Now, we are all aware of the “new normal” of navigating through a pandemic. For attorneys’ legal consulting firms, these times facing the challenges of COVID required a rapid renewal of the finer points of concepts including contracts, liability and risks – and a scramble for answers to entirely new questions.
In a new dissertation from PLI Press, COVID-19 and Other Pandemics: Business and Legal ChallengesJames T., public health and safety regulatory expert. O’Reilly and Philip Hagan provide background and analysis lawyers can use. The first publication addressing these complex and evolving issues, the thesis combines practical advice, cutting-edge scientific research and guidance from key government agencies.
Here are some key points for companies – and their advisors – to consider as they begin to assess the impact of COVID-19 and prepare for its long-term consequences:
Contracts are the key. If you haven’t already Force Majeure Since law school, it is now time to revisit this and other contract concepts. A chapter titled “COVID-19, Contracts and Defenses Related to Frustration” provides an overview of contract law for companies that may have seen their operations halted due to the pandemic when they, their vendors, or third parties were unable to fulfill contracts. In addition to Force Majeure The Clauses, O’Reilly and Hagan explore issues of predictability, and defenses to underperformance such as impossibility, lack of practicality, and goal frustration.
Employers must continually assess risks and responsibilities in their workplace. OSHA provided recommendations on how companies assess the risks of the spread of COVID-19 in the workplace and design systems to prevent transmission. These include engineering controls, such as redesign of the workspace and upgrades to office air filtration systems, and administrative controls, which reduce personal contact through “overlapping work shifts, downsizing operations, remote service delivery, and other exposure reduction measures.” , O’Reilly and Hagan have adapted these and other recommendations into actionable guidelines.
The book includes an overview of workplace liability claims, and an examination of potential employer liability for employees who contract the virus while at work. The authors discuss the theories of potential liability that employers must be aware of and the inferential difficulties the parties will face. In this context, they also delve into the intricacies of contact tracing as it relates to employer liability and evidence of injury. In addition, they discuss the liability risks arising not only from employee infection with the virus, but from clients and other members of the public who contract the virus. The authors provide an overview of some concepts of harm, an explanation of workers compensation programs, draw back on OSHA guidelines, or lack thereof, and explain the interplay between these concepts in relation to employer liability.
Focus on an active response. The authors say, regardless of their type of business, all employers should maintain active response plans that reduce potential exposure to COVID-19 to their employees and customers. The CDC and other government agencies provide guidance that can be incorporated into business operating scenarios.
The “Black Swans” plan. In other words: expect the unexpected. Now that a rare event has occurred with severe global consequences, companies will seek to structure contracts and business plans with risk scenarios in mind. When advising companies on planning and responsibility, consider these “Black Swan” events and develop strategies accordingly.
To download a free chapter from COVID-19 and Other Pandemics: Business and Legal Challenges From PLI, click Here.
Visit PLI’s Coronavirus developments Page for accessing related webcast and on-demand programs.
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