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Instruction of Finishing the Contract Review Report Form Alabama Legislature Legislature State Al

recording so that you can have that.recording for your future reference next.we would like to invite you to post.questions that you have in the Q&A.section of the zoom platform and you.should see that at the bottom of your.screen near the center of your screen if.you use the Q&A section our speakers.will hopefully be able to respond.immediately after they have spoken or.even possibly while another speaker is.addressing the audience those questions.that are not answered by speakers we.will moderate the questions after all.three speakers have had their.opportunity to present with the.exception of dr. Harris dr. Harris will.be our first speaker today and he cannot.be with us for the full hour so we will.go ahead and moderate questions - dr..Harris immediately after his session so.again we we welcome everybody and thank.you for your time today it is my.pleasure to introduce each of our three.speakers this morning our first speaker.is dr. Scott Harris who brings a wide.range of knowledge and extensive.experience that includes more than 19.years in public practice to his position.he is a graduate of Harding University.in Arkansas he attended medical school.at the UAB School of Medicine and served.his residency an internship at caraway.Methodist Medical Center before he.returned to UAB to complete a fellowship.and infectious disease in 2017 he was.awarded a master's degree and from in.public health from UAB School of Public.Health and his concentration is in.Health Policy dr. Harris practiced.infectious disease medicine at Decatur.General Hospital and Parkway medical.center in 2005 he became medical.director at the Decatur Morgan community.free clinic he has also served on many.international medical missions to.include Central America South America.and Africa in 2015 dr. Harris joined the.Alabama Department of Public Health as.an area health officer for seven North.Alabama counties he presently serves as.the state health officer for the Alabama.Department of Public Health he is a.talladega native a fellow of the.American College of Physicians.infectious disease Society of America.and a cadet and a credentialed HIV.specialist from the American Academy of.HIV medicine our second speaker this.morning is matt mcdonald who is a.partner at jones Walker in Mobile.Alabama he serves in the litigation and.government relations practice groups and.he advises publicly-held clients in.civil litigation and government affairs.his practice focuses on a wide variety.of complex civil litigation including.defense of consumer class-action.lawsuits high-stakes tort and commercial.litigation and municipal liability for.more than 30 years mass matt has served.as general counsel of Alabama's.statewide tort reform effort the Alabama.civil justice reform committee this.committee is made up of premier business.associations and corporate interests in.the state and our third speaker this.morning is mr. Stan sterna who is vice.president for a on corporation the.broker and national administrator for.the AICPA member insurance program this.program is the largest professional.liability carrier for CPAs mr. starna.has specialized in the defense of the.profession for 30 years.exclusively defending accountants and.the accounting profession he serves as.Miss risk management consultant.providing strategic quality control.claim litigation management services and.risk control advice for some of the.country's largest accounting firms he is.a frequent speaker and a published.author on the subject of accountants.professional liability he is a past.winner of the Florida State Society.of CPAs excellence and writing award and.in 2019.he received honorable mention selection.to accounting today's annual list of the.top 100 most influential people in.accounting he is a member of the.Illinois and the federal bar and he.practiced law in the Chicago area.specializing in defense of professions.prior to joining a I CPAs a on so.following this introduction of our three.speakers dr. Harris I'd like to turn the.microphone over to you and again we.welcome all three of you to our webinar.today thank you thank you very much I.appreciate you letting me join you I'm.joined by Brian Hale you can see he's a.general counsel to the department we we.appreciate you this opportunity and.particularly I really appreciate you.working with my schedule so what I.wanted to do is just take a few minutes.and give you an update on where Alabama.is and in terms of kovat 19 and then.it'd be more than happy to answer.questions for it for as long as you like.all right I have a I need to get off.probably by 11:30 or so but certainly as.long as you'd like for me to remain I'll.be I'll be happy to do that just to.remind you you know the US has you know.less than four percent of the world's.population but we have more than a.quarter of all confirmed Cove in 19.cases so far and a quarter of all the.deaths that have been reported so far we.are disproportionately represented on on.every map you see in terms of the number.of patients that we've seen Alabama has.done relatively well in some ways just.compared to other states within our own.country but we still as of this morning.have about 45,000 confirmed cases so far.almost between 25 and 26 percent or so.of those have happened just in the past.two weeks even though we've been going.at this going on for months three and a.half to four months so we've certainly.seen it up ticking cases recently we.certainly get asked a lot about whether.our numbers could be a reflection of the.number of tests we're doing we do not.believe that explains.the increase in cases that we see in.fact the percentage of cases that are.positive is going up and is higher now.than it has been so far during the.response approaching 12% of all of our.cases are positive which is our highest.number so far so what we believe is.going on is that we do have actual.increased community transmission going.on in many parts of the state we cross.the the the 1000 death threshold today.actually we've lost confirmed now a.thousand and seven Alabamians who have.died since this response began back in.March as you have heard us say many.times I think this is a death that.disproportionately affects.african-american Alabamians deaths are.vastly over-represented among that.groups but this is also a problem in.particular for for our seniors people.over age 65 which is not which is not.all that senior anymore to me but people.over age 65 represent about.three-quarters of all of our deaths so.far the for seniors who become infected.with Kovac 19 in Alabama about one in.nine or not surviving this illness of.more than 10% of patients over 65 are.not surviving this illness as of today.we have more hospitalized patients in.our state with confirmed code 19.diagnosis then we have seen so far.yesterday was a new high and today is.another new high we have more than 1,100.patients around the state who are.hospitalized and confirmed we have on.over 500 others who are hospitalized and.awaiting confirmation testing results so.we are certainly seeing those numbers.continue to go up so obviously that's.very concerning to us I think the.message that are the the concept that.we've all sort of finally come to.realize is that this is a disease that.hasn't affected all parts of the state.equally are all parts of the country.equally at the same time we see sort of.different levels of transmission and.even different patterns of transmission.in different parts of the state and.certainly there's a significant.difference between the the rural.experience and the urban experience but.also that's been true even around the.country as well and not only here in.Alabama I know you remember in March 20.going we certainly had a lot of models.predicting that we would have some huge.hospital surge and that we would be out.of ICU beds and ventilators and.fortunately that never came to pass and.and I think part of the reason is is.because the the governor took actions to.keep people indoors and I think that.limited disease transmission but I think.also what we've learned is that didn't.occur because that's not how this.disease behaves the the water doesn't.run fast everywhere at once and so we've.had disease transmission and every.County.we've had deaths at almost every County.more than 90 almost 95 percent of our.counties every day are reporting new.cases and yet there are many communities.particularly smaller counties in rural.counties that don't really have the same.experience and for a lot of those people.code with night things seems like.something they see on television but.don't really have personal experience.with and yet you know we also see that.sometimes almost without warning.hospitals can get underwater really.quickly when you have an outbreak in the.nursing home for example or in a.workplace particularly if you have a.number of susceptible patients then you.can certainly see huge hotspots that.develop you know almost overnight and.that continues to be the pattern that.we've seen throughout this early on as.you know the big hotspots were in.Jefferson County and we're in Lee County.then we began to see outbreaks of.significant size in Mobile County over.in Tuscaloosa more recently here in.Montgomery now Jefferson County is.seeing spikes again Madison County is.seeing the highest number of inpatients.that they have seen and so we continue.to see this sort of ebb and flow his.cases develop around the state we have.sort of nationally made a decision to.move on and do the best we can I guess.workplaces are opening again many people.are returning not too long.activity our goal is meant to try to.educate people to the extent possible.about the need to protect themselves and.to protect others we still have some.health orders in place as you know.there's there's a safer at home order.still in place that the governor a.recently reissued they include some.restrictions on retail capacity some.rules around restaurants that has some.other other other issues about things.like senior centers and and guidance.around athletics and so on but but.overall it looks like society is moving.back to being you know fully open again.and you know with that I think sometimes.sends a message to the public that the.risk has gone away and that there's no.there's no concern out there so we.continue to try to stress particularly.to those who are vulnerable people who.are seniors or people that have chronic.health problems that the risk has not.gone away and in fact the risk is.greater than it has been we have more.people with more disease and it's.happening at a faster rate and so for.those people who are especially.vulnerable it's really a significant.risk in many parts of our state right.now we have certainly understood that I.guess you would say the appetite maybe.of the public for restrictions and and.additional health orders is diminished.quite a bit we have tried very hard to.work with local officials to get buy-in.from those local public officials and.also from the public at large own best.practices and on things that they can do.or should be doing in their communities.we last week rolled out a new sort of.color-coded map which frankly is not new.information but it's sort of a new.communication tool for the information.that we've already had and there but we.are able to show sort of in a snapshot.with a color scale red orange yellow.green the the level of risk in a.community in which way the case numbers.are going and we hope that something.that can be used by schools or public.officials or businesses or just members.of the public to make good decisions.about what what ought to take place in.their community that I guess the most.reefs.controversy if you will has to do with.the use of face coverings or mask it's.um you know remarkable that it's become.a part of that issue and and you know.everything's a partisan issues nowadays.I guess but for some reason there's.there's a lot of political debate over.masks and we wish that that weren't the.case we think there there's clear.evidence that masks reduce transmission.and people ought to do that you know.whether people can be forced to do that.it is certainly a different matter and.in fact clearly people can't be forced.to do that but but we do believe that.it's good public health policy for.people to wear masks particularly if.they're going to be indoors particularly.if they're going to be in locations.where they can't maintain consistent six.foot distance away from people so we.continue to to encourage that I had just.a Jeanine just those kind of.introductory remarks I think I'll stop.right there and interest the time but.would be very happy to answer any.questions that anybody has or talk about.other subjects that you may want to.discuss thank you dr. Harris thank you.so much I do have a couple of questions.that members have posed and I'll just.read those to you and let you take the.opportunity to answer the first question.is what is the current standard of care.for patients since some of the early.standards have been diminished um it's.the standards of care in terms of are.you talking about hospitalized patients.or I guess I'm not quite sure I.understand the question there well it.it's not specific so let's stick to.hospitalized patients sure um as you all.probably know there's very little in the.way of approved therapy for this disease.there's one one particular drug the car.rim des Amir manufactured by Gilead.pharmaceuticals for which there's an.emergency use authorization from FDA.it's not FDA approved but there is an EU.a that allows it to be used for patients.with with more serious disease those.patients that have oxygen.need to be hospitalized this drug has.kind of a modest benefit you know the.study that sort of garnered their eua.shows that hospitalized patients stay.sick about 11 days instead of 15 days.and so that that's certainly an.improvement it's not a magic pill that's.not a cure but but it is that the one.approved treatment there are some there.is data around some other drugs that are.now being used steroids are being used.for more seriously ill patients this is.not unusual steroids or often used for.critically ill patients from a whole.number in a whole number of different.clinical settings particularly if.they're hospitalized and openlayers and.they seem to work with this disease that.they do with other diseases as well.what's really problematic is that we.don't have anything in the way of.outpatient therapy that we know that's.effective yet certainly you know another.politicized topic is whether the drug a.quenelle can be used and and that that's.been a really an amazing story to watch.going on at the national level with the.president and the press about that the.answer on that panel is we don't know.the answer yet on that drugs being.studied and we certainly hope it'll be.beneficial but but no one has enough.evidence to say that yet but the the.main problem with with Kovan 19 is we.don't have a vaccine we don't have.obviously effective oral therapy we.don't have a way to prevent this.infection other than be staying away.from other people who might be infected.and you know when you have numbers like.we have in our state right now almost.anybody is potentially infected so when.we have a vaccine when we have oral.therapy that can be used preventative.like the way we can do with influenza.we'll be in a much different situation.thank you and let me just go ahead and.give you a heads up dr. Harris we have a.number of questions popping in to the.Q&A so we'll try to get through these as.best we can and for those of you who are.attending the webinar today we do not.get your questions answered we will.submit these to dr. Harris and to his.team and try to get those answers to you.separately.let me move to the next question and.there are a couple in this regard dr..Harris we have heard from State.Superintendent Macke the plan for the.upcoming school year.what is the Department of Public.Health's position regarding reopening.schools next month.ultimately the decision to reopen.schools is going to be made by local.school boards in consultation with local.superintendents we have been part of dr..Mackey's group this developed guidelines.around that we don't don't have anything.surprising to say on that topic I think.we feel very strongly that more kids.back together are gonna lead to more.illness I think that's clear I think.there's also really good reasons for.kids to get back to school and have face.to face instruction and it's going to be.a balance that every school districts.going to try to have to work out we we.have a lot of guidance in place.regarding distancing to the extent that.that's possible to to hygiene and.sanitation to how to handle kids or our.staff members faculty and staff who.become Hill we're trying our best to.sort again to sort of thread the needle.and try to maintain some semblance of.normalcy which is really important.particularly to younger school kids who.are intellectually developmental.physicians that are quite sensitive and.we don't want to keep them out of.instructional environments if we can.help it and yet at the same time we we.want to protect people's health I think.we you know I think we feel pretty good.about the fact that children themselves.in most cases are not going to be.seriously ill if they become infected.they're definitely exceptions to that as.we know but by and large children do.very well if they're infected but you.know there's serious concerns about.older adults that are around those kids.whether it be teachers you know.administrators in the school or just.their parents at home or you know many.kids are raised by the grandparents for.example many kids have that you know.regular and daily interactions.with you know susceptible adults um I.also might point out remember.you know how Obamas not a real healthy.state to begin with and if you look at.the amount of chronic disease we have in.our state with diabetes heart disease.obesity chronic lung disease you know.probably a third of Alabama is at high.risk for serious outcome that they were.to become infected so so clearly moving.more kids back to school is a is a.concern for us it's a concern for dr..mackee as well.he's certainly aware of that and.ultimately I think those are the season.they're going to need to be made at the.local level but we're going to give as.much guidance and help as we can with.that thank you I'm going to try to roll.a couple of questions and together so.part one how should we handle the.workplace when someone test positive and.part two I'm rolling a second question.in how should we handle a family.situation when we know a member of the.family has come into contact with.someone who's tested positive.yeah these questions are they're a lot.more straightforward when you have small.numbers of patients who are infected or.just isolated cases it becomes a lot.harder to answer that in a definitive.way when you have widespread community.transmission but I'll tell you in theory.this is how it ought to work the way it.ought to work with a disease like this.is when a person is confirmed to be.infected then our public health agency.reaches out to that person to do what we.call a case investigation they interview.the patient and first of all make sure.the patient's aware of the diagnosis try.to make sure that they have access to.care for additional medical care and.advice when they need it but also we try.to find out who would be considered a.close contact to that person in a close.contact is a phrase that has a specific.definition it's not necessarily.intuitive but it's a definition that.that all states try to use in common so.that we're all comparing apples apples.to apples some close contacts are.obvious if someone lives in the same.household together or someone is an.intimate partner.clearly you can understand why that.would be a close-contact but the other.type of close contact that we.investigate for people that are within.six feet of an infected person for 15.minutes or more and so you can certainly.imagine that a lot of many people in the.workplace but it probably doesn't apply.to many other people in a workplace so.for people who are within six feet of a.person for 15 minutes or more during a.period of time that this patient is.considered to be infectious which.generally starts about 48 hours before.their symptoms appear or 48 hours before.they were diagnosed if they're.asymptomatic then those people are.considered close contacts and ideally.what those people have to do is go home.and stuff isolate for 14 days that that.would be the correct answer that would.be the recommendation we would give them.testing does not affect that.recommendation this disease can show up.as long as two weeks after someone's.exposed so someone who gets a negative.test today doesn't give you any.information about tomorrow if you're.still within that 14 day window and so.ideally if you're a close contact you.would go home for 14 days there are a.lot of situations and when in which.that's not going to work and so CDC has.helped us develop guidance around how to.deal with essential workers or workers.that simply can't be replaced or people.that have to come to work no matter what.if they've been exposed and if they're.not symptomatic then we do have guidance.around ways of really trying to.intentionally prevent disease.transmission with face coverings and.clothes and temperature checks and.frequent quizzing of the animal about.symptoms and so on that will allow.certain people to come back to work.early but but the answer is we should.try to keep them away from other people.for 14 days that applies to close.contacts in the workplace but also in.the household as well dr. Harris again.there are a number of questions that we.are just not going to have time to get.to right now.because we need to get to our next two.speakers and I think you have to drop.off shortly as well so if it's okay with.you we wanted to send all of these.questions to your attention to your.staff and then members of the group we.will get that information those answers.back to each of you sure that'd be great.and I'm very sorry I have to leave a.little early today but I really do.appreciate the chance to join you and we.appreciate your time so very much.take good care okay thank you so Matt.McDonald we are going to turn the.microphone over to you and you will.begin your presentation certainly Janine.thank you for having me and thanks for.all the great questions to dr. Harris.and thanks to dr. Harris for being with.us.I think his presentation is a good set.up for mine which is concerns kovat.liability and some of the protections.that have been afforded the business and.healthcare community by Governor Ivy's.emergency orders which she entered on.May the 8th I've been the general.counsel of tort reform as Janine.mentioned in the introduction and tort.reform and in particular of what we're.dealing with with kovat involves a.delicate balancing between opening up.the economy to them as much as we can.open the economy but still balancing.that with the need to have people act.prudently both on an individual level.and a corporate level on a business.level and a healthcare level and I think.we've had outstanding leadership on this.topic from our executive branch through.Governor Ivy or staff Joe Bonner the.chief of staff will Parker the.governor's legal adviser as well as.legislative leadership which introduced.legislation that also seeks to achieve.that delicate balance between opening.the economy and not opening it so much.that we unnecessarily lead to community.spread.so this has been a very nuanced approach.that I think our leadership in the state.has done a great job with they partnered.with folks in the private sector legal.of private lawyers for health care.community for the business community and.for the Association for justice were.able to negotiate through a very this.thorny thicket of the time we are living.in which again dr. Harris has so.eloquently made clear to us the first a.little bit about the governor's.emergency orders all of her orders.sprang from an Emergency Management Act.of 1955 which is quite the interesting.statutory provision so her authority is.provided by the legislature the.legislature allows her to declare a.statewide health emergency which she did.on march 13th with her first statewide.emergency the her powers are very very.broad under this act.however they are limited in duration to.the time that the state is under an.emergency order she can enter an order.for 60 days and she can renew it for 60.days the legislature could also declare.an emergency statewide health emergency.which was unnecessary here because the.governor IV had done so so she has very.broad powers including the power when.she enters emergency order for had that.for that order in order to have the full.force and effect of law when a copy is.filed in the office of Secretary of.State any laws that conflict.with the governor's emergency order are.suspended specifically so that's quite.broad power that the governor has there.also interestingly was immunity.provisions already provided by the.Emergency Management Act they're not as.broad as the ones that are covered in.the governor's may 8th emergency order.but the statute already contemplated.state agents governmental departments as.well as the private sector enjoying.immunity except when their conduct.amounts to gross negligence bad faith or.intentional misconduct so there was.already some provisions affording.immunity so the way the ultimately the.May 8th order came about as in all.things has a lot of different sides to.it it initially was driven I think by.the uncertainty and dr. Harris has again.done a great job describing the great.uncertainty which we have today frankly.I think we had more of it in March and.April particularly as we began.approaching a period of time when we.believe the governor would open up the.economy more and more the business.community was quite concerned about the.uncertainty the healthcare community was.quite concerned about the situation.legally and as we all know business does.not work well with uncertainty and.neither does the provision of health.care businesses and health care.providers need to know what the rules of.the road are frankly and then they will.set their compliance standards to meet.those rules of the road and that's one.of the broad things we attempted to.achieve in crafting an emergency order.or legislation to provide some means of.protection for businesses and the.healthcare community this was really set.off by Senator Arthur or of Decatur who.initially drafted a bill in late March.and began circulating it through various.groups to get their input about some.balancing act of immunity that from.coronavirus claims ultimately a group of.attorneys working with center or and.other.including the governor's office which.was sort of already working on a.parallel track for her to issue an.emergency order concerning covert.liability it resulted in Senate bill 330.which was introduced on May the fourth.by Senator or and then as everyone knows.the legislature which had been meeting.sporadically and had not met for quite.some time determined to come back into.session and just pass budgets which was.certainly understandable given the.situation so the legislature never.advanced senator ORS legislation.fortunately I think for all because we.had done so much work among legal.players in Alabama together with the.governor's office this provided a.framework for governor eysies IVs.emergency order which was then adopted.on May the 8th that executive order can.contain some findings I think which.Melissa you can turn to my next slide.please.that I think reflects what we were.trying to accomplish in terms of opening.the economy back up we were going to.open up essential businesses Oh actually.they'd been opened at that point but.they were going to be opening up more.health care procedures we're going to.start going forward businesses were more.fully reopening in a more robust way and.yet we have kovat and what are we going.to do about liability that might stem.from all this one of the broad.principles and one of the findings that.I think people don't need to lose sight.of is that although there is immunity.provided businesses employers health.care providers that immunity is hinged.upon the need for businesses and health.care providers to to engage in their.businesses and their activities.consistent with applicable Public Health.guidance so there are there is not.fleet immunity clearly and your immunity.will also be reflect whether or not you.hit in a reasonable way have attempted.to comply with applicable public health.guidance so what what is provided and.protected for by the governor's.emergency order when Senator or.introduced his bill he was initially.concerned in early March I think as we.all were that people were going to start.visiting places of business.grocery stores drugstores whatnot but.also employers were opening up their.workplaces and what what was going to.happen about transmission cases however.there were further concerns particularly.in this February March April timeframe.about other aspects of kovat not just.transmission at workplaces but there was.a lack of PPE I think we've gotten much.better on that score at this point but.there were definitely concerns about.employers should we provide PPE can we.even get a hold of it if what if we.provided and it's faulty or what if we.we can't provide it because we don't.have access to it there was a lack of.testing at the time for employees and.also this remains to the case today what.do we do when we get an employee with.kovat we have health privacy.restrictions all throughout our law do.we when we tracked race monitor disclose.what do we do about that and is there.going to be liability attached to that.so we decided and I think there was.broad consensus from this but even by.the trial more that we needed to protect.businesses and health care providers not.only from transmission cases but any.covered response activity and that.includes the ABC and.you see on your screen which is the.testing the collecting the reporting the.tracking it includes the provision by.health care providers hospitals nursing.homes doctors nurses in connection with.coded pandemic in particular the.healthcare MIT community I've got to say.was seriously challenged as we all know.and was facing the brunt of this due not.only to procedures being canceled.because of coded and possible liability.for the cancellation of procedures they.had cope they had spread among their.staff they had spread them on patients.and as dr. Harris has pointed out they.had very little in the way of therapies.or medicinal treatments so the health.care community was truly under duress.and I think this this order is going to.provide a lot of protection a lot of.needed protection for the healthcare.community we also have included in the.governor's emergency order things.relating to the design and manufacture.of materials and PPE.and the like some of which are being.prepared in by public agencies like.universities and and and the like the.other broad principle in terms of.coverage and I think this is a really a.testament to the legal community in.Alabama coming together from all sides.from the health care lawyers business.lawyers plaintiffs lawyers I think there.was a genuine realization that we were.going to have tens of thousands of cases.maybe home unfortunately it looks like.they're they're still expanding so we.don't really know what the scope of this.is I think there was a a an agreement a.finally reached to try to narrow the.universe of cases down so that.garden-variety people catching.coronavirus not having to be.hospitalized not having any serious.health consequences from it we would try.to limit their claims and limit their.damages most of those cases frankly.probably would not be pursued because of.the limitation.the we replace so we skinny down the.universe of cases that can be brought we.did that primarily by putting in a.serious physical injury requirement such.that if you don't have a serious.physical injury from coronavirus which.was defined to mean 48 hours inpatient.hospitalization then as you will see in.our next slide melissa you can go ahead.and flip over please.you would be limited under limitation of.damages if you don't have a serious.physical injury you will be limited to.your out-of-pocket losses so at the time.we were looking at just literally.hundreds of hospitalizations obviously.we've had many many more since then but.if you didn't get admitted to the.hospital for two days or more the.likelihood of having a claim with actual.out-of-pocket losses that would be worth.pursuing in court are fairly limited so.this provision I think will help limit.down the scope of the cases so the other.thing that we were able to do and that's.in paragraph one of your screen is that.we've we've exempted out any cases.involving negligence or gross negligence.and these are the vast majority of tort.cases that get filed typically in.Alabama courts are for simple negligence.or for gross negligence which means you.just have not acted reasonably everyone.agreed that that standard of care was.just too low and so the standard of care.that was agreed upon requires frankly.more egregious conduct that was not just.acted unreasonably but I've acted.recklessly I've acted willfully I've.acted intentionally and and if you're.following and reasonably trying to.follow applicable public health guidance.you're probably not going to be wanton.or reckless and you're certainly not.going to be intentional so I think.that's another further limiting of the.kinds of cases that can be.thirdly the we were able to reach.agreement that the burden of proof would.be enhanced in a covered case you would.have to prove your case just by the.preponderance of the evidence which is.more likely than not you'll have to.prove it by clear and convincing.evidence so you will still have to prove.proximate cause but you'll have to prove.proximate cause that I contracted or.transmitted coronavirus let's say and.that business I contracted it from.approximately calls that I have to prove.that now with clear and convincing.evidence which is a very high standard.so I believe that that those provisions.which are in the governor's emergency.order are going to narrow the universe.of cases that can be brought.it is not though does not encourage.people not to act prudently and in fact.businesses health care providers and.others should continue to follow public.health guidance in their activities and.last Melisa if you go to our last slide.make the final point and then I will.turn it over to stand the is I say that.we have two issues going on with the.emergency order in the statute the.emergency order as I've made the point.is only going to be effective while the.state is under a Claire declared state.of emergency and it can only begin from.the very beginning of when the state was.under an emergency so that period of.time right now is March the 13th through.whenever the state comes out of this.emergency order and clearly we have an.we're still under a state of emergency.in the governor's recently on July 2nd.extended it through September but once.we come out of an emergency order then.these protections will no longer be.there and so some in the healthcare.business community and others believe.that we do we have a special session.that we will.need to get that statute that Senator or.introduced back in May that will need to.be resurrected and we will need to place.this under statutory authority otherwise.when the emergency order ends the cases.that arise after that emergency order.will not be protected so that's.something that the business community.the health care community is keeping.their eye on and I think something that.we ought to be cognizant of so I will.now I think that's about my 15 minutes.Dan I'll let you take over.thank you Matt Thank You Janine for for.allowing us the opportunity to to.present if you could share my I think.you need to provide the slide deck on.the screen what I'd like to do is give.the listeners an idea as to the type of.claims that we expect to see with regard.to the impact of the pandemic so.specifically I want to address employer.risks and responsibilities so we have.the obligatory disclaimer that I'm.provided to to to offer the opinions.here are my own it's for guidance.purposes but it will give it's based on.a lot of information in my experience so.I'll give you an idea as to the type of.types of claims that that we've seen in.the past with some pandemics but also.you know certainly we haven't had a.pandemic is significant is this in.recent years but it'll give you an idea.of the types of risks that we've.identified so if you go to the next.screen so you know workplace safety is.obviously a prominent risk providing a.safe work environment for your employees.is paramount but there's also additional.risks as well such as Employment.Practices Liability so some of the.common kovin 19 employment practice with.risk that we expect to see.involve a variety of risk scenarios and.things have changed considerably just.because the nature that pandemic has.changed it's something that we we.haven't dealt with before so everything.is new not only in terms of how you're.handling business but also new in terms.of how you're handling or the types of.risks that you're gonna have to identify.advantage so the obvious one is failure.to furnish a place of employment that's.free from recognized hazards there is.was mentioned during the the webcast you.know immunity a limited immunity but you.know if you're not abiding by certain.standards why even enter into a.situation where you have to invoke an.immunity we have to deal with the.situation where you have a claim that.you're gonna have to defend so obviously.that's one risk and I'll talk about risk.tips for for many of these and a.precipitous exceeding slide recalled.employees this is more of a.discriminatory mandatory type of claim.recalled employees coming back to work.alleging that there was some disparate.impact on a protected class.it could be somebody who is saying well.I'm a member of a protected class and I.was asked to come back for whatever.reason or I was a member of a protected.class and only individuals within that.class were called back to work and we.were put in harm's way.another potential employment practices.claim scenario is a failure to provide.reasonable accommodations to it to.employees at a greater risk of Coco.vat19 so that they can return to work.again it's a reasonable accommodation.you don't have to make every.accommodation for somebody who maybe as.a as predisposed or has an underlying.condition that can make them make over.nineteen that much more of a serious.illness than it already is.but you have to consider reasonable.accommodations for this individual.maybe telecommuting or they it's a.standard work out or something that.would be reasonable out of that person.to go back.to work in a safe in a safe way another.situation that we expect to see or we.have seen in the past is adverse action.that's that is unreasonably taken.against an employee who tested positive.for : 19 the eye falls within the the.realm of retaliatory retaliatory.discharge or retaliation retaliation.that is no no and discriminatory.employment practice laws it's a.discriminatory type of harassment type.of act so you you want to make sure that.if you do have a person who's tested.positive that you're taking reasonable.steps to to not only protect that.employee but protect the workforce but.doing it in a reasonable manner sending.them home letting them quarantine for 40.days get better if not longer seeking.medical care things of that nature.another important issue that that we see.and we expect a lot of risk scenarios to.evolve from is the feeling to conduct a.medical screening that's consistent with.the job or business necessity in a.non-discriminatory manner or its.intended to identify an individual.posing a direct threat to health and.safety or I should say not intended to.identify that's the point but you know.needless to say it's it's making sure.that when you're doing medical screening.for fit for work it is necessary.screening process that is meant in order.for this person to function and do their.job you cannot have it obviously in.discriminatory practice making sure that.certain individuals don't get screened.because you feel for whatever reason.that it's a safe safer group or safer.protected class and vice versa with with.another class that you don't think is.somebody that would be safe so you kind.of do it above board it has to be it has.to be consistent feeling I read it.consider reasonable accommodations for.an employee who has a legitimate reason.to refuse to fit for works great some.people won't want to do it they'll feel.it's a base if there might be.you get some sort of religious reasons.why so make reasonable accommodations.for an individual if that means that.working person working for remotely than.work remotely and then another is a wage.and hour issue failure to compensate.employees for time spent screening.process Supreme Court said that security.you have to have security.maybe background checks things of that.nature not so much a wage and hour issue.but it's not defined with the with going.for medical screening for a pandemic.like this so state your lowest state.look at your state rules to determine.whether or not this is something that.you have to do it by by now what are.some risk tip so so what do you want to.do to try to a lot of daunting risk.involved there's a lot of things out.there that you have to review so what.are some of the things that I initially.suggest that you should look at well I.think the most important thing is you.have to consult with counsel a legal.counsel and you have to determine which.federal state and local laws and.regulations apply I think that that's.that is significant there's a hodgepodge.of different state and federal and even.county and local laws that apply.understanding the framework of what.applies and how you can comply this is.important initially I would suggest go.through the tried-and-true sources those.tried-and-true sources are at CDC OSHA.the EEOC and the DOL CDC has a lot of.guidance out there for employers for how.employers can maintain a safe work.environment there's also a business.resumption toolkit the EEOC will deal.with a lot of discriminatory issues that.you may have to contend with including.the Americans and Disabilities Act and.Rehabilitation Act there's a compliance.guidance subject that's specific to.köppen 19 that they offer and there's.gonna be a lot of different resources.available for both not only the.workplace itself at the office but the.home workplace as well which the EEOC.also has jurisdiction over then go to oh.sure.is responsible for setting and enforcing.standards to ensure a safe and in.healthful working environment and it.applies to CPA firms as well as most.people look at think of construction.sites and things of that nature which.would be more of an OSHA concern now it.applies to CPA firms as well and it's.applicable again to both office and work.work from home environments you know.Alabama under federal osha is under.federal osha jurisdiction and it covers.most private sector employees within the.state so those are some of the things.initially I would I would tell you to.look at first and go to the next slide.please and then I mentioned a DOL the.DOL impacts a lot of different different.things but one I think important thing.that really is driven home with the.pandemic is dealing with leave of.absence and furloughed employees you're.gonna have folks that are gonna have to.take a leave either either because.you're sick or they have to care for a.sick individual a family member a child.or whoever you're also going to be some.firms are going to be any unfortunate.position of having furlough employees.maybe they've already done that because.of the economic strain one thing I would.suggest is go to do LS guidance and the.first coronavirus response act or e FF.CRA this deals with leave of absence.issues it only applies to leaves that.we're taking from April which is about a.month after the pandemic really hit -.later on December 31st of this year it.applies to all firms with fewer than 500.please any juice it contains limited.exemptions that are applicable to small.businesses with 50 with fewer than 50.employees I should note that but what it.says is it mandates two weeks of paid.sick leave once almost unable to work.would work due to quarantine or Copa 19.symptoms and seeking medical medical.diagnosis or they need to care for an.individual subject to quarantine or a.child whose school or child care.providers unavailable for ease.it's related to copa90 a lot of people.aren't aware of that act it's something.that you should know because you don't.want to run a file if you have a.situation one of your ploys has to take.a leave for a little employees I mean.obviously if you're bringing it back you.should it should be restored to correct.levels in job grades if at all possible.we calibrate their responsibilities and.where they work meaning might want to.work at home if feasible but to the.extent you can correct levels and job.encourages you restore those to avoid.any issues but remember this when you're.furloughing an employee at for a low.employee if they're considered a.full-time employee under under under the.deal with DOL definition a full-time.employed furloughed has to be provided.affordable care under under the.Affordable Care Act providing that.Macabre might not be affordable to them.a lot of firms are just paying.continuing to pay to health insurance.for furloughed employees so something to.be considered you don't want to run.afoul of the Affordable Care then for.work screening we talked about it taking.temperatures note that the EEOC permits.employers to take employee temperatures.the CDC and OSHA likewise recommended.recommend taking temperatures but then.HIPAA replies so any personally.identifiable information must be.protected in state and local laws may.impose additional privacy obligations so.you should have any medical testing that.you receive or data you received about.your employees it should be an essential.repository and limits it limit its.access in order to protect.confidentiality next great please.employee fit for work actual testing.there's antibody tests which are.prohibited by the EEOC because it.constitutes a medical examination under.a DA so testing whether somebody is an.animal antibody to protect themselves.from the virus could be an issue with.the EEOC viral tuts our tests are.permissible viral test meaning do you.have are you positive or negative for.cope at night.they're permissible but only granite.hurts use authorization by the FDA the.FDA has to have approval of the testing.if mandatory obviously the testing his.if you're gonna make it mandatory it.cannot be nondescript and cannot be.discriminatory it has to be.non-discriminatory it's either all or.not you may maintain the privacy and.confidentiality that's essential for.screening for any type of screening.including testing and I would suggest.before you embark on any testing you.should consult with both medical experts.and of course your legal counsel make.sure you're doing it the right way and.comply with regulations privacy risk you.should conduct no fit for work screening.that goes beyond what is required just.for L screen protect your privacy of.employees who are voluntary sharing.information or reporting symptoms or.requesting leaves due to system I think.that's an obvious and then make sure.that when you identify an employee who.has tested positive or Kovan 19 systems.there are limits there's limits under.the ADA a HIPAA FML FML a revealing too.much information can result in an.invasion of privacy or an emotional.distress claim so communicate only with.employees with close contact with an.individual and try to keep that.individual's identity confidential to.the extent you can go to the next slide.please.I want to get into some other risks that.are we're short for time one is.specifically contractors you should.review and evaluate all your property.leases you want to see Victor's.compliance with OSHA CDC it's the local.authorities with regard to any workplace.modification that you're gonna do.cleaning that you would do or what.they're doing in terms of cleaning PPE.employee health screening you want to.learn about what what are the property.managers and landlords guidelines for.health security screening protocols for.the building restricting occupancy.or access cleaning and disinfecting the.promises restrictions to get written.confirmation of these protocols and.shared information with your employees.and any building visitors as well you.should also reveal it we review and.evaluate any vendor contracts I suggest.having and try to make sure there's.indemnification hold harmless.inseparability clauses in there each.saying that you know if it's somebody.you know if there's an issue where.somebody contracts Cova 19 of client.visiting your office that you know.unless it's reckless conduct by you.there's some sort of identification err.cause that they won't look to you for.for indemnification or look to you and a.whole harm or whole harmless hold you.harmless for any sort of pursuit of a.claim force majeure is important in that.it can excuse execution or your.obligations of the contract for an event.I think in the future people are gonna.have to put down a pandemic it is a.force majeure event that may excuse.performance under contract they're.highly scrutinized and then finally test.data and security when reopening tests.all your software retrieval systems.making make sure that the security.systems are all up-to-date and working.and make sure your security protocols.are reviewed and analyzed and this is a.resource list of several things that.several item excuse me that you can look.at and reviewed so if we had more time I.could go through all these kind of give.you a little bit information but.unfortunately we don't so thank you.thank you very much Stan and thank you.very much Matt we do have a couple of.questions you're both aware of the time.so we'll try to get through all these.questions pretty quickly.Matt the first question is for you and.it reads do you feel that PPP.manufacturers potentially have increased.liability in particular class action.suits related to failures or.ineffectiveness of their products.and that you need to unmute yourself.sorry got it okay you know the this gets.back to this balancing act of opening up.the economy versus protecting people as.much as we can from people not acting.prudently manufacturers I do believe.will be protected if the case arises.under Alabama law in the case arises.under the governor's emergency order it.will be protected outside of the.emergency order if a claim arises that.is not governed by that then yeah I.believe I believe there is some enhanced.exposure for manufacturers of ppbe.particularly if they are putting a.product into the market stream with some.knowledge that that protective measure.whatever it is a mask of whatever has.inherent defects so yes I think they're.there I'm sure that those cases are.going to be analyzed and reviewed.thank you Matt I'm staying up got a.series of questions for you so let me.start with I think a pretty easy one do.CPAs need to include Kovac related text.within standard engagement letters well.in terms of force majeure contracts or.language I would you know I would.certainly suggest saying something along.the lines you know if it's impractical.to perform the obligations under the.contract because of pandemic or an.infectious disease that that should be.added in there to make sure that it's.specific courts wanna have specificity.with these type of clauses that the.trouble is the event has to be.unforeseeable.and in retrospect putting something in.there about the effect of cope at.nineteen a court may determine well it's.not unforeseeable that cope in nineteen.can have an effect so if I don't know if.the questioner is asking specifically.about force majeure but in terms of.engagement letters that's really the.specific clause that we're adding in.terms of I'm dealing with that specific.issue copa90 okay thank you back on a.couple of slides back Stan.there was a question related to.guidelines for screening and the.question specifically says if a business.follows their local health department.guidelines for screening is that.considered reasonable I would think so.you know it again.you know if you're talking about.reasonable in terms of avoiding any sort.of liability and taking taking advantage.of the the order of immunity.I would certainly consult with counsel.but I would think that if you're.following the local authorities the.guidance in terms of what you need to do.to maintain a safe work environment I.think that that would in turn if you're.gonna be defending an issue or trying to.use the immunity defense I think that.would go a long way in at least saying.you know I I took reasonable steps to do.what I can do in order to maintain a.safe working car okay thank you here's.one last question for you stand and then.Matt the final question will be for you.Stan can you catch the question of.explaining the emergency use thor's.authority authorization.yeah I'm not I'm not a expert on all the.nuances of the bureaucratic nomenclature.but it's it's it's more or less FDA.approved testing for you know you know.emergency use for a pandemic so it's.it's the standard testing that.that would be fda-approved there's a lot.of again I would suggest that one go to.the resource center to either the FDA or.go specifically to the CDC and then.specifically go to the FDA and make sure.that you know that it's it's it's.synchronized with what you're doing.thank you Matt I'm the final question.for you and this can be a doozy or it.can be pretty easy.why is kovat NOC team causing so much.more reaction and response than any.other virus such as h1n1 or simply the.common flu right I think you know we're.listening to the health experts we were.listening to them in March and April and.I think frankly everything they've told.us about this transmission of this.disease unfortunately has come true that.this is the most contagious disease.we've dealt with with no known therapies.no vaccine and it's just presented a.swirl of uncertainty and again harking.back to what I said before I think it's.it has we've met that challenge the.government is meeting that challenge.we're doing our best through these.difficult times but I don't think this.is we never seen anything like this.cover 19 and hopefully we'll be through.it soon agreed I think we're all keeping.our fingers crossed that we will be.through it sooner rather than later well.thank you Matt and Stan we appreciate.you both so much as well as dr. Harris.for being our panel today on the time.and information was time well spent.information is wonderful I'd also like.to thank my colleagues Melissa warnky.from the Alabama State Bar and Jason.Isbell from the Alabama Bankers.Association for this collaborative.effort and lastly thank all of you for.participating today if you have any.questions I think there are different.ways that we can.and provide our email addresses to you.and we are happy to continue to provide.information hope you all have a.wonderful afternoon thank you for being.with us.

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