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WHAT WE DO

HospitalityLawyer.com® converges legal, safety, and security solutions for the hotel, food and beverage, private club, meeting, event, and corporate travel industries.

We are a worldwide network of attorneys that focus on hospitality, travel and tourism issues; a marketing conduit for suppliers of legal, safety and security solutions to reach hospitality developers and operators in need of those solutions; we mitigate critical incidents, injuries, litigation and liability within the hospitality industry, in the U.S. and abroad by facilitating the creation, collection, and dissemination of legal, safety and security information, products and services.

WEEKLY SPOTLIGHT

Attorney of the Week
Bruno Katz

Bruno Katz maintains a diverse business litigation practice that includes labor and employment, professional liability, corporate litigation and complex, multi-party litigation. Bruno represents a wide variety of clients, including hospitality companies, insurance brokers and agents, real estate agents, utility companies, attorneys, transportation companies and pharmaceutical/home health care companies. Bruno, a captain in the Navy Reserves with the Judge Advocate General’s Corps (JAG), is currently serving as the Staff Judge Advocate for Commander, Navy Region Southwest Reserve Component Command (NRSW RCC). NRSW RCC is the headquarters command for approximately 12,000 selected reservists administered by 19 Navy Operational Support Centers throughout Arizona, California, Colorado, Hawaii, New Mexico, Nevada, Utah and the Territory of Guam. Bruno serves as the senior Judge Advocate and legal adviser to NRSW RCC as well as a Deputy Assistant Judge Advocate General for Reserve Affairs and Operations. Bruno has been a member of the JAG Corps for 25 years in an active duty and a reserve capacity. He has been the commanding officer of two reserve legal units, both of which were awarded the Rear Admiral Gilbert Cup as the best reserve unit in the nation. He is also the 2010 recipient of the Judge Advocate General’s Association’s Outstanding Senior Officer Award.

Law Firm of the Week
Messner Reeves

At Messner Reeves, our core values drive our business. We are confident in the knowledge that we have a single-minded commitment to provide the best legal service possible. We understand business. We are energetic, available, accountable, and solution-oriented. We work to earn the trust of our clients. At Messner Reeves, we value each person for their unique ideas, different backgrounds, and embrace anyone who is willing to work hard. The inclusion of people with different perspectives and experiences strengthens our firm as a whole and results in more innovative and creative solutions for our clients. We have long recognized that attracting and promoting diverse attorneys through mentoring, business development training, and client service opportunities create a culture where all can flourish. This focus has been instrumental in Messner Reeves’ growth and success. We do our best to promote diversity, but in the end, our top priority remains to provide the highest level of service and solutions to legal and business challenges.

Company of the Week
Ethics Suite

Ethics Suite was created because there is a better way to manage misconduct reporting between employer and employee. With nearly three decades of experience investigating whistleblower and misconduct-related investigations, Juliette Gust and Tricia Fratto developed the first incident reporting system developed to be fully customizable for every industry. When a company offers an incident reporting system, it empowers employees to report fraud, theft, embezzlement, and unethical behavior without fearing retaliation. Since inception, Ethics Suite helps businesses across dozens of industries form a trusted line of communication between management and their employees. Ethics Suites’ goal is to provide companies with the tools and know-how to take charge of their organization’s commitment to an ethical business environment. Using the Ethics Suite incident reporting system, businesses monitor workplace behavior and make changes before issues become costly or public. When you protect your employees and put your business first, your company flourishes. With nearly 30 years of combined legal and forensic accounting experience in whistleblowing and misconduct related investigations, Juliette Gust and Tricia Fratto realized a management system that is simple and affordable enough for any business to implement and maintain is needed for every organization. Using their combined experience, they created Ethics Suite to give businesses the tools needed to put their company and employees first. Are you ready to invest in your company’s future?

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Browse our resources for articles and white papers, access training and downloadable forms and solutions to assist in mitigating liability, and check out our groundbreaking conferences for intensive education, exceptional networking, and unequaled crisis management training.

Subscribe to our CONVERGE Blog and Newsletter for valuable insights from hospitality and travel risk management experts. Our blog features exclusive content from our contributors, who collectively represent the full spectrum of hospitality law, risk management and comprehensive duty of care solutions.

FROM OUR CONVERGE BLOG
Our CONVERGE BLOG focuses on legal, safety, and security challenges for Hospitality, Travel, Travel Vendors and Corporate Travel Buyers as individuals and businesses.
Our blog features exclusive content from our contributors, who collectively represent the full spectrum of hospitality law, risk management and comprehensive duty of care solutions.

Branded Residence in Egypt Legal Framework

  1. Introduction

Egypt’s real estate market has been witnessing a great development during the last few years. New types of investment are increasingly evolving; among them is the branded residence associated with rental pool arrangements. In this type of investment, a luxury brand name of a hotel is licensed for use on a residential development. The hotel operator collaborates with the developer to provide full range of hospitality services and activities.

A residential development will consist of branded fully furnished units (“Units”). Units sold to private investors (“Owner”) will be managed by the brand operator (“Operator”) as serviced units to the extent and as long as these are kept in the rental pool. Another part of the Units can remain owned by the developer of the project (the “Developer”) to form a guaranteed number of Units for the management of Operator regardless of the rental pool.

The concept of ‘branded residence’ will raise several legal questions; among them the legal nature of the branded residence and whether it will be considered a hospitality or hotel facility.

Branded residence scheme has several
advantages for all stakeholders.

The Operator will usually have two main concerns: first, how to ensure control over the operation and maintain the ‘branded residence’ up to the brand standards; and second, how to avoid direct legal relations with the multiple Units. The Operator will therefore be keen to retain the Developer as owner of various shared facilities and common areas of the branded residence component as well as to have the Developer as a contracting party with the Owners or any Owners’ union.

The concept of ‘branded residence’ will raise several legal questions; among them the legal nature of the branded residence and whether it will be considered a hospitality or hotel facility.

Another question to consider is the common property (strata) title and management rules under Egyptian law and the role of the owners’ union in this respect.  Also, how the contractual arrangements and legal documentations can be structured to accommodate the interests of the different stakeholders. This Article will try to answer these questions briefly.

Branded residence takes several forms. It may have a hotel component (hotel + branded residence) or standalone. In this article we will be focusing on the stand alone projects.

2. Does Branded Residence Fall into the Hospitality Class?

The concept of a branded residence is relatively new in Egypt and it is therefore not subject to specific regulations. A legal framework for the concept however can be created under the general rules of contract, the real estate and hospitality laws and regulations.

Hospitality and hotel facility ownership and operation is a highly regulated area in Egypt. According to the Hotel and Touristic Facilities Law No. 1 for 1973, a hotel facility may not be established, constructed, used, marketed or managed without obtaining a license from the Ministry of Tourism (“MOT”) as the competent regulator.

A hotel facility is defined in the law to include hotels, pension, and villages, floating hotels, cruise ships as well as houses and furnished apartments which are permanently allocated for the residence of tourists. The law however does not define the term ‘tourist’ nor does it clarify the criteria for a ‘permanent allocation’ or its minimum duration.

There is a possibility therefore that a ‘branded residence’ be considered as comprising furnished apartments that are allocated for tourists and therefore constitutes a hotel facility. In this case, the residences will not be established without a license from the MOT, and their management must be through a licensed company.

The current interpretation of the regulatory authorities is that a license from the MOT will be required only if the branded residences consist of a hotel component and branded units (Hotel + branded residence). The license in this case will be limited to the establishment and management of the hotel rather than the associated branded units which will be established and managed as non-hotel units and will not fall under the authority of the MOT.

3. Common property (strata) title under Egyptian Law

The terminology ‘strata’ is referring to individual ownership of part of a property (generally an apartment or a house), combined with shared ownership in the remainder common areas (e.g. foyers, driveways, stairs and gardens).

The Egyptian Civil Code (the “Civil Code”) contains detailed rules governing common/shared ownership as well as the management thereof. The rules under the Civil Code are applicable on all kinds properties whatever its purpose, i.e., residential and non-residential.

Management of the common property is bestowed on all co-owners collectively. Decisions related to the management of a common property shall be taken by the majority vote of the co-owners, and a decision of the majority will be obligatory to all owners in this case.

Majority co-owners shall have the right to appoint a manager for the common property and to set rules for the management and efficient use of the common property. The maintenance and management costs as well as the taxes on the common property will be borne by all co-owners pro-rata with their ownership percentage.

Occupant Union

In addition to the general rules for management of common ownership under the Civil Code, the Building Law No. 119 for 2008 (“Building Law”) contains detailed provision governing owners associations. The Building Law applies on residential as well as commercial and administrative properties. It however does not apply to tourists or hotel facilities.

According to the Building Law, a building, a development or a gated compound (the “Development”) which consist of 5 units or more are mandatorily required to establish a union for the occupants (the “Union”). 

The Union is responsible for the management, maintenance, safety and use of the Development including the shared parts and facilities. It is also responsible for ensuring the restoration of the Development, keeping its architectural design and providing the required services thereto.

For integrated residential compounds, the Union is required to take the form of a company. The owners of the Units in the compound will coordinate with the Developer to establish the company. Each owner will pay a share in the company’s capital equal to the percentage of the area of unit to the total area of the compound.

The Union will have a general assembly consisting of all owners/tenants of the Units. The general assembly will appoint a board of directors for the daily management of the Development.

Each unit will have a vote in the general assembly calculated on the basis of the percentage of the area of the unit to the total area of the Development. The area of the unit which is allocated for commercial and administrated use shall have double the vote of the residential unit.

4. Branded Residence Legal Documentation

How to preserve the Operator’s right to operate and manage the Units

The unit sale agreement between the Developer and the buyer of the Unit may include a management statement committing the buyer to engage the Operator to manage the residences and the common areas and impose rules and regulations governing the use of the Units and the behavior by the Owners.

The Operator’s right to operate and manage the Units can also is ensured through a residence management agreement with the Developer and/or the Union whereby the Operator is engaged to manage the common areas and shared facilities.

In a rental program agreement with the Owners who opt for the rental scheme, the Owners can delegate the Developer to act as a tenant on their behalf. An acknowledgement by the Owner that the operator will be the branded operator of its Unit should be clearly stated in such rental agreement.

How to maintain control over shared facilities

The Unit Sale Agreement can provide clearly that title on the common areas will be with the Developer. In this way, shared facilities (like spa, gym, pool etc.) will remain under the control of the Developer.

The diagram below provides an illustrative example of the main contractual relations and contractual documents that one can see in a branded residence project, although this can vary depending on each deployed scheme.

How to deal with multiple participants in the rental pool structure

The Developer can act as intermediary between the Owners, the Union and the Operator through the following contractual structure:

  • Developer will be a tenant of the Unit kept in the rental pool, and will be voting on behalf of the Owner at the general assembly of the Union.
  • The Developer (or its representative) will be appointed as the Union’s Chairman to manage the day-to-day aspects of the Development and the common areas and facilities.
  • The Union, which should be controlled by the Developer, will contract the Operator as the manager of the Development.

The Operator may also agree with the Developer to keep the ownership of a particular number of Units in the Development as a guaranteed source for the Operator’s business in future, regardless of the rental pool.

How to preserve the branded unit in the rental pool

In order to protect the Operator right, a rental agreement shall be entered into with the Owner. A requirement that the Owner remain in the ‘rental pool’ for a period of time is generally legal and enforceable as long as it is for a fixed term and not eternal. There is no maximum duration that is mandated by the law. Withdrawal from the rental arrangement by the Owner during the agreed term can constitute a breach of contract. The rental pooling agreement can include a termination fee (liquidated damages) that will be payable by the Owner in case of withdrawal from the rental pool

Generally speaking, it is essential to agree on a transparent and equitable allocation of the cost and expenses attributable to the Units as well as the profit distribution in order to incentivize the Owner to continue in the rental pooling scheme.

Protection of the brand

Protection of the Operator’s brand can be ensured through contractual arrangements between the parties. A Marketing and Licensing Agreement will be entered into between the Developer and the Operator whereby the Operator agrees to license the use of its brand and marks to the Developer in connection with the marketing and sales of the Units against a license fee. This agreement will provide that the use of the brand is solely limited to the marketing and sales of the Units.

The unit sale agreement between the Developer and the buyer can provide, among others that the Owner or the Union is restricted from appointing an operator for management of the Unit which is the Operator’s competitor to create competition to the Operator by renting out the Unit for short periods.

Loss of brand and the right of termination and exit

In case of the loss of the brand for reasons not attributable to the actions of the Owner, claims may arise by the Owner who was marketed and purchased the Unit as a branded luxury residence at a considerable premium. The Owner can argue that it has reasonable expectations that the brand and the brand service standards will remain with the Unit and be available for future resale.

To mitigate this risk, agreements should include acknowledgement by the Owner of any potential loss that may result from losing the brand as well as a waiver of claim for loss or damages against the Operator in this case. Owners can also acknowledge that the Operator may terminate the association with the Development at any time and without the consent of the Owners.

A cross-default clauses in the Marketing and Licensing Agreement, the Unit Sale Agreement and the Common Facilities Management Agreement that a loss of the brand’s association with the Development will automatically results in termination of any rights to use the brand with the Units.


If you have any questions regarding this paper, feel free to contact

Dr. Fatma Salah
Partner
Tel: +202 37488521
Email: f.salah@riad-riad.com

.

Mohamed Abdelaty
Associate
Tel: Tel: +202 37488521
Email: m.abdelaty@riad-riad.com

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TTB Clarifies Trade Practice Enforcement for COVID-19-Related Activities

The Federal Alcohol and Tobacco Tax and Trade Bureau (“TTB”) published a May 8, 2020 Industry Circular #2020-3 titled, “Trade Practice Enforcement During COVID-19 Pandemic”, which provides helpful insight into the agency’s current stance on various trade practice issues during the COVID-19 pandemic.

The Industry Circular addresses five main categories of activity:

  1. Product Returns;
  2. Extension of Credit Terms;
  3. Furnishing Gift Cards to Consumers;
  4. Donations to Charities that Support Alcohol Beverage Retailers and Their Employees; and
  5. Hand Sanitizer.

Product Returns

TTB reinforces the position it initially announced in its March 13, 2020 newsletter, lifting the general prohibition against consignment sales by allowing returns of alcohol beverage products under two different scenarios:

  1. Return of alcohol beverages purchased to sell during events that were subsequently cancelled due to COVID-19; and
  2. Return of alcohol beverages by wholesalers and retailers who have closed or “substantially reduced operations” due to COVID-19.

Returns can be made for cash or credit against outstanding indebtedness as long as the original sale was not made with the privilege of return. However, the selling manufacturing or wholesaler is under no obligation to accept returns. 

Extension of Credit Terms

In light of state-level mandated closures for alcohol beverage retailers, TTB is raising the time limit on wholesaler credit extensions from the 30-day limit set forth in See 27 CFR 6.21(f) and 27 CFR 6.65 to a new 120-day limit. TTB makes it clear, however, consignment sales are still prohibited.

Extension of Credit Terms

In light of state-level mandated closures for alcohol beverage retailers, TTB is raising the time limit on wholesaler credit extensions from the 30-day limit set forth in See 27 CFR 6.21(f) and 27 CFR 6.65 to a new 120-day limit. TTB makes it clear, however, consignment sales are still prohibited.

Furnishing Gift Cards to Consumer

TTB’s advisory addresses consumer-focused charitable/relief efforts subsidized by alcohol beverage manufacturers or wholesalers, allowing these industry members to purchase pre-paid gifts cards for people in need so long as the gift cards are not tied to a particular alcohol beverage retailer, retailer group, or restaurant. This means a manufacturer could not buy $30,000 worth of gift cards redeemable only at the top restaurant selling its brands, and hand those cards out to consumers in need. However, the manufacturer could buy $30,000 worth of Visa gift cards and merely suggest (instead of mandate) the card-holders use the cards at a particular restaurant. In any event, the manufacturer or wholesaler is still prohibited from giving the gift cards to wholesaler and retailer officers, employees, or representatives.

Donations to Charities that Support Alcohol Beverage Retailers and Their Employees

Similar to the guidance provided regarding gift cards, the Industry Circular clarifies manufacturers and wholesalers cannot provide monetary donations to alcohol beverage retailers or their employees  directly.  However, TTB states it “will not initiate investigations” relating to donations to charities that support retailers or their employees during the effective period of this Industry Circular.   Of course, those donations cannot be a “quid pro quo,” or in other words “conditioned” on purchases of, or shelf space for, the industry member’s products.

Hand Sanitizer

The Industry Circular further clarifies alcohol beverage manufacturers and wholesalers are allowed to sell or donate hand sanitizer to consumers without violating trade practice laws, and also allows combo packs containing both beverage and non-beverage items like hand sanitizer.

Note the May 8th Industry Circular is only in effect from March 1, 2020 through September 30, 2020, with the possibility for extension as TTB may deem appropriate.


If you have any questions about the above, please do not hesitate to reach out to our Nationwide Alcohol Beverage Practice Group.

Download/print the full article here.

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Reopening Closed Buildings: Legionella and Other Health Risks

Reopening a closed building, or portions of a building, after an extended shutdown can be more complicated than just unlocking the doors and turning on the lights.  The unprecedented shutdowns and reduced operations at a wide variety of commercial buildings and structures, ranging from office buildings and retail stores to hotels and restaurants, as a result of the COVID-19 pandemic is an entirely unique situation.  Building owners and operators need to be aware of health risks, and corresponding legal liability risks, that can result from building closures, specifically Legionella (the cause of Legionnaires’ disease) and mold. 

The U.S. Centers for Disease Control and Prevention (CDC) has issued guidance calling attention to the increased risk of Legionella and mold associated with temporary building shutdowns and reduced operations during COVID-19.  The CDC warns that building inactivity resulting in reductions in normal water use and routine maintenance can give rise to microbial hazards for returning occupants.

Legionella and Legionnaires’ disease

Stagnant or standing water in a plumbing system can increase the risk for growth and spread of Legionella, a bacteria that can cause a serious type of pneumonia called Legionnaires’ disease as well as a less serious illness called Pontiac fever. In the ordinary course of business, most buildings heat and sometimes cool water that flows through pipes at a rate that maintains consistent, safe temperatures.  However, when the buildings are unoccupied and water is not flowing as readily, water sits in pipes and storage tanks longer.  Hot water can cool, and cold water sitting in exterior pipes or tanks can warm. This can cause water temperatures to rise or fall into the Legionella growth range (77–108°F, 25–42°C) and cause hazards in areas like cooling towers, showers, pools, hot tubs, and fountains. It can also lead to low or undetectable levels of disinfectant, such as chlorine, which kills disease-causing pathogens like Legionella.

Legionnaires’ disease is deadly in approximately 10% of cases. People with weakened immune systems are particularly at risk. It is important not only to protect guests and customers but staff and other building occupants.  Employees or service providers at increased risk of developing Legionnaires’ disease should consult with a medical provider regarding participation in flushing, cooling tower cleaning, or other activities that may generate aerosols. It may be necessary to wear a half-face air-purifying respirator equipped with an N95 filter, or an N95 filtering facemask, in enclosed spaces where aerosol generation is likely to occur.  Of course, obtaining an N95 filter or facemask can be challenging in the midst of COVID-19.

The CDC recommends steps to minimize Legionella risk when a business or building reopens:

  • Flush the water system through all points of use. Steps should be taken to minimize splashing and aerosol generation during flushing. This may include wearing a respirator or N95 facemask.
  • Properly maintain the water system, including regularly checking water quality parameters such as temperature, pH, and disinfectant levels.
  • Ensure water heaters are properly maintained and the temperatures are correctly set to at least 120°F, while also being mindful to prevent scalding.
  • Ensure cooling towers are clean and well maintained according to the manufacturer’s guidelines and industry best practices.
  • Ensure hot tubs and spas are safe for use. Follow the CDC hot tub disinfectant guidance available at the CDC website.
  • Clean all decorative water features, such as fountains, to ensure they are free of visible slime or biofilm. After the water feature has been re-filled, measure disinfectant levels to ensure the water is safe for use.
  • Ensure safety equipment, including fire sprinkler systems, eye wash stations, and safety showers are regularly flushed, cleaned, disinfected, and well maintained.

The CDC also recommends businesses develop a comprehensive water management plan (WMP) for the water system and all devices that use water. A WMP is a multi-step, continuous process designed to identify areas in a building where Legionella could grow and spread, reduce risk by managing and monitoring the water system, and trigger action when risks are identified. However, this is a longer-term solution rather than an immediate one.

Mold

Mold can grow on a variety of surfaces where there is moisture, such as ceiling tiles, wallpaper, insulation, drywall, carpet, and fabric.  Moisture can be caused by leaks or condensation from roofs, windows, or pipes, or from a flood, which may go unnoticed during a building shutdown. Mold can be particularly harmful to those with asthma, respiratory conditions, mold allergies, and weakened immune systems.

The CDC recommends steps to minimize mold risk during and after a prolonged building shutdown:

  • Maintain indoor humidity as low as possible, not exceeding 50%, as measured with a humidity meter.
  • Particularly in high moisture environments or environments where leaks and maintenance issues are common, buildings should be inspected, preferably by trained industrial hygienists, for mold and excess moisture prior to occupants returning. If dampness or mold is detected, address the source of water entry first. Clean up and remediation should then be conducted before the building is reoccupied.
  • A building HVAC system that has not been active during a prolonged shutdown should be operated for at least 48 to 72 hours before occupants return.
  • After a building is reopened and occupied, routine (i.e., weekly) checks of the HVAC system are recommended to ensure operating efficiency. If no routine HVAC operation and maintenance program is in place for the building, one should be developed and implemented.

The CDC guidance can be accessed here: CDC Guidance


Click here to view a downloadable PDF of the legal update.

This Environmental Alert is intended to keep readers current on developments in the law, and is not intended to be legal advice. If you have any questions, please contact David Rockman at 412.566.1999 or drockman@eckertseamans.comJessica Rosenblatt at 412.566.1911 or jrosenblatt@eckertseamans.com, or any other attorney at Eckert Seamans with whom you have been working.


AUTHORS

David A. Rockman, Member
David Rockman helps clients manage environmental compliance and environmental risks. He helps clients understand and meet their legal obligations with respect to federal, state, and local environmental laws, regulations, and permits. David also defends clients facing enforcement actions, represents clients involved in environmental litigation, and provides representation with respect to environmental issues in the purchase and sale of businesses and property.

Jessica Rosenblatt, Associate
Jessica Rosenblatt helps clients solve challenges arising under federal and state environmental laws. She advises on compliance issues, navigates permitting processes, manages environmental risks in transactions, and helps resolve environmental disputes and enforcement actions. Jessica guides clients through the multitude of regulations governing air and water quality, waste management, chemical spills, land contamination and other environmental liabilities.

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COVID-19 Exposure Control & Response Plan: What Is It and Why Does Every Employer Need One?

As states across the country begin to loosen or lift stay-at-home and shutdown orders, many workplaces that had been idled, have just begun to or will soon resume operations. Many states and localities are setting as a precondition for reopening, a requirement that they develop and implement a written, site-specific COVID-19 Exposure Control and Response Plan.

Regardless of any state or local requirement to develop such a plan, any business that operates without an Exposure Control Plan will be potentially exposed to a number of legal or business risks, such as an OSHA citation, being shutdown by a state or local health department, and/or becoming a target for a wrongful death action brought by families of employees, temporary workers, customers, vendors and/or guests. They should also plan to deal with a workforce that is scared and anxious about the company’s response to the COVID-19 pandemic, which may result in employees refusing to work (which would disrupt and complicate scheduling) and/or making regular and frequent complaints to OSHA about the purported unchecked hazard in your workplace.  Responding to these complaints will take time and cost money, distracting your business from its mission.  Retaliation claims under Section 11(c) of the OSH Act is another foreseeable consequence of a scared workforce.  Without an Exposure Control Plan in place, the legal vulnerabilities will be real and are potentially significant.

We focus below on five key reasons employers must develop a written COVID-19 Exposure Control and Response Plan.  But first, what is an exposure control plan?

What is an Exposure Control and Response Plan?

When OSHA identifies a serious safety or health hazard, it usually requires employers to develop a written program including the measures employers will take to counteract the hazard.  For example, OSHA requires written lockout/tagout programs to protect against hazardous energy; respiratory protection programs and process safety management programs to protect against hazardous chemical exposures; and emergency action plans to protect against the risk of fires in the workpalce.  Simply put, a COVID-19 Exposure Control Plan is a written safety plan outlining how your workplace will prevent the spread of COVID-19, covering issues such as:

  • How you will facilitate social distancing in your workplace;
  • What engineering or administrative controls you will implement when workers cannot remain at least 6′ apart;
  • The steps that you will take to ensure employees comply with personal hygiene practices;
  • What types of protective equipment you will provide for various tasks and operations;
  • What enhanced housekeeping protocols will be implemented for frequently touched surfaces, tools, and machines;
  • What you are doing to prevent/screen sick workers from entering the workplace;
  • How you will respond to confirmed or suspected cases among your workforce; and
  • How you will communicate with and train your workforce on these mitigation measures.

Five Reasons to Develop a Written COVID-19 Exposure Control Plan

First, whether you have remained open because you are an essential business or plan to reopen soon, you may soon find yourself required to adopt such a plan by virtue of an executive order issued by the governor of a state in which you operate, or in some cases, pursuant to orders issued by city or county officials.

  • On May 15th, New York Governor Andrew Cuomo announced as part of the state’s reopening plan that “[e]very business is required to develop a written plan that puts the safety of their customers and employees first.”  While this plan is not required to be submitted to a NY state agency for approval, it must be retained on the premises of the business and must be made available to the NYS Department of Health or local health and safety authorities in the event of an inspection.
  • On May 1st, the Governor of Puerto Rico issued a similar requirement as we explained in this blog post.
  • On May 18th, California Governor Gavin Newsom issued new guidance for workplaces allowed to reopen, which calls for a site-specific COVID-19 protection plan.
  • Other states and counties are certain to follow suit.

Second, both OSHA and the CDC recommend that employers adopt exposure control plans.  OSHA enforcement of COVID-19 issues will fall under the agency’s catch-all General Duty Clause.  General Duty Clause citations for COVID-19 exposure will rely on guidance the employer did not meet, including OSHA’s own guidance. Morever, while

the US Senate and House of Representatives remain at loggerheads over additional funding to address the pandemic, you can expect continued pressure on OSHA from various stakeholders—Congress, unions, and other workplace safety advocates—to issue an emergency temporary infectious disease standard.  Indeed, this week, AFL-CIO filed a lawsuit in federal court against OSHA to try to force the agency to issue an emergency temporary COVID-19 standard, which would require all employers to develop and implement an infection control and response plan.

Since the pandemic reached the US, OSHA has received thousands of employee complaints regarding the insufficiency of their employers’ responses to the new health hazard.  In response to the wave of employee complaints, OSHA has been engaging with employers, by requesting the employer respond and explain its efforts to address coronavirus in the workplace.  Ineffective responses to these notices of complaints likely will result in an enforcement inspection.  The key to avoiding an inspection is having an effective response to protect against COVID-19 in the workplace, and the key to this — and to demonstrating to OSHA that you have an effective response in place — is a coherent, written Exposure Control Plan.

Third, going through a deliberate and focused process to develop a response plan significantly enhances the likelihood that you will not overlook a valuable protective measure.  Once prepared, the plan will serve as a ready reference source for managers and workers alike should they have questions or concerns.

Fourth, with in-person communication and training sessions discouraged if not fully discontinued, having a written exposure plan ensures that managers responsible for implementing and enforcing the identified mitigation measures understand what is expected of them.  At the same time, a written plan serves as a means to let workers know what steps you are taking and what they can and should do to keep the workplace safe.  Establishing a communication plan as part of the overall exposure control plan also creates a consistent means to provide updated information to employees, customers and visitors—all of whom are essential to your continued operation.

Fifth, OSHA citations are not the only risk that you face without a customized exposure control plan. While lawyers have already started filing wrongful death actions on behalf of workers who believe they contracted COVID-19 at work in an effort to obtain recovery outside the workers’ compensation system, employers also may face litigation involving claims that customers, vendors, contractors, or patients who visited your establishment contracted the virus from one of your employees.  Family members of your employees may also bring such claims, alleging that they got sick because your employee contracted the virus at work and then infected members of his or her family.

As a boutique law firm focused on Workplace Safety and Labor & Employment Law, Conn Maciel Carey has been working with our clients since the beginning of this crises to develop customized COVID-19 Exposure Control Plans.  In most cases, we hold a series of conference calls with leadership, HR, safety, and operations, after which we provide a customized Exposure Control Plan that will help protect employees and customers, and also provide a line of defense against the mounting potential exposure to regulatory and tort liability.  If you would like help developing such a plan, please contact any of the attorneys at Conn Maciel Carey.

For additional resources on issues related to COVID-19, please visit Conn Maciel Carey’s COVID-19 FAQ Page for an extensive index of frequently asked questions with our answers about HR, employment law, and OSHA regulatory related developments and guidance. Likewise, subscribe to our Employer Defense Report blog and OSHA Defense Report blog for regular updates about the Labor and Employment or OSHA implications of COVID-19 in the workplace.  Conn Maciel Carey’s COVID-19 Task Force is monitoring federal, state, and local developments closely and is continuously updating these blogs and the FAQ page with the latest news and resources for employers.


By the Conn Maciel Carey’s COVID-19 Task Force

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