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Utah Leads Together – The Next Legal Issues and Concerns for Business Salt Lake Chamber of Commerce May 27, 2020 Mark R. Gaylord, Managing Partner Salt Lake Office Litigation, Labor & Employment Practice

Leadership & Planning The first steps in returning to work require careful planning and leadership.

Leadership & Planning

§ Starts at the top. § Establish a team or task force to oversee planning, execution and monitoring § Conduct COVID-19 risk/hazard assessment § Create the Reopening Plan •  Landlord/Tenant relationships

§ Undertake regular monitoring and updates § Document the process

Reopening Plan § Health and safety mitigation measures •  Landlord/Tenant (lobby, elevators, public spaces)

§ COVID-19 response process § Staffing (e.g., security, janitorial, screening) § Workplace screening and testing issues § Leave and other employee concerns § Transition from remote to in-person operations § Recall and rehiring processes § Communication and education plan § Consider retrenchment, if needed

Policies & Protocols § Testing/Question Symptoms Upon Entering Workplace § Social distancing § Hand washing § Cleaning & sanitation § PPE (face coverings, gloves) § Scheduling, breaks, shifts, interaction § Workspace and movement (entry, exit, elevators, common space) § Emergency response plan § COVID-19 “Open Door” policy § ADA and accommodation requests § Leave and attendance policies

Monitoring

§ Regular and ongoing review of guidance – public orders, CDC, OSHA, etc. •  Governor’s Phasing Plan •  Adjust reopening plan based on changes

§ Be prepared to address issues as they arise •  Consider “coordinators” in departments and facilities to oversee compliance •  Establish “open door” policy to report, investigate, remediate issues and complaints

§ Media/PR issues

Liability Mitigation

§ Third Party Agreements •  Staffing agencies •  Lease agreements (common space) •  Cleaning and janitorial •  Screening and testing vendor

§ Insurance •  Workers’ compensation coverage (employee infections) •  General liability coverage (infection of customers, vendors, third parties)

Signs/Postings

§ Posting reminders about the new policies in the workplace, such as reminders to wash hands and social distance, one direction hallways, break/ lunch rooms § OSHA industry specific posters § DOL FFCRA/Employee Rights poster

NLRA: Protected, Concerted Activity § Refusing to work based on safety concerns – objective standard § Invoking health/safety provisions of the CBA § Speaking to the media about PPE § Walk-outs to protest an employer’s handling of the pandemic § Sick-outs § Demanding hazard pay and safety gear § Demanding paid leave for COVID-19

Visit Our COVID-19 Disease Resource Center

Ballard Spahr COVID-19 Resource Center

Questions?

Protecting Vulnerable Persons Sean A. Monson â€“ Employment & Labor Practice Area Chair

Vulnerable Persons § Vulnerable persons •  Employees •  Those who live with employees

§ Vulnerabilities •  60 or older •  Immunosuppressed or compromised •  Heart disease, lung disease, kidney disease, cancer, diabetes, asthma, lupus, rheumatoid arthritis, cystic fibrosis, Crohn’s disease, AIDS/HIV, severe obesity

§ List is always changing—stay informed

Vulnerable Persons § The federal and state mandates/ recommendations provide that employers should protect vulnerable employees and their family members •  As Utah goes into a new stage those who are vulnerable to the virus need to be protected. •  Special accommodations for these employees should be made in the workplace if they are unable to work from home.

Vulnerable Persons § The law limits what you can do •  Treating someone 60 or older differently (without a request) could be age discrimination •  Treating someone who is pregnant differently (without a request) could be pregnancy discrimination •  Treating someone with an underlying condition differently (without a request) could be disability discrimination •  Asking someone about their underlying conditions could violate the ADA

Vulnerable Persons § So how can you protect employees and their family members •  Continue teleworking to the extent possible •  Allow flexibility to the extent possible •  If possible, use a volunteer program for coming back to work •  Ask a series of questions with a single yes or no answer—not required to disclose reason •  Let employees know that they can request an accommodation under the ADA or your own policies—teleworking, extra cleaning, extra social distancing, changing work, changing schedule •  Consider whether FFCRA (Response Act) coronavirus leave applies

ADA Accommodations § Employees can self-disclose disabilities and request accommodations •  Employers must engage in the interactive process with employees who request reasonable accommodations, determine if the have a disability under the ADA, and accommodate the request if doing so would not create an undue hardship for the employer’s operations. •  Employers should also engage in a similar process with vulnerable employees as the government has requested •  Examples: designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between coworkers whenever feasible;

Refusing to Work § What if an employee refuses to work? •  Proceed cautiously •  Talk to the employee •  Listen for potential requests for ADA accommodations •  If there is no ADA issue and the employee is simply “scared” you can take action

Sean A. Monson 801.536.6714 smonson@parsonsbehle.com

Thank You

Utah Leads Together: The Next Legal Issues and Concerns for Business § “Managing the Supply Chain”

Troy Keller

Trends: Macro-Micro Observations Issue

Macro Perspective

Micro Perspective

Working Capital

Companies are more aggressively managing inventories Depending on industry and where you are in the and working capital. Pricing is generally deflationary, supply chain, your leverage for changing pricing terms plus significantly delayed payment terms. will vary. Contracts matter to an extent.

Industry Disruption

Travel, automotive, oil & gas, retail, medical among Some industry disruptions, like travel, will impact industries severely disrupted. Government bailouts not nearly everyone (time for a corporate jet?). Others a perfect solution. may not impact your business.

Trade & Investment Policy

COVID has elevated rhetoric between US & China (though phase 1 deal remains intact for now). Current trends suggest building of stronger North American supply chains. Buy American policies and tighter enforcement of antitrust and CFIUS. Similar trends abroad.

For those backward integrated into China, many are considering other options. However, it remains difficult to imagine a full shift away.

Phased Opening of Economy

Future outbreaks/spikes may put some locations (back to) red, leading to additional uncertainty in the supply chain.

If your business is in a critical industry, supply chain partners will have the same classification, but not necessarily your customers. Logistics can also be impaired.

What You Can Do Now •

Form working team to assess your situation from all angles

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Analyze contracts

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What rights do you have (that can reasonably be enforced)?

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What if you don’t have a contract?

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Consumer agreements challenged by new types of lawsuits

Some important legal principles: –

“Impracticability / Impossibility”

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“frustration of purpose”

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“force majeure”

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“economic duress”

UTAH LEADS TOGETHER: THE NEXT LEGAL ISSUES AND CONCERNS FOR BUSINESS Wednesday, May 27, 2020 | 2:00 â€“ 3:00 pm Sherilyn Olsen, Partner

NEGOTIATING WITH YOUR CREDITORS

Communicate! Forbearance Agreements Loan Modifications Chapter 11 Bankruptcy 25

NEGOTIATING WITH YOUR CUSTOMERS

Communicate! Demand Letters Negotiate Repayment Terms Legal Remedies 26

CUSTOMER FILES FOR BANKRUPTCY, NOW WHAT?

The debtor wants its payment back? Can I do business with the customer after they file?

Will I be paid the $ I am owed?

Can I get my stuff back?

ANY QUESTIONS? THANK YOU!

SHERILYN A. OLSEN 801.799.5818 solsen@hollandhart.com