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Business triage re: COVID-19.

Business triage re: COVID-19.

We at Englander Fischer are reaching out to our valued clients and friends to lend our experience regarding the wide-ranging impact of the 2019 Novel Coronavirus disease (COVID-19). Your businesses should take immediate steps to minimize disruption and protect their future interests. This includes looking to your existing business agreements, insurance policies, and contracts, that may have little known built in protections against unforeseen events like COVID-19, and its evolving economic and societal impacts.

For example:

“Force Majeure” provisions.

Force Majeure refers to intervening acts and circumstances that excuse a party in whole or in part from performance of an agreement. It typically arises by an event which is commonly referred to as an “Act of God”, such as a hurricane, flood, or fire. However, under Florida law, courts have extended the principle to events that occur beyond the force of nature. For example, in construction, the gold-standard AIA forms include provisions for unusual delays in deliveries, epidemics and labor shortages or disputes. Can the COVID-19 pandemic be used as an event of Force Majeure to avoid completion of a contract? Courts have not yet addressed that question, however, at least one Florida appellate decision excused a contractor’s delay due to the heart attack of its president.

“Non-compete” clauses, particularly in the healthcare industry.

Many employment agreements, including physician agreements, prohibit competition upon termination. However, Florida Statutes deny enforcement of these non-compete clauses if they adversely impact the public health, safety or welfare. Many courts push the burden of proving this on the physician. However, it would seem that medical groups would be hard pressed to persuade a judge that prohibiting competition of a physician or other health care provider in the face of this epidemic is in the public’s best interest. A similar argument could be made for any employee providing a public service (weather healthcare related or not) that is deemed to be of value to the public health, safety or welfare during a time of crisis.

Other discrete contractual provisions that may be triggered or impacted by COVID-19 include, but are not limited to:

  • Financial rations
  • Supermajority voting provisions
  • Discreet events of default
  • Notice provisions
  • Fiduciary Duties
  • Labor or material shortages
  • National or State Emergency declarations
  • Employee Terminations/Obligations
  • Employer Obligations
  • HIPAA Compliance and Obligations

Englander Fischer is grateful to be a part of this vibrant business community. We understand this is a difficult and scary time for many people, and that business owners are uniquely impacted by this crisis. We are committed to doing our part to help, and are offering free one-hour consultations to clients and friends who want to speak to an attorney about a COVID-19 related issue impacting their business. Please let us know if we can help. You may reach us at 727-898-7210.

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