Physical Damage Requirement and COVID-19

Originally published by Jeff Raizner.

As insurance claims from businesses seeking coverage for losses sustained due to the new coronavirus or COVID-19 continue to pour in, many business owners feel left in the dark as to whether or not their current policies provide coverage for such an event. While some policies may allow for coverage, many business interruption policies require physical damage in order to trigger policy coverage. The physical damage requirement may vary from one policy to the next—or even within different parts of the same policy—but it is a common requirement in most commercial property insurance policies.

Civil Authority Coverage and the “Direct Physical Loss or Damage” Requirement

In previous posts, we’ve discussed civil authority coverage under business interruption insurance policies. This is the most common business interruption-related endorsement likely to apply. Civil authority coverage outlines coverage when the interruption is caused by an applicable government entity. Under civil authority coverage, certain important stipulations must be met in order for coverage to be valid, including:

An order of civil authority

The most fundamental requirement of civil authority coverage is an “order of civil authority” that forces a business to shut down. Normally, this involves an order to close businesses in the event of a hurricane, tropical storm, or other natural weather event. The government’s mandated “stay-at-home,” “shelter in place,” or other similar orders that result in a full or partial closure of a business constitute orders of civil authority for purposes of triggering insurance coverage.

A common misconception about civil authority coverage is that simply because a state or local government has issued an order that results in a business being closed, there is coverage for that business’s lost income or incurred expenses (or other “business interruption.”) This is rarely the case; most civil authority policies require some aspect of physical damage in order to trigger coverage.

Order must be in response to physical damage to a location other than the covered property, sometimes within a geographic area close to the covered property.

Some civil authority endorsements impose a requirement of “direct” physical loss or damage. Under a typical civil authority endorsement, there must be “direct physical loss or damage” to a property “other than at a covered location.” This means the damage doesn’t have to occur at the covered business, but somewhere else. Policies vary greatly on this, but some impose a geographic requirement – e.g., within a one-mile radius of the covered business. Some have no geographic restriction. But the consistent requirement is that there must be direct physical loss or damage somewhere.

Civil authority must be a result of physical damage or loss “caused by a covered peril.”

Civil authority coverage’s biggest challenge is proving the order itself was a result of (or in response to) the physical damage that happened somewhere, and that damage would be covered under the policy.

Courts have consistently interpreted this provision to mean, at minimum, physical loss or damage be one of the reasons for the civil authority order. This ultimately reinforces the requirement that the civil authority order have some relation to physical damage. What makes this even more challenging is that the damage must be caused by a “covered peril” under the policy. So if, for example, a policy excludes flood damage, then there would probably be no coverage if the civil authority order was in response to flooding.

How would civil authority coverage be triggered?

Consider an example involving a hurricane. Let’s say a hurricane makes landfall in Louisiana, and in response, a Texas county official issues an evacuation order. All businesses in the Texas county are forced to shut down because of the evacuation order. Fortunately for those businesses, the hurricane misses Texas entirely. One business has a civil authority endorsement with no geographic restrictions, and wants to make a claim for lost income.

Under these facts, the business could plausibly argue there was (1) a civil authority order (the evacuation order) that was (2) the result of direct physical damage “other than at a covered location” (i.e., the damage happened in Louisiana, but not Texas), and (3) the civil authority order by the Texas county official was a result of that damage in Louisiana. If the business owner can show damage in Louisiana caused by the hurricane was a “covered peril” under his policy, it would likely prove up coverage.

What Constitutes Physical Damage For A Claim Based on COVID-19?

Even policies without a civil authority endorsement will likely require physical loss or damage for COVID-19 coverage to be triggered. Most “all risks” policies – which cover all risks of a certain type of loss unless excluded – have the same requirement of direct physical loss or damage in order to trigger coverage.

For those of us living in coastal states that have lived through hurricanes, the “direct physical damage” of a hurricane is obvious. 100 mile-per-hour (or more) winds, heavy rains, and even tornadoes spawned by the hurricanes sometimes destroy everything in their path. But with COVID-19 – dubbed by some as the “invisible killer” – the physical damage requirement is much harder to prove.

Can a Virus Result in Physical Damage?

Specific language similar to “direct physical loss or damage” is contained within an insured’s business interruption insurance policy. Can a virus directly result in physical damage, though? Physical damage does not necessarily mean the destruction of property. As part of its claim, the policyholder must prove the property sustained a physical loss or damage.

Lawmakers and government officials have suggested that the presence of COVID-19 on surfaces within a business constitutes a physical loss. If true, this is helpful to policyholders, because under most policy provisions, the policyholder must still establish that the virus was present within their property. Since scientific evidence indicates COVID-19 is highly contagious and can live on surfaces for days or even weeks, the mere presence of those diagnosed with the coronavirus could potentially be strong circumstantial evidence of contamination of the building premises.

Previous examples that have recognized this type of physical damage include two court decisions. In 2005, a homeowner discovered E. coli bacteria contaminated their well, rendering the home uninhabitable. The court found the E. coli contamination constituted a physical loss in the event the “functionality of the property was nearly eliminated or destroyed.” Hardinger v. Motorists Mutual Insurance Company, Civil Action No. 03-CV-115 (E.D. Pa. Feb. 27, 2003).

In 2014, a manufacturing facility released ammonia. The court found the release physically transformed the air within the facility and inflicted “direct physical loss of or damage to” the manufacturing business, as the ammonia physically rendered the facility unusable at that time. Gregory Packaging, Inc. v. Travelers Property Casualty Company of America, No. 2:12-cv-04418 (D. N. J. November 25, 2014).

Although the physical damage requirement for COVID-19 is no doubt challenging, there are several avenues by which policyholders may show coverage.

COVID-19 Insurance Claims Attorneys

At Raizner Law, we understand this is an unprecedented time for many business owners and patrons alike. As closures continue to affect the livelihood of many, insurance agencies continue to delay or completely deny coverage. Our attorneys are experienced in complex insurance cases and want to help you get your business back on its feet. Contact us today to see how we can help you with your COVID-19 insurance claims.

The post Physical Damage Requirement and COVID-19 appeared first on Raizner Slania LLP.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

from Texas Bar Today https://ift.tt/3aU3Sep
via Abogado Aly Website

Are Discussions with Lawyer Colleagues Waivers of the Work Product Privilege? (4/30/20)

Originally published by Jack Townsend.

Today, I discuss a facet of the work-product doctrine, often called the work product privilege.  I address waiver for opinion work product in the setting for discussions among lawyers (or others for whom the privilege might apply) who have not been retained in the engagement to develop and refine legal issues and theories.

The specific context that this came up was for a legal email discussion group maintain by an attorney organization to discuss particular tax contexts and issues.  The discussion group contains a large number of lawyers (I think it is limited to lawyers), and so far as I am aware, the list of lawyers (as it may change from time to time) is not made available to the members of the group.  So participants invariably do not know some or even many in the group.  There is a prohibition on Government attorneys being members.  Of course, members may from time to time become Government attorneys and have the prior discussions available to them, but that’s a rabbit trail I won’t go down right now.  Suffice it to say that there is the expectation that the discussions in the group are not available to the IRS or DOJ.

The clients’ identities are not disclosed in the discussions. I have no way of knowing, but assume that the attorneys anonymize any facts that are disclosed in order to set up and move the discussion forward.  For purposes of this discussion, let’s assume that the facts are so anonymized.

The issue I present is whether the discussions that, from each participating attorney’s perspective disclose anonymized facts and seek only legal discussion, thereby constitute a waiver of the work product privilege.  Yesterday, there was a discussion on an attorney mail group regarding whether the discussions in emails to the group constituted a waiver of the work-product privilege.

The issue is whether the IRS or DO could in a tax investigation (including grand jury investigation) or tax litigation discover the group email discussions on the basis of waiver of the work product privilege and thereby prejudice the client (taxpayer).  For example, the first interrogatory and/or request for production in tax litigation from the Government would be to identify all discussions by the attorney relating to the client’s facts and produce all documents relating to those discussions.  Similarly, the Government could use its investigative compulsory process to demand access to the discussions and documents related to the discussions.

I had never thought about the issue before (that I can recall).  In a more general sense, I had never thought that discussing anonymized facts with fellow practitioners was a waiver of the work product privilege as to the anonymized facts and the legal and practice discussions that the anonymized facts generate.  The settings presenting the issues can be myriad, including a lunch with a fellow practitioner, a small discussion group of practitioners (many larger cities have such groups), or larger groups (such as at CLE events or, in the present case, an email discussion group.  (I should note that perhaps, if the “waiver” were viable in this context, it might also apply to Government attorney discussions with fellow Government attorneys who are not involved in the particular litigation.)

Having now thought about the issue and done some poking around on the issue, I am just going to offer some non-definitive thoughts on the issue.

I first offer the generic discussion from the current working draft of my Federal Tax Procedure Book (for publication in August 2020) (footnotes omitted, but those wanting footnotes can get the pdf with footnotes here):

f. Work Product Doctrine.

The work product doctrine protects the work product and thought processes in preparing for litigation.  The work product doctrine was originally blessed as to attorney work product in Hickman v. Taylor, 329 U.S. 495  (1947).  The doctrine announced in Hickman is often called the attorney work product doctrine because Hickman approved its application for attorney work product.  Rule 26(b)(3) of the Federal Rules of Civil Procedure setting the rules for discovery in civil cases in the district courts adopted the concept but in a slightly broader form. The Hickman attorney work product doctrine, at least facially, only applied to attorney work product. Rule 26(b)(3) applies to work product prepared by or for a person who would be a party in the litigation, whether or not that product is prepared by an attorney.  Furthermore, the Hickman attorney work product doctrine applies generally to any compelled production (including e.g., IRS summonses, grand jury subpoenas and civil and criminal trial subpoenas), whereas Rule 26(b)(3) applies to discovery in civil cases in the Federal District Courts (including summons enforcement or quash proceedings).  Caveat: the work product doctrine is not a privilege is the traditional meaning of the term.  Nevertheless, it is commonly referred to as a privilege; I will do so sometimes because in a colloquial sense it functions like a privilege permitting the party asserting it to refuse to comply with compulsory production unless, of course, an exception applies.

Work product requires some nexus to litigation.  Litigation need not be in progress at the time the work product is created but litigation must be more than a remote prospect.  Within those broad parameters, the work product must be “prepared in anticipation of litigation”; “[i]t is difficult to pinpoint the moment when a hypothetical possibility of litigation in the future becomes “anticipation of litigation” for purposes of the work product doctrine.  Courts apply one of two principal tests to determine whether documents are prepared in anticipation of litigation.  Most circuits apply the “because of” test asking whether the document was created “because of” anticipated litigation and was the subjective anticipation of litigation objectively reasonable.  The other, more restrictive, test is the “primary purpose” test asking if the “primary motivating purpose behind the creation of the document was to aid in possible future litigation.”

Under Rule 26(b)(3), work product subject to the privilege falls into two broad categories–(i) “opinion work product” such as the mental impressions, conclusions, etc. of the attorney or other representative in the litigation and (ii) other work product that relates to facts.  All work product is subject to the required of showing substantial need and undue hardship, but opinion work product is discoverable only by (i) waiver by disclosure to the adverse party, (ii) if disclosed in a manner likely to become known to the adverse party, and (iii) by making an extraordinary showing of substantial need and undue hardship which, as to opinion work product would be almost impossible.  The D.C. Circuit has said that opinion work product “is virtually undiscoverable.”

The work product privilege is often asserted along with the attorney-client privilege.  Since the attorney-client privilege is absolute, it will be better to avoid disclosure on that grounds.  Nevertheless where, for some reason, the attorney-client privilege is not available, the work product privilege is a good fall back.

The work product privilege can be waived.  The courts are not consistent as to the circumstances that will waive the privilege.  A court held that the privilege is waived if the work product is disclosed intentionally to an opposing party but not if the disclosure is under circumstances that there was no intention to disclose to the opposing party.  And some courts hold that waiver of work product protection generally extends only to non-opinion work product, except in certain settings such as malpractice or reliance on counsel.

It is important to distinguish between the work product privilege recognized in the federal universe and the accountant client or accountant work product privilege which is not recognized.  An accountant’s work product can qualify for the work product privilege if it meets the requirements of the attorney work product privilege in Hickman (e.g., via a Kovel arrangement) or the FRCP 26(b)(3) work product privilege.  Both of course must have a principal nexus to litigation or anticipated litigation.  But, where the work product is prepared for other non-litigation reasons (such as financial statements prepared for public company disclosures), they will not qualify for any work product privilege.

With this background, I offer the follow musings:

1.  Do we need to even be concerned about the Government use of compulsory process for this type of discussion among practitioners?  In a case involving a client of the attorney, how would these discussions possibly be relevant.  Even in a setting of reliance on counsel as a defense to a civil or criminal penalties, the issue is what opinions were communicated to the client, not what opinions or theories may have been discussed by the client’s lawyer with fellow practitioners.  Thus, in my view, it would be an abuse of the compulsory process to require that these discussions be disclosed.  Certainly for civil compulsory processes (including the IRS summons) relevancy is required.  FRCP 26(b)(1); and United States v. Powell, 379 U.S. 48 (1964) (requiring relevance, although generously defined).  And, I am confident that even grand jury subpoenas require relevance to the investigation.  (I have not researched that, but think it is an obvious proposition.)  In these cases, courts would, I think, not allow such a fishing expedition, just as they would not allow compulsory access to the attorneys’ research files.

2.  I analogize these discussions to opinion work-product as discussed in the excerpt from my Federal Tax Procedure book.  Assuming that the facts are properly anonymized, there is nothing but legal discussion going on, simply the working of practitioners’ minds on the subject.  That would thus be classic work product for which compulsory discovery is prohibited except in exceedingly rare circumstances.

3.  A subset consideration I ask is whether it matters as to the number of persons the attorney engages in the discussion (whether they respond or not)?  Does it matter if it is a one-on-one conversation with a colleague over lunch?  Is that a waiver of any information shared on either side of the conversation?  What if the disclosure is made to a tax discussion group with perhaps 25 – 35 members, all of whom you know, whether in an actual meeting, a Zoom meeting or by email?  Is the concern engaging in discussion with a broader group, some of whom the initiating attorney may not even know (such as at a CLE meeting or in a discussion group via email discussed in this blog).  In terms of the purposes of the privilege, I am not sure I can articulate a meaningful distinction, so that whatever the rule is it should apply to discussions in each of these settings with anonymized facts.

4.  Does the common interest privilege bear on this discussion?  I picked this up in a quick search (Lance Cole, Revoking Our Privileges:  Federal Law Enforcement’s Multi-Front Assault on the Attorney-Client Privilege (and Why It Is Misquided), 48 Vill. L. Rev. 469, 510 n177 (2003).:

The “common interest privilege” is a broader concept that does not require a pending case and extends to cover parties with common interests in nonlitigated matters. See James M. Fischer, The Attorney-Client Privilege Meets the Common Interest Arrangement: Protecting Confidences While Exchanging Information for Mutual Gain, 16 Rev. Litig. 631, 640-44 (1997) (arguing that no reason exists to limit common interest privilege to litigation matters). The Restatement (Third) of the Law Governing Lawyers adopts the latter, broader definition. See Restatement (Third) of Law Governing Law. 76 cmt. c (2000) (stating that “exchanging communications” may involve matters other than litigation).

The common interest privilege is not a perfect fit, but reasoning from the known to the unknown, I think it is probably the best analog to these circumstances.

5.  As I said, I have not undertaken the detailed research necessary for anything approach a definitive conclusion, but I do offer my hunch: (1) the Government would not have the brass to attempt to obtain all discussions the attorney has had with other practitioners regarding the legal matters related to the client representation; and (2) if the Government did have the brass to attempt it, a court would swat the attempt down.

6.  One other related issue raised was the potential violation of duty to the client from even discussing client related legal issues among practitioners.  Should the attorney refrain or get some type of disclosure and permission from the client before participating in any setting whether even anonymized facts or discussions related to the client’s anonymized facts?  Maybe that’s another paragraph to insert in client engagement documents, because, I suspect, it is the rare attorney who does have such discussions it in some engagements.  Nevertheless, my suspicion is that anonymized discussions of legal issues related to clients is not a violation of this duty.

If any practitioners have thoughts on this subject, please post comments or email me at jack@tjtaxlaw.com.

This blog entry is cross-posted on my Federal Tax Procedure Blog.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

from Texas Bar Today https://ift.tt/3bQDYJW
via Abogado Aly Website

Can Your Computer Be an Inventor? USPTO Says No

Originally published by Kirby B. Drake.

USPTO Finds AI Inventing Does Not Constitute Inventorship for Patenting Purposes

The Artificial intelligence (AI) is being used more and more in development of technology, but what if AI inventing already covered a technology that you want to patent?  This is a question that the US Patent and Trademark Office (USPTO) recently decided in US Patent Application No. 16/524,530 (https://www.uspto.gov/sites/default/files/documents/16524350_22apr2020.pdf). 

What Is AI and How Can It Invent?

Before diving into how the USPTO is handling AI inventing when it comes to patent inventorship, it may be helpful to understand what AI actually is.  AI is the use of computer science programming to imitate human thought and action by analyzing data and surroundings, solving or anticipating problems and learning or self-teaching to adapt to a variety of tasks.  AI generally includes neural networks, machine learning, and deep learning.

Chances are you are using AI every day, as it can include things like Siri, Alexa, and even Netflix, that uses advanced predictive technology to suggest shows based on your viewing preferences or rating.  But AI inventing is being used in significant research and development (R&D) operations as well, including being used in medicine to diagnose cancer and other diseases with extreme accuracy through replication of human-like cognition and reasoning.  So, when AI is contributing to the diagnosis of cancer, should AI be included as an inventor on a patent?  The USPTO says no.

AI Inventing and Patent Inventors

The USPTO was asked to consider whether a machine named “DABUS” could be listed as an inventor on a patent application because it recognized the novelty of the invention to be patented.  In its Decision, the USPTO found that the definition of “inventor” in the patent statutes does not cover machines; it only covers persons and individuals.

The USPTO also concluded that because the courts have concluded that a state cannot be an inventor, machines should not be identified as inventors because conception, the touchstone of inventorship, must be performed by a natural person. Therefore, AI inventing doesn’t constitute inventorship for patenting purposes. Additionally, the USPTO rejected policy considerations such as incentivizing innovation using AI systems, reducing improper naming of persons as inventors who do not qualify as inventors, and supporting the public notice function by informing the public of the actual inventors of an invention, finding that they do not overcome the language of the patent laws or court decisions.

Key Takeaways Regarding AI Inventing and Patents

As AI inventing becomes more prevalent in R&D as well as in daily life, some questions will likely eventually need to be addressed and answered as technology continues to evolve:

• will the courts disagree with the USPTO?

• will the patent laws change?

• will we one day see AI being listed alongside individuals as inventors on patent applications?

 Perhaps AI will eventually give us the answer!

patents

Read more

---

You may also be interested in:

---

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

from Texas Bar Today https://ift.tt/2SmJb4s
via Abogado Aly Website

Texas Railroad Commission: Commissioner Sitton’s proposed proration order to be considered May 5; Commissioner Christian opposed

Originally published by John McFarland.

Commissioner Ryan Sitton has published his proposed conditional order imposing proration on oil production in Texas, to be considered at the Commission’s hearing on May 5.

Commissioner Wayne Christian, in an op ed in the Houston Chronicle, has come out against the proposal.

Sitton’s proposed order is attached to the Commission’s May 5 hearing agenda. His proposal follows the recommendation he described at the Commission’s prior open meeting on April 14. The Commission received 888 comments prior to that meeting, and more than 50 individuals presented live comments during the meeting.
Continue reading →

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

from Texas Bar Today https://ift.tt/2Wsm9KP
via Abogado Aly Website

Tiger King 2.0: Is a Texas Roadside Zoo Permissible?

Originally published by Cleve Clinton.

Driving through Oklahoma recently and watching Tiger King of late, Ernest “Big Daddy” Bux was intrigued that they are apparently 5,000 to 15,000 tigers in the United States and only 3,500 in the “wild.” Hearing that an 8-12 week old cub offered for “cub petting” in a roadside petting “zoo” could pay back over $1 million, Big Daddy decided that his Big Bux Ranch was big enough to add a roadside business and raise pet tigers. Does the State of Texas permit Big Daddy to keep pet tigers? Does Big Daddy have any liability for keeping them?

Legally

Yes, as my co-Tilting the Scales author Drew York pointed out in 2015,  Texas prohibits private individuals from owning or having custody of a nondomestic animal – a “dangerous wild animal” – such as a lion, tiger or bear – unless the person has a certificate of registration from either the city or county animal control department, or from the county sheriff if the county does not have an animal control department as directed by the county commissioners court.  The registration certificate must be renewed annually at a cost of up to $50 for each dangerous wild animal and up to $500 for each person registering a wild animal. Failing to obtain a certificate of registration risks a civil penalty of at least $200 and not more than $2000, and is subject to Class C misdemeanor charge.  The owner must also have at least $100,000 liability insurance coverage for the animal.  Additionally, the owner must immediately notify the animal control department or the sheriff if the animal escapes or attacks a human.

The ability to own exotic pets varies across the country.  At least 14 states ban private individual citizens from owning exotic animals as pets.   Approximately 14 more states have some sort of licensing scheme requiring the owner to register the animal.  Other states have regulations covering the ownership of exotic animals, but do not require registration or may not have enforcement provisions.  This is a great summary of each state’s laws concerning exotic animals.

Practically

And, then there’s the risk of personal injury claims from tiger attacks. Granted, offering “cub petting” with 8-12 week old cubs is appealing. Yet, having cubs, means Big Daddy likely also has some mating adults – which can be dangerous. Wild animals can transmit serious diseases to humans as well as commit serious bodily harm. Pet owners are still responsible for the actions of their animals. Under Texas law, a landowner is liable for any injuries suffered by an invitee upon their land if the landowner failed to exercise ordinary care to maintain his property. Therefore, those injured by an exotic animal are entitled to compensation for their injuries that may include hospital bills and compensation for missed work time. As to employees that Big Daddy might employ in his roadside zoo, they would probably be covered by workers compensation insurance.

Tilting the Scales in Your Favor

Big Daddy should carefully compare the risk of roadside “cub petting” against the perceived reward. Bills currently before Congress could change overnight the perceived lucrative nature of Big Daddy’s proposed venture. Big Daddy will undoubtedly expect that all customers must sign a broad release of liability releasing him and his employees, but will it be enforceable? The answer may well be influenced by the conduct of the customer and Big Daddy’s employees. It’s a very good idea, but not necessarily bullet-proof. Moreover, getting insurance to cover the risk of liability that one of these “apex predators” injure one of Big Daddy’s invitees may be challenging, if not significantly limited in scope of coverage and amount of damages.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

from Texas Bar Today https://ift.tt/2KMaD7p
via Abogado Aly Website

SBC Relief for COVID-19 Coverage or Telehealth Changes to Group Health Plans

Originally published by Haynes and Boone Benefits Group.

Generally, if an employer-sponsored group health plan makes a material modification to coverage midyear that would affect the content of the plan’s Summary of Benefits and Coverage (“SBC”), the plan administrator must provide participants with 60 days’ prior notice of the modification. The U.S. Departments of Labor, Treasury, and Health and Human Services have issued a FAQ stating that they will not take any enforcement action against any plan for not providing such notice when the modification is to provide greater coverage related to the diagnosis and/or treatment of COVID-19 or to add benefits or reduce or eliminate cost sharing for telehealth and other remote care services. However, the plan administrator must still provide notice of the changes to participants as soon as reasonably practicable. This non-enforcement policy only applies while there is a public health emergency declaration or national emergency declaration related to COVID-19 in effect.

The FAQs are available here: https://www.dol.gov/sites/dolgov/files/ebsa/about-ebsa/our-activities/resource-center/faqs/aca-part-42.pdf.

The post SBC Relief for COVID-19 Coverage or Telehealth Changes to Group Health Plans appeared first on Haynes and Boone Blogs.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

from Texas Bar Today https://ift.tt/2VOgq2I
via Abogado Aly Website

Rover to the Rescue

Originally published by Lori-Ann Craig.

On April 27, 2020, Texas Governor Greg Abbott issued Executive Order 18, announcing the reopening of services and busineeses beyond those originally considered essential. Subject to certain restrictions listed in the Executive Order and in the full Governor’s Report to Open Texas, certain businesses, such as retail shops, restaurants, move theaters, shopping malls, golf courses, and museums and libraries will be able to open for up to 25 percent of its listed occupancy. These businesses are still required to follow the minimum standard health protocols recommended by the Texas Department of State Health Services (TDSHS) and should continue to follow social distancing guidelines. The wearing of face masks or other types of face covering is still encouraged. The 66-page report details the multi-phase plan that the governor and the Strike Force to Open Texas have established to reopen Texas and gradually begin the process of returning to work and participating in other activities. One of the actions detailed in the report is to increase and expand availability of COVID-19 testing. According to data available from TDSHS, there were 314,790 cumulative tests performed in the state, as of April 29, 2020. Nevertheless, much of the criticism that Governor Abbott’s reopening plan has been receiving relates to a lack of available testing. Texas has ranked near the bottom in state rankings for per capita testing.

The news may not be all that bleak, however. If a group of scientists in the United Kingdom and Pennsylvania are correct, our canine friends might just be available to help us out in that regard. Researchers at the London School of Hygiene and Tropical Medicine and the University of Pennsylvania are engaged in projects to train dogs to detect super spreaders, those seemingly healthy people who don’t yet know that they may be infected with the coronavirus. Scientists assert that diseases, such as the flu, have odors and that it is very likely that the coronavirus has a specific odor as well. It is also believed that dogs can detect subtle changes in temperature, opening up the possibility that these dogs can ferret out individuals with fevers. It is their hope that dogs with a highly developed sense of smell would be able to detect the virus at hospitals and nursing homes and eventually, airports and rail stations.

Using canines to sniff out disease is nothing new. Labradors and cocker spaniels are already being used to detect malaria, and dogs have proven able to detect Parkinson’s Disease and some cancers. We’ve already seen the capabilities that canines have: sniffing out bombs, narcotics, weapons, even prohibited fruits, vegetables, and plants, so it’s no wonder that our furry friends can come to our rescue once again and help save lives.

In thanks for all that he does to make you happy and safe, make sure you give Rover an extra belly rub or treat today.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

from Texas Bar Today https://ift.tt/2WfCn9E
via Abogado Aly Website

Coronavirus Legal News Briefing — April 30, 2020

Originally published by Amy Starnes.

Editor’s Note: The State Bar of Texas is providing this collection of important links, blog posts, and media stories to keep its members and the public informed of the latest news and resources related to the novel coronavirus outbreak and its impact on the legal community.

Important links

State Bar of Texas Coronavirus Legal Resources Page — Texasbar.com/coronavirus

State Bar of Texas Coronavirus Public Resources Page — Texasbar.com/COVIDHelp

Texas Lawyers’ Assistance Program Well-being Resources page — Texasbar.com/remote-well-being

Texas AG helped donor fight virus lockout — Records reviewed by The Associated Press show that an exclusive group of Texans stood to benefit when Attorney General Ken Paxton urged a small Colorado county to reverse a public health order during the coronavirus outbreak. — The Associated Press

Texas voters sue over age restrictions for mail-in ballots — Citing the threats of the coronavirus, six Texas voters filed suit in federal court Wednesday challenging restrictions that limit age eligibility for voting by mail to those 65 and older. — The Texas Tribune

Many law firms that applied for paycheck protection loans are still waiting; Texas lawyer sues — One Houston lawyer was so frustrated by delays that he filed would-be class action lawsuits against three banks on behalf of himself and other clients. — ABA Journal

Small Business Administration temporarily limits stimulus loans to small lenders — The Small Business Administration briefly closed applications for emergency small business loans to all but the nation’s smallest lenders on Wednesday. — UPI

Tips for minimizing law firm liability during COVID-19 — As with any significant upheaval, this sudden and radical transformation of the legal profession creates new risk management challenges for law firms. (Subscription required) — Law360

Big Business wants immunity from Covid-19 lawsuits — At issue is how to balance protecting businesses from lawsuits, while enabling justice for customers and workers who in a time of rapidly rising unemployment may not have the option of leaving their jobs for something safer. — The Associated Press

Texas Supreme Court approves July Bar Exam, sets alternative September testing date — The Texas bar examination set for July will continue as scheduled, but an additional testing date also will be offered in September. — Texas Bar Blog

McLennan County judges, court officials prepare for return of jury trials — As Texas and county officials prepare to resume more work under whatever the new normal will look like, judges are realizing McLennan County courtrooms were not built with social distancing in mind. — Waco Tribune-Herald

Supreme Court to begin live oral arguments; here’s how it works — For the first time in its history, the U.S. Supreme Court will hear oral arguments by telephone conference. All nine justices and counsel will participate remotely starting Monday, May 5. — Court TV

COVID-19: Are your constitutional rights quarantined too? — The leading case about restrictions during public health emergencies is the U.S. Supreme Court’s 1905 decision in Jacobson v. Massachusetts. — Tilting the Scales blog

Shared custody in the time of COVID-19: A Q&A with Susan Myres — Houston attorney Susan Myres, president of the AAML, discusses shared custody and the challenges divorced/separated parents face during the time of COVID-19. (Subscription required) — Texas Lawyer

Working from home does not excuse employers from safety responsibility — It is imperative that all employers who employ home workers understand that they still have an obligation to keep all workers safe and they also must keep their Workers’ Compensation insurance in force. — Workplace Safety blog

How opening businesses again will impact your unemployment. Q&A with Texas Workforce Commission (video) — BoShould you go back to work if you fear getting sick? Here are 17 questions we asked the man in charge of Texas unemployment benefits. — KVUE – Austin

Federal government sued for denying stimulus checks to Americans married to undocumented immigrants — The Mexican American Legal Defense and Educational Fund, is alleging that a provision in the $2.2 trillion stimulus package known as the CARES Act that denies the benefit to mixed-status families in unconstitutional. — The Texas Tribune

Judge affirms White House plan to suspend visas for child migrants — A U.S. district judge in Oregon declined late Wednesday to block a White House plan to suspend immigration visas for children of permanent migrant residents due to the coronavirus crisis. — UPI

While volunteering in a NYC pop-up hospital, this Texas law grad learned he had passed the bar — For three weeks, John Kiraly, a May 2019 graduate of the University of North Texas Dallas College of Law, has volunteered with a Florida-based private humanitarian company, Comprehensive Health Services. (Subscription required) — Texas Lawyer

Google zooms in on Zoom with a freebie — Google on Tuesday made its business videoconferencing service free to all users, ramping up competition for Zoom as people flock online to stay connected during the pandemic. — Agence France-Presse

Subscribe

To keep up on the latest legal news from around the state, sign up for the State Bar of Texas’ Daily News Briefing by clicking here.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

from Texas Bar Today https://ift.tt/2ySfscF
via Abogado Aly Website

Muniment Of Title

Originally published by A. M..

Muniment Of Title Texas A muniment of title is a procedure used in place of full estate administration, but in this procedure there is no appointment of an administrator or an executor of the estate. A muniment of title simply allows a deceased person’s last will and testament to be treated as proof of title […]

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

from Texas Bar Today https://ift.tt/2SpQWGS
via Abogado Aly Website

State Bar to present budget to Texas Supreme Court on May 11

Originally published by Lowell Brown.

The State Bar of Texas will present its proposed fiscal year 2020-2021 budget to the Texas Supreme Court during a virtual meeting at 10 a.m. CDT on May 11.

The State Bar will live stream the meeting at youtube.com/statebaroftexas. The public may submit questions or comments in advance by email at StateBarPresident@texasbar.com. There will be no public comment period during the meeting.

The proposed budget can be viewed at texasbar.com/finances or by clicking here.

The State Bar published the proposed budget in the March 2020 issue of the Texas Bar Journal and held a public hearing on April 7. The May 11 presentation is the last step in the State Bar budget process before the Supreme Court considers approving the budget to take effect on June 1.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

from Texas Bar Today https://ift.tt/3aQp9Wr
via Abogado Aly Website

State Law Library and Harris County Law Library partner to expand digital services

Originally published by Adam Faderewski.

The Texas State Law Library and Harris County Law Library have partnered to expand digital services for all Texans.

Beginning on Law Day, May 1, law librarians from both libraries will offer expanded chat services in English and Spanish Monday through Friday. Anyone who needs assistance with legal research can contact a law librarian through either library website.

“We are excited to expand access to legal information with our partners at the State Law Library,” Harris County Law Library Director Mariann Sears said in a news release. “Each library has unique resources to support self-represented litigants, attorneys, and the judiciary. Through this partnership, we can make more of these resources to help ensure continued access as we stay home and work safe.”

Both law libraries suspended in-person services in March and expanded virtual services.

“This partnership is a great opportunity for the State Law Library to serve more Texans, especially in Harris County,” Texas State Law Library Assistant Director Amy Small said in a news release. “With a third of the Texas legal community and the state’s busiest courts, the Houston metro area has the most potential users of the State Law Library’s expansive digital collections. Working with law librarians at the Harris County Law Library and drawing on their expertise will help us connect more Texans with needed legal resources.”

This partnership will serve as a pilot program with the goal of expanding opportunities for collaboration to other Texas public law libraries. Libraries interested in participating can contact the Texas State Law Library.

For more information about the Texas State Law Library, go to sll.texas.gov. For more information about the Harris County Law Library, go to harriscountylawlibrary.org.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

from Texas Bar Today https://ift.tt/2xkZhnV
via Abogado Aly Website

Texas Unemployment Benefits Under CARES Act

Originally published by Cris Feldman.

Following the outbreak of the new coronavirus or COVID-19, many across the country have found themselves out of work and having to file for unemployment. With over 20 million unemployment claims being filed and nearly one million claims in Texas alone, officials have begun to roll out unemployment benefits under the Coronavirus Aid Relief Economic Security Act (or CARES Act).

The CARES Act

The CARES Act is a new law that aims to provide fast and direct economic assistance to American workers and small businesses, seeking to preserve jobs in all industries. The Act was passed with overwhelming bipartisan support and signed into law in late March of this year. As Texas begins to roll out some of its major provisions, many residents have been unsure as to who is eligible for benefits under the CARES Act.

COVID-19 Unemployment in Texas

According to the Texas Workforce Commission (TWC), in the Houston area, more than 300,000 people filed unemployment claims during the initial month that stay-at-home orders and social distancing measures first went into effect. It remains unclear, however, just how quickly the TWC plans to administer and pay expanded benefits included within the stimulus package.

Two of the major revisions to the unemployment insurance system expanded benefits to those who would not traditionally qualify. In addition, an additional $600 per week was given to those affected by the pandemic in mid-April through two new stimulus programs—The Pandemic Unemployment Assistance program (PUA) and the Federal Pandemic Unemployment Compensation (FPUC) program.

The PUA program adds an additional 13 weeks’ worth of to benefits, while also extending the benefits to workers that are not traditionally eligible, such as those who are self-employed. The FPUC adds an additional $600 per week to unemployment claims.

Who Qualifies for Unemployment Benefits Under the CARES Act?

Anyone unemployed due to COVID-19 after January 27, 2020 is eligible to apply for CARES Act benefits. The Act expands eligibility to contract workers, those who are self-employed, and others not typically eligible for unemployment benefits. Independent contractors and self-employed workers that have already applied for unemployment benefits do not need to re-apply for PUA. The TWC will reach out to these workers directly via their provided contact information.

The FPUC program will provide the additional $600 per week. Those who qualify for at least a minimum amount of unemployment benefits will qualify for the additional $600 per week, in the event COVID-19 caused or contributed to the unemployment.

Looking Ahead

While The Lone Star State has already announced plans to reopen certain businesses at limited capacity per the guidance of Governor Gregg Abbot, many employers and employees alike are unsure of how this will affect their unemployment benefits. According to the TWC, one of the qualifications for unemployment benefits is that workers must be “willing and able to work all the days and hours required for the type of work you are seeking.” According to the TWC, those who choose not to return work will then become ineligible for unemployment benefits.

Houston Employment Attorneys

Navigating employment and unemployment claims is becoming increasingly more cumbersome as the number of claims continues to rise due to COVID-19. Having an experienced employment law attorney by your side can help you to get back on your feet during this uncertain time. At Feldman & Feldman, we work to help support employees by giving them a powerful voice to advocate for fair working conditions, while also helping employers defend themselves against unjust accusations. Contact us to discuss your employment legal needs today.

The post Texas Unemployment Benefits Under CARES Act appeared first on Feldman & Feldman.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

from Texas Bar Today https://ift.tt/35ioXOu
via Abogado Aly Website

Working From Home Does Not Excuse Employers From Safety Responsibility

Originally published by mshook.

Under the current situation, fighting the coronavirus (COVID-19), many more people than usual are working from home than is usually the case. This has already been a problem for several years, but the situation has been a problem for some time, ever since companies began to figure out that technology makes it possible to have workers do their jobs somewhere other than the employer’s property.

Workers’ Comp Rules Still Apply

The cost savings of having their employees work from home has encouraged many employers to take advantage of modern technology to create what had been a growing phenomenon, even before we were touched with a pandemic. The coronavirus has sent the working-at-home philosophy into the stratosphere,  which could very well make such arrangements permanent once we start the economy again and put it where it should be.

The one thing every employer should acknowledge that working employees from home is not perfect, nor does it excuse employers from all of their responsibilities. The fact of the matter is, injuries can occur at home just like they do in the workplace, which means that employers still have to carry workers’; compensation insurance, even if the worker is doing their job from home.

As a general rule, if at any point, an employee working from home takes time to perform tasks that have nothing to do with furthering their employer’s interests, but instead do work for their own personal benefit, any injury the worker sustains during the period of personal benefit cannot be considered within the scope of employment, which means that injury is not covered. However, whenever a worker is injured while doing work that benefits the employer, that injury and that worker will often be covered by the employer’s workers’ compensation insurance policy, which they must carry for all employees under Texas law.

Accident and Injury Claims Are Often, But Not Always, Valid

With the global pandemic surrounding the coronavirus, millions of employees nationwide have been told to work from home or given that option. Many employers probably believe that arrangement relieves them of responsibility, but whether the employee works from a makeshift home office at the dining room table or they set themselves up at the local café, they are still entitled to the coverage for workplace injuries.

Whenever the employee is injured while working solely for the benefit of their  employer and they are injured, that injury is considered to be the employer’s responsibility. When an employee is injured while working at home, while most aspects of the case must be handled differently, the differences are nuanced and the employer is still responsible for keeping the employee safe while working for the employer’s benefit. Different questions must be asked, and different standards must be adhered to.

Coronavirus Does Not Create an Excuse

Of course, this has been an issue since long before COVID-19. Claims issues involving remote employees is not limited to worldwide pandemics. According to a 2010 report by the Bureau of Labor and Statistics, nearly 24% of American workers reported routinely doing at least some, and often all, of their work from home. That’s a really high number, even though it was a decade ago. More recent studies have shown at least 60% of the country’s  workforce works at least one day a week outside the formal workplace, while nearly 50 percent of employees work at least half the week outside of the office.

Employers concerned with workplace safety have precious little  control over the employee’s home work environment. In addition,  employees face increased challenges and risks when working from home. Whereas an accident at a workplace is likely to have witnesses or be caught on security video, workers who do their job at home usually work are often all by themselves while they work, meaning it can be difficult to corroborate that a traumatic injury or accident occurred as the worker said. It can also be difficult to determine the precise work conditions that led to the injury.

When a remote worker files an injury claim, Texas state officials will often evaluate these claims by distinguishing between expectations for workers who are stationary and those whose jo was not “furthering the purposes of the employer” when they decided to take a wall during their lunch break. L

The primary question regarding a workplace injury claim made by a remote worker depends on whether the employer ”necessarily exposes an employee to conditions which substantially contribute to the risk of injury.” In one case, the court determined that an employee who tripped over their dog while reaching for a cup of coffee had no claim because the risk existed before she took her job, and it would likely exist long after they ceased working for the employer. Therefore, the injury was in no way within the scope of their employment.

It is imperative that all employers who employ home workers understand that they still have an obligation to keep all workers safe and they also must keep their Workers’ Compensation insurance in force, even for employees who primarily work at home. The fact that a worker rarely sets foot in the formal workplace does not relieve you of responsibility for job-related accidents and injuries.

The post Working From Home Does Not Excuse Employers From Safety Responsibility appeared first on Hill Law Firm.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

from Texas Bar Today https://ift.tt/2KLWs2o
via Abogado Aly Website

COVID-19: Are Your Constitutional Rights Quarantined Too?

Originally published by Bill Drabble.

In an attempt to slow the spread of coronavirus (COVID-19), the county judge has issued a shelter-in-place order that prohibits all public gatherings. Violations are a misdemeanor punishable by a fine of $1,000 or 180 days imprisonment. Defying the order, Reverend Elmer Gantry opens his church on Sunday morning to a smaller but still enthusiastic congregation. As the members leave at the end of the service, they are met by a sheriff’s deputy, who hands each of them a ticket for violating the order. Reverend Gantry proclaims that fining people for attending church violates their constitutional right to freely exercise their religion. Will the First Amendment be their salvation?

The First Amendment’s Free Exercise Clause will likely not allow members of Reverend Gantry’s congregation to evade the consequences of violating the shelter-in-place order. Faced with the quick and exponential spread of COVID-19 cases, state and local governments have taken a number of drastic measures that would ordinarily be unconstitutional, such as banning any public gatherings, closing businesses, quarantining travelers from other states, and prohibiting any non-essential medical procedures. The wisdom and efficacy of those measures is heavily debated, and they have sparked protests in a number of states. But their legality is well settled.

Can Constitutional Rights Be Restricted During Public Health Emergencies?

The leading case is the U.S. Supreme Court’s 1905 decision in Jacobson v. Massachusetts. In that case, the City of Cambridge sought to subdue a smallpox epidemic by requiring all adults to be inoculated. Henning Jacobson refused. He was found guilty of violating the ordinance and assessed a $5 fine. Jacobson then appealed his conviction, arguing that compulsory vaccination violated his constitutional rights.

The Supreme Court rejected Jacobson’s argument, holding that the state had the power to enact reasonable regulations to protect the public’s health and safety. Although each person has a constitutional right to bodily integrity that would ordinarily allow him to refuse unwanted medical treatment, the Court stated that right was not absolute. “There are manifold restraints to which every persons is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each is a law unto himself would soon be confronted with disorder and anarchy.”

The Court also refused to second guess the city’s policy choices in crafting public-health measures. Then (as now) a vocal minority believed that vaccination was ineffective and caused other diseases. But the Court stated it was not its role “to determine which of two modes was likely to be the most effective for the protection of the public against disease. That was for the legislative departments to determine in light of all the information it had or could obtain.” The fact that people disagreed about vaccination was immaterial, because “there is scarcely any belief that is accepted by everyone.”

What Are the Exceptions?

Jacobson allows state and local governments to reasonably restrict constitutional rights during public health emergencies. Courts will not interfere except in three circumstances:

1. The emergency measures should include exceptions for extreme cases. For example, the Court would have been receptive to Jacobson’s argument if he had shown that he suffered from a medical condition that made him unfit for vaccination.
2. The courts may review a measure that has “no real or substantial relation” to protecting the public health or “is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” But, as discussed above, mere disagreement about whether the measure is wise or effective at combatting the disease is not sufficient.
3. The court may review whether the measure has been enforced in “an arbitrary, unreasonable manner.” For example, a federal court in Kentucky enjoined a local order that prohibited drive-in church service on Easter, because the city permitted a host of equally dangerous (or equally harmless) activities. Drive-through restaurants and liquor stores remained open. And the court stated that, “if beer is ‘essential,’ so is Easter.”

The states’ efforts to combat the COVID-19 pandemic have also implicated one of the more controversial areas of constitutional law—the right to an abortion. Federal courts in Texas, Arkansas, Tennessee, Oklahoma and Alabama have enjoined those states’ emergency orders banning non-essential medical procedures to the extent that they covered abortions. The Fifth and Eighth Circuits reinstated Texas’s and Arkansas’s bans, respectively. But the Sixth Circuit refused to reinstate Tennessee’s. To resolve the split, the Supreme Court may step in and determine how Jacobson applies in the 21st century.

Tilting the Scales in Your Favor

Regardless of whether you agree with them, following the applicable shelter-in-place orders and other social-distances guidelines is the best course of action, from both a health perspective and legal perspective. Courts will likely side with the authorities attempting to combat the spread of COVID-19 unless you can show that they have overreached or they have not applied the measures equally.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

from Texas Bar Today https://ift.tt/2VQMjaZ
via Abogado Aly Website

Coronavirus Legal News Briefing — April 29, 2020

Originally published by Amy Starnes.

Editor’s Note: The State Bar of Texas is providing this collection of important links, blog posts, and media stories to keep its members and the public informed of the latest news and resources related to the novel coronavirus outbreak and its impact on the legal community.

Important links

State Bar of Texas Coronavirus Legal Resources Page — Texasbar.com/coronavirus

State Bar of Texas Coronavirus Public Resources Page — Texasbar.com/COVIDHelp

Texas Lawyers’ Assistance Program Well-being Resources page — Texasbar.com/remote-well-being

Computer and Technology Section app free to all lawyers, paralegals, students through June — The State Bar of Texas Computer and Technology Section is offering its app designed to deliver Texas laws to users’ fingertips for free to Texas attorneys, paralegals, law students, and clerks through June 30. — Texas Bar Blog

Texas Supreme Court approves July Bar Exam, sets alternative September testing date — The Texas bar examination set for July will continue as scheduled, but an additional testing date also will be offered in September, according to the Texas Supreme Court’s 13th Emergency Order, issued Wednesday. — Texas Bar Blog

Texas lawyers take note: Deadlines extended under new coronavirus order from Supreme Court — The deadline extension is one new development under the 12th emergency order from the high court. (Subscription required) — Texas Lawyer

Induction ceremony for February 2020 Texas Bar Exam canceled — Because of the COVID-19 pandemic, the State Bar of Texas will not hold a swearing-in ceremony after the February 2020 bar exam results are released. — Texas Bar Blog

Zoom swearing in: New lawyers take the oath remotely — State Supreme Court Justice Brett Busby, in his judicial robe, administered the online oath from his office in Austin. (Subscription required) — Houston Chronicle

Ex-state judge asks for release on COVID-19 risks — Ex-state judge Rodolfo “Rudy” Delgado has formally requested to be released from the facility where more than 200 people have tested positive for the coronavirus. — The (McAllen) Monitor

6th Texas execution delayed as attorneys cite pandemic — Edward Lee Busby’s execution had been set for May 6, but it was stayed for 60 days by the Texas Court of Criminal Appeals on Monday. — The Associated Press

Texas restaurants, retailers and other businesses can reopen Friday. Here’s the rules they have to follow. — Parties of six or less, disposable menus and limited capacity are among the new rules businesses will follow if they open this Friday. — The Texas Tribune

States tell workers they’ll lose unemployment benefits if they refuse to return to jobs — According to the Texas Workforce Commission, to qualify for unemployment benefits in the state, a worker must be “willing and able to work all the days and hours required for the type of work you are seeking.” — The Hill

Labor lawyer explains options for workers who do not feel safe returning to work (video) — Attorney says workers who choose to stay home may lose unemployment benefits unless they provide specific information. — KYTX – Tyler

Coronavirus in greater Houston: Montgomery County to reopen all businesses Friday, citing governor’s ‘vague’ order — Montgomery County Judge Mark Keough on Tuesday said he was preparing to reopen all businesses in the county, saying Gov. Greg Abbott’s executive order lifting only some restrictions on business was too vague. — Houston Public Media

Commentary: Mediating in the wake of COVID-19 — Videoconferencing is a “cooler” medium than more traditional mediations. Table-pounding theatrics come across poorly in videoconferences. — Alternative Dispute Resolution blog

As coronavirus continues to spread, doctors urge Americans to get a living will (video) — As the coronavirus pandemic continues to escalate, doctors around the U.S. are joining lawyers and financial advisors in urging Americans to create essential documents that can help medical providers better coordinate their care. — CNBC

Loopholes in small business relief program allowed thriving companies to cash in (audio) — The Paycheck Protection Program has helped many companies. But the law’s fine print didn’t close all loopholes. — NPR

Texas Supreme Court extends moratorium on evictions until May 18 — Housing advocates say they are still concerned about cases of harassment and the longterm housing safety of vulnerable Texans. — The Texas Tribune

Advocates say Trump isn’t wasting time to snatch land for border wall even during pandemic (audio) — Advocates say the administration is ramping up lawsuits against South Texas landowners to take their land for border wall construction and is accelerating the approval of construction contracts. — Texas Public Radio

Gov. Greg Abbott ends self-quarantine mandate for travelers from Louisiana — Starting Friday, road and air travelers entering Texas from Louisiana will no longer have to self-quarantine for 14 days. — The Texas Tribune

‘It’s frightening.’ Quarantined ICE detainees in El Paso share their stories. (audio) — Women held by Immigration and Customs Enforcement in El Paso are expressing growing concern after several detainees tested positive for COVID-19. — Texas Standard

Subscribe

To keep up on the latest legal news from around the state, sign up for the State Bar of Texas’ Daily News Briefing by clicking here.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

from Texas Bar Today https://ift.tt/35iutRd
via Abogado Aly Website

Texas Supreme Court approves July Bar Exam, sets alternative September testing date

Originally published by Amy Starnes.

The Texas bar examination set for July will continue as scheduled, but an additional testing date also will be offered in September, according to the Texas Supreme Court’s 13th Emergency Order, issued Wednesday.

The second testing date allows the Texas Board of Law Examiners to employ social distancing and other health considerations that will limit by about half the number of graduates who normally take the exam in July, according to the court.

The order sets out that some applicants may no longer wish to take the July exam due to personal health considerations and makes provisions for them to take the September examination or postpone to another future date in Texas. The alternative testing dates will be September 9 through 11, location to be determined. Applicants who choose to take the July exam will be allowed to do so based on their registration date.

The order also adopts revised rules to govern who can practice law under supervision while waiting to take the exam.

Read the full order here.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

from Texas Bar Today https://ift.tt/35e2oKT
via Abogado Aly Website

Texas Reopens: What Businesses Need To Know

Originally published by Emily Harbison.

On April 27, 2020, Texas Governor Greg Abbott announced details of his plan to reopen Texas businesses in phases, so long as the COVID-19 outbreak can be sufficiently contained in the process. In conjunction with the release of the “Open Texas” strategic plan, Governor Abbott also issued three executive orders on April 27, 2020, each aimed at balancing measures to reopen sectors of the state while maintaining sufficient protections. Below are key provisions of the Open Texas strategic plan and the related executive orders. Please use the following links to access the full text of the Open Texas strategic plan and each of Governor Abbott’s executive orders.

 

“Open Texas” Strategic Plan

As a general comment, while the Open Texas strategic plan is long and detailed, aside from the categories of businesses that may open and the stated capacity limitations, most of the included business reopening practices are “recommended” not mandated.

The Open Texas strategic plan will operate in phases, such that if testing does not indicate increased spread of COVID-19 during this preliminary reopening effort, occupancy limits for reopened businesses will be raised from 25% to 50% in two weeks. To this end, the strategic plan adheres to the continued theme of keeping safe distances from others and taking preventative measures against infection regardless of what you are doing.

Perhaps most importantly as it relates to the current patchwork of city, county and other local ordinances, the Open Texas strategic plan supersedes any such conflicting orders.

Training and Supporting Employees

Employers should train employees regarding proper cleaning and disinfecting practices, preventative hygiene, and respiratory etiquette. All businesses should train employees and implement policies for frequent and diligent disinfecting procedures, which include all regularly touched surfaces, restrooms, and any items/products that customers touch. Employees should continue to maintain a six-foot distance from other employees and patrons alike. Where such social distancing is not possible, employers should ensure that face covering, hand hygiene and other measures are taken. Regardless, employers should also consider having all employees wear cloth face coverings. Employers should have hand sanitizer, soap and water, or similar disinfectant readily available to all employees and customers.

Signage regarding best hygiene practices is also encouraged. If providing meals to employees, these meals should be individually wrapped for each employee.

Screening Employees

Employers should screen all employees before they are permitted to come into the business. If an employee has been diagnosed with COVID-19 (or exhibits COVID-19 symptoms, but has not been tested), the employee should be sent home and not be permitted to return to work until all of the following conditions are met:

• the employee has been naturally fever-free for at least 72 hours;
• the employee’s respiratory symptoms have improved; and
• a minimum of seven days have passed since the symptoms first appeared.

While the order recommends that employers “screen” employees, it does not explain what such screening measures employers should implement.  At a minimum, employers should ask employees whether they are experiencing any symptoms of COVID-19 (e.g., fever, cough, shortness of breath, etc.). Some employers may also consider taking employee’s temperatures or even testing for COVID-19.  Because these screening measures constitute medical examinations and inquiries under the Americans with Disabilities Act, employers need to ensure the ADA is followed.

If an employee has COVID-19 symptoms and desires to return to work before meeting the above conditions, the employee should obtain a medical professional’s note clearing the employee to return based on an alternative diagnosis.

If an employee has come into contact with another individual with a confirmed case of COVID-19, the employee should not be allowed to return to work until they have self-quarantined for 14 days following the last date of exposure, unless that employee is a healthcare or critical infrastructure worker.

In addition to the above, employers should also be mindful of federal and state employment and workplace safety laws. For example, under OSHA, employers have a duty to provide a safe and healthful workplace that is free from serious recognized hazards, which would include COVID-19.

Retailer Guidelines for Serving Customers

Non-essential retailers, including shopping malls, are now permitted to reopen and operate up to 25% of their total listed occupancy. In reopening, retailers are encouraged to consider:

• dedicated hours or special delivery procedures for at-risk customers,
• contactless payment methods,
• regularly disinfecting highly-touched areas and items that customers come into contact with,
• providing hand sanitizer, soap or other disinfectants to employees and customers, and
• signage regarding proper preventative hygiene.

Restaurant Guidelines for Serving Customers

Restaurants may now open for dine-in service for up to 25% of the total listed occupancy of the restaurant. In doing so, restaurants should offer a hand sanitizing station at the entry of the restaurant. No tables may contain more than six patrons, and parties should remain six feet apart at all times, including while waiting to be seated. The following dining considerations should also be followed:

• silverware, flatware, glassware and other table-top items should not be left on unoccupied tables,
• condiments may be provided only upon request, and only in single-use portions,
• only disposable menus may be used, and menus should be discarded after each use, and
• if a buffet is offered, employees should serve the food to customers.

The use of contactless payment methods is encouraged. Valet parking is not permitted except for vehicles with disabled parking placards or plates.  Restaurants may consider having an employee open the door to avoid allowing patrons to touch door handles. Restaurant employees should additionally wash or sanitize their hands upon entering the restaurant and in between interactions with customers.

Additional Activities

Movie theaters are permitted to operate up to 25% capacity, but should ensure that movie-goers are only permitted to sit in every other row and maintain a two-seat minimum space between unrelated parties. Food service at movie theaters should follow guidelines similar to those applicable to restaurants. Museums and libraries may also operate at 25% capacity, but should close interactive or hands-on exhibits. Non-contact outdoor sports may resume, provided they include no more than four players. Golf courses, in particular, should take precautions to disinfect carts and driving range balls; and golfers from different households should practice social distancing by not riding together in a golf cart.

Executive Orders

Executive Order No. GA-18

Executive Order No. GA-18 implements the above-described Open Texas strategic plan, detailing which businesses may reopen and the manner in and extent to which they are permitted to do so.

Under this order, all persons are still required minimize to social gatherings and in-person contact with those not in the same household, except to provide or obtain previously defined “Essential Services” or newly defined “Reopened Services.” “Reopened Services” include, in addition to the in-store retail services, restaurants, and venues mentioned above, single-person offices, local county and municipal government operations, and religious services. The order states that people must still avoid bars, gyms, public swimming pools, bowling alleys, video arcades, massage establishments, tattoo studios, piercing studios, or cosmetology salons. People are also not allowed to visit nursing homes or long term facilities at this point.

As with previous executive orders, this order requires people and businesses to continue to follow minimum standard health protocols recommended by the DSHS, continue to social distance, work from home, if possible, and practice good hygiene. This executive order reiterates that drive-through, pickup, or delivery options are highly encouraged. The order also emphasizes the importance of these precautions for those 65 and older, adding that such persons should stay home and maintain an appropriate distance from any household member who has been outside the household in the past 14 days.

This order supersedes any local order that mandates closure of any businesses now permitted to reopen, that attempts to expand the types of businesses permitted to reopen, or that allows any gatherings prohibited by the state-wide order. In addition, the order explicitly states that while use of masks is highly encouraged, “no jurisdiction can impose a civil or criminal penalty for failure to wear a face covering.”

The order takes effect immediately and terminates on May 15, 2020.

Executive Order No. GA-19

Under Executive Order No. GA-19, all licensed health care professionals are allowed to resume normal business, provided they comply with any emergency rules promulgated by their respective licensing agencies dictating minimum standards for safe practice during the COVID-19 disaster. This order supersedes the Governor’s previous Executive Order No. GA-15, issued April 17, 2020, which required all licensed health care providers and facilities to postpone all procedures that were not medically necessary to protect a patient’s life or prevent serious adverse medical consequences.

Additionally, the order requires that hospitals reserve at least 15% of the facility’s capacity for treatment of COVID-19 patients.

This order takes effect on May 1, 2020 and will remain in effect until otherwise modified or rescinded.

Executive Order No. GA-20

Under Executive Order No. GA-20, any person flying to Texas from certain enumerated locations must self-quarantine for a minimum of 14 days. The affected departure locations include the States of California, Connecticut, New York, New Jersey, and Washington, as well as the following cities: Atlanta, Georgia; Chicago, Illinois; Detroit, Michigan; and Miami, Florida. This order supersedes and terminates Executive Order No. GA-12, which required a similar mandatory quarantine for travelers from the City of New Orleans or the State of Louisiana.

An exemption to the self-quarantine requirement is available to those traveling in connection with military service, emergency response, health response, or critical infrastructure functions.

This order takes effect on May 1, 2020 and will remain in effect until otherwise modified or rescinded.

Baker McKenzie Beyond COVID-19 Resource Center

Baker McKenzie has put together a global resource center for all key insights and upcoming webinars as a central repository to assist our clients understand, prepare and respond quickly to the significant legal and business challenges posed by COVID-19. Please use the following link to visit our Beyond COVID-19 Resource Center for additional resources. Baker McKenzie understands that these times are challenging for all our clients and we want to assure you we are here to assist.

See our new alert: The Reopening Playbook: What US Employers Should Be Thinking About Right Now.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

from Texas Bar Today https://ift.tt/2Yfukwo
via Abogado Aly Website