Category: Coronavirus

What are the New Guidelines for Employers from OSHA?

By anthony, 11th February 2021

The U.S. Occupational Safety and Health Administration (OSHA) has laid out its guidance outlining the procedures companies should enact to increase the safety of employees in the waning months of the Coronavirus (COVID-19) pandemic. As COVID-19 made its way into the United States, many states had to shut down, which forced numerous businesses to close. However, many could not remain closed for long or else they risked having to close their doors permanently. Those that pushed to re-open implemented policies to protect their employees and keep them safe. There have not been any national standards provided for what business should be doing to ease employee fears. In February, OSHA released new guidance and suggestions, including implementing a COVID-19 Prevention Program.

What is a COVID-19 Prevention Program?

OSHA suggested that all companies develop a COVID-19 Prevention Program, which establishes certain key elements around the workplace. Those elements include:

Conducting a hazard assessment;
Identifying measures that limit the spread of COVID-19 at work;
Adopting measures to segregate employees who have the virus or were exposed to it; and
Protecting employees who raise concerns about COVID-19.

OSHA suggests that employers work with their employees to determine which elements they can implement and how they intend to do that.

How can I Prevent the Spread of COVID-19 at my Workplace?

Containing and limiting the spread of COVID-19 is a major concern for many people. To protect employees, OSHA offers several suggestions on ways to prevent the spread of the virus, including:

Implement physical distancing: Firms should attempt to distance desks and other working areas at least six feet apart to prevent the spread of the virus.
Install barriers: In some instances, it might be difficult to separate desks from significant distances. In those cases, it makes sense to put up barriers between desks.
Wear a mask: While not a popular activity, many believe that wearing a mask will limit the chances of spreading the virus.

Workers need to take some personal responsibility as well. They should follow the guidelines established by their employer and practice good hygiene. Employees should also report any health problems they might have, including any potential exposure to someone who has been diagnosed with COVID-19.

What Steps Should be Taken to Protect Employees?

Preventing the spread of COVID-19 should be a team effort. Employers should work with their employees to coordinate policies that will not hinder their job performance. To that end, OSHA recommends the appointment of a workplace coordinator, who will work with management to ensure that all procedures are being implemented and followed. That person can also be contacted if an employee has a problem with certain procedures or wishes to file a complaint about someone not following the procedures.

In addition, employers should always maintain a line of communication with their employees about the policies that they are putting in place and why. Another recommendation is that employers conduct regular training sessions for employees to review policies. The session would be a good opportunity to help employees adapt to any new policies that are pending and learn about the rationale behind why the company is implementing certain policies. Employers should also establish a thorough daily cleaning regime. Establishing these policies and procedures in advance will enable employers to react quickly to most situations to minimize the impact they have on their employees.

Philadelphia Employment and Labor Lawyers at Sidkoff, Pincus & Green P.C. Help Employers and Employees with COVID-19 Concerns in the Workplace

If you feel your company is failing to take adequate measures to protect you and your colleagues from COVID-19 or if your employer has retaliated against you because you spoke out about their policies, the Philadelphia employment and labor lawyers at Sidkoff, Pincus & Green P.C. can help. For an initial consultation, contact us online or call us at 215-574-0600. Located in Philadelphia, we serve clients throughout South Jersey and Pennsylvania.

Can My Employer Require a COVID-19 Vaccine?

By anthony, 4th January 2021

Now that a COVID-19 vaccine has been approved, the main question people are asking each other is of they are going to get the vaccine. This assumes that getting it is optional, but this may not be the case for some members of the working population. It will not be long until employers will have to decide if they want to require their employees to be vaccinated, and there is sure to be some backlash.

Companies have a duty to keep their employees, customers, and communities safe. However, organizations like the Society for Human Resource Management (SHRM) believe that employers should exempt certain employees from having to get vaccinated because of sincerely held religious beliefs or disabilities. According to the SHRM, exceptions should not be made for employees based on secular or medical beliefs about the COVID-19 vaccine.

What Does the EEOC Say?

The Equal Employment Opportunity Commission (EEOC) has provided guidance on flu vaccinations in the past that employers may require flu vaccines, but only if certain employees had the option of seeking exemptions for medical issues through the Americans with Disabilities Act (ADA) or for religious reasons through Title VII of the Civil Rights Act.

In mid-December, the EEOC stated that employee COVID-19 vaccinations requirements do not violate the ADA, which prohibits companies from performing certain medical examinations. However, should an employee who cannot be vaccinated for certain reasons pose a health risk to other workers, EEOC guidelines state that the employer cannot prevent that employee from working unless the employer is unable to provide reasonable accommodations.

Will Vaccination be Mandatory in Certain Workplaces?

It is too early to tell, but the type of business will dictate what procedures will be put in place. Employees in public-facing jobs may present higher risks of infection than office workers, so their companies will likely be more pro-vaccine. Employees who refuse to be vaccinated may encounter problems with co-workers who have been vaccinated. Also, if company vaccination policies become public knowledge, it could create bad publicity and damage their businesses.

Since COVID-19 vaccines are being approved for emergency use authorization, some health professionals feel that most businesses will not make the vaccine mandatory. Although companies may strongly encourage it, requirements will vary. It is thought that employers may choose to issue guidelines stating that their position is that it would be reasonable for an employer to require an employee to get the vaccine.

Will Employers be Held Liable?

There is much talk out there already about the possibilities of employers being vulnerable to lawsuits filed by employers and clients who may contract COVID-19 at the business location. On the other hand, mandating all employees to get the vaccine could be another risk. A California lawyer described the situation as a treacherous area for employers, pointing out that if the vaccine ends up harming employees, there could be Workers’ Compensation claims against companies and vaccine manufacturers. According to The Stand on CBS News, employers would not be liable in these situations since they would be categorized as on-the-job injuries.

To avoid liability issues, The Stand suggested encouraging employees to get vaccinated instead of mandating them to do so. When an employee who does not want to get vaccinated is able to work remotely, it might be best to leave things alone. Companies may also opt to provide incentives for employees who get vaccinated, whether it be a gift card or some other type of bonus.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Help Clients with Employment Vaccination Issues

As COVID-19 vaccination protocols are now coming into play, your rights should not be questioned. For a confidential consultation, contact the knowledgeable Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. today. Complete our online form or call 215-574-0600 to get started. Located in Philadelphia, we help clients throughout Pennsylvania and New Jersey.

Can My Employer Install Surveillance of Remote Employees?

By anthony, 24th November 2020

One of the more interesting developments from the COVID-19 pandemic has been the transition of employees working from home as opposed to the office. The transition has been so seamless that many companies are considering maintaining the current work format, even after the pandemic ends. There are a few benefits associated with the work-from-home model. Employees get to avoid the grind of commuting to work every day, which also means they have greater flexibility. For the company, they can reduce their overhead costs by not having to pay for office space or any of the other office-related expenses that come with it.

However, the downside for employers is they are not in regular contact with their employees, meaning there is always the fear that an employee is not working or otherwise not being productive. Some companies have figured out a way around this problem by using software that will monitor their employees, even though they are no longer in the office. While employees anticipate a certain level of monitoring when they work in the office on their work computer, it becomes more of an issue when it is done remotely.

Tools that Monitor Working from Home

While the concept of remote working is nothing new, the number of companies that have been utilizing it has grown significantly in the wake of the pandemic. There is technology that helps employers keep an eye on their employees, even if the employee does not know they are under surveillance. Hubstaff recently created a product that employees can download onto their computer that records all their actions. The software tracks a worker’s hours, their keystrokes, and even records the websites that an employee visits. Another company, Sneek, offers software that will take pictures using a laptop computer of the users as frequently as once a minute. The app then uploads the pictures so that everyone can access them.

What are the Legal Concerns with Monitoring Employees?

Whether an employer is monitoring their employee in the office or at home, they still have the same legal obligation to notify the employee the monitoring is taking place. Many employees will sometimes use their personal computers or devices for work. In those instances, the company needs to establish a solid policy about monitoring. They need to inform employees that they will be monitoring them on their personal device and explain what they will be monitoring and why they are doing it. In addition, the company should limit any monitoring to those that have a direct impact on the job and conduct it during certain business hours. In general, when a person connects their personal computer or their personal device to either a corporate network or virtual private network (VPN), companies have the right to ask to monitor their employees.

Using Data to be More Productive

Not all companies are using the monitoring software to keep tabs on their employees. Some are using it with an eye toward returning to the office. Employers are finding that some people are more productive at certain times. As companies consider returning to the office, they still need to practice social distancing and one way to do that is to bring people in on staggered shifts. Bringing people in at their most productive time will help utilize personnel to their fullest potential.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Help Employees with Privacy Concerns

If you feel that your company is monitoring your movements as you work from home without informing you, contact the Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. today. For an initial consultation, call us at 215-574-0600 or contact us online. Located in Philadelphia, we serve clients throughout New Jersey and Pennsylvania.

Are Employers Responsible for Ill Family Members?

By anthony, 18th November 2020

As the nation continues to face the ongoing novel Coronavirus pandemic, many businesses are re-opening their offices and bringing their employees back from months of seclusion in their homes. With the virus still a presence in most states, some employees may be wondering what legal obligations they have toward the family members of their employees. In terms of allowing employees to tend to their sick family members, an employer needs to give their employees the flexibility to take time off and the federal government has provided a few programs to allow for that to happen.

What Do the Courts Have to Say on the Matter?

There have been a few cases reported around the nation of people getting sick with COVID-19 because they contracted it from a family member who was exposed to it at work. Thus far, two lawsuits have been filed in Illinois bringing up that very matter. Experts say the cases are similar to mesothelioma cases, where someone is working on a site where they were exposed, then bring it home to family members. In the first case, a woman from Illinois died due to complications related to COVID-19 over the summer. She allegedly contracted the virus from a family member who contracted it while working at a meat processing plant.

The lawsuit, filed by the victim’s daughter, alleges that the family member contracted the virus in April while working at the plant when he was working shoulder to shoulder with others in the plant. The lawsuit claims that the employers knew there was an outbreak at the plant but did not take any precautions to keep employees safe nor provide any warnings.

In the second case, a woman contracted the virus from her husband, who contracted it while working as a parts assembler. The woman is suing the company, claiming it was because of them that she contracted the virus.

However, the owner of the company is disputing the claim. He told several newspapers that his employees took precautions, including wearing masks and gloves, and he took daily temperature checks every day. He also accused the worker of declining to have his temperature taken. He added that the worker was the first to get sick and he in fact spread the virus.

Both cases are still pending, so it is unclear how the jury will respond. It is safe to assume, however, that an employer owes it to their employees and their families to ensure that their workspace is clean, precautions are met, and everyone adheres to them.

How Much Time Should I Give My Employees to Take Care of Family?

Employers still maintain their obligations under the federal Family and Medical Leave Act (FMLA) to allow for an employee to take time off if they need to recover from COVID-19 or take care of a family member who might have contracted it. The FMLA, enacted in 1993, protects a person’s job should they have to take time off to care for a sick family member. The law allows for a person to take up to 12 weeks of leave within a 12-month period. While they can take the time off, they will not receive any compensation during that time.

In addition, President Trump signed the Families First Coronavirus Response Act (FFCRA) in April, which allowed for more provisions for employees to take time off. This law requires that employees with less than 500 employees provide them with 10 additional paid sick days to accommodate any COVID-19-related absences. The law requires those same employers to provide an additional 12 weeks of FMLA time for employees. Of those 12 weeks, 10 days must be paid, but the law also provides payroll tax credits for employers to cover the paid leave.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Help Employees and Employers Understand Their Rights Regarding the Pandemic

If you are an employer who needs to stay in compliance with pandemic-related laws or an employee who deserves sick leave to care for a family member who contracted the virus, contact the Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. We will review your case and determine the next best steps. For an initial consultation, call 215-574-0600 or contact us online. Located in Philadelphia, we serve clients throughout Pennsylvania and New Jersey.

The COVID-19 Pandemic Is Rewriting Employment Law

By , 16th September 2020

The ongoing COVID-19 pandemic has changed many things within our communities and businesses, including the way employment law is handled. Many employers and employees are questioning what constitutes a safe workplace and what is considered wrongful termination. Attorneys have been flooded with questions regarding employment law during the pandemic and how to handle certain employment situations. Just like everyone else, attorneys are navigating this virus for the first time. Unfortunately, laws and regulations are slightly hazy in the way they should be applied.

Employment Lawsuits

The most common type of lawsuit recently filed involves remote work and leave of absences. These types of lawsuits will likely rise in numbers now that school has resumed. Many employees claim that they have been discriminated against by their employers for having to stay home with their children. Other people claim that they were not given the opportunity to work from home or were told not to take advantage of the Families First Coronavirus Response Act (“FFCRA”), which requires businesses to offer paid or extended leave in response to the virus. Some employees lost their job as a result of the need to work from home to take care of their family, which led to the government implementing the FFCRA. Unfortunately, this legislation was overlooked by many employers, and workers were fired for needing to stay home.

Returning to work has also produced legal challenges. Many employees have inquired about whether employers can require workers to get tested for COVID-19 before they return to work. Testing can be required, but the employer must pay for the time it takes to perform the test. Employers also have the right to send a worker home who shows symptoms of COVID-19, but they do not have to name those who tested positive from the workplace. The most common lawsuit when returning to work involves an unsafe work environment. A safe workplace involves providing personal protection equipment, including masks and hand sanitizer, to prevent the spread of the virus as much as possible.

Unemployment Insurance Benefits

If someone is unemployed as a result of the COVID-19 pandemic, the Federal-State Unemployment Insurance Program may be able to provide them with temporary benefits. These benefits may be provided to certain unemployed workers who are eligible. Many states have responded to the pandemic by expediting the application process and expanding eligibility to ensure that unemployed workers receive the benefits they deserve.

Teleworking

Although not a law, the government is continuing to ask employers to allow their employees to work from home, if possible. This helps contain the spread of the virus and protects workers from getting sick. Teleworking is not being mandated, but it is a precaution that each workplace should be taking. If an employee’s request to work from home was denied, they should contact an employment lawyer for more information on how the request can be approved.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Fight for Employees’ Rights During the Pandemic

If you have been unlawfully terminated or discriminated against by your employer during this difficult time, contact the Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. for help with your case. Our legal team will work with you to obtain the compensation you deserve. Fill out our online contact form or call us at 215-574-0600 today for an initial consultation. Located in Philadelphia, we serve clients throughout Pennsylvania and New Jersey.

How has COVID-19 Affected Employee Rights?

By anthony, 23rd July 2020

There are numerous federal and state laws guaranteeing the rights of employees with respect to discrimination, privacy of medical records, and safety in the workplace. Since the onset of the COVID-19 pandemic, federal agencies, including the Centers for Disease Control and Prevention (“CDC”), the Equal Employment Opportunity Commission (“EEOC”), and the Occupational Safety and Health Administration (“OSHA”), have issued guidelines affecting these rights. Employees may have many questions regarding the implications of COVID-19 on their rights at work.

How has COVID-19 Impacted Rules on Unsafe Working Conditions?

OSHA regulations protect employees against discrimination if they refuse, in good faith, to expose themselves to dangerous conditions in the workplace.

However, employees who refuse to return to work for fear of contracting COVID-19 are not eligible for Pandemic Unemployment Assistance (“PUA”) under the Coronavirus Aid, Relief, and Economic Security Act (“CARES”). For example, this may include employees of retail stores or restaurants who must interact with the public. In addition to contracting the virus, some employees at retail stores have reported being assaulted by irate customers who refuse to comply with face mask requirements.

Are Employers Still Required to Make Reasonable Accommodations for Disabilities?

Under the Americans with Disabilities Act (“ADA”), employers are required to provide reasonable accommodations for employees with disabilities as long as it does not impose an undue hardship. However, given that many employers are experiencing decreased income, they may have grounds for demonstrating that accommodations provided in the past are now significantly expensive in relation to their current financial status, creating an undue hardship.

Can Employers Require Workers to Submit to Temperature Checks?

Under normal conditions, the ADA prohibits all disability-related inquiries and medical examinations, even if they are job-related. However, current EEOC guidelines allow employers to require workers to submit to testing to determine whether they currently have COVID-19. Furthermore, the EEOC stated that because the CDC and state/local health authorities acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperatures. If a worker is found to have COVID-19, the employer can make the worker stay home. The employer can also disclose the worker’s illness to public health agencies.

However, employers must maintain the confidentiality of temperature check records. Employers in general cannot ask employees about their health; however, the EEOC now states that employers may ask workers if they are experiencing fever, chills, cough, shortness of breath, or sore throat, which are symptoms of COVID-19.

How are Hiring Decisions Affected by COVID-19 Exposure?

Under current CDC guidelines, employers have the right to deny employment to job applicants with active cases of COVID-19 because those persons cannot enter the workplace safely. However, the CDC also said that the use of COVID-19 antibody tests should not be used to make general employment decisions involving hiring or returning workers to a specific job. Persons with antibodies are presumed to have had COVID-19 in the past and may have a degree of immunity. However, if an employer requires a worker to take a COVID-19 test in order to return to work, that would be a violation of the ADA.

Philadelphia Employment Lawyers at Sidkoff, Pincus & Green P.C. Keep Pace with Evolving Federal, State and Local Guidelines to Deliver Outstanding Results

The legal protections afforded by employment laws are continually shaped by court rulings and guidance issued by federal, state, and local agencies. Employee rights in the workplace today are subject to change tomorrow. If you have questions about your rights in the workplace, the Philadelphia employment lawyers at Sidkoff, Pincus & Green P.C. can help. Fill out our online form or call us at 215-574-0600 to arrange a confidential consultation. Located in Philadelphia, we serve clients throughout Pennsylvania and New Jersey.

Expansion of Paycheck Protection Program Offers Help for Small Businesses

By anthony, 29th May 2020

The Paycheck Protection Program (“PPP”) initially set aside nearly $350 billion in government-backed forgivable loans to help small businesses stay afloat during the COVID-19 pandemic. The loans were made available to small businesses in operation on February 15, 2020 with fewer than 500 employees. In addition, 501(c)(3) non-profits with fewer than 500 workers and other types of organizations are also eligible. To apply, businesses must work through a bank with which they have a relationship and the bank must be a lender approved by the Small Business Administration (“SBA”).

Studies suggest that 80 percent of small businesses in America missed out on the first round of funding because the money was quickly depleted. At least $310 billion in additional funding has now been approved. However, small businesses still face hurdles in applying for the loans, as well as providing proof that they are spending it within prescribed guidelines for the loans to be forgiven.

Small Businesses Face Challenges in Obtaining PPP Loans

Some of the difficulties faced by small businesses applying for the first round of PPP loans include the following:

Many banks were overwhelmed by the initial demand
Larger banks tended to take care of their biggest clients first
Many small businesses did not have a prior relationship with a lending bank

In addition to allocating the additional $310 billion for PPP loans, a significant portion of that money has been set aside for smaller banks, including community-based lenders and credit unions. The goal is to reach smaller businesses, however, many of them still lack a relationship with a lender. One option is to work with a law firm that can facilitate a relationship.

Meeting PPP Loan Requirements

Some businesses applied for a loan but have not yet received the money. If you are a small business waiting for a PPP loan, do not submit a second application if you already applied. If you applied for a loan and received the money, you must meet the following requirements in order for the money to turn into a grant:

You must spend all of the money within eight weeks of depositing it into your business bank account
You must allocate 75 percent of the money to cover payroll costs
The money cannot be used retroactively to pay past debts

If you cannot meet these and other requirements, you will have to pay the money back within two years at one percent interest. Unfortunately, some small businesses are having difficulty meeting the 75 percent threshold because their workers chose to go on unemployment. Businesses are allowed to give their workers raises or bonuses simply to qualify for the 75 percent payroll threshold, as long as each worker makes less than $100,000 on an annualized basis.

In addition to PPP loans, the SBA also administers the Economic Injury Disaster Loan (EIDL) program. Businesses with 500 or less employees may be eligible if they can show that they were affected by a disaster, such as the COVID-19 pandemic. However, EIDL loans are not forgivable.

Philadelphia Business Lawyers at Sidkoff, Pincus & Green P.C. Help Small Businesses During the Pandemic

If you are a small business owner impacted by the COVID-19 pandemic and are seeking a loan, the Philadelphia business lawyers at Sidkoff, Pincus & Green P.C. offer trusted legal guidance to help you pursue the best possible course of action. Contact us for an initial consultation by filling out our online form or call us at 215-574-0600. We assist clients throughout Pennsylvania and New Jersey from our office in Philadelphia.

Terminating a wedding contract in Pennsylvania due to COVID-19 & Coronavirus

By michele, 8th May 2020

Many couples and venues are having to postpone or even cancel wedding plans because of the effects of the novel Coronavirus on travel, events, and socialization. The starting point for determining your rights would be to look to the contract’s language, which may contain a force majeure or “act of god” clause. Such a clause may explicitly excuse the performance of a wedding venue or vendor, or excuse the bride and groom from the payment terms of the contract. The precise language of the force majeure clause is most important, as it may be read to unambiguously include or exclude events such as COVID-19. Moreover, there have been legislative efforts to enact laws that would mandate the application of any force majeure clause to apply to the pandemic. To date, state and local governments in Pennsylvania have not enacted such laws.

If the wedding-related contract in question does not include a force majeure clause, or if the clause uses vague language that may not ultimately cover the COVID-19 pandemic, Pennsylvania recognizes two common law doctrines that may be of use: frustration and impossibility.

The doctrine of impossibility applies in the event that a party’s performance was made impracticable through no fault of his own by an unforeseeable event, the non-occurrence of which was a basic assumption of both parties at the time of agreement. Performance will be excused, unless language or circumstances point otherwise. Pennsylvania’s definition of “impossibility” requires strict impracticability. As such, mere unanticipated difficulty is not likely to excuse performance.

Pennsylvania’s frustration of purpose doctrine protects excuses performance even if it is still possible so long as the event substantially frustrates a party’s principal purpose. Additional requirements are the assumption by both parties that the event would not occur and no fault on behalf of the party asserting the application. The ultimate question for frustration is whether the unforeseeable event significantly altered the circumstances of the agreement such that performance would no longer fulfil any aspect of its original purpose.

If you have concerns about how the COVID-19 will impact a wedding contract, the lawyers at Sidkoff, Pincus & Green P.C. can assist you with these matters. To schedule an initial consultation, call us at 215-574-0600 or contact us online. Located in Philadelphia, we serve clients throughout Pennsylvania and New Jersey.

Applying Pennsylvania Law to Contracts without Force Majeure clauses during COVID-19

By michele, 6th May 2020

There are many questions being raised about whether parties are required to perform under contracts during the COVID-19 health crisis. In some cases, government shutdowns have made performance impossible, and in other cases, health concerns have made performance unwise and impractical. A force majeure clause is a provision in an agreement that excuses a party from performance if an unforeseeable event arises. This type of clause is also commonly referred to as an “act of god” provision and it is a common starting point for a legal analysis of whether performance will be required due to concerns over COVID-19. However, what happens if your contract does not contain a force majeure clause?

If your contract is governed by Pennsylvania law, then the courts will likely look to common law, including the doctrine of impossibility and the frustration of purpose doctrine. The doctrine of impossibility applies in the event that a party’s performance was made impracticable through no fault of his own by an unforeseeable event, the non-occurrence of which was a basic assumption of both parties at the time of agreement. Performance will be excused, unless language or circumstances point otherwise. Pennsylvania’s definition of “impossibility” requires strict impracticability. As such, mere unanticipated difficulty is not likely to excuse performance. Pennsylvania’s frustration of purpose doctrine excuses performance even if it is still possible so long as the event substantially frustrates a party’s principal purpose. Additional requirements are the assumption by both parties that the event would not occur and no fault on behalf of the party asserting the application. The ultimate question for frustration is whether the unforeseeable event significantly altered the circumstances of the agreement such that performance would no longer fulfil any aspect of its original purpose.

If you have concerns about how COVID-19 will impact a contract with or without a force majeure clause, the lawyers at Sidkoff, Pincus & Green P.C. can assist you with these matters. To schedule an initial consultation, call our team at 215-574-0600 or contact us online. Located in Philadelphia, we serve clients throughout Pennsylvania and New Jersey.

Applying Pennsylvania Law to Contracts with Force Majeure clauses during COVID-19

By michele, 4th May 2020

The COVID-19 health crisis has led to government mandated shutdowns of non-essential businesses in Pennsylvania for an extended period of time. Further, due to ongoing health concerns, many questions remain about whether parties will be interested in performing under contracts even after stay-at-home and shut-down orders are lifted. For example, if you have a large event scheduled in August, will you want to hold it even if the Commonwealth permits large gatherings? If you have these types of questions, and have entered into a written agreement, it is important to determine whether there is a force majeure clause, and to examine it closely.

A force majeure clause is a contract provision that excuses a party from performance if an unforeseeable event arises during the terms of the contract. Commonly, this type of clause is referred to as an “act of god” provision. When drafting force majeure clauses, parties control the contours of the agreement and those contours will dictate the application, effect and scope of the clause. However, generally speaking, the non-performance must have been caused by an unforeseeable event at the time the contract was entered into. In addition, the event must not have been due to any fault or negligence by the parting asserting the application of the clause.

For courts applying Pennsylvania law, they will likely also look to see whether performance has been made impossible, not simply impractical. In Sunseri v. Garcia & Maggini Co., the Pennsylvania Supreme Court struck down a force majeure clause. The party asserting excusal under the clause did not fulfill its obligations under a contract due to crop failure. Although the contract included crop failure in the force majeure clause, the Court held that application of the clause was not valid due to a partial crop failure, which rendered performance still possible.

COVID-19 is an unprecedented occurrence that many courts have yet to address, particularly as it applies to the enforcement of contracts. The courts in Pennsylvania may apply “act of god” provisions to this pandemic, but that is uncertain and could depend on the contract language. This could vary on a case-to-case basis, considering the type of contract and material terms of the contract, such as scope in time. If the contract contains broad “act of god” language, then a court is probably more likely to apply the clause versus more specific language defined by the parties themselves. Moreover, there have been legislative efforts to enact laws that would mandate the application of any force majeure clause to apply to the pandemic. To date, state and local governments in Pennsylvania have not enacted such laws.

If you have concerns about how the COVID-19 will impact a contract with or without a force majeure clause, the Philadelphia lawyers at Sidkoff, Pincus & Green P.C. can assist you with these matters. To schedule an initial consultation, call us at 215-574-0600 or contact us online. Located in Philadelphia, we serve clients throughout Pennsylvania and New Jersey.

1
2
Older

1101 Market Street Suite 2700, Philadelphia, PA 19107