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Though the COVID-19 pandemic put in-person classes, business operations, and vacation plans on hold, there has been no pause of the duties of boards of directors to their respective companies. Board members should keep their fiduciary duties and the practical steps they can take to meet those duties top-of-mind as they guide their companies through the COVID-19 pandemic. We have highlighted board members’ duties and some practical tips boards of directors can take to meet their obligations to their companies during the pandemic.

Board Duties and the Business Judgment Rule: A Refresher

Under Delaware law-which most jurisdictions widely follow when it comes to directors’ duties-directors have a duty of care and duty of loyalty.

  • The duty of care requires directors to make informed and deliberative decisions based on all material information they have reasonably available to them.
  • The duty of loyalty requires directors to act (or decide not to act) in a disinterested and independent manner, with the honest belief that the action or inaction is in the best interests of the company and its shareholders. How will decisions made by board members be evaluated by courts if those decisions are challenged? Courts evaluating board decisions under Delaware law first look to the “business judgment rule,” which allows a rebuttable presumption that directors satisfied their fiduciary duties in making business decisions.
  • If the presumption is rebutted-such as in cases of related party transactions or lack of director independence-Delaware courts apply the more exacting “entire fairness” standard, which normally shifts the burden to directors to prove the fairness of a challenged corporate transaction or decision.
  • As part of the duty of care and duty of loyalty, directors have the duty of good faith, oversight and disclosure. They have to act in good faith, be diligent in overseeing the company, and disclose any conflicts of interest as well as anything that is in the best interest of the company to know.


Continue Reading Board of Directors’ Duties: One of the Few Things Not Put on Hold During the Pandemic

The confusion over evolving state and local quarantine orders can be a challenge for employers with employees visiting hotspot areas. This week we discuss what employers can do when employees travel to a COVID-19 hotspot and have to quarantine when they arrive or return.

Please click here to watch this week’s video chat.

With a surge in COVID-19 cases in parts of the US (and some states taking or considering taking a step backwards into a prior reopening phase), employers are trying to figure out the best ways to keep the virus from spreading in their reopened worksites. We have answered some frequently asked questions below to help employers implement or modify their screening protocol to make it the best fit for their physical workspace, their budget, and their workforce.

1.  Can I check my employees’ temperatures before they enter the  workplace? If my employees have a fever, can I send them home (or tell them not to come to work)?

Yes, employers can check their employees’ temperatures before they enter the workplace. In fact, some states and localities require employers to do daily or weekly checks, so check your local requirements.

A temperature check is a medical examination under the ADA, and in ordinary times, employers generally cannot require employees to submit to a temperature check. However, given COVID-19’s rise to the level of pandemic, and the CDC and state and local health authorities’ acknowledgment of the community spread of COVID-19 and issuance of precautions, EEOC guidance allows employers to check employees’ temperatures before they enter the workplace. Temperature checks are only permitted while the virus is severe, so as the level of community spread diminishes in your locality make sure that temperature checks are still permitted before you administer them.

In addition, employers can send employees home (or tell them not to come to work) if they have a fever or any of the other symptoms of COVID-19. See EEOC guidance and CDC guidance, “Separate Sick Employees.” The CDC defines a fever as 100.4 F or 38 C or above. States may have different guidance regarding what qualifies as a “fever,” with some states defining a “fever” as a flat 100 F, and employers can set lower temperature thresholds if they prefer.


Continue Reading Employee Testing for COVID-19: What Works Now for Your Worksite?

In our first installment of this ICYMI video chat, we discussed the current requirements, realities and challenges raised by COVID-19 testing and screening in the workplace. Join us as we continue the conversation and address additional testing and screening hurdles employers are facing on a daily basis.

Please click here to watch this week’s video

We hope you have found our video chat series helpful and informative. We are continuing this series of quick and bite-sized video chats, where our employment partners team up with practitioners in various areas of law to discuss the most pressing issues for employers navigating the return to work. Each 15-minute Q&A session offers targeted

The COVID-19 pandemic is forcing companies to re-examine their work from home or remote work policies. There is no one size fits all plan. Many companies have moved rapidly to a remote workforce during the pandemic, often with employees relocating to (or been stranded in) locations outside of their normal worksites. For some, remote work

We hope you found last week’s video chat series helpful and informative. Due to popular demand, we are continuing this series of quick and bite-sized video chats, where our employment partners team up with practitioners in various areas of law to discuss the most pressing issues for employers navigating the return to work.

This series

Welcome to Baker McKenzie’s Labor and Employment video chat series! In these quick and bite-sized video chats, our employment partners team up with practitioners in various areas of law to discuss the most pressing issues for employers navigating the return to work.

This series builds on our recent client alert and webinar on reopening for

Are They Right For You?

As the COVID-19 pandemic continues to wreak havoc on the global economy, United States employers are continuing to examine ways to reduce costs while at the same time both limiting the financial impact on employees and preserving their ability to ramp back up when circumstances allow. State short time compensation programs, also known as work share programs, provide one avenue for cost savings that may be appropriate for some employers.

Where available, these programs provide pro-rated unemployment compensation benefits to groups of workers whose hours are reduced by their employer on a temporary basis in lieu of layoffs. In addition, the recently passed Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) provides a federally-funded $600 per week unemployment compensation supplement to those who participate in such programs through July 31, 2020.

This Alert provides additional details about state short time compensation programs and answers frequently asked questions about the pros and cons of participation.

Where are short time compensation programs available?

Currently, the following 27 jurisdictions have short time compensation programs in place: Arizona, Arkansas, California, Connecticut, District of Columbia, Florida, Iowa, Kansas, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, Ohio, Oregon, Pennsylvania, Rhode Island, Texas, Vermont, Washington and Wisconsin. The CARES Act provided federal funding for other states to enact short time compensation programs, so additional states may do so in the near term.


Continue Reading Short Time Compensation (Work Share) Programs

We recently covered the new paid sick and family leave requirements under the Families First Coronavirus Response Act (FFCRA) here. The FFCRA marks the first time Congress required federal paid leave for private sector workers. That is not the case at the state and municipal level, where for years, employers have had to navigate