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COVID-19

Overview for Businesses

The world of yesteryear, yesterweek even, is gone. U.S. businesses have entered into an unprecedented period of physical closures, supply chain disruptions, and employee quarantines. In the coming weeks, businesses will wrestle with what contractual obligations they owe and are owed, how employment policies must be rewritten, what safety measures they must implement, where security vulnerabilities arise in newfangled virtual operations, how to invoke pandemic claim coverage under general liability policies, among many, many other novel business considerations.

Some of the questions we are already fielding and issues we are addressing with corporate executives, general counsel, and small business owners include:

  • Can I convert my employees to independent contractors so they bear the burden of paid leave?
  • Am I an independent contractor now that I’m working remotely?
  • If I closed my business before a governmental closure was issued, in order to protect employees and customers, am I still covered under my insurance policy? Or did my early closure amount to a waiver of this coverage?
  • What is force majeure? Is coronavirus COVID-19 an Act of God? Is coronavirus COVID-19 a contamination?
  • Am I liable for employees who get sick at my business? Am I liable for customers who get sick at my business?
  • How do I prevent a data breach and/or keep from getting hacked now that all my employees are working from home?
  • Because my business is in high demand due to the outbreak, can I expect all of my exempt employees to work nights and weekends to meet demand?
  • What negligence standards can you expect in a pandemic?

This page will serve as an ongoing and regularly updated Business Guide to Coronavirus. We invite you to bookmark this summary of resources and ever-evolving situational analysis.

How infectious is it?

Early intervention is critical. Explore the epidemiological impact of changing transmission and clinical dynamics with this interactive Epidemic Calculator. Play with the inputs and you’ll find that early intervention and reducing the R0  value are critical factors in decreasing transmission.

At this point many nations are in a pitched battle to slow the spread to prevent the collapse of their healthcare systems. As we’ve seen, there’s an economic cost to society for actions that slow the spread, and we’ve also seen a tremendous cost of inaction or delayed action. So where are things headed?

As is often the case, it depends. It depends on the actions of governments, businesses, and individuals, and many approaches are being proposed and applied.

One particular suppression strategy, the Hammer and the Dance, recommends swift, aggressive action (think lockdown) to control the outbreak (“the hammer”) followed by a balance between a return to normalcy and suppressing the spread (“the dance”). By using this strategy, a short hammer followed by a longer dance may slow the spread, limit the burden to the healthcare system, limit the economic impact, and buy time to develop effective treatments and vaccines.

 

(1)  Rybicki, E., The classification of organisms at the edge of life or Problems with virus systematics. South African Journal of Science, 1990; Vol. 86, pp 182-186.

Why the “corona” of “coronavirus”?

Virions are generally much smaller than bacteria (about 1/100th the size); due to their small size, virions can’t be observed with a microscope using light, but must be observed with a microscope using a beam of electrons, termed an electron microscope. When viewed under a transmission electron microscope, coronavirus virions appear with a “halo” akin to the halo of the Sun’s corona, which is visible to the naked eye during a total solar eclipse.

Is the coronavirus just like a cold or flu?

No, not “just like” them, though there are similarities. While symptoms of the flu can be similar to COVID-19, the flu is caused by influenza viruses, not a coronavirus. The Spanish flu of 1918 and Swine flu of 2009 were caused by H1N1, a strain of influenza virus(2).

Of the seven known strains of human coronavirus, four produce symptoms of the common cold, and three produce more severe symptoms. These three include the Middle East respiratory syndrome-related coronavirus (MERS-CoV), the Severe acute respiratory syndrome coronavirus (SARS-CoV), and Severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2). SARS-CoV-2 was also called the “novel coronavirus 2019” (2019-nCoV), and is the causative agent of the current pandemic. These strains differ in key ways.

 

(2)  Jilani, T.;  Jamil, R.; Siddiqui, A., H1N1 Influenza (Swine Flu). In StatPearls, 2020.

What’s the difference between SARS-CoV-2 and COVID-19?

SARS-CoV-2 is the virus that causes the disease Coronavirus disease 19 (COVID-19).

How fatal is it?

While many infected with the virus may be asymptomatic or develop cold- or flu-like symptoms, other symptoms (upper respiratory, nausea, vomiting, and diarrhea) have been observed(3). A startling number of cases are more severe, and in some cases the disease progresses to pneumonia, respiratory failure, multi-organ failure, and death.

The case fatality rate depends on many factors, including gender, age, underlying health conditions, and availability of healthcare. While not all cases are diagnosed, resulting in a potentially overestimated fatality rate, reports of the symptomatic case fatality rate range from 0.8% to 3%, and age correlates strongly with increased risk(4).

 

(3)  Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19); World Health Organization (WHO): 16-24 February 2020.

(4) The Epidemiological Characteristics of an Outbreak of 2019 Novel Coronavirus Diseases (COVID-19) – China 2020. China CDC Weekly: 2020; Vol. 2, p 113-122.

What’s a virus?

I think of viruses as incredibly efficient tiny replicating machines. They are particularly efficient because a viral particle, or virion, packs only the essentials, namely genetic material inside a protective coating, as it journeys into a living cell and hijacks that host cell’s machinery for its own purposes.

Characteristics of viruses range broadly – viruses exhibit different shapes and sizes (“morphologies”), types and amounts of genetic material (e.g. DNA, RNA), and mode/timing of replication and release from the host cell. Systematic classification of viruses proves challenging due to this immense diversity, and they have been described as “organisms at the edge of life”(1).

How infectious is it?

This is a key way viruses differ. How many people will become infected given one infected person in a population of individuals susceptible to infection (so no vaccination campaigns or naturally immunity)?

This is known as the basic reproduction number and denoted by R0 (“R nought”)(5). This metric is a number, not a rate, and varies dramatically across diseases. The R0 is reported as a range, and for SARS-CoV-2 this value may range from 1.4 to 3.9. The lower the R0 the better the chance of reducing the spread and impact of the virus, and measures currently being taken across the globe are aimed at lowering the R0.

 

(5)  Milligan, G.; Barrett, A., Vaccinology: an essential guide. Wiley Blackwell: Chichester, West Sussex, 2015.

RESOURCES

In nearly every set of non-money money clauses you’ll find a force majeure clause. To help understand the concept, just think “Force Majeure, Monsieur Pepe Le Pew!” That may give you the visual of an uninvited skunk contaminating everything in its sight, which is the essential nature of force majeure. When Pepe the skunk, in lawyer jargon an “act of God,” disrupts your ability to perform a contract, you may be excused from obligation depending upon how the force majeure is defined in the contract, subject to state law.

THIS IS NOT LEGAL ADVICE.

WE ARE NOT YOUR LAWYERS. NOTHING IN YOUR REVIEW OF THIS ARTICLE ESTABLISHES A LEGAL RELATIONSHIP BETWEEN ANY ONE OF US AND YOU. WE PROBABLY DON’T EVEN KNOW YOU, BUT WHO’S TO SAY WE CAN’T BE FRIENDS? NOTHING IN THIS ARTICLE IS WARRANTED TO BE ACCURATE IN ANY WAY, AND THOUGH PRACTICALLY UNLIKELY, IT IS POSSIBLE THAT THE SUBSTANCE OF THE ARTICLE CAN KILL, HARM, MAME, OR OTHERWISE DEFEAT YOU, PARTICULARLY IF YOU ARE READING IT WHILE ON A SCOOTER. YOU SHOULD NOT RELY ON ANYTHING IN THIS ARTICLE WITHOUT INDEPENDENTLY DISCUSSING IT WITH YOUR LAWYER. YOU PROBABLY SHOULD HAVE ALREADY BEEN IN TOUCH WITH A LAWYER BEFORE READING THIS ARTICLE. LAWYERS ARE A GOOD THING – ALSO NOT LEGAL ADVICE.

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