Corona-Crisis: Being Ready. Getting Ready. And Lessons in Preparedness for Whatever Comes Next.

by Jamie Rubin

It is hard to think of an industry that is unaffected by the novel coronavirus. Conferences are cancelled, spring break plans disrupted, students are being sent home and the NCAA will play its tournament to empty arenas while fans watch from home. At our firm, we are facing questions from concerned clients on a wide range of issues affecting advertising, privacy and technology. Maybe you’re wondering if others are considering the same issues. So while health and safety considerations always comes first, we’re writing to let you know you’re not alone in thinking about the legal issues that affect promotions, contracts, e-commerce and overall business issues. And the work we do now to support and get through the issues raised by coronavirus will continue to limit liability and protect you even when the world returns to business as usual.

Right now, we’re being asked….

• We have prize winners who are supposed to travel next week on the trip they won in our sweepstakes.

  • What should we do?

  • Does it matter if the destination is/is not on a restricted travel list?

  • Do we have any obligation if the winner chooses to forgo travel?

  • CONSIDERATIONS: There may be language in the official rules and winner documents that address events outside the sponsor’s control, but a close analysis is necessary to determine if you can really rely on such language. Moreover, there are state laws affecting sweepstakes that require a sponsor to award all prizes offered and those need to be considered as part of the plan of action.

    • The same issues apply for event prizes given the recent cancellations of SXSW and similar events.

• We’re in the middle of sponsoring a sweepstakes that offers a trip prize.

  • What should we do?

  • Can/should we postpone the sweepstakes or modify the entry dates mid-stream?

  • CONSIDERATIONS: Changing a sweepstakes in a way that impacts the odds of winning is tricky, and enterprising plaintiff’s attorneys are likely now more than ever looking for companies to botch their consumer offers.

    • The same issues apply for event prizes.

• We can’t meet our shipping promises for items ordered from our site. This has never happened to us before!

  • What do we do?

  • CONSIDERATIONS: There’s actually a specific Federal act that dictates how you have to communicate with your customers when shipping dates will be affected. https://www.ftc.gov/tips-advice/business-center/guidance/business-guide-ftcs-mail-internet-or-telephone-order. There are similar state laws to navigate as well.

• We’re entering into an event sponsorship agreement for an event that takes place in 2021.

  • Is our standard force majeure clause enough to protect us?

  • What else in contract law can help?

  • CONSIDERATIONS: There’s a lot of caselaw on this topic and revisiting the force majeure clause you use may be worthwhile. Generic language you have used for years may need updating.

• We’re not used to having this many people work from home.

  • Do I need to update my employee and/or technology policies? Are there increased risks of a data security breach?

  • What other privacy and security issues do I need to consider?

  • CONSIDERATIONS: A key privacy and security issue to manage with a large remote workforce is mitigating the risk associated with poorly secured personal devices. If employees store confidential information (such as customer or employee personal information or sensitive business documents) on an insecure device which may be readily lost, stolen, and hacked, that device becomes an ongoing risk to the company. If your company maintains a robust private cloud environment within which employees may perform their work, employees should be required to use this option. Otherwise, you should consider acquiring a secure file transfer/storage service and require employees to save all confidential business records within this service. This means that your employees may have to temporarily store confidential information on their personal devices, so it is also advisable to provide them with instructions on how to securely erase such files (there are a number of free utilities that can be used for this purpose) after they have been transferred to the secure file service.

• Does HIPAA cover employees who have Coronavirus?

  • Should we/can we notify our employees if someone tests positive? Does the answer change depending on jurisdiction?

  • Do we need to update our employment policies or employee privacy policies in light of coronavirus and the worldwide response?

  • CONSIDERATIONS: In general, HIPAA will not apply to your employee data unless you operate a self-funded employee health plan. Even if that is the case, HIPAA will only apply to data collected or used for the purposes of operating the self-funded employee health plan. However, businesses should be careful about disclosing information about an employee’s medical condition to other persons (including other employees). For instance, the data breach laws in a number of states (e.g., Texas, Florida, Illinois, and Maryland) apply to information about medical conditions. Thus, a disclosure about an employee’s medical condition (without their permission) could result in a reportable data breach.

We may update this post as new and interesting questions come in that may be helpful for you to consider.