Client Alerts, News Articles & Blog Posts

Everything you need to know about BMD and the industry.

Wrongful Death Lawsuits in the Wake of COVID-19

Several major “essential business” employers, including Walmart and Tyson, have been served with wrongful death lawsuits in relation to COVID-19. As many Ohio employees begin to return to work, employers should be prudent in following workplace safety practices.

Walmart. In early April, a Walmart retail employee’s family filed a lawsuit against Walmart in Cook County, Illinois (Circuit Court of Cook County, Illinois Case No. 2020L003938) following the employee’s death after contracting COVID-19. The lawsuit filed by the employee’s family accuses Walmart of negligence and wrongful death in violation of Illinois law. The Complaint alleges that Walmart did not follow guidelines issued by the Center for Disease Control and Prevention and U.S. Department of Labor for maintaining safe workplaces. It is alleged, among other things, that Walmart failed to enforce social distancing, properly cleanse and sanitize, provide PPE including masks, latex gloves, or antibacterial wipes to employees, and further failed to send COVID-19 exposed employees home until cleared by a medical professional.

Tyson. In May, a Tyson employee’s family filed a lawsuit against Tyson in the Northern District of Texas (U.S. District Court for the Northern District of Texas Case No. 2:20-cv-00125-Z) after the employee suffered a work-related injury, contracted COVID-19, and died. The lawsuit filed by the family accuses Tyson of failing to provide employees with appropriate personal equipment, and further alleging that “a grossly disproportionate number of Tyson employees have contracted COVID-19, and have died, compared to the population as a whole.” The lawsuit was later voluntarily dismissed by the employee’s family on June 5, 2020.

As employees continue to return to work, employers should focus on preventative measures to keep employees safe and healthy to avoid having to defend against any personal injury or wrongful death lawsuits. Some of the best practices related to workplace safety concerning COVID-19 include:

  1. Following the CDC’s Interim Guidance for Businesses, including best practices for cleaning and disinfecting areas in the workplace, social distancing, and quarantining employees who have confirmed their exposure to COVID-19.
  2. If and when an employee has a confirmed case of COVID-19, send the employee home preferably until they are released by a medical professional, or at least until they are able to meet the requirements for ending home isolation.
  3. If and when an employee has a confirmed case of COVID-19, work to quickly determine all other employees and/or third parties who might have been exposed to the COVID-19 positive employee. The CDC Contact Tracing Guidelines provide that in order to best determine other employees who were at highest risk to COVID-19 exposure, employers should ask the following question: Who worked within 6 feet of the sick employee, for 15 minutes or more, within the 48 hours prior to the sick employee showing symptoms? This has been referred to as the “6-15-48” Rule. Once identified, the CDC recommends that 6-15-48 employees of non-critical business self-quarantine for 14 days after their last potential exposure, maintain social distance, and self-monitor symptoms.
  4. Stay apprised on the changes and updates issued by the CDC and share with your employees. Educating and engaging employees is key. Continue to remind employees of COVID-19 symptoms and urge them to seek medical attention if COVID-19 symptoms appear. For employees who are isolated, the employer should check in with the employee at least once a week.
  5. If there is a confirmed case of COVID-19 in the workplace, inform employees immediately. Although there is no case law requiring employers to inform employees of confirmed cases, erring on the side of transparency will help best conform with OSHA’s general duty clause, which requires employers to maintain a safe work environment.

For questions, or more information, please contact your primary BMD attorney.

Lessons Learned: Five Tips for Buying or Selling a Practice

If you are anticipating buying or selling a practice during the coming months, you are not alone. The healthcare industry is experiencing a wave of integration. In fact, it has been occurring for several years. Many transactional healthcare attorneys have negotiated and closed dozens of these transactions for clients. They have negotiated on behalf of the sellers in some cases and the buyers in others.

Ramping Up – A Quick Guide to Pressing COVID-19 Employment Law Issues

As the country continues to grapple with a global pandemic that now seems to be never-ending, businesses everywhere are waking up to realize that the calming of the COVID-19 employment issues over the summer has come to an end. As cases rise exponentially in all 50 states as we head into the winter months, the number of employment issues related to COVID-19 will also increase dramatically. For these reasons, it is important that we return to the employment law basics that were covered this prior spring, while highlighting the many lessons we have learned along the way. As COVID-19 matters and concerns continue to hinder the working environment of every business, it is important that you reference this review to guide you through these tough issues and questions.

Your Workplace Under Biden

This is my favorite recurring post – Predictions of How a New Administration Will Affect Your Workplace. Four years ago, we accurately called the emasculation of the 2016 proposed FLSA Overtime Rules (the salary exemption threshold was set at $35,568 in 2019, rather than $47,476 as proposed), we forecasted a conservative shift of the NLRB and its results (a roll-back of employee rights, social media policy evaluations, and joint employer rules), and we nailed the likelihood of multiple conservative appointments to the United States Supreme Court and its long-term effects (although I completely failed to predict that my ND classmate Amy Coney Barrett would fill the final vacancy during the Trump administration). This time, the L+E Practice of BMD has decided to make it a group effort at predicting what will happen, what probably happen, and what might happen under President Biden. As always, please save this in your important files and pull it out four (or eight) years from now to judge our accuracy.

HHS Provider Relief Funds Reporting Requirements: Important Updates Every Provider Should Know

HHS continues to revise its reporting requirements for the use of the Provider Relief Funds. Providers with more than $10,000 in Provider Relief Fund payments must report on the use of the funds through December 31, 2020. The reporting window will begin on January 15, 2021 and providers must complete reporting obligations for FY 2020 by February 15, 2021 through a portal designed by HHS. However, providers that have unexpended funds as of December 31, 2020, will have an additional 6 months to use the remaining funds through June 30, 2021. These providers must submit a second and final report no later than July 31, 2021.

Should I Apply for Phase 3 Funds? Important Considerations Every Provider Should Know

On October 1, 2020, the Department of Health and Human Services (“HHS”) announced an additional $20 billion in new funding for providers through a Phase 3 distribution. Importantly, providers that previously received HHS Provider Relief Funds or already received payments of approximately 2% of annual revenue from patient care are eligible to apply. Eligible providers have until November 6, 2020 to apply for these Phase 3 Funds. However, the question from providers continues to be: Should I Apply for Phase 3 Funds?