On April 23, 2020, the Equal Employment Opportunity Commission (EEOC) provided revised guidance regarding employers’ obligations with respect to anti-discrimination laws, amid the challenges posed at the workplace and to the workforce by the COVID-19 pandemic. While this guidance may not provide answers for every situation, it highlights issues employers will have to consider before making decisions that affect their employees.
- 03.31.2020Employers’ Guide to the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) Stimulus Package
Congress passed, and President Trump signed into law, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) on March 27, 2020. Commonly referred to as the “coronavirus stimulus package,” the CARES Act contains numerous provisions aiding individuals, small businesses, big corporations, public systems and local governments. Several provisions for small businesses help offset the financial burden of the recently enacted Families First Coronavirus Response Act (FFCRA).
The battle between insurers and policyholders regarding coverage for business interruption losses due to COVID-19 is heating up.
Insurers are already being called upon to respond to claims for business interruption due to business closures as a result of the ongoing COVID-19 pandemic. Most business interruption policies require “direct physical loss” to trigger coverage.
- 03.20.2020Landlords Subject to Premises Liability Claims Under Gang Act Pursuant to New Court of Appeals Decision
The Court of Appeals of Georgia recently upheld a trial court’s decision to allow claims against a landlord under Georgia’s anti-gang statute to proceed, despite the fact that the landlord had no involvement in the underlying gang activity.
On March 18, 2020, President Trump signed legislation affecting employees’ rights under the Family and Medical Leave Act (FMLA) and paid sick leave. The two provisions, the Emergency Family & Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA), are a part of the Families First Coronavirus Response Act and will be effective on April 1, 2020, applying to leave taken between April 1 and Dec. 31, 2020.
The Centers For Disease Control (CDC) has provided recommendations for responding to COVID-19, a disease caused by the new coronavirus, which the World Health Organization has now classified as a pandemic. In addition to the CDC guidelines, employers should also consider guidance from the Equal Employment Opportunity Commission (EEOC) and the Occupational Safety and Health Administration (OSHA) with respect to the Americans with Disabilities Act (ADA), workplace safety and guidelines concerning any pandemic.
- 03.11.2020Time-Limited Demand in Death Must Include Both Wrongful Death and Estate Claims and Be Authorized by All Beneficiaries
In Shin, et al. v. Infinity Insurance Co., the Northern District of Georgia granted summary judgment in favor of Infinity Auto Insurance Company (Infinity) on claims in excess of $3.5 million for bad-faith failure to settle and breach of contract. The court focused on the bad faith claim and an insurer’s duty to settle claims against its insured.
The State Board of Workers’ Compensation has expanded the use of filing a Petition for Medical Treatment (PMT) as it relates to an employee’s failure to attend a medical appointment. Pursuant to Rule 205(c), employers and insurers are now able to use a new form, PMT(b), to petition the Board for a telephone conference with an administrative law judge (ALJ) during which the employee must “show cause” why an order should not be issued directing the employee to attend an appointment with an authorized treating physician.
- 03.28.2019Georgia Workers’ Compensation Legislative Update: Senate Bill 135 Passes the House of Representatives
On March 28, 2019, Senate Bill 135 passed the House of Representatives, after previously being passed in the Senate, and awaits Governor Brian Kemp’s signature before officially becoming law.
In a closely watched case, the Supreme Court of Georgia recently held that an insurer’s duty to settle arises only when the injured party presents a valid offer to settle within the insured’s policy limits. In First Acceptance Insurance Co. of Georgia, Inc. v. Hughes, No. S18G0517, the court unanimously reversed the Georgia Court of Appeals and reinstated a summary judgment ruling in favor of First Acceptance, finding that the insurer did not act negligently or in bad faith as a matter of law.
The Georgia Legislature is currently considering a bill that will have a substantial impact on workers’ compensation benefits in Georgia. The bill, if passed, would result in an increase in the temporary total disability rate to $675 per week and the temporary partial disability rate to $450 per week. Additionally, the bill proposes some limits to the 400-week cap in medical benefits to provide for replacement and maintenance of items such as prosthetics, spinal cord stimulators, pain pumps or certain types of durable medical equipment, provided that the item or service was furnished within 400 weeks of the date of the injury.
The Georgia Court of Appeals has affirmed and relied upon the bright-line rule established in the recent case of Frett v. State Farm Employee Workers’ Compensation, which was litigated by Swift Currie partner Chad Harris through his representation of State Farm. In Frett, the Court of Appeals concluded the ingress/egress rule does not apply to accidents and injuries occurring on regularly scheduled breaks where the employee is free to pursue personal matters. In a decision rendered on Feb. 26, 2019, in Daniel v. Bremen-Bowdon Investment Co., the Court of Appeals applied the ruling in Frett and found the claimant’s injuries are not compensable under the Workers’ Compensation Act.
A recent ruling by the Eleventh Circuit Court of Appeals held a district court may dismiss a case with prejudice when a plaintiff improperly uses “shotgun pleadings.”
In Jackson v. Bank of America, N.A., 898 F.3d 1348 (11th Cir. 2018), the plaintiffs filed suit against their mortgage lender and loan servicer after the foreclosure of their home. The complaint included 14 causes of action which were vague and not defendant-specific.
A recent ruling by the Georgia Court of Appeals clarified whether the ingress and egress rule applies to the scheduled break exception. The court previously determined an injury does not arise out of and in the course of an employee’s employment while on a scheduled break where the employee is free to use the time as he chooses even if he remains on the employer’s premises. However, the court also previously established the ingress and egress rule, which indicates an injury occurring within a reasonable period of time while the employee is on the employer’s premises preparing to begin or end work does arise out of and in the course of his employment.
A recent ruling by the Georgia Court of Appeals reaffirmed a plaintiff’s burden in product liability cases that allege a design defect.
In Sheffield v. Conair, a woman fell asleep while lying on a new heating pad. She woke up with her bed in flames. The fire chief determined the fire started near the heating pad, but could not say what caused the fire. The trial court granted the heating pad manufacturer’s Motion for Summary Judgment, finding the plaintiff had not put forth evidence that the heating pad was defective.
In a pending wrongful death lawsuit arising out of a recreational boat incident on Lake Burton (located in North Georgia), the Georgia Court of Appeals accepted an interlocutory appeal on the issue of the emotional distress claims of three children who witnessed the death of another child in their family. The appeal is captioned Malibu Boats, LLC v. Batchelder.
FILE THE 1 IN EVERY ONE
Effective Jan. 1, 2019, the Board will require that a WC-1 be filed in all claims, regardless of whether income benefits are paid or not. Previously, a WC-1 was not required to be filed in “medical only” claims. Pursuant to O.C.G.A. § 34-9-12(a), the WC-1 must be filed within 10 days of the employer’s notice of the accident. While this change does not take effect for another six months, Swift Currie recommends getting into the habit of doing so now so that it is a regular practice by Jan. 1, 2019. Keep in mind that failure to file Board forms, including the WC-1, could subject you to attorney’s fees or civil penalties. Please see the link below to download a sample WC-1 form.
The Alabama Supreme Court recently addressed a plaintiff’s standing to sue in Alabama wrongful death suits and held the personal representative of the decedent’s estate lacked standing because he had been legally discharged as personal representative prior to filing suit.
The Georgia Court of Appeals recently determined the language in a lease agreement can shorten the time in which a tenant can bring a personal injury against the landlord. In Langley v. MP Spring Lake, LLC, No. A18A0193, 2018 Ga. App. LEXIS 258 (Ct. App. May 1, 2018), the plaintiff tenant filed a premises liability action against her landlord for injuries resulting from a fall that occurred on the apartment complex property. The tenant filed the suit exactly two years after the alleged incident. H
Since first defining idiopathic injury, the Georgia appellate courts have refined and attempted to clarify the definition and legal framework for analyzing what has been coined the “idiopathic defense.”
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