline. What a kind a thoughtful gesture.”

“Phillips Murrah has long had a strong relationship with healthcare facilities and providers throughout our state,” said Richard, who represents institutional and non-institutional providers of health services. “We are proud to support the heroic efforts of OU Medicine and those on the front line ministering to all Oklahomans.”

“There is a certain element of good humor related to this giant, social-distancing presentation check, which Cathy and Mary safely presented to Anne in a parking lot on the downtown OU Medicine complex.” said Dave Rhea, Phillips Murrah Marketing Director. “However, supporting OU Medicine as they battle this virus is a very serious matter, and we are grateful to be able to help.”

#GivingTuesdayNow was a global day of giving and unity as an emergency response to the unprecedented need caused by COVID-19.

Promotional graphic for KGOU GivingTuesNow 2

RELATED LINKS:

#GivingTuesdayNow: Phillips Murrah partners with KGOU to support OU Medicine PPE
Phillips Murrah partners with KGOU and Regional Food Bank to provide 20,000 meals

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

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SB 1928: Key changes to ABLE laws make curbside sales and delivery of alcohol permanent

By Phillips Murrah Attorneys Ellen K. Spiropoulos and Justin G. Bates

In response to the outbreak of the novel coronavirus, and in keeping with the sweeping changes to modernize Oklahoma’s liquor laws effective in October 2018, the ABLE Commission temporarily authorized curbside and delivery of beer, wine and spirits by liquor stores, beer and wine by grocery and convenience stores, and by restaurants holding the appropriate licenses.

Phillips Murrah attorney Ellen SpiropoulosLauren Hanna

Ellen assists local and national businesses in the restaurant, entertainment and hospitality industries with obtaining applicable operating licenses and permits for food and alcoholic beverage service, as well as any related compliance or enforcement issues.

The passage of Senate Bill 1928 in the last days of the session, which became law this week, effectively made the ABLE Commission’s previous directives about curbside sales and delivery of alcohol permanent. The key changes to the alcohol laws now expand sales for ABLE licensees effective immediately under the following conditions:

  • Liquor stores can sell beer, wine and spirits in sealed, original containers via curbside and delivery.
  • Grocery and convenience stores can sell beer and wine (up to 15% alcohol by volume) in sealed, original containers via curbside and delivery.
  • Restaurants, bars and clubs can sell beer and wine in closed packages via curbside and delivery.
  • Small brewers and small farm wineries may sell curbside-only alcoholic beverages produced by the brewery or winery in sealed, original containers.
  • Payment can be made by cash, check, transportable credit card devices and advance online payment methods.
  • Curbside sales and all deliveries must be made by ABLE-licensed and trained employees of the business.
  • No third-party services can be used for any deliveries.

Some states already permit third-party delivery sales from liquor stores, as well as drive-thru and to-go sales of alcoholic beverages from restaurants. As a result of restaurant dining closures and the need for social distancing, several more states are, at least temporarily, expanding alcohol delivery options and sales of cocktails to-go. The Oklahoma legislature was not willing to go that far.

Nevertheless, the actions taken by the ABLE Commission since March, and the bills passed with overwhelming majorities by the Oklahoma House and Senate this session, are continuing advances in the modernization of Oklahoma’s liquor laws.

It is hard to believe that less than two years ago, Oklahoma still had dry counties and only 3.2 beer in grocery and convenience stores. We have come a long way and there is no telling where the trail will end. Cheers!


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

Ellen Keough Spiropoulos is an Of Counsel attorney at Phillips Murrah who assists local and national businesses in the restaurant, entertainment and hospitality industries with obtaining applicable operating licenses and permits for food and alcoholic beverage service, as well as any related compliance or enforcement issues. Contact her by phone, 405.552.2422 or by email.

Justin G. Bates is a litigation attorney who represents individuals and both privately-held and public companies in a wide range of civil litigation matters. Contact him by phone, 405.552.2471 or by email.

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

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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’s 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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[UPDATE] SBA, Treasury extended the safe harbor repayment date for PPP loans

In its most recent update to the list of frequently asked questions (FAQs), the Small Business Administration (SBA) and Treasury Department extended the safe harbor repayment date for loans under the Paycheck Protection Program (PPP) established by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act).

The PPP application form requires borrowers to certify that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.” In an effort to address this vague requirement, the SBA and Treasury issued guidance on April 23, 2020 specifying that, while the CARES Act suspends the requirement that borrowers be unable to obtain credit elsewhere, applicants must still certify in good faith that their PPP loan request is necessary. Specifically, FAQ 31 directs borrowers to consider current business activity and the ability to access other sources of liquidity.

The guidance initially provided a safe harbor provision that a borrower who applied for a loan prior to April 24, 2020 and repays the loan in full by May 7, 2020 will be deemed to have made the certification in good faith. The update issued on May 5, 2020 extends the repayment date for the safe harbor to May 14, 2020. According to FAQ 43, borrowers are not required to apply for the extension. FAQ 43 also states that the SBA will provide additional guidance on how it will review the certification.

Link to FAQs:  https://home.treasury.gov/system/files/136/Paycheck-Protection-Program-Frequently-Asked-Questions.pdf


For more information on this alert and its impact on your business, please call 405.235.4100.

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

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SBA, Treasury update PPP reg guidance for laid-off employee forgiveness exclusion

The Small Business Administration and Treasury continue to issue guidance regarding the Paycheck Protection Program (PPP) established by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). The most recent update to the list of frequently asked questions (FAQs) addresses whether a borrower’s loan forgiveness amount will be reduced if one of the borrower’s employees turns down an offer to be rehired.

According FAQ 40, laid-off employees will be excluded from the forgiveness reduction calculation so long as the borrower made a good faith, written offer of rehire and the employee’s rejection of the offer is documented. The FAQ specifies that the offer must have been for the same salary/wages and the same number of hours. It also notes that employees who reject offers of re-employment may forfeit eligibility for unemployment compensation.

Link to FAQs:  https://home.treasury.gov/system/files/136/Paycheck-Protection-Program-Frequently-Asked-Questions.pdf


For more information on this alert and its impact on your business, please call 405.235.4100

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

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PM Director Kathy Terry featured in article about liability related to workplace reopening

Phillips Murrah Director Kathy Terry is featured as a source in a Journal Record article regarding liability that companies may face as Oklahoma begins to re-open as directed by Governor Stitt.

Kathryn Terry portrait

The emphasis of Kathryn D. Terry’s litigation practice is in the areas of insurance coverage, labor and employment law and civil rights defense. She also represents corporations in complex litigation matters.

From the story:

As thousands of businesses reopen their doors amid the COVID-19 crisis, they’ll be facing a new type of risk that could be even more devastating to them than a pandemic.

Oklahoma businesses could face lawsuits filed by customers claiming they contracted COVID-19 while in their restaurants, bars or showrooms, forcing court cases that could cost tens of thousands of dollars in legal fees.

“We’re going to see the lawsuits. Lots of lawsuits,” said Kathryn Terry, an attorney with Oklahoma City law firm Phillips Murrah.

The issue may be the latest tragic tranche to unfold in the coronavirus saga that has seen more than 60,000 U.S. deaths and millions of people out of work. Some say the legal fallout could continue long after the disease is a distant memory.

Terry said COVID-19 tort claims against businesses are not likely to be successful. Plaintiffs would have to clear a high bar to prove they contracted the virus from a specific business or from a specific person.

For businesses that are following government guidelines and operating safely, an unfavorable judgment is not necessarily the biggest risk. Their main concern is the legal fees they could face trying to defend themselves. For small businesses, the cost could be devastating.

Terry estimates fees in a COVID-19 liability case could range from $35,000 to $50,000.

You may contact Kathy at 405.552.2452 or by email at kdterry@phillipsmurrah.com.

Read the full story here: https://journalrecord.com/2020/04/30/legal-protection-lots-of-lawsuits-loom-as-oklahoma-businesses-prepare-to-reopen/

#GivingTuesdayNow: Phillips Murrah partners with KGOU to support OU Medicine PPE

Promotional graphic for KGOU GivingTuesNow 2

#GivingTuesdayNow is May 5.

It is certainly an understatement to say that the past month and a half has been disruptive to the way of life of so many. As we adapt to this strange new world, we seek out ways to be helpful to those around us.

As part of Phillips Murrah’s efforts to help, our Firm has once again partnered with KGOU – Your NPR Source to support their participation in #GivingTuesdayNow on May 5th. #GivingTuesdayNow is a global day of giving and unity as an emergency response to the unprecedented need caused by COVID-19.

In addition to supporting KGOU’s ongoing work to deliver reliable news and information, Phillips Murrah will give $3000 to OU Medicine as part of a pledge grant.

Promotional graphic for KGOU GivingTuesNow

Click to enlarge.

From KGOU: “We don’t want to take any time away from coverage of this fast-moving crisis, so we are forgoing our traditional pledge drive this spring. But the coronavirus will not stop our commitment to you. KGOU, StateImpact Oklahoma and our network reporters are tracking the latest developments, including economic impact, medical research, impact in other countries, and, most importantly, what you can do to keep you and your loved ones safe.

Your gift to KGOU will have triple the impact, because you’ll be doing something more. The law firm of Phillips Murrah will provide support to OU Medicine for personal protective equipment–masks, gloves, gowns and the like–for workers on the front lines. Phillips Murrah will give $3000–$10 for each of the first 300 donors to KGOU.”

#GivingTuesdayNow is May 5. You can give online now to be counted in this campaign – or call KGOU’s pledge line at (405) 325-5468. Also, you may mail a check to the address below.

KGOU Public Radio
860 Van Vleet Oval, Copeland Hall, Rm 300
Norman, OK 73019

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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UPDATE: Senate approves bill to revive, revise PPP program

By Lauren Barghols Hanna

Phillips Murrah attorney Lauren Hanna

Lauren Barghols Hanna counsels and represents management in all phases of the employment relationship.

On Tuesday, April 21, the Senate approved a $484 billion bill, allocating an additional $310 billion in funds to the Small Business Association’s Paycheck Protection Program, whose original funds were depleted after only one week. The legislation now heads to the House and is scheduled to be taken up Thursday.  If approved by the House, it will be sent to the President for signature.  President Trump has already promised to sign the bill into law.

Of the $310 billion in additional funds to be allocated for the Paycheck Protection Program, $125 billion will be earmarked “exclusively to the unbanked, to the minorities, to the rural areas, and to all of those little mom and pop stores that don’t have a good banking connection and need the help,” Senate Minority Leader Chuck Schumer promised.  The bill also provides $60 billion in additional funds to a separate small-business emergency grant and loan program.

TAKEAWAY

Start working with your bank right now to secure qualifying PPP loans in this second wave before the allocated funds are again depleted. Let us know if you need additional information regarding your eligibility for a PPP loan or other federal/state loan programs that may mitigate the effects of the coronavirus pandemic on your business.


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

For more information on this alert and its impact on your business, please call 405.606.4732 or email me.

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