The Criminal Justice System During COVID-19 — An Interview with Nina Ginsberg

By Corey Pray
DiMuroGinsberg, PC

The COVID-19 crisis has substantially impacted the criminal justice system, creating new challenges for both criminal defendants and criminal defense attorneys. From the safety of inmates held in prisons, to delays in criminal dockets, to new technologies for attorney-client communications, the criminal justice system is facing a “new normal.” Nina Ginsberg, a founding partner at DimuroGinsberg, P.C. and current president of the National Association of Criminal Defense Lawyers (NACDL), reflected on some of these challenges and the efforts of organizations such as NACDL to address them.

The biggest and most visible impact of COVID-19 on the criminal justice system is the health and safety of the prison population. The Bureau of Prisons (BOP) reported that as of April 19, 2020, 495 federal inmates and 309 BOP staff have tested positive for COVID-19, and 22 federal inmates have died from the virus.1 “The most important thing for authorities to do immediately is to get inmates who have committed low-risk offenses or technical violations out of prison,” said Ginsberg. “Parole, supervised release, and home confinement are viable alternatives that should be used as an alternative to incarceration. The time to release certain categories of inmates is now, while they are still safe. If more aggressive action is not taken, large portions of the prison population will remain at risk,” she continued.

While some inmates must remain in prison, releasing those who can be released significantly improves the ability of prison authorities to implement better precautions. “The more measures authorities take to remove low-risk offenders from prison, the more feasible it is to implement social distancing measures,” said Ginsberg. Some prison systems have already decreased population sizes and have implemented protocols that every new arrestee or anyone who might have been exposed to COVID-19 gets placed in an isolated part of the jail. Ginsberg believes that these rigorous protocols “have a reasonable chance of keeping COVID-19 out of jails and should be implemented nationwide.”

Ginsberg also believes that these efforts could result in positive, permanent changes. She explained, “releasing low-risk inmates and successfully implementing alternatives to incarceration may cause some prosecutors and judges to see that this can be done safely. As a result, higher numbers of individuals accused of less serious violations could be released on bond or given lesser sentences. We may see assumptions change about how punitive sentences should be and how much incarceration is necessary.”

The COVID-19 crisis is likely to have other long-term impacts on the criminal justice system. Ginsberg said she is particularly concerned with the financial impact of shutdowns on courts and the practice of law. “Most people charged with crimes are represented by public defenders or court-appointed lawyers. Many public defender offices are already under-resourced and under-paid, and many of these offices are funded by state crime commissions or county budgets. State and local budgets will be badly hit by COVID-19. Many criminal lawyers, who are mostly sole practitioners or from small firms, may have trouble resuming their practices,” said Ginsberg.

Many criminal defense organizations are taking actions to address some of these novel challenges. For example, NACDL has set up a Coronavirus Resources page on its website in an effort to aggregate resources from around the country, including pleadings, motions, rulings, and other court papers related to COVID-19. Speaking about these efforts, Ginsberg said, “We’ve encouraged our members to contact prosecutors and judges about facilitating compassionate release and early release. We’ve already seen some success from these efforts, as many courts have directed sheriff’s departments to release low-risk inmates who have short periods left in sentences or have been arrested for minor infractions. NACDL is also working closely with Families Against Mandatory Minimum to identify inmates in the Bureau of Prisons who qualify as candidates for compassionate release under the First Step Act of 2018. Finally, NACDL is preparing a group to assist lawyers who may need to respond to speedy trial issues that are likely to result from delays caused by COVID-19.”

NACDL’s Coronavirus Resources page can be accessed at https://www.nacdl.org/content/coronavirusresources.


1 Federal Bureau of Prisons, COVID-19 Cases, https://www.bop.gov/coronavirus/ (last visited Apr. 20, 2020).

The Families First Coronavirus Response Act: What You Need to Know

On Thursday, May 5, DiMuroGinsberg presented a webinar to assist you in understanding the new paid leave requirements. “The Families First Coronavirus Response Act: What you Need to Know” led by employment attorney Jonathan Mook included a wealth of information that we share with this audio and presentation.

Covid-19 Healthcare Fraud

By Jarrad Wright
DiMuroGinsberg, PC

In this time of crisis, the federal government, state government and private industry are working on multiple fronts to respond to COVID-19 and to provide essential medical equipment and services to hospitals and those in need. While the pandemic has brought out the best in the vast majority of people, there will always be some that will see the crisis as an opportunity to profit at the expense of others. At present the Department of Justice’s focus has been on responding to the immediate need to prevent hoarding of medical supplies and price gauging. However, in the weeks and months ahead the focus is likely to shift to those that are violating the healthcare statutes through overbilling or fraudulent billing related to COVID-19. This is particularly true if the federal government begins reimbursing or paying the medical expenses of everyone not insured by COVID-19, as the administration has implied.

In recent years, the Justice Department has spent significant resources prosecuting healthcare fraud cases against physicians, hospitals, and the general public related to fraudulent healthcare claims. For example, in December 2019, the District of Kentucky charged ten former National Football League players for allegedly submitting false claims for reimbursement for false medical expenses to the NFL’s health reimbursement account. Similarly, prosecutors have charged a number of doctors and hospitals in recent years with a variety of fraudulent schemes including receiving kickbacks for prescribed medicines, prescribing medicines that were not needed in order to receive increased disbursements, and submitting claims under improper billing codes to increase payments. There are significant criminal and civil penalties at issue in such cases.

On the civil side, the False Claims Act is the primary statute used to collect monies from those that defraud the federal government. Under the Act, persons are liable if they submit a false claim for payment to the federal government and this includes government run or supported healthcare programs such as Medicare, Medicaid and Tricare. The consequences of the False Claims Act are significant and includes paying treble the amount of the government’s damages plus thousands of dollars of penalties per claim. Under the False Claims Act, those who submit fraudulent claims to the government are subject to a civil penalty of between $5,000 and $10,000 for each claim. However, because the Act allows for inflationary adjustments, as of 2016, violators now face penalties of between $10,781.40 and $21,562.80 per claim. Because the penalties are assessed per claim, a scheme over even a short period of time can amount to enormous sums of monies. This is on top of having to pay the governments’ costs for bringing the suit, and for healthcare providers, losing the ability to care for patients on government insurance programs.

On the criminal side, there are a wide variety of criminal healthcare statutes that can apply including the anti-kickback statute, general healthcare fraud laws, wire fraud, and money laundering. The Department of Justice has expended significant resources in recent years in having teams of prosecutors and F.B.I. agents specialize in such cases. The criminal penalties range from reimbursing loses to lengthy prison sentences and criminal forfeitures.

Once the immediate crisis subsides, it is likely that the government’s focus will shift back to whether or not it has been defrauded. DiMuroGinsberg has years of experience involving complex criminal and civil litigation. This includes defending people accused of healthcare fraud and pursuing False Claims Act cases. DiMuroGinsberg stands ready to assist whether one is accused or aware of such fraudulent claims.

Copyright and Remote Learning: A Primer for Remote Learning Instructors

By Cecil Key
DiMuroGinsberg, PC

As we all know, the Covid-19 virus has placed us in unprecedented circumstances. One such circumstance is that many non-educators are finding themselves thrust into the role of teaching students who would normally be gathered in a designated classroom via remote learning, often with no two students – or the instructor – in the same location. Fortunately, the technology available to us in the 21st Century allows this remote learning to be possible at all levels. High-speed internet and videoconferencing platforms provide the means to continue educational activities even as the institutions have been made unavailable. But there is a catch. This 21st Century technology is still subject to the limitations of 20th Century intellectual property laws.

For example, you may have heard that famed author J.K. Rowlings granted permission to allow her renowned Harry Potter books to be read in a remote learning environment without fear of running afoul of her copyrights in the books. To some, this might seem unnecessary – why should copyright law prevent the reading to children when our local and state governments are requiring us to teach remotely? Also, should the copyright laws apply when we’re simply reading as we normally would, just to students in remote locations, or when what we’re reading is a textbook, rather than a novel?

The truth is there are circumstances where the copyright laws may not be an impediment. However, it is complicated, and here’s why.

Copyrights are an exclusive right, meaning that the author of the work has the right to prohibit others from using the work. 17 U.S.C. § 106. The right to exclude extends to copying, displaying and performing the copyrighted work and derivatives of the work “either directly or with the aid of a machine or device.” 17 U.S.C. §§ 102, 106. There are exceptions. For example, by statute, the performance or display of original works cannot be copyright infringement if done so “in the course of face-to-face teaching activities of a nonprofit educational institution.” 17 U.S.C. § 110(1). The same is true for the performance or display of nondramatic literature or music that is transmitted outside the classroom, provided the performance or display is “made by, at the direction of, or under the supervision of an instructor as an integral part of a class session offered as a regular part of the systematic mediated instructional activities of a governmental body or an accredited nonprofit educational institution.” 17 U.S.C. § 110(2).

The reading of materials to a class of students as part of a remote learning session is the “performance and display” in the course of teaching activities and, at first blush, appears to be exempt from copyright infringement under these provisions. Consider, however, what is likely to be a common scenario in the current Covid-19 world where the instructor is not a professional educator, the reading of the work is done from the instructor’s home, and each student is in a different physical space, such as his/her home.

Under these circumstances, the remote session is probably not a “classroom or similar place devoted to instruction.” It is also probably not face-to-face. In fact, the entire reason for the remote learning is so that we do not have to be face-to-face. It is also unlikely to be in a place devoted to instruction. This creates a paradox. The remote session is being conducted because the classroom is not available, but the copyright exception arguably does not apply precisely because the session is not in a classroom.

The exemption for transmission outside the classroom, which would solve the conundrum resulting from the classroom being unavailable, probably would not apply either. The exemption is limited to nondramatic literary or musical works. So, Harry Potter would not count. And the performance or display must be (1) by or at the direction of a professional instructor, (2) part of a class session offered as a regular part of systematic mediated instructional activities and (3) offered by a governmental body or accredited nonprofit educational institution. Again, in the scenario above, the instruction is being offered by those who are not normally instructors and is not part of a regular systematic mediated instructional activity offered by an established educational institution. In fact, the remote session is likely being conducted precisely because the regular instructors and established educational institutions are not available. And it’s probably fair to say that this environment is a distinct departure from the regular and systematic educational activity.

Unfortunately, the fact that the remote teaching sessions are the direct result of state and local government orders does not override these results. This very question has been the subject of litigation over the years, and the courts have to date provided no clear answer. This may all seem arcane and Draconian, but the laws are designed to protect an author from having her works distributed without permission from or compensation to her. That is the fundamental purpose of a right to exclude.

There is, however, no need to panic. The copyright statute also has a provision that exempts from copyright infringement activities such as use of the work for “teaching” and “classroom use.” Thus, a remote learning session that is clearly for the purpose of continuing the children’s education while the regular classroom is unavailable, and not for a commercial purpose, would weigh in favor of statutorily exempted “fair use.” See 17 U.S.C. § 107. The reading or display of a factual work would also favor exempting the use as fair use. See id.

What is the difference? The general fair use exceptions are determined according to all the facts and circumstances, meaning establishing fair use can require significant factual development. The specific education exceptions, however, are more straightforward so long as the specific requirements are met.

The best course of action is to try to let the regular teacher or instructor copy, perform or display the copyrighted work to the extent possible. It could also help if a particular spot (e.g., a designated room) is dedicated to the providing and receiving of instruction until the students are allowed to return to the educational institution, and if as little of the work as is possible is copied, performed or displayed, especially if the work is a highly creative one such as a novel or musical work. Finally, the performance or display can be limited to a “normal circle” of family and acquaintances, which is expressly permitted by the copyright statute. See 17 U.S.C. § 101.

For those involved in remote learning, these steps will help minimize copyright concerns as well all do our part to flatten the Covid-19 curve.

Coronavirus Scams—Don’t Be A Victim!

By Billy Ruhling, III
DiMuroGinsberg, PC

The federal stimulus package enacted in response to COVID-19 has gotten a lot of publicity in recent days. It offers a potential lifeline for businesses and families alike in this very troubling time. Unfortunately, no good deed goes unpunished. Along with the stimulus has come a round of scams, bogus offers, and phony charity requests.

As Attorney General Mark Herring recently explained:
“The sad truth is that we continue to see bad actors in Virginia and across the country taking advantage of the fear and uncertainty surrounding COVID-19 and trying to scam money from people.”

As a result, the Virginia Attorney General’s Office has encouraged citizens to remain vigilant regarding offers that seem “too good to be true.”

A few of the scams recently seen in connection with the current COVID-19 crisis are:

Cyber Scams – Emails purportedly sent on behalf of the Centers for Disease Control (CDC) or the World Health Organization (WHO), and other healthcare organizations. Take extra care when opening attachments, clicking links, or responding to unknown sources as these can all be used to exploit individuals by directing traffic to sites where they can provide misinformation or attempt to gain your personal information or finances.

Telephone and Text Message Scams – Robocalls are commonly used by scams. If you get such a call (typically offering COVID-19 treatments and cures or work-from-home schemes) – Hang Up! Similarly, if you get text messages from unknown sources with hyperlinks in them, do not click on these links. They can be used to install malware or otherwise expose you to risk of identity theft and financial exploitation.

Counterfeit Product Offers and Price Gouging – There are currently no known vaccines, pills, medications, or other prescription or over-the-counter products proven to treat or cure the Coronavirus. The same applies to “home test kits” for COVID-19 – the FDA has not approved any such kit. You should ignore offers to purchase any of these products.

We have all seen how much demand exists for common household products (household disinfectants, hand sanitizers, toilet paper, etc.). Before purchasing any of these products, particularly online, make sure you research the seller – only complete your purchase if everything checks out.

If you believe someone is price gouging in your area, contact the Attorney General’s Consumer Protection Section.

Phony Charities & Donation Requests – While the better part of humanity can often be seen during times of crisis, they also breed opportunists looking to take advantage of your kindness. Be cautious when approached to make donations to causes with which you are not personally familiar – particularly through crowdfunding sites. Only give to charities and fundraisers you can confirm are reliable and legitimate. You can quickly and easily verify a charity’s registration with the Virginia Department of Agriculture and Consumer Services’ Office of Charitable and Regulatory Programs (OCRP) at (804) 786-1343, or by searching OCRP’s Charitable organization database online.

Following are a few basic tips to keep in mind:

  • The Offer Seems Too Good to be True—If it seems too good to be true, it almost certainly is. Examples include money left to you from an unknown relative, being awarded a loan or grant for which you did not apply, winning a lottery you did not enter and being selected to receive a share in funds in return for using your bank account.
  • Requests for Fees or Payment in Advance—Scammers will want advance payments or fees to clear the funds or complete their offer. It might not be clear what the fees are for, but the scammer will tell you they have to be paid or the money can’t be released. They might suggest they are only trying to help you out and the fees are a small sum compared to what you will be receiving. Never pay fees or taxes in advance.
  • Pressure—Scammers will often put pressure on their victims and urge them to pay immediately or lose the opportunity, or may even threaten them with legal consequences or disconnected utilities unless a payment is sent right away. A genuine business or government entity will not pressure you to act immediately.
  • Know who you are dealing with—Technology has made it easy for scammers to disguise or spoof their telephone number or create a website that looks very legitimate. Do an online search for the company name and website and look for consumer reviews. If you cannot find a seller’s physical address (not a P.O. Box) and phone number it should be a red flag. It is best to do business with websites you know and trust. If you buy items through an online auction, consider using a payment option that provides protection, like a credit card.
  • They Want Private Information—Many scams involve getting hold of your bank account details. Scams involving identity theft also seek personal information. A common scenario is an email supposedly from a bank asking you to click on a link to confirm your bank details and password. Banks generally don’t do this, but if you think the email has really come from your bank, pick up the phone and confirm with them. Never click on links or attachments in emails from people you don’t know or you risk your computer becoming infected by viruses, trojans, or other malware.
  • Untraceable Payment Method—Scammers prefer payment methods that are untraceable, such as wiring money through Western Union or other services. Be very suspicious of demands for wire transfers or cash payments. Never wire money to someone you do not know.
  • Grammatical Errors or Poor Production Values—Scammers may be clever, but they are not always careful and English may not be their first language. Their grammatical errors can give them away. If the correspondence you receive is full of errors, low-resolution images, or unsophisticated formatting, be very suspicious.
  • Suspicious Email Domains and Web Addresses—Look carefully at email addresses and domain names. Businesses rarely use free email services like Hotmail, AOL, Yahoo, or Gmail. Even if the business seems legitimate, do some research to make sure they have readily available contact information and have not scammed others.
  • Suspicious or No Addresses—Scammers do not want their victims to know where they live. If there is no physical address and your contacts won’t give you one, it’s a sure bet you’re being scammed. If there is a physical address, check it out using the Internet or Google Earth and see if it’s a real address.
  • Request for Access to Your Computer—A common scam is a phone call from someone claiming to be a technician who has detected problems with your computer and would like to fix them for you free. Never give anyone remote access to your computer.

If you think you may be a victim of a scam, contact the attorneys at DiMuroGinsberg at 703-684-4333 or you can reach out directly to the Consumer Protection Section:

Did Your Contract Anticipate Coronovirus? The Application Of Force Majeure Clauses In Uncertain Times

by Jarrad Wright
DiMuroGinsberg, PC
In recent days, daily life in Northern Virginia, the Washington D.C. metro area, and throughout the United States has been disrupted with school closures and mandates from public health officials. As of now, the economic impact of the Coronavirus (COVID–19) pandemic is unknown. While the length and extent of the economic impact is unknown, companies of all sizes are preparing contingencies. Part of that preparation is analyzing current and future contractual obligations. A key issue for any company or individuals that have contractual obligations is the potential impact of force majeure clauses.

Commonly known as “acts of God” clauses, force majeure clauses in contracts allow a party to not perform a contract obligation due to certain unforeseeable circumstances. These circumstances often include natural disasters and may include terrorism cases. Whether or not pandemics such as COVID-19 are implicated is a question that will be governed by the language of the contract at issue and may be impacted by the various governmental emergency declarations that have been issued in recent days. Force majeure clauses are present in a variety of contracts including leases, insurance agreements, travel insurance, supplier agreements, government contracts, and building contracts.

While it is impossible to know precisely the impact of COVID-19 and whether and how long quarantines may apply, countries such as Italy, France, and Spain have already imposed quarantines overseas. In the United States, Ohio has ordered that bars and restaurants must close indoor dining and New York has ordered movie theaters, gyms, bars and restaurant closures. On March 15, 2020, the Centers for Disease Control and Prevention issued updated guidance recommending that events over fifty people be cancelled. While the guidance does not apply to schools, universities, or businesses, the guidance applies to other gatherings such as weddings, parades, festivals, concerts and sporting events.

While public health is paramount, business impacted by closures or reduced business opportunities are facing questions as to whether they can or have to meet their contractual obligations. Careful analysis of the language of the particular force majeure in each contract at issue is important as force majeure is a contractual creation and the parties’ contract generally govern. In order to understand a provision, the applicable state contracting law that applies should be analyzed carefully.

After the September 11th attacks, business losses resulted in litigation over the applicability of force majeure. Business can expect such issues to once again come to the forefront as the implications of the virus become clear. For example, in the insurance context, the application of business interruption insurance and whether or not a pandemic applies is a source of likely disputes as is insurance disputes over losses incurred because of orders issued by civil authorities when combatting the virus. In the business context, the ability to perform government contracts and service contracts, and whether such non-performance is excused is likely to be litigated.

Accordingly, business should prepare as best they can for the unforeseeable. By staying knowledgeable about the current situation and by carefully reviewing all key insurance agreements or other agreements potentially impacted by the virus, companies and individuals begin to plan on how to deal with the economic and business disruptions. This is even more important for companies and individuals contemplating entering into new agreements.

DiMuroGinsberg has decades of experience in counseling about and litigating business disputes in the Northern Virginia and D.C. metro area and stands ready to answer questions about force majeure and related business disputes that may arise. If you have any questions or an issue you’d like to discuss, please call us at 703-684-4334.

Congress Enacts COVID-19 Paid Leave Entitlements

by Jonathan Mook
DiMuroGinsberg, PC
The coronavirus has wreaked havoc throughout the country, creating significant hardships on employees and employers alike as businesses adjust to the new world in which persons are advised to “shelter in place.” To help alleviate the situation, Congress recently passed the Families First Coronavirus Response Act (“FFCRA”), which creates two new types of paid leave for employees: (1) Expanded Family and Medical Leave and (2) Emergency Paid Sick Leave. To assist employers in paying for the newly created paid leave entitlements, employers will be eligible to receive tax credits in connection with their employee payroll tax filing.

Here’s a summary of what the new leave entitlements provide:

Who Is Eligible?

In general, employees of private sector employers with fewer than 500 employees, and certain public sector employers, are eligible for up to two weeks of fully or partially paid sick leave for COVID-19 related reasons. Employees who have been employed for at least 30 days prior to their leave request may be eligible for up to an additional 10 weeks of partially paid expanded family and medical leave.

What Are the Qualifying Reasons for Leave?

To be a qualifying reason, the leave must be related to the COVID-19 pandemic, and the employee must be unable to work (including unable to telework) for one of the following reasons:

  1. Is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. Has been advised by a health care provider to self-quarantine related to COVID-19;
  3. Is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. Is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
  5. Is caring for his or her child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons; or
  6. Is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services.
What Are the New Paid Leave Entitlements?

Generally, employers covered under the Act must provide employees:

Up to two weeks (80 hours, or a part-time employee’s two-week equivalent) of paid sick leave based on the higher of the regular rate of pay, or the applicable state or Federal minimum wage, paid at:

  • 100% for qualifying reasons Nos. 1-3 above, up to $511 daily and $5,110 total;
  • 2/3 for qualifying reasons Nos. 4 and 6 above, up to $200 daily and $2,000 total; and
  • Up to 10 weeks more of paid sick leave and expanded family and medical leave paid at 2/3 for qualifying reason No. 5 above, up to $200 daily and $12,000 total.

A part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.

Tax Credits

Covered employers qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA. Qualifying wages are those paid to an employee who takes leave under the Act for a qualifying reason, up to the appropriate per diem and aggregate payment caps. Applicable tax credits also apply to amounts paid or incurred to maintain health insurance coverage.

Enforcement

Employers may not discharge, discipline, or otherwise discriminate against any employee who lawfully takes paid sick leave or expanded family and medical leave under the FFCRA. The U.S. Department of Labor (DOL) will investigate and enforce compliance with the FFCRA.

Notice

Employers are required to post a notice informing employees as to their entitlement to both Expanded FMLA and Emergency PSL. For those employees who are teleworking, the notice can be emailed to them or placed on an intranet site and employees notified to view it there. The DOL has issued a poster for employers to use to provide the required notice to their employees.

Additional Information

If you would like to receive a copy of the DOL poster, or have any questions about the new leave requirements, please contact DiMuroGinsberg’s Employment Law Practice Leader, Jonathan R. Mook at jmook@dimuro.com.

Covid-19 and The Rush to Remote Office Work, The Basics.

by Zachary Deubler
DiMuroGinsberg, PC
Offices around the country are shutting their doors and directing staff to work from home as the World Health Organization on Friday confirmed more than 132,000 cases of COVID-19 (COVID-19) worldwide and declared the outbreak a world-wide pandemic. Recently, the Centers for Disease Control and Prevention is urging a nationwide halt to gatherings of more than 50 people for the next eight weeks. With this rush to remote work, small and medium-sized law firms have been put in a tough spot. Firms are faced with difficult questions. Should I close my office? How quickly can we transition to remote work? What policies are (or should be) in place regarding remote office work?

In many instances, asking attorneys to work from home is a relatively easy matter. If an attorney has a laptop, internet connection and phone; remote work is not difficult. However, this assumes there are still support staff at the office fielding calls, submitting filings and other traditional office support. Typically, these individuals, which can be the backbone of a small firm, are only setup for in-office work—i.e. they don’t have a laptop, firm phones, or remote computer access. Moreover, how do you handle your physical front desk and the phones that need to be answered?

Certainly, there is no “one size fits all” approach and each individual law firm must make the choice that feels right for them. Moreover, these decisions are even tougher for small and medium -sized firms without dedicated IT departments to help them develop a plan moving forward. However, for these small and medium-sized firms, moving to a remote office is not as hard as one might think.

Remote Office Policy:

Whether a firm already has a remote office program in place or is looking into options for the future, it’s absolutely vital that firms spell out the details of their program up front. The first step is establishing clear expectations for whatever policy you choose to adopt. There must be clearly defined parameters so that managers, supervisors and workers all understand the rules; such details include expected work hours and which work options will be available—i.e. via phone or video conferencing, etc.

Another minefield that needs attention is the recording of hours for both salaried and hourly employees. Just because an employee is working from home, that does not mean they will not be paid their normal wages. Separate issues may arise between workers with salaried positions and those with hourly positions. Finally, the issue of expenses can be a particularly sensitive subject when it comes to remote work; costs such as personal mobile phone data used in connection with work on an employee’s non-business plan, or the cost of purchasing a computer compatible with the business’s network are all things that must be considered in the development of any policy.

Whether you are drafting a new policy or revising your current policy to conform with current events; it is critically important that you consult an employment law expert while drafting your policy. DiMuroGinsberg has decades of experience with counseling employment law related issues in the Northern Virginia and D.C. metro area and stands ready to answer questions about remote office policy and related business inquires that may arise during this national health crisis.

Remote Computer Access:

The simplest solution for remote file access to your firm’s computer network is a dedicated VPN. Many firms already have such a service in place. However, just because your firm has a VPN already established does not mean you are ready for mass remote connections. Every firm has an internet provider who provides the office with access to the internet. However, like your home internet plan, your office’s internet is “throttled” to the speed that is paid for within the plan. There are two relevant internet speeds, download speeds—how fast can your computer pull something from the internet, and upload speeds—how fast can your computer push information to the internet. For most of us in our daily lives, we are concerned with the former, download speeds—relevant for downloading files, programs, emails and streaming audio and video. However, a productive and reliable VPN connection relies primarily on upload speeds; this is because your computer is pushing files, remote desktop sessions and other information out from your office’s network to your home computer and/or laptop, In most cases, a firm purchases a single internet “hook-up” or pipe from their service provider in which all information flows (both in and out) and the internet speed plan controls how fast (and how much) information is allowed to pass through the pipe at any given time. If your firm does not have sufficient upload speeds, an increased number of VPN remote connections will render remote work horribly slow and unstable. As such, and as more firms debate remote offices, it is important that firms consult with their internet service provider now to ensure they have sufficient upload speeds to enable multiple simultaneous outside connections for remote work.

Though VPNs are a fantastic service, many smaller firms have not invested in the network hardware to make them possible; and if faced with the sudden decision about whether to close, managers might not have time to hire a vender to install the necessary hardware and software to make the VPN work. Not to worry, there are currently services available that offer many of the same benefits of a VPN—i.e. remote access to office networks—without the need to purchase or set-up additional hardware. Many of these services can be set-up in a matter of minutes and offer plans that range from month to month, to yearly. One of the best-known venders in this area is GoToMyPC1, which allows users to access their office computer’s desktop though a secure connection and can work on both Macs and PCs.

Phone Services

In addition to having remote access to work files, firms still must be able to answer their incoming calls even if there is no front desk receptionist. Some businesses have sophisticated phone systems, such as Voice over Internet Protocol (“VoIP” Phones), which allow incoming calls to be automatically redirected to cellphones and home landlines. However, many small firms still have traditional landline-based phone systems without advanced features that allow for automatic call routing, hence the need for the phone answering service. There is a myriad of phone answering services available with a range of plans and features available to suit every firm’s needs. The greatest benefit of these services is that you can keep your firm’s current phone numbers. Simply have your phone system forward all calls to the answering service provider and allow your vender to handle the rest. These phone services can take messages, route calls to cell and home phones and make appointments—anything an in-person front desk receptionist currently does. Many service providers offer monthly and custom plans, so you can engage their services in a cost-effective manner.

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Conclusion

While there is a lot of uncertainty surrounding COVID-19 and its effects on our national and local economies, DiMuroGinsberg stands willing and able to handle the legal concerns of our clients and the community at large during this difficult time. If you have questions regarding employment issues surrounding your business decision to work remote, or if you have general inquiries regarding other legal matters reach out to us at (703) 684-4333 and we would be happy to assist you.

The Coronavirus and DiMuroGinsberg

DiMuroGinsberg is taking the Coronavirus seriously, while trying to continue business as seamlessly as possible. For that reason, we have instituted the following measures to ensure the safety of our clients, attorneys, colleagues, and friends:

  • If you have an appointment at our offices and are not feeling well, please let us know and we will change it to another day or to a phone or video conference—whichever is most convenient for you.
  • If you simply would rather not care to go out for a meeting, again we’re happy to set up a conference call or a video conference for you.
  • Our staff is dedicated to keeping our offices clean. We wipe down surfaces, door knobs and handles, etc. daily to ensure the safety of our staff and clients.

We at DiMuroGinsberg are all joining together to help our clients, employees, colleagues, and friends stay free of the Coronavirus. If you have any questions or concerns about these efforts, please contact our Director of Operations, Michele Kraftschik at mkraftschik@dimuro.com.

If you have any questions about dealing with the impact of the Coronavirus on your business operations or employees, you should contact your attorney or DiMuroGinsberg’s Jonathan Mook at jmook@dimuro.com. Also, check out our article entitled, “The Coronavirus –How Do We Manage It?” which can be found on our website.

The Coronavirus —How Do We Manage It?

by Stephanie West
DiMuroGinsberg, PC

Are you one of those people that washes your hands every chance you get in order to ward off Coronavirus? And, are you well-stocked at home and ready to be quarantined for a month if necessary?

OR

Are you someone who thinks this Coronavirus scare is a bunch of brouhaha about nothing?

Whichever type of person you are, Coronavirus (COVID-19) will Impact you whether you are freaked out or not. In many stores, medicines, bleach and even popular canned goods can’t be had. Travel is affected. Conferences are being cancelled right and left. Offices and schools are closing…new rules everywhere you look and they change day by day. (Today, it was the NBA, March Madness and Broadway!)

What is COVID-19 anyway? It is believed that COVID-19 is a virus that was originally contracted from an animal and then transmitted from human to human. Its symptoms range from mild to severe respiratory symptoms, fever, cough, shortness of breath, and breathing difficulties. In severe cases, the virus has led to pneumonia and kidney failure and has resulted in an increasing number of deaths. The Center for Disease Control (CDC) believes at this time, that symptoms may appear within two to fourteen days after exposure. However, some infected individuals have shown little to no symptoms at all.

What is there to be done in the workplace? What if we get quarantined? As business owners, we must find a way not only to have our employees work from home (the easy part for some) but to have the infrastructure work off-site as well. Employees are worried and want to know we have a plan. So, show them you do.

Following are some guidelines and suggestions from the CDC:

  • Actively encourage sick employees to stay home:
    • Employees who have symptoms of acute respiratory illness should stay home and not come back to work until they are free of fever (100.4 or greater using a thermometer) and any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines, like cough suppressants.
    • Your sick leave policies should be flexible and consistent with public health guidance and make sure that your employees are aware of them.
    • Companies that provide contract employees to your firm should be both aware of your policies and follow them.
    • Don’t require a note from a healthcare provider for an employee to return to work during this time. Health providers are too busy to provide these notes and they might not be able to provide them in a timely fashion.
    • Maintain flexible policies that permit employees to stay home to care for a sick family member. Be aware that this might be a more frequent occurrence during these times.
  • Separate sick employees
    • The CDC recommends that employees who appear to have acute respiratory illness symptoms, like a cough, shortness of breath, etc. upon arrival to work or become sick during the day, should be separated from other employees and should be sent home immediately.
    • Sick employees should cover their noses and mouths with a tissue when coughing or sneezing (or use an elbow or shoulder if no tissue is readily available).
  • Respiratory etiquette and hand hygiene by all employees:
    • Provide tissues and no touch disposal receptacles for your employees.
    • Provide soap and water and alcohol-base hand rubs in the workplace. Ensure that adequate supplies are maintained. Place hand rubs in multiple locations or in conference rooms to encourage hand hygiene.
    • Instruct employees to clean their hands often with an alcohol-based hand sanitizer that contains at least 60 – 95% alcohol, or wash their hands with soap and water for at least 20 seconds.
  • Perform routine environmental cleaning:
    • Routinely clean all frequently touched surfaces in the workplace, such as workstations, countertops, and doorknobs.
    • No addition disinfection is recommended at this time.
    • Provide disposable wipes so that commonly used surfaces (doorknobs, keyboards, desks, remotes) can be wiped before each use.
  • Advise employees before traveling to take certain steps:
    • Check the CDC’s Traveler’s Health Notices (https://www.cdc.gov/coronavirus/2019-ncov/travelers/index.html)for the latest guidance and recommendations for each country to which you will travel.
    • Advise employees to check themselves for symptoms of acute respiratory illness before starting travel and notify their supervisor and stay home if they are sick.
    • Ensure employees who become sick while traveling or on temporary assignment understand that they should notify their supervisor and should promptly call a healthcare provider for advice if needed.
    • If outside the US, sick employees should follow your company’s policy for obtaining medical care or consult a healthcare provide or overseas medical assistance company to assist them with finding an appropriate healthcare provider in that country. A US consular officer can help locate healthcare services. However, US embassies, consulates, and military facilities do not have the legal authority, capability, and resources to evacuate or give medicines, vaccines, or medical care to private US citizens overseas.
  • Additional Measures in Response to Currently Occurring Sporadic Importations of the COVID-19:
    • Employees who are well but who have a sick family member at home with COVID-19, should notify their supervisor and refer to CDC guidance for how to conduct a risk assessment of their potential exposure.
    • If an employee is confirmed to have COVID-19, employers should inform fellow employees of the possible exposure to COVID-19 in the workplaces but maintain confidentiality as to the identity of the person, as required by the Americans with Disabilities Act (ADA). Employees exposed to a co-worker with confirmed COVID-19 should refer to CDC guidance for how to conduct a risk assessment of their potential exposure.

Speaking of the ADA, what are the special requirements under the ADA during a pandemic? Even though seemingly innocent questions asked about an employee’s health for protection purposes might seem alright to you, it’s not alright according to the ADA. Following are some things to watch out for:

  • Employees with disabilities should be included in planning discussions and employer communications concerning pandemic preparedness. Those communications should be accessible to disabled employees.
  • You may not ask any disability-related questions specifically, when figuring which employees might not be available during a pandemic. You may ask questions that are not disability-related such as: who may have issues with transportation or child-care or simple yes or no answers where a detailed description of which item is the problem is not stated specifically.

The basic rule here is to treat the disabled person the same as you would treat any other employee, unless they ask for a special accommodation. Then you must assess whether the accommodation is reasonable in the situation. For example, if the employee asks to work at home, the job can be done at home, and the workplace could be a hazard to them, that is a reasonable accommodation to the employee.

As this pandemic ebbs and flows, winds and grows and hopefully dies out soon, be prepared with a plan that works for your company. Use the CDC as a guide. Clearly, these suggested steps won’t work for all companies. Get a team together (if you haven’t already done so) and make decisions about how you will handle situations as they arise.

At DiMuroGinsberg, we stand ready to provide advice and assistance should it prove necessary as you make steps to combat the Coronavirus We can help you make sure your work place is a safe environment within which your employees will be working during these uncertain times. Please feel free to contact one of our attorneys about matters that may arise.

Good luck and keep washing your hands!