Client Alerts, News Articles & Blog Posts

Everything you need to know about BMD and the industry.

Essential Businesses during COVID-19: Identification and Operation FAQs

During the COVID-19 pandemic, the ability to classify your business as “essential” could be the key to its survival. Almost every state in the United States has imposed a “stay-at-home” or “shelter-in-place” order that restricts the types of businesses that can remain open. In fact, as of the writing of this alert, there are only seven states that have not imposed state-wide restrictions on which businesses can stay open during the Coronavirus pandemic and even those states have individual cities and counties that have imposed stricter orders. However, these orders are not always clear, and interpretation is often left to the individual business. This alert will answer some of the most common questions about essential businesses.

Q: When did all of this “essential business” business start and how long will it last?

California was the first state to issue a stay-at-home order on March 19, 2020. Since then, governors all over the country have been telling businesses to close and people to stay home whenever possible to stem the spread of COVID-19. For example, Ohio’s Stay at Home Order took effect on March 23, 2020 while South Carolina’s Order was not put in place until April 7, 2020.

Each governor has also set their own time frame for lifting stay-at-home orders. Consequently, there are end dates spanning from April 15 to June 10. Individual orders aside, the climbing number of confirmed cases and deaths makes it clear that removing orders will not be a quick process. Even if states do work together to reopen businesses, expect reopening to be a very gradual process led by the states.

Q: What is an essential business anyway?

Every state, and even some counties and cities, have different definitions of what makes a business “Essential”. However, there are some commonalities. For example, a citation to the U.S. Department of Homeland Security, Cybersecurity & Infrastructure Security Agency’s (CISA) updated Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response is almost universal. If your business fits into one of the 17 categories listed in CISA Memorandum, then you are likely an essential business. Some examples of essential businesses include:

  • Supermarkets and grocery stores
  • Pharmacies
  • Garbage collection
  • Healthcare operations
  • Hardware stores
  • Gas stations and auto-repair shops
  • Banks
  • Post offices and shipping businesses
  • Veterinary clinics and pet stores
  • Farmers' markets and food banks
  • Educational institutions, for the purposes of facilitating distance learning
  • Agriculture and food processing
  • Warehousing, storage, and distribution
  • Transportation, including airlines, taxis, rideshare programs, and vehicle rentals
  • Businesses that allow other essential businesses to operate

In contrast, these are examples of businesses largely agreed to be nonessential:

  • Theaters
  • Gyms and recreation centers
  • Salons and spas
  • Casinos and racetracks
  • Shopping malls
  • Sporting and concert venues
  • Daycares (open in some states, e.g. Florida allows childcare centers to remain open for employees working at essential businesses or operations and Ohio has established temporary pandemic childcare center licenses)

Orders from many states are fairly open-ended and definitions of essential businesses are subject to interpretation. In Ohio, for example, Lt. Governor Husted has asked businesses to use their common sense to decide whether they are essential. However, consider the Hobby Lobby scenario when deciding if your business is essential. Hobby Lobby argued that they provided fabric for mask-making and educational supplies and were, therefore, an essential business. Employees and other Ohio citizens took issue with this classification and brought it to the attention of the government. Not only did Hobby Lobby suffer a hit to their public image, they were also forced to close all stores after receiving a cease and desist letter from the Attorney General. 

Q: Okay, I think I’m an essential business, can I operate like normal?

Even if you are considered an essential business, you may not be able to operate normally. In almost all states, essential businesses are required to follow social distancing requirements established by the CDC, including:

  • Promoting remote work as much as possible;
  • Maintaining six-foot social distancing for both employees and members of the public at all times;
  • Requiring employees to wash hands with soap and water for at least twenty seconds as frequently as possible or use hand sanitizer, covering coughs or sneezes (into the sleeve or elbow, not hands);
  • Providing protective equipment (masks and gloves) to employees;
  • Regularly cleaning and disinfecting high-touch surfaces;
  • Adopting policies to prevent workers from entering the premises if they display COVID-19-like symptoms.

One point of contention between states is whether an essential business can maintain all operations or only those operations that make them essential. This answer will depend on the wording of your state’s order. For example, in Ohio and Florida, as long as your essential business is practicing proper safety protocols to protect workers, all aspects of a business could remain open. However, Michigan’s Order requires “restricting the number of workers present on premises to no more than is strictly necessary to perform the business’s or operation’s critical infrastructure functions” so the business would be able to maintain only operations that are directly essential.

For more information, contact Ashley Watson at abwatson@bmdllc.com or 614.7518, or any member of the BMD L+E team.

The Future of the Families First Coronavirus Response Act

Over the last year we all have had to adjust to the new normal ushered in by the coronavirus pandemic. Schools and daycares closed, businesses transitioned from in-office work to work from home, bars and restaurants have closed their doors...all to slow the spread and try to prevent this pandemic from spiraling out of control. The start of the pandemic was utter pandemonium. Working parents trying to balance both caring for their now at-home children and their livelihood. Businesses trying to decide how to implement leave policies with limited information. Employees determining if they could financially afford to take time off. We were all flying by the seat of our pants trying to adjust to our new normal.

Ohio Supreme Court Clarifies Medical Statute of Limitations

The Ohio Supreme Court issued a decision in late December that clarifies and finalizes the Ohio law regarding the period of time in which patients can assert claims for medical malpractice. The Court was examining the interplay between three different statutes being the statute of limitations, the statute of repose, and the savings statute.

Ohio Hospitals and Healthcare Clinics: It’s Time to Revisit Your Billing and Collection Practices

According to a recent Cuyahoga County case, certain healthcare entities may not be protected from liability when engaging in unfair or deceptive billing acts. This decision is consistent with the growing trend across the country to encourage price transparency and eliminate unfair surprise billing practices by health care organizations. Now is the time for hospitals and other health care organizations to revisit their billing and collection policies and procedures to confirm that they are legally defensible and consistent with best practices.

HIPAA Business Associate Agreements: Why These Contracts Matter

No one loves drafting, reading or negotiating HIPAA Business Associate Agreements (BAAs). Yet many of us need to do so, and some of us do so daily. They are often boring, dense and technical, but BAAs are important from both a legal and a business perspective, and they deserve our attention. Failure to enter a BAA when one is required can constitute a HIPAA violation that results in substantial liability, as demonstrated by certain recent Department of Health & Human Services (HHS) settlements.1 A business associate who makes a disclosure that is not authorized by the applicable BAA or required by law can be subject to civil and, in some cases, criminal penalties. Further, parties are often presented with BAAs that contain onerous one-sided indemnification and other provisions that can be devasting to an organization in the event of a HIPAA breach. The significance of a BAA is often not fully understood by the parties until something goes wrong (e.g., a HIPAA security incident or breach, an Office of Civil Rights (OCR) audit or a fracture in the relationship between the parties) and, at that point, there is limited opportunity to mitigate legal and business risk. Ideally, attention should be given at the commencement of the business associate relationship, when the parties are able, to thoughtfully addressing regulatory requirements, planning and preparing for potential adverse events and appropriately allocating risk among the parties. As with most healthcare regulatory compliance initiatives, a proactive approach with respect to BAAs is preferable. This article provides a broad overview of certain BAA requirements and some practical negotiating tips for the parties involved.

“I’m Out Of Here!” Now What?

We all know that the healthcare industry is experiencing a wave of integration. This trend has been evident for many years. Fewer physicians are willing to assume the legal, financial and other business risks associated with owning their own practices. More and more physicians, including anesthesiologists, are becoming employed by large physician groups, health systems and national providers. This shift necessarily involves not only entry into new employment arrangements but also the termination of existing relationships. And those terminations are often governed by written employment agreements, state and federal healthcare laws and employer benefit plans and other policies and procedures. Before pursuing their next opportunity, physicians should pause for a moment and first attend to the arrangement that they are leaving. Departing physicians need to understand their legal rights and obligations when leaving their current employment relationships in order to avoid unintended consequences and detrimental missteps along the way. Here are a few words of practical advice for physicians contemplating an exit from their current employment arrangements.