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Covid-19: Assessing the Legal Risk of Infectious Diseases

Severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) – better known as the coronavirus – has turned our world upside down in a matter of weeks. The infectious disease caused by this newly emerged virus, Covid-19, has taken thousands of lives and sickened hundreds of thousands. The resulting public health crisis threatens to become an economic catastrophe, as governments weigh the need for populations to shelter in place against the financial cost of shutting down most businesses. The risk of lawsuits due to exposure to this infectious disease may add to the economic difficulties businesses are now facing. This article assesses that risk based on principles developed in past infectious disease litigation and the known characteristics of the coronavirus.

DOL Proposes Rule to Clarify Independent Contractor/Employee Test

On January 6, 2021, the Department of Labor ("DOL") announced a final rule aimed at trying to clarify the standard for determining whether someone is an "employee" or "independent contractor" under the Fair Labor Standards Act ("FLSA"). Absent any change in direction from the new Biden administration, the rule would go into effect on March 8, 2021 and would amend 29 CFR Chapter V by adding sections 795.100 through 795.110. In setting forth this new rule, the DOL aimed to provide less uncertainty in application of this test, especially in light of the novel issues raised by app-based, gig economy workers, among others. It is likely no coincidence that this new rule was promulgated on the heels of the passage of Proposition 22 in California, a ballot initiative that excepted app-based transportation and delivery companies from other laws that would have required these companies to classify their drivers as "employees" as opposed to "independent contractors."

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  • Named a "Go-To Law Firm" in ALM's annual edition of In-House Law Departments at the Top 500 Companies
  • Top 150 ranking on the National Law Journal’s 2020 NLJ 500, an annual survey of the 500 largest law firms in the U.S.
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California Jury Returns Defense Verdict in Employment Matter Following Trial During Covid Pandemic

WSHB’s elite national trial team obtained a defense verdict from a jury in Orange County, California, on behalf of a property management company that specializes in community associations. The defendant was accused of wrongfully terminating an 11-year tenured employee while he was out on medical leave for treatment of Stage 4 cancer. This trial, the team’s second case taken to verdict during the Covid-19 pandemic, was conducted under less than ideal circumstances with social distancing being enforced by spreading jurors throughout the courtroom, impacting sight lines to witnesses and exhibits, and everyone being required to wear masks, which made both hearing and judging credibility difficult. Through extra effort, strategizing, planning and physical positioning during different phases of the trial, WSHB’s trial team was able to navigate the new difficulties created by the distancing requirements.

Florida Supreme Court: Insured Has No Right To Seek Extra-Contractual and Consequential Damages in First Party Breach of Contract Action

On January 21, 2021, the Florida Supreme Court unanimously affirmed the long-standing principle in Florida that extra-contractual and consequential damages are not available to an insured who has not brought a "bad faith" action against their insurer. Instead, when an insured has only alleged that an insured has breached the terms of the policy, the insured is only entitled to recover the "amount owed pursuant to the express terms and conditions of the policy." As a consequence of its decision, the Supreme Court rejected the lower appellate court's finding that an insured could seek "consequential damages" for its lost rents even when the policy did not provide coverage for lost rental income so long as such those damages were "contemplated" or foreseen at the time the policy was issued.

2.4 Million Policyholders and 563 ZIP Codes are Covered Under Mandatory One-Year Moratorium on Non-Renewals for 2020 Wildfires

California Insurance Commissioner Ricardo Lara has implemented a one-year moratorium on carriers non-renewing or cancelling residential property insurance policies resulting from the 2020 wildfires in areas within or adjacent to a fire perimeter after a declared state of emergency is issued by the Governor. On December 31, 2020, Commissioner Lara released the final ZIP codes protected from non-renewals for the 2020 wildfires. In total, 2.4 million policyholders and 563 ZIP codes are covered under the moratorium. The moratorium was enacted “to address the long-term threats to Californians.” Commissioner Lara pledged to “continue to work with local communities and state leaders to ensure a healthy insurance market for everyone.”

Will Payroll Tax Credit Extensions Beget Further Paid Leave Under The FFCRA?

On December 21, 2020, Congress approved the Consolidated Appropriations Act, 2021 ("CAA"). The CAA was signed into law on December 27, 2020, effectively extending certain pandemic stimulus benefits into 2021, four days before benefits were set to expire. However, the CAA does not extend all pandemic benefits. This article highlights the CAA provision extending benefits under the Families First Coronavirus Response Act ("FFCRA") at the federal and select state levels.

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