Capell & Howard P.C. Attorneys At Law Montgomery & Auburn/Opelika, AL

Barbara J. Wells Speaks at Construction Industry Conference

Barbara J. Wells, Capell & Howard attorney and shareholder, made a presentation at the Inaugural Gulf Coast Construction Industry Conference in Mobile on July 13, 2022. Her presentation was entitled “Employment Law and Practices for Construction Companies: 10 Things Managers Say That Invite Workplace Problems.” Barbara also spoke at the 8th Annual Construction Industry Summit in Birmingham on December 1, 2021. Also about Employment Law, her presentation was entitled “What Do You Mean They Are My Employees? How to Avoid Employment Claims for Direct Hires, Leased Employees, and Borrowed Servants.”

Both events were hosted by the Construction Industry Section of the Alabama State Bar and Alabama Associated General Contractors. Capell & Howard was pleased to support both of these conferences as a Grand Patron Sponsor.

Firm Welcomes Second Group of Summer Clerks

We are pleased to welcome our second group of clerks to Capell & Howard this summer: Margaret Canary, Mitchell Sikes and Libby Wheeler.

Margaret Canary returns for her second clerkship with our firm. Originally from Montgomery, Margaret graduated from the University of St. Andrews in Scotland where she received her Master of Arts (Hons.) degree in Modern History.

Margaret recently completed her second year at The University of Alabama School of Law, where she served as Junior Editor of the Journal of the Legal Profession and has a note that will published in the Journal’s forthcoming edition. Margaret currently serves as Law Review Articles Editor.

Mitchell Sikes is a Montgomery native and not a stranger to Capell & Howard, having worked as a runner at our firm in recent years. Mitchell studied Finance at Auburn University before receiving his B.S.B.A. degree in Finance from Auburn University Montgomery.

He recently completed his second year at the Thomas Goode Jones School of Law at Faulkner University, where he serves as Editor-in-Chief of the Faulkner Law Review. Mitchell was a Most Outstanding First Year Student Award Nominee and a participant in the 2021 John Garman Moot Court Tournament.

Libby Wheeler hails from West Point, GA, and is a graduate of Duke University, where she obtained a Bachelor of Arts degree in Public Policy Studies. As part of the Duke Immerse Program, she participated in Human Rights Study there in Durham and in Mexico City.

Libby recently completed her first year at The University of Alabama School of Law, where she received the Fuller E. Callaway Hatton Lovejoy Scholarship, the University of Alabama Law School Merit Scholarship and was selected as a Legal Writing Fellow.

 

Capell & Howard Welcomes Summer Clerks

We are pleased to welcome our first group of clerks to Capell & Howard this summer: Kazie Hale, Tara Chambliss and Addison Franklin.

Kazia Hale currently lives in Birmingham, Alabama. She graduated from Faulkner University where she earned a Bachelor of Science in Legal Studies. Kazia recently completed her second year at Samford University Cumberland School of Law, where she served as a member of the National Trial Team and Co-chair of the Thurgood Marshall Symposium of the Black Law Student Association.

Kazia also served as Vice President of Community Service for the Sports and Entertainment Law Society, Public Interest Panel Co-chair for the Public Interest and Community Service Organization, as well as a Career Development Advisory Board Member. As a third-year law student, she will serve as a senior member of Cumberland’s Trial Advocacy Board.

Tara Chambliss is from Prattville, Alabama. Prior to pursuing a career in law, and with a background in Civil Engineering, Tara had a successful career working as an Alabama Licensed Professional Engineer and National Bridge Inspection Standards Certified Bridge Inspector.

More recently, Tara has completed her second year at the Thomas Goode Jones School of Law, where she serves as Managing Editor of the Law Review (2022-23). She was a member of the National Moot Court Team (2021-22) and a 2021 Finalist for the John Garman Moot Court Tournament. Tara was also the recipient of the 2021 Most Outstanding First Year Student Award.

Addison Franklin is from Pelham, Alabama. She graduated from Huntingdon College with a Bachelor of Arts in Business Administration, graduating summa cum laude, with numerous other awards and accolades; among them, the Willard D. Top Award, Margaret Read Scholarship Medal, Dean Fran Taylor Award, and Jane Williams Scholarship Award.

Prior to law school, Addison worked as a legal assistant and served as a legislative intern at local law firms. Addison recently completed her first year at The University of Alabama School of Law, where she is active in The Federalist Society, Raise the Bar, and the Dorbin Women’s Association.

Firm mourns loss of John F. Andrews

It is with fond memories and heavy hearts that our Capell & Howard family mourns the loss of John Fontaine Andrews.

Born and raised in Montgomery, AL, John successfully practiced as a bond attorney for Capell & Howard for 45 years, building a practice of statewide recognition.

John’s fellow attorneys and friends describe him as funny, engaging and colorful, particularly when he shared stories of his many travels and adventures. He had an independent and original streak, owing perhaps to his French Huguenot roots or possibly his mother’s Eufaula upbringing.

John enjoyed opera wherever he found it, including on his trips around the world. He introduced several friends to opera and loved to join them in recent years when Metropolitan Opera productions were broadcast live in local movie theaters.

Perhaps more than opera, John loved to travel across the globe – with his beloved wife Ellen, before they started a family, and later with friends and law partners. John relished handling all the travel planning and preparations for a trip. Whether it was traveling to Costa Rica, Mexico or the Ukraine, if you were lucky enough to travel with John, you were sure to experience a unique and sometimes challenging adventure.

In addition to opera and travel, John loved parties and entertaining, particularly costume parties and impromptu gatherings that he and Ellen hosted. As a zealous founder of the costumed Rogues Ball, John discovered belatedly that Spanish moss was a poor accessory to a swamp monster costume (yes, the maddeningly itchy chigger makes its home there).

John will be missed by all who knew him. Our deepest condolences go out to his family and friends.

A memorial service for John will be held at a later date. Click here for his obituary.

With special thanks to Capell & Howard attorneys William Martin, John’s colleague and friend, and Lister Hubbard, John’s cousin, for their contributions to this tribute.

Attorney Rick Hill represents Capell & Howard at SCG Legal Conference

Rick Hill, an attorney with Capell & Howard, recently attended the State Capital Group’s conference in San Francisco with programming focused on the important undercurrents shaping the 2020s.

Founded in 1989, SCG Legal has grown into a global network of more than 12,000 attorneys practicing in independent law firms located in 60 countries around the world, with one firm headquartered in each U.S. state capital.

As a founding member, Capell & Howard represents the State of Alabama in this network.

Lister Hubbard Speaks as Special Guest Lecturer for Tuskegee University

At the request of Tuskegee University, Lister Hubbard spoke to a professional practice class at Tuskegee University on September 9, 2021. He addressed legal issues that affect the architectural profession. Over the past decade, Lister has been a frequent guest lecturer for this and other classes at Tuskegee University.

Capell & Howard, P.C. Attorneys Honored

Capell & Howard, P.C. is pleased to announce that 23 of our lawyers have been selected recently by their peers for inclusion in the 2022 Edition of The Best Lawyers in America© (https://bit.ly/3ojTsPI).

The Capell & Howard, P.C. attorneys included in the 2022 edition of The Best Lawyers in America© are as follows:

Shapard D. Ashley

  • Real Estate Law

Chad W. Bryan

  • Appellate Practice
  • Commercial Litigation
  • Insurance Law
  • Litigation – Insurance
  • Litigation – Trusts and Estates
  • Personal Injury Litigation – Defendants

William D. Coleman (Of Counsel)

  • Arbitration
  • Commercial Litigation
  • Construction Law
  • Litigation – Construction
  • Litigation – Environmental, Mediation

Michael Dalton

  • Tax Law

Bruce J. Downey, III

  • Employment Law – Management
  • Labor Law – Management
  • Litigation – Labor and Employment

Carla Gilmore

  • Employment Law – Individuals
  • Employment Law – Management
  • Litigation – Labor and Employment

J. Lister Hubbard

  • Construction Law
  • Construction Litigation

David B. Hughes

  • Bankruptcy and Creditor Debtor Rights/Insolvency and Reorganization Law
  • Real Estate Law

Henry H. Hutchinson (Of Counsel)

  • Corporate Law
  • Litigation and Controversy – Tax
  • Tax Law

D. Kyle Johnson

  • Corporate Law
  • Employee Benefits (ERISA) Law
  • Tax Law
  • Trusts and Estates

Frank McFadden (now deceased)

  • Arbitration
  • Litigation – Construction
  • Mediation

Robert T. Meadows, III

  • Commercial Litigation
  • Family Law

Robert F. Northcutt

  • Commercial Litigation

Robert D. Rives

  • Real Estate Law

William Allen Sheehan

  • Commercial Litigation

K. Palmer Smith (Of Counsel)

  • Real Estate Law

Debra D. Spain

  • Trusts and Estates
  • Tax law
  • Litigation – Trusts and Estates

James N. Walter, Jr.

  • Arbitration
  • Commercial Litigation
  • Litigation – Banking and Finance
  • Litigation – Insurance
  • Litigation – Securities
  • Mediation

Chris Weller

  • Appellate Practice
  • Employment Law
  • Individuals
  • Labor Law – Management
  • Litigation – Labor and Employment

Barbara Wells

  • Employment Law – Individuals
  • Employment Law – Management
  • Labor Law – Management
  • Litigation – Labor and Employment

Courtney Williams

  • Employee Benefits (ERISA) Law
  • Business Organizations (including LLCs and Partnerships)
  • Litigation and Controversy – Tax
  • Tax Law

Capell & Howard, P.C. would also like to congratulate the following five Capell & Howard attorneys who were selected as 2022 “Lawyers of the Year” for the Montgomery area in the following practice areas: 

Lister Hubbard

  • Litigation – Construction

Chris Weller

  • Labor Law – Management

Courtney Williams

  • Litigation and Controversy – Tax

Palmer Smith (Of Counsel)

  • Real Estate Law

Frank H. McFadden

  • Arbitration (now deceased)

Capell & Howard, P.C. would like to congratulate the following attorney included in the 2022 Best Lawyers: Ones to Watch in America

Blake Brookshire

  • Civil Rights Law
  • Commercial Litigation
  • Labor and Employment Law – Management
  • Litigation – Labor and Employment
  • Litigation – Construction

Since first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. More than 113,000 industry leading lawyers are eligible to vote (from around the world), and it has received over 15 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world.

For the 2022 Edition of The Best Lawyers in America©, more than 10.8 million votes were analyzed, which resulted in more than 66,000 leading lawyers being included in the new edition. Lawyers are not required or allowed to pay a fee to be listed; therefore, inclusion in Best Lawyers is considered a singular honor.

What Employers Need To Know About Alabama’s Medical Cannabis Law

By: Barbara Wells

Now that Governor Ivey has signed the Compassion Act into law, employers may be wondering what this law means for them. After all, about a dozen states that have legalized the use of marijuana for medicinal purposes have also passed laws protecting employees who legally obtain prescriptions and use medical cannabis outside work hours. Not so in Alabama.

The Compassion Act goes out of its way to be as pro-employer as possible. For example:

  • Employers may continue to refuse to hire individuals who use medical cannabis regardless of whether or not they are impaired from that use.
  • Employers may discipline or discharge employees who test positive for marijuana. This is true even if the employees have valid prescriptions for medical cannabis and show no signs of impairment in the workplace.
  • Employees using medical cannabis have no right under Alabama law to demand an employer to accommodate or allow the use of medical cannabis. This matters because as long as federal law defines use and possession of marijuana illegal, the Americans with Disabilities Act does not count medical cannabis like it does other medications and the ADA’s required reasonable accommodation does not come into play.
  • Employers can continue to enforce existing drug testing programs or even establish a new drug testing policy.
  • Employers may legally adopt a policy requiring employees to notify the employer if an employee possesses a medical cannabis card.
  • Employers are not required to reimburse employees for the costs associated with the use of medical cannabis.
  • This law goes out of its way to explicitly reject the notion that provision in it could be used to create any legal action of any sort against an employer for refusing to hire, discharging, disciplining or taking any adverse employment action due to the use of medical cannabis.

Some employers may decide to put different policies in place, but they are not legally required to do so. For now, Alabama has elected to provide protection to employers. So while Alabama workers may be able to obtain prescriptions for marijuana in the future, the use of those prescriptions may not be without adverse consequences to existing or potential employment.

If you have questions about what to do with your business or company during the COVID-19 pandemic, call Capell & Howard at 334-241-8000 and ask for one of our employment lawyers: Christopher WellerBarbara Wells,Brooke LawsonCarla Cole GilmoreMai Lan Isler, or Blake Brookshire.

This summary is based upon what we know as of this writing. No assurance of the completeness, comprehensiveness, correctness, or currency of the information is provided. The materials and information presented are not, are not intended to be, and should not be relied upon or construed as legal advice. Receipt of the information alone does not create an attorney-client relationship. Before making any decision or taking any action, you should consult with a professional adviser who has been provided with all pertinent facts relevant to your situation.

The Alabama State Bar requires the following disclaimer in lawyer advertising: No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

New CDC Guidance on COVID-19 Protocols

On May 13, 2021, the CDC issued new guidance regarding the continued use of masks and social distancing indoors and outdoors for employees who are fully vaccinated against COVID-19.  This new guidance does not trump state or local rules, guidance, or orders. Therefore, before you change any policies, be sure you know whether your location has a local difference. Also, as you may know, OSHA previously weighed in on an employer’s duty to protect employees from COVID-19 in the workplace. That guidance is still on the books for now, but OSHA is reviewing the recent CDC guidance. We anticipate an update on the OSHA website soon.

  • Based on current guidance from the CDC and the EEOC, employers may allow fully vaccinated employees to resume activities without wearing a mask or physical distancing.  As used here, “fully vaccinated” means a person who has received a single dose of the Johnson & Johnson vaccine or the second dose of the Pfizer-Biotech or Moderna vaccine at least 14 days ago.
  • Importantly, businesses are not required to modify their guidance. The CDC guidance is just that – guidance. Employers may also continue to enforce the use of masks and social distancing in order to provide a safe workplace.
  • Moreover, there are some important exceptions to the CDC’s guidance. For example, the new CDC guidance does not apply to healthcare settings, the public transportation sector, or schools.
  • If an employer decides to drop a mask requirement in the workplace, it can take employees at their word about vaccination status. However, an employer also has the legal authority to require employees to present proof of vaccination.  If an employer wants to review proof of vaccination, it should affirmatively inform employees that they do not need to provide any additional medical or family history information.  Moreover, employers should not ask employees how they fared after their vaccine (especially the dreaded second dose). As harmless as it might seem, some questions could run afoul of some federal antidiscrimination laws.
  • Other than requesting proof of vaccination, an employer should not inquire any further into an employee’s health situation or otherwise question an employee’s decision to decline vaccination.  Such inquiries could trigger obligations under the American with Disabilities Act (ADA) or the Genetic Information Nondiscrimination Act (GINA).
  • An employer should not retain a copy of the vaccination card to avoid triggering safety recordkeeping obligations. Instead, the employer should create a confidential spreadsheet noting employee name, type of vaccine received, and date of the last dose. The date will be helpful later when it appears likely that booster shots may become a reality. The employer should treat the spreadsheet as confidential medical information and maintain it in a secure area.
  • Some employees may have legitimate medical or religious reasons for abstaining from the vaccine.  Consequently, employers must be ready to accommodate abstainers if considering making vaccinations mandatory for the workforce.
  • Employees who are unvaccinated, and thus required to continue wearing masks and maintain social distancing, could have a claim for retaliation if they are harassed or discriminated against in violation of federal safety laws or other legal principles. Accordingly, employers should avoid any appearance of retaliatory conduct and encourage/warn all employees to avoid confronting or otherwise questioning any employee who, for whatever reason, continues to wear a mask.
  • Finally, an employer may continue to require clients/visitors/vendors to wear masks and follow social distancing practices while on premises.

This guidance is current for today. OSHA has announced that it will be providing additional guidance in the near future, and we expect federal agencies likewise to issue additional guidance. For the most current guidance, employers should access OSHA, EEOC, DOL, and CDC websites on a daily basis.

OSHA — https://www.osha.gov/

EEOC — https://www.eeoc.gov/

DOL — https://www.dol.gov/

CDC — https://www.cdc.gov/

This summary is based upon what we know as of this writing. No assurance of the completeness, comprehensiveness, correctness, or currency of the information is provided. The materials and information presented are not, are not intended to be, and should not be relied upon or construed as legal advice. Receipt of the information alone does not create an attorney-client relationship. Before making any decision or taking any action, you should consult with a professional adviser who has been provided with all pertinent facts relevant to your situation.

The Alabama State Bar requires the following disclaimer in lawyer advertising: No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

If you have questions, call Capell & Howard at 334-241-8000 and ask for one of our employment lawyers: Christopher WellerBarbara WellsBrooke LawsonCarla Cole GilmoreMai Lan Isler, or Blake Brookshire.

What Employers Need To Know About The American Rescue Plan

The American Rescue Plan Act of 2021 (ARPA) became law on March 11, 2021, and impacts private employers, their employees, and their benefit plans. ARPA has the following impact on employers relating to the Consolidated Omnibus Budget Reconciliation Act (COBRA) and Families First Coronavirus Response Act (FFCRA).

Consolidated Omnibus Budget Reconciliation Act (COBRA)

ARPA requires employers and their group health plans to offer 100% subsidized COBRA continuation coverage to eligible plan participants (defined as “assistance eligible individuals” or “AEIs”) between April 1, 2021, through September 30, 2021.  The United States Department of Labor (USDOL) and the Internal Revenue Service (IRS) will provide guidance and regulations after April 1, 2021.

An AEI is any qualifying plan participant who loses, or has lost, health insurance coverage due to an involuntary termination (other than for gross misconduct) or a reduction in hours worked (note: ARPA does not appear to distinguish between a voluntary or involuntary reduction in hours), and who elects continuation coverage to be effective during the April 1, 2021, and September 30, 2021, timeframe.  An AEI will lose eligibility for COBRA subsidized coverage if they become eligible for other group health insurance coverage or Medicare.  AEIs are required to notify the plan if they lose eligibility for COBRA subsidized coverage.

Employer-sponsored health insurance plans that are subject to federal COBRA requirements or comparable state continuation programs must offer fully subsidized continuation coverage to AEIs between April 1, 2021, and September 30, 2021.  The requirement to provide fully subsidized continuation coverage for AEIs applies to employers who are subject to COBRA, as well as small employers who are not subject to COBRA but are subject to a state law continuation law, like North Carolina’s health insurance continuation law. Alabama does not have a state continuation law, but most states do.

Employers who comply and provide subsidized coverage as required by ARPA will be reimbursed through tax credits against their quarterly payroll taxes for the costs of the subsidized coverage during the six-month subsidy period. If the tax credit exceeds the payroll taxes owed, it will be treated as an overpayment and refunded to the employer.  Employers can also seek the advancement of the credit (to be treated as a refund), such as if the costs of subsidized coverage are expected to exceed the quarterly payroll taxes. The IRS will provide further guidance.

Extension of Election Period for AEIs

ARPA lengthens the COBRA election period and allows individuals whose COBRA election period expired prior to April 1, 2021, to elect subsidized COBRA coverage beginning April 1, 2021. This special enrollment opportunity also allows AEIs who previously declined COBRA or elected but then terminated their COBRA coverage (such as due to premium nonpayment), the ability to elect subsidized COBRA coverage beginning April 1, 2021.  However, ARPA does not extend the maximum COBRA coverage period (generally 18 months).

Notice Requirements: 

Plans must provide three types of notices to AEIs (two of which are one in the same, but the timing and recipients are different).

  1. General Election Notice: Plans must provide a general election notice to AEIs who first become eligible for subsidized coverage during the six-month subsidy period. This notice must generally notify the AEIs regarding the availability of premium assistance and other specific details about the administration of the subsidized coverage. USDOL and IRS are expected to issue a model notice by April 10, 2021.
  2. Special Election Notice: Similar to the General Election Notice, but this notice must be provided to those AEIs who previously elected, but discontinued their COBRA coverage prior to April 1, 2021, or who declined COBRA previously, but are still within their COBRA coverage eligibility period. This notice must be provided within 60 days from April 1, 2021, and AEIs will have 60 days from receipt of the Special Election Notice to elect subsidized COBRA coverage. USDOL and IRS are expected to issue a model notice by April 10, 2021.
  3. Expiration of Subsidy Notice: The General and Special Election notices provide information to AEIs on the front end regarding their rights to elect subsidized COBRA coverage, whereas this Expiration of Subsidy Notice requirement alerts AEIs that the subsidized aspect of their COBRA coverage will expire on a certain date. This notice must be provided at least 15 days before the subsidy expires and no earlier than 45 days before the subsidy expires. USDOL is tasked with issuing a model notice by April 25, 2021.

 

Families First Coronavirus Response Act (FFCRA)

Tax Credits for Providing FFCRA Paid Sick and Family Leave

ARPA does not renew the requirement that private employers must provide employees with paid or unpaid leaves of absence for reasons related to COVID-19 – as originally mandated by FFCRA almost exactly one year ago. ARPA does extend and expand the availability of payroll tax credits if employers voluntarily provide paid leave consistent with FFCRA.

  1. Tax credits are available to private employers with fewer than 500 employees who voluntarily provide qualifying paid leave under FFCRA.  Local government employers may be eligible in similar circumstances for Social Security and Medicare tax credits.
  2. Wages that entitle an employer to payroll tax-credits must be paid within a specified period of six (6) months: from April 1, 2021, through September 30, 2021.
  3. ARPA expands the qualifying reasons for paid leave (both sick leave and emergency family medical leave) under FFCRA; extends the length of paid leave available; and increases the maximum tax credit associated with that paid leave.
  4. ARPA broadens the COVID-19-related sick-leave reasons for which an employee would qualify for paid sick leave. The three new qualifying reasons for paid leave are: (a) getting tested or awaiting test results or medical diagnosis for COVID-19; (b) getting the vaccine; or (c) recovering from an illness or medical condition associated with getting the vaccine.  To qualify for the tax credit, the employer must provide paid leave for one of these qualifying reasons.
  5. These expanded “sick leave reasons” are now qualifying emergency family medical leave reasons for paid leave under FFCRA.
  6. ARPA eliminates the requirement that the first 10 days of emergency family medical leave be unpaid.
  7. There is a new bank of up to 10 days per employee of qualifying paid sick leave that is available for tax credits for 2021, beginning on April 1, 2021. Thus, the amount of the tax credit per employee has increased from $10,000 to $12,000.
  8. Employers cannot receive a tax credit if they violate FFCRA (anti-retaliation or nondiscrimination provisions).

We Can Help.

Employers should seek advice from experienced attorneys when creating these forms and policies in order to minimize potential liability. If you have questions about what to do with your business or company during the COVID-19 pandemic, call Capell & Howard at 334-241-8000 and ask for one of our employment lawyers: Barbara Wells,  Christopher Weller, Brooke Lawson, Carla Gilmore, Blake Brookshire, or Mai Lan Isler. Or, visit our web page at http://www.chlaw.com for contact info and the latest alerts.

Disclaimers

This summary is based upon what we know as of this writing. No assurance of the completeness, comprehensiveness, correctness, or currency of the information is provided. The materials and information presented are not, are not intended to be, and should not be relied upon or construed as legal advice. Receipt of the information alone does not create an attorney-client relationship. Before making any decision or taking any action, you should consult with a professional adviser who has been provided with all pertinent facts relevant to your particular situation.

The Alabama State Bar requires the following disclaimer in lawyer advertising: No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

Sad News About Some Of Our Esteemed Former Shareholders

It is with sadness that we report the passing of two valued former members of the firm. Late last year, John B. Scott and Frank McFadden passed away. The links below will take you to their obituaries. Each man had many talents and interests and lived full lives. We will miss them.

Frank McFadden Obituary

John B. Scott Obituary

Capell & Howard Attorneys Earn Best Lawyer Awards

Capell & Howard, P.C. is pleased to announce that 22 of our lawyers have been recently selected by their peers for inclusion in the 2021 Edition of The Best Lawyers in America©. Five of our attorneys (Shap Ashley, Brooke Lawson, Bob Meadows, Jimmy Walter, and Barbara Wells) were among the 9 Lawyers selected as “Lawyers of the Year” for the Montgomery area. Furthermore, we are pleased to announce that Best Lawyers: Ones to Watch recognized Blake Brookshire as an up and coming lawyer.

Since first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Almost 108,000 industry leading lawyers are eligible to vote (from around the world), and we have received over 13 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world. For the 2021 Edition of The Best Lawyers in America©, 9.4 million votes were analyzed, which resulted in more than 67,000 leading lawyers being included in the new edition. Lawyers are not required or allowed to pay a fee to be listed; therefore, inclusion in Best Lawyers is considered a singular honor.

The Capell & Howard, P.C. attorneys included in the 2021 edition of The Best Lawyers in America are: 

  • Shap Ashley – Real Estate Law
  • Chad Bryan – Commercial Litigation; Litigation – Trusts and Estates; Personal Injury Litigation – Defendants
  • Bill Coleman – Arbitration; Commercial Litigation; Construction Law; Litigation – Construction
  • Michael Dalton – Tax Law
  • Bruce Downey – Employment Law – Management; Labor Law – Management; Litigation – Labor and Employment
  • Carla Gilmore – Employment Law – Individuals; Employment Law – Management
  • Lister Hubbard – Construction Law; Construction Litigation
  • David Hughes – Bankruptcy and Creditor Debtor Rights/Insolvency and Reorganization Law; Real Estate Law
  • Hank Hutchinson – Corporate Law; Litigation and Controversy – Tax; Tax Law
  • Kyle Johnson – Corporate Law; Employee Benefits (ERISA) Law; Tax Law; Trusts and Estates
  • Brooke Lawson – Construction Law; Construction Litigation; Commercial Litigation
  • Frank McFadden (retired) – Arbitration; Litigation – Construction; Mediation
  • Bob Meadows – Commercial Litigation; Family Law
  • Bob Northcutt – Commercial Litigation
  • Bobby Rives – Real Estate Law
  • Allen Sheehan – Commercial Litigation
  • Palmer Smith – Real Estate Law
  • Debby Spain – Trusts and Estates; Tax law; Litigation – Trusts and Estates
  • Jimmy Walter – Arbitration; Commercial Litigation; Litigation – Banking and Finance; Litigation – Securities; Mediation
  • Chris Weller – Appellate Practice; Labor Law – Management; Litigation – Labor and Employment
  • Barbara Wells – Employment Law – Individuals; Employment Law – Management; Litigation – Labor and Employment
  • Courtney Williams – Business Organizations (including LLCs and Partnerships); Litigation and Controversy – Tax; Tax Law

 

Capell & Howard, P.C. would like to congratulate the following attorneys named Lawyers of the Year for the Montgomery area:

 

 

Capell & Howard, P.C. would like to congratulate the following attorney included in the 2021 Best Lawyers: Ones to Watch.

 

  • Blake Brookshire – Civil Rights Law; Commercial Litigation; Labor and Employment Law – Management; Litigation – Labor and Employment

 

The Best Lawyers: Ones to Watch award is a recognition given to attorneys who are earlier in their careers for outstanding professional excellence in private practice in the United States.

Attorney Brooke Lawson to Present at CompTrust AGC’s RiskCon 2020 – Registration Now Open

Capell & Howard, P.C., is proud to co-sponsor CompTrust AGC’s RiskCon 2020 on Thursday, August 27 in Irondale, Alabama. Offering both in-person and virtual attendance, this one-day mini-conference will target administrative, legal, and job-site risks facing those working within the construction industry. Attorney and Shareholder R. Brooke Lawson, III, a member of Capell & Howard’s construction law department, will address Legal Considerations of COVID-19. Other presentations will include Securing Facilities & Projects from Viral Pandemics, Suicide & Construction, COVID-19 Impact on Surety & Insurance Markets, a keynote session on “Resilience,” OSHA & COVID-19, Cyber Exposure & COVID-19 (Remote Workers), and a job-site safety roundtable.

This conference is appropriate for business owners, senior management, risk managers, project supervisors, field management, safety professionals, attorneys, and insurance & bonding professionals.

To register for RiskCon 2020, click here.

To learn more about Brooke’s work as an attorney, click here.

Revive Alabama Grants

What is a Revive Alabama grant?

Governor Kay Ivey recently announced the Revive Alabama grant program. This program will provide financial support to small businesses in Alabama experiencing the financial impact of COVID-19. To qualify for this grant, a small business must have no more than 19 full-time equivalent employees on payroll. A qualifying businesses may receive up to $15,000 to reimburse its pandemic related expenses. However, the State will not reimburse businesses for expenses federal assistance programs have already covered. The Alabama Department of Revenue has created a website with more information on the program: https://revenue.alabama.gov/revive-alabama.

While the Revive Alabama grant program is open to an unlimited number of applicants, do not delay. The State will award grants to qualifying applicants on  a first-come-first-served basis. The total amount of available grants is limited to $100 million.

How do you apply for a Revive Alabama grant?

Business owners may access the grant application through the Alabama Department of Revenue’s Revive Alabama websiteThe application period for the Revive Alabama Small Business Grant Program will open at noon on July 16, 2020, and continue through midnight on July 25, 2020.

An applying business must first establish a secure My Alabama Taxes (MAT) account to protect its personal and business information on applications. You should start this process as soon as possible. Each applying business must have its own MAT account to apply for a Revive Alabama Small Business Grant. While we cannot apply for grants on your behalf, we are able to assist with the application process. We can also help you establish a MAT account.

The Only Constant Is Change

The Supreme Court’s Recent Interpretation of Title VII Changes the HR Landscape

The Supreme Court’s decision in Bostock v. Clayton Cty., Ga., No. 17-1618 (U.S. June 15, 2020)) granted federal protections against workplace sex discrimination based on gender identity and sexual orientation under Title VII of the 1964 Civil Rights Act (CRA). This ground-breaking ruling will have an immediate impact on human resource policies and employee benefits. While Title VII governs day-to-day workplace issues like hiring, firing, compensation, promotions and harassment, Bostock also implicates the Health and Human Services (HHS) Final Rule on the Affordable Care Act (ACA) that it published on June 12, 2020.

Impact on Employer-Sponsored Health Plans and Benefits

While Bostock’s ruling is about wrongful employment termination, the decision has implications for employer-sponsored health plans and other benefits. Discrimination on the basis of sex in employment, including benefits, has been prohibited for over 55 years by Title VII. In 1978, the Pregnancy Discrimination Act (PDA) amended Title VII to include pregnancy discrimination as prohibited sex discrimination. As a result, employer-sponsored health plans must cover pregnancy, childbirth and related medical conditions in the same way and to the same extent as other medical conditions that are not gender specific. The Supreme Court has also ruled that Title VII requires an employer-sponsored group health plan to extend equally comprehensive coverage to both sexes and cannot discriminate on sex-based characteristics (Newport News Shipbuilding Co. v. EEOC, 462 U.S. 669 (1983)).

The Supreme Court’s Bostock decision creates a compliance risk for plans that cover and treat individuals differently based on sexual orientation and/or gender identity. Bostock will bolster Title VII challenges to transgender benefit exclusions and make reliance on §1557 of the Affordable Care Act (ACA) less important for employment discrimination claims. Although none of the Bostock cases raised §1557 issues, the Supreme Court’s opinion will certainly influence how lower courts and HHS interpret the scope of this provision’s protections.

ACA Anti-Discrimination Ban

ACA §1557 bans discrimination “on the basis of sex” (as well as race, age, disability, color and national origin) in health programs and activities receiving federal funds, including providers, hospitals and medical systems. The nondiscrimination provision in §1557 derives from several federal statutes, including Title VI and Title IX of the CRA, the Age Discrimination Act of 1975, and Section 504 of the Rehabilitation Act of 1973. Title VI of the CRA bars race, color and national origin discrimination in federally funded programs and activities. Title IX, added to the CRA by the Education Amendments of 1972, extends Title VII’s sex nondiscrimination standards to federally funded educational programs and activities.

The initial Section 1557 regulations, which were finalized in 2016, defined “on the basis of sex”[1] to include “discrimination on the basis of pregnancy, false pregnancy, termination of pregnancy, or recovery therefrom, childbirth or related medical conditions, sex stereotyping, and gender identity.” 45 CFR §92.4. Courts interpreted §1557 to prohibit discrimination based on gender identity, gender expression and transgender status in healthcare, including insurers and even some group health plans. Under these rules, a group health plan subject to Section 1557 could not categorically exclude or limit coverage for all health services related to gender identity or other discriminatory restrictions on health services related to gender dysphoria. Healthcare providers likewise could not discriminate against or deny care to transgender individuals.

On June 12, 2020, HHS published revised §1557 regulations that remove the healthcare and health coverage protections for transgender and gay individuals and limits the entities subject to §1557. Among other significant departures from the 2016 rules, the new final rule:

  • Removes language recognizing individuals’ right to sue and obtain monetary damages for violations;
  • Eliminates the gender-identity and sex-stereotyping nondiscrimination requirements for healthcare providers;
  • Expands healthcare providers’ ability to refuse to provide care they find objectionable on religious or moral grounds; and
  • States that §1557 does not apply to employer-sponsored group health plans that do not receive federal financial assistance and are not principally engaged in the business of providing healthcare.

Importantly, the new HHS final rule on §1557 also includes the following commentary:

On April 22, 2019, the U.S. Supreme Court granted three petitions for writs of certiorari, raising the question whether Title VII’s prohibition on discrimination on the basis of sex also bars discrimination on the basis of gender identity or sexual orientation. Because Title IX adopts the substantive and legal standards of Title VII, a holding by the U.S. Supreme Court on the definition of “sex” under Title VII will likely have ramifications for the definition of “sex” under Title IX, and for the cases raising sexual orientation or gender identity claims under Section 1557 and Title IX which are still pending in district courts.

https://www.federalregister.gov/documents/2019/06/14/2019-11512/nondiscrimination-in-health-and-health-education-programs-or-activities

HHS’ comment, published just three days prior to the Bostock decision, will undoubtedly lead to the HHS having difficulty justifying the removal of sexual identity and orientation protections from the §1557 regulations. Bostock will also influence the outcome of §1557 discrimination claims in federal courts. However, now that the Supreme Court has ruled that Title VII protects transgender and gay individuals from discrimination, reliance on §1557 of the ACA may become less important for disputes involving employment-based coverage.

Employer Considerations

Bostock’s Title VII decision will have far-reaching consequences for employers and the workforce that go well beyond benefits and could influence how other federal and state sex nondiscrimination laws apply to sports, schools and public accommodations. For now, employers evaluating existing limits on health coverage for same-sex spouses or gender-transition services need to keep in mind not just Title VII but also other federal and state laws protecting the LGBTQ community.

Here are some things for employers to do in light of the Supreme Court’s Bostock decision:

  • Review anti-harassment and other workplace policies and training programs on LGBTQ issues, taking applicable federal and state laws into consideration.
  • For employers that are federal contractors or subcontractors, ensure compliance with the ongoing contracting requirements prohibiting LGBTQ discrimination.
  • For employers receiving federal funding for their health plans or other health activities, follow developments in the ACA Section 1557 nondiscrimination guidance.
  • Review group health plan coverage for same-sex spouses, services related to gender dysphoria, and gender-affirmation surgeries.
  • Review disability plan coverage for temporary disability due to gender-specific surgeries.
  • Review employee assistance programs (mental health, behavioral health) for offerings specific to the needs of LGBTQ members.
  • Employers with strongly-held religious beliefs should consult with legal counsel if they wish to exclude treatments specific to sexual orientation or gender identity such as gender dysphoria.

[1] Bostock analyzed language in Title VII, which says “because of sex”, while the HHS final rule relies on Title IX, which uses the phrase “on the basis of sex”.

Questions? Our employment lawyers can help.

Mayor Steven Reed Signs Executive Order Requiring Face Coverings

On June 17, 2020, Montgomery Mayor Steven Reed signed an executive order requiring that all individuals over the age of 2 years wear face coverings in masks in all public places, which goes into effect at 5:00PM on June 19, 2020. The order does set forth a caveat that masks should be worn by those “who can medically tolerate doing so when in public places.” Public places include any space indoors that is not a personal or private residence or a motor vehicle. Individuals will only need to wear a mask outside in gatherings with 10 or more people where a 6-foot distance cannot be maintained between individuals. Furthermore, Mayor Reed’s order defines mask or face covering as:

 

[a] device to cover the nose and mouth of a person to impede the spread of saliva or other fluids during speaking, coughing, sneezing or other intentional or involuntary action. Medical grade masks are not required; coverings may be fashioned from scarves, bandanas or other suitable fabrics. The mask must cover the mouth and nose of the wearer.

 

Section 2 of the Mayor’s Order sets forth the limited circumstances in which is not required to wear a mask in public:

 

  1. When outdoors (assuming less than 10 people are present and individuals can maintain 6 foot distance);
  2. In the privacy of one’s home or residence;
  3. Within one’s own vehicle or another’s motor vehicle;
  4. During individual outdoor exercise;
  5. Persons working alone in separate office spaces or in non-public workplaces where there is more than adequate social distancing;
  6. Patients in examination rooms of medical or dental offices or clinics or hospitals where there is a necessity to examine or treat the mouth or nasal area;
  7. When wearing the face covering or mask poses a greater mental or physical health, safety, or security risk;
  8. When eating or drinking in public at a restaurant, bar or other food or beverage establishment. However, a mask or face covering must be worn when entering or exiting the establishment.

 

Those who violate the Mayor’s Order are subject to a fine of $25.00.

 

Please note the Mayor and members of the City Council have been handing out free masks to member of the public. Additionally, several groups have planned future mask giveaways in June.

 

This summary is based upon what we know as of this writing. No assurance of the completeness, comprehensiveness, correctness, or currency of the information is provided. The materials and information presented are not, are not intended to be, and should not be relied upon or construed as legal advice. Receipt of the information alone does not create an attorney-client relationship. Before making any decision or taking any action, you should consult with a professional adviser who has been provided with all pertinent facts relevant to your situation.

 

The Alabama State Bar requires the following disclaimer in lawyer advertising: No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

 

If you have questions about what to do with your business or company during the COVID-19 pandemic, call Capell & Howard at 334-241-8000 and ask for one of our employment lawyers: Christopher Weller, Barbara Wells, Brooke Lawson, Carla Gilmore, Mai Lan Isler, or Blake Brookshire. Or, visit our web page at www.chlaw.com for contact info and the latest alerts.

Senate Passes PPP Flexibility Act of 2020

By: Courtney Williams

The Senate passed the Paycheck Protection Program (PPP) Flexibility Act of 2020. (Click here for a summary of the House of Representatives version that was sent to the Senate.) The Senate, however, entered a letter in the Congressional Record clarifying that the Act does not authorize the SBA to accept applications for new PPP loans past June 30, 2020. Therefore, June 30, 2020 remains the deadline to obtain a PPP loan, which is contrary to the bill passed in the House last week.

 

There was no change to the requirement that 60% of the loan amount must be used for payroll costs to be eligible for forgiveness. Consequently, employers should ensure that they use at least 60% of the total loan amount received, not just the amount forgiven, for payroll costs; otherwise, there will be no forgiveness.

A provision of the Act that was not included in our previous summary is the ability to defer the employer’s portion of Social Security taxes. Under the CARES Act, an employer can defer paying its portion of Social Security taxes that would otherwise be due during the period beginning on March 27, 2020 and ending on December 31, 2020. One-half of the deferred taxes are due December 31, 2021, and one-half is due December 31, 2022. However, the deferral stopped once an employer had a PPP loan forgiven.

The Act eliminated this exception from the CARES Act. As a result, an employer may continue deferring its portion of Social Security taxes through December 31, 2020, regardless of when the PPP loan is forgiven.

For more information on how the PPP Flexibility Act of 2020 may affect your business, visit capellhoward.com or call Courtney Williams at 334.241.8054.

This summary is based upon what we know as of this writing. No assurance of the completeness, comprehensiveness, correctness, or currency of the information is provided. The materials and information presented are not, are not intended to be, and should not be relied upon or construed as legal advice. Receipt of the information alone does not create an attorney-client relationship. Before making any decision or taking any action, you should consult with a professional adviser who has been provided with all pertinent facts relevant to your situation.

The Alabama State Bar requires the following disclaimer in lawyer advertising: No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

OSHA Provides COVID-19 Guidance for Construction Workers

This week the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) created a webpage for COVID-19 related guidance for both construction employers and employees. The OSHA website includes information on how to prevent the spread of coronavirus on job sites including:

  • Using physical barriers (i.e., walls, doors, or plastic coverings) to separate workers from individuals experiencing signs or symptoms;
  • Keeping in-person meetings as short as possible while limited the number of workers in attendance and complying with social distancing;
  • Screening calls when scheduling indoor construction work to assess potential exposures and circumstances in the work environment before entry;
  • Requesting that shared spaces in home environments with construction activities being performed, or other construction areas in occupied buildings, have good air flow;
  • Staggering work schedules, such as alternating workdays or extra shifts, to reduce the total number of employees on a job site at any given time and to ensure physical distancing.

Similar additional advice is available on the OSHA COVID-19 webpage. Employers should be mindful of the quagmire of federal employment laws that may affect their business and seek guidance from knowledgeable attorneys in navigating these laws. If you have questions or require assistance in managing your contracting or projects during the COVID-19 pandemic, call Capell & Howard at 334-241-8000 and ask for one of our Construction and Procurement lawyers: Lister HubbardBrooke LawsonAllen Sheehan, or Blake Brookshire. Or, visit our web page at capellhoward.com for contact info and the latest alerts.

 

This summary is based upon what we know as of this writing. No assurance of the completeness, comprehensiveness, correctness, or currency of the information is provided. The materials and information presented are not, are not intended to be, and should not be relied upon or construed as legal advice. Receipt of the information alone does not create an attorney-client relationship. Before making any decision or taking any action, you should consult with a professional adviser who has been provided with all pertinent facts relevant to your particular situation.

The Alabama State Bar requires the following disclaimer in lawyer advertising: No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

PPP Flexibility Act of 2020

By:  Courtney Williams.  The House of Representatives passed the Paycheck Protection Program (PPP) Flexibility Act of 2020 by a vote of 417-1.  The Act amends portions of the PPP and is intended to make it easier for employers to achieve forgiveness of their PPP loans in the following ways:

  • Extends the maturity of the portion of the loan that is not forgiven from two years to five years.  It appears from the text of the Act that this section only applies to PPP loans made after the enactment of the Paycheck Protection Flexibility Act of 2020.
  • Extends the period for obtaining a PPP loan from June 30, 2020 to December 31, 2020.
  • Extends the period to use the loan for eligible expenses and receive forgiveness from 8 weeks to 24 weeks.
  • Extends the period for that employers can rehire employees and reinstate their previous salaries and not reduce their forgiveness amount from June 30, 2020 to December 31, 2020.
  • Adds another safe harbor that employers are not required to reduce their forgiveness amount due to reduction in employees and reduction in salaries if the employer can document it attempted but was unable to hire employees or that it was unable to return to the same level of business activity it was operating before February 15, 2020 as a result of compliance with governmental requirements or guidance.
  • Reduces the amount of the loan that must be used for payroll costs from 75% to 60%.  Under current guidance, the forgiveness amount is proportionately reduced if more than 75% of the forgiveness amount is used on payroll costs.  There is some concern that the language of this Act would result in no forgiveness if employers did not use at least 60% of the loan amount for payroll costs.
  • Allows employers who have already obtained a PPP loan to elect to use the current 8-week forgiveness period.
  • Extends the deferral of the repayment of the loan from 6 months to the date the forgiveness amount is paid to the lender by the Small Business Administration, but it requires employers to apply for forgiveness within 10 months after the forgiveness period.

The Senate is expected to take up this bill next week.  However, the Senate version of this bill has some differences from the House version:  Most notably, it extends the 8-week period to 16 weeks as opposed to 24.

For more information on how the PPP Flexibility Act of 2020 may affect your business, call Courtney Williams at 334.241.8054.

This summary is based upon what we know as of this writing. No assurance of the completeness, comprehensiveness, correctness, or currency of the information is provided. The materials and information presented are not, are not intended to be, and should not be relied upon or construed as legal advice. Receipt of the information alone does not create an attorney-client relationship. Before making any decision or taking any action, you should consult with a professional adviser who has been provided with all pertinent facts relevant to your situation.

The Alabama State Bar requires the following disclaimer in lawyer advertising:  No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

Alabama’s March 27, 2020 Statewide Order – Social Distancing

Here is a summary of the Alabama’s March 27, 2020 COVID-19 Public Health Order:

1. Effective March 28, 2020 at 5:00 P.M., no more non-work related gatherings of 10 persons
or more; the 10-person restriction applies to employers.

2. Effective March 28, 2020 at 5:00 P.M., “non-essential” businesses are closed

  • Entertainment venues (theaters, clubs)
  • Athletic facilities and activities (gyms, pools)
  • Close-contact service providers (barbers, salons, spas)
  • Retail stores (furniture, clothing, books)

3. Effective March 19, 2020, at 5:00 P.M., all beaches are closed

4. Effective Friday, March 20, 2020, all regular programs at Senior Citizen Centers are done except providing meals through curbside pick-up or delivery.

5. Effective Friday, March 27, 2020, schools are closed:

  • NO In-person teaching or classes at all schools, public and private
  1.  Employees can work from home or maintain flexible work schedules. If working from home is not possible, the employee must practice social distancing and follow public health guidelines.
  2. EXCEPTION–daytime special activities programs provided by local boards of education for children, ages 6 through 12, of First Responders and Licensed Healthcare Providers, and essential employees.
  •  All child day care centers are closed

6. Effective Friday, March 27, 2020, no more visitation at all Hospitals and Nursing Home/Long Term Care Facilities, except for compassionate care situations such as maternity and end-of-life.

7. Effective March 28, 2020 at 5:00 P.M., all dental, medical, or surgical procedures shall
be postponed except for emergencies or procedures needed to prevent serious harm

8. Effective March 19, 2020, at 5:00 P.M., restaurants and bars are closed, except for take-out or delivery with social distancing protocols. Restaurants are strongly encouraged to offer online ordering and curbside pick-up

9. This Order shall remain in full force and effect until 5:00 P.M. on April 17, 2020.

Prior to 5:00 P.M. on April 17, 2020, the Governor will decide whether to extend or relax the Order.

This is a rapidly evolving situation. We update as soon as possible.

Useful Links:

https://www.alabamapublichealth.gov/legal/assets/order-socialdistancing-signed-032720.pdf

https://www.alabamapublichealth.gov/legal/orders.html#jefferson

https://www.alabamapublichealth.gov/legal/assets/soe-covid19-instruction-032620.pdf

This summary is based upon what we know as of this writing. No assurance of the completeness, comprehensiveness, correctness, or currency of the information is provided. The materials and information presented are not, are not intended to be, and should not be relied upon or construed as legal advice. Receipt of the information alone does not create an attorney-client relationship. Before making any decision or taking any action, you should consult with a professional adviser who has been provided with all pertinent facts relevant to your particular situation.

If A Shelter-In-Place Order Comes What Happens To Joint Custody Or Visitation

By Allen Sheehan & Faith Twiggs

The Problems Now

Across the our country, state and local governments have announced versions of Shelter-In-Place Orders. In Alabama, some local governments have imposed curfews or other restrictions on movement in an effort to slow the growth of the COVID-19 pandemic. Those parents already divorced have been discovering that their Divorce Decrees or Child Custody Agreements are not necessarily well-suited to these new conditions. School closures, daycare closures, and work-from-home arrangements radically increased the degree of difficulty for custodial parents. Stress and uncertainty do not evoke the best behavior in everyone. Differences of opinion about safe practices or the degree of risk create opportunities for new conflict over children.

Complications May Arise Under Shelter-In-Place Orders

As difficult as these issues may seem now, restrictive conditions will likely make things worse. Fortunately, some governmental entities issued guidance relating to custody issues as part of their Shelter-In-Place Orders. For example, in some places Shelter-In-Place Orders incorporate provisions allowing travel to exchange custody of children under an existing Court Order. For instance, the Texas Supreme Court issued an Emergency Order that stated that “[p]ossession of and access to a child shall not be affected by any shelter-in place order or other order restricting movement issued by a governmental entity that arises from an epidemic or pandemic, including what is commonly referred to as the COVID-19 pandemic.” Other states, like Michigan, Massachusetts, and California issued similar guidance for parents navigating the new conditions.

What happens now if Alabama enacts a Shelter-In-Place Order?

Should the Governor order a Shelter-In-Place Order in Alabama, we hope it will include guidance on this issue. Parents operating under existing Divorce Decrees or Child Custody Agreements need that. Until that guidance comes, it is important to make co-parenting decisions that are in the best interest of your children. Many Divorce Decrees and Child Custody Agreements permit parents to agree to alter custodial time. If yours does not have this provision, you might want to seek a modification. Likely some circumstance in your life, your co-parent’s life, and your children’s lives have changed in the last few weeks. It is crucial that parents work together and cooperate with each other to share in childcare responsibilities.

If you have questions about what to do while your divorce is pending, call Capell & Howard at 334-241-8000 and ask for one of our domestic relations attorneys: Bob Meadows, Allen Sheehan, Faith Twiggs, or Blake Brookshire.

This is a summary. This information should not be relied upon or construed as legal advice. Reviewing this information alone does not create an attorney-client relationship. You should consult with a professional adviser about your situation.

The Alabama State Bar requires the following disclaimer in lawyer advertising: No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

CONSTRUCTION AND PROCUREMENT ALERT – COVID-19

We are all innovating our business to adapt to evolving government health orders and the pandemic impacts on our employees, projects and economy. The procurement and construction industries will not be the same for the foreseeable future:

  • Voluntary or mandatory work stoppages, suspensions or terminations.
  • Material shortages or disruptions.
  • Labor shortages or restrictions.
  • Project delays and inefficiencies.
  • Difficulties or delays in getting paid.
  • Adaptations in the design and development of new projects.

We can help improve your outcomes for these impacts with our extensive experience in the industry by assisting with:

  • Drafting and negotiating contract or bid terms that anticipate pandemic impacts.
  • Exercising contract provisions that excuse late performance to avoid liquidated damages, defaults or terminations.
  • Securing reimbursement for delay, suspension or disruption costs.
  • Suspending or terminating projects that can’t move forward.
  • Enforcing your rights for payment.

The pandemic will heighten focus on contract provisions such as:

  • Delays and Time Extensions (Force Majeure)
  • Liquidated Damages.
  • Suspension of Work.
  • No Damage for Delay.
  • Termination for Convenience.
  • Termination for Work Stoppages.
  • Termination for Default.

If you have questions or require assistance in managing your contracting or projects during the COVID-19 pandemic, call Capell & Howard at 334-241-8000 and ask for one of our Construction and Procurement lawyers: Lister Hubbard, Brooke Lawson, Allen Sheehan, or Blake Brookshire.  Or, visit our web page at www.chlaw.com for contact information and the latest alerts.

This summary is based upon what we know as of this writing. No assurance of the completeness, comprehensiveness, correctness, or currency of the information is provided. The materials and information presented are not, are not intended to be, and should not be relied upon or construed as legal advice. Receipt of the information alone does not create an attorney-client relationship. Before making any decision or taking any action, you should consult with a professional adviser who has been provided with all pertinent facts relevant to your particular situation.

The Alabama State Bar requires the following disclaimer in lawyer advertising: No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

Return to Work Criteria for Health Care Professionals – COVID19

by: Mai Lan Isler & Barbara Wells

The CDC has provided the following return to work criteria for Health Care Professionals (HCP) with previously confirmed or suspected COVID-19 disease. Obviously, employers in the health care sector are concerned both about protecting health of patients, employees, and the public, but staffing is also a problem. The CDC guidance addresses to possible strategies for allowing return to work:

Test-based strategy- 

Exclude from work until:

  • Resolution of fever without the use of fever-reducing medications and
  • Improvement in respiratory symptoms (e.g., cough, shortness of breath), and
  • Negative results of an FDA Emergency Use Authorized molecular assay for COVID-19 from at least two consecutive nasopharyngeal swab specimens collected ≥24 hours apart (total of two negative specimens).

Non-test-based strategy

Exclude from work until

  • At least 3 days (72 hours) have passed since recovery defined as resolution of fever without the use of fever-reducing medications and improvement in respiratory symptoms (e.g., cough, shortness of breath); and,
  • At least 7 days have passed since symptoms first appeared

Note: If HCP were never tested for COVID-19 but have an alternate diagnosis (e.g., tested positive for influenza), criteria for return to work should be based on that diagnosis.

No word yet on CDC guidance for return to work for employees other than HCP.

This summary is based upon what we know as of this writing. No assurance of the completeness, comprehensiveness, correctness, or currency of the information is provided. The materials and information presented are not, are not intended to be, and should not be relied upon or construed as legal advice. Receipt of the information alone does not create an attorney-client relationship. Before making any decision or taking any action, you should consult with a professional adviser who has been provided with all pertinent facts relevant to your particular situation.

If you have questions about what to do with your business or company during the COVID-19 pandemic, call Capell & Howard at 334-241-8000 and ask for one of our employment lawyers: Christopher Weller, Barbara Wells, Brooke Lawson, Carla Gilmore, Mai Lan Isler, Faith Twiggs, or Blake Brookshire. You can also find contact information for these attorneys on our website.

The Alabama State Bar requires the following disclaimer in lawyer advertising: No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

Small Business Loans under the Paycheck Protection Program of CARES Act

by: Barbara Wells

Are you looking for more information about the small business loans available under the Paycheck Protection Program of the CARES Act? Fortunately, you can find helpful information on the Small Business Administration’s website using the link below.

https://www.sba.gov/funding-programs/loans/paycheck-protection-program-ppp

How Does The COVID-19 Pandemic Impact My Divorce Or Child Custody Case?

I already have a hearing set in my divorce or child custody case. Am I still going to court during the COVID-19 pandemic?

Possibly. The state and local courts suspended all in-person proceedings on March 16, 2020. Initially, the courts closed until April 16, 2020, but as with other deadlines it may become necessary for this date to change. If you have a court date between now and April 16, 2020 you will likely receive an Order continuing your hearing to a later date. Please be mindful that news surrounding the COVID-19 pandemic is changing every day, which means the Supreme Court of Alabama could shorten or extend this timeline.

The courts have cancelled most in-person proceedings for a time, but some courts are still holding hearings by either teleconference or video-conference (for example, by Zoom or Microsoft Teams). If your Judge is able to set up one of these alternatives, you will likely receive an Order with specific instructions on how to participate. Since most Orders are mailed to all parties, it is important to ensure that the court has your current mailing address. You can confirm this by calling the Clerk’s Office in the county where your case is pending.

Are there any exceptions to the in-person proceedings suspension?

Yes. If you are a victim of domestic violence and have filed or need to file for protection from abuse, the courts may hold in-person proceedings on Petitions for Protection from Abuse. Additionally, if you have an emergency related to child custody and/or child protection (including if the Department of Human Resources is involved), the courts may hold in-person proceedings to hear those matters as well.

My workplace closed…My employer reduced my hours and pay…My household went from two salaries down to one…Now money is tight due to the COVID-19 pandemic. Do I still have to pay my child support?

Regardless of how long the COVID-19 pandemic continues to impact our lives, your child requires his or her basic needs of food, shelter and care to be met. You should carefully consider the available resources you have that can help you continue to make your child support payments. With that being said, when there are changes in circumstances – including a change in the financial situation of one parent – that parent may petition the court to modify his or her child support order.

Be mindful that the Department of Labor has recently expanded unemployment benefits to cover individuals who are experiencing hardship due to COVID-19. These benefits extend to individuals that would not have previously been covered. For more information on these changes, please visit https://capellhoward.com/ or call Capell & Howard at 334-241-8000 and ask for one of the lawyers in our employment section.

What Effect Will There Be On My Stimulus Check

The U.S. government recently acted to provide stimulus checks to qualifying Americans to help with the difficult economic situation. Since 1996, a law has been in place that allows the government to collect past-due child support from tax refund checks. This might have you wondering whether past-due child support is going to be taken out of your stimulus check. The answer is: yes, it will be.

There is a Status Quo Order or a Pendente Lite Order currently in place. Does the COVID-19 pandemic change that Order?

No. You should continue to comply with all prior orders of the court. If your order restricts what assets may be used and/or transferred while your divorce is pending (for example, bank accounts, houses, land, cars, etc), be careful about what items you try to sell, what credit card debt you may incur, what bills may go unpaid, and what emergency financial resources you might access. The COVID-19 pandemic does not excuse mismanagement or irresponsible use of marital property. Additionally, if your order requires you to keep health insurance coverage on your child, you must continue to do so even if your employment changes.

The Governor closed public schools for the remainder of the school year, but some school districts are continuing with  distance learning. How do we handle childcare if what we need to do is different than our Custody Agreement or Pendente Lite Order?

Judges across Alabama encourage co-parenting. During this time of uncertainty and departure from your child’s “normal” routine, it is more important than ever to make sure your child feels safe. Whether you are already divorced, or your divorce is pending, it is crucial that parents work together and cooperate with each other to share in childcare responsibilities, including alternating custodial time, and overseeing completion of schoolwork.

If you are already divorced, look to your Custody Agreement or Divorce Decree to see whether it includes a provision that permits parents to agree to alter custodial time. After you have a Pendente Lite Order in place, have an open discussion with your child’s other parent to determine how you can work together to meet your child’s needs during this time, even if that looks different than what is in your existing Order. Put agreements in writing so that there’s no confusion later about what your plan is during the COVID-19 pandemic.

I have other questions, but I cannot find them on this list.

If you have questions about what to do while your divorce is pending, call Capell & Howard at 334-241-8000 and ask for one of our domestic relations attorneys: Bob Meadows, Allen Sheehan, Faith Twiggs, or Blake Brookshire.

The Alabama State Bar requires the following disclaimer in lawyer advertising: No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.

New Policies and Postings in a Pandemic

We know your company is committed to health and safety of your employees and the public. Have you effectively communicated that to your workforce ? Have you added COVID-19 briefings to safety meetings? Does your management team stay on message about its commitment to health and safety? Do you fear your employees are not truthfully representing their fitness for duty?

The COVID-19 pandemic is difficult for everyone to manage. Employers need to carefully and critically examine the answers to these questions and more.

We recommend regularly checking for updated resources for employers on these sites. Of course, we will provide updates here as soon as possible as well. If your business needs additional information or clarification, we offer simplified summaries and practical advice tailored to your individual needs.

Beyond guidance, do you need additional workplace posters or handouts to drive the message home? See what the CDC has to offer here: https://www.cdc.gov/coronavirus/2019-ncov/communication/factsheets.html. ADPH also has helpful posters and other resources in English, French, and Spanish on its resource page. https://www.alabamapublichealth.gov/infectiousdiseases/2019-coronavirus.html.

Some of our clients have found new policies helpful, as well. We can help navigate you through drafting them as well as providing notices to your employees that are compliant with the regulatory environment. During this crisis, we are here to help.

Intermittent Leave Guidance for FFCRA

Sheltering at Home – by Barbara Wells

We have been waiting for some guidance from the US Department of Labor on how intermittent leave might work under the Families First Coronavirus Recovery Act (#FFCRA). We have a little now. The questions and answers relating to intermittent leave are found at questions 20-22 in the Guidance, but they are set out completely below:

  1. May I take my paid sick leave or expanded family and medical leave intermittently while teleworking?Yes, if your employer allows it and if you are unable to telework your normal schedule of hours due to one of the qualifying reasons in the Emergency Paid Sick Leave Act. In that situation, you and your employer may agree that you may take paid sick leave intermittently while teleworking. Similarly, if you are prevented from teleworking your normal schedule of hours because you need to care for your child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, you and your employer may agree that you can take expanded family medical leave intermittently while teleworking.You may take intermittent leave in any increment, provided that you and your employer agree. For example, if you agree on a 90-minute increment, you could telework from 1:00 PM to 2:30 PM, take leave from 2:30 PM to 4:00 PM, and then return to teleworking.The Department encourages employers and employees to collaborate to achieve flexibility and meet mutual needs, and the Department is supportive of such voluntary arrangements that combine telework and intermittent leave.
  2. May I take my paid sick leave intermittently while working at my usual worksite (as opposed to teleworking)?It depends on why you are taking paid sick leave and whether your employer agrees. Unless you are teleworking, paid sick leave for qualifying reasons related to COVID-19 must be taken in full-day increments. It cannot be taken intermittently if the leave is being taken because:
    • You are subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
    • You have been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
    • You are experiencing symptoms of COVID-19 and seeking a medical diagnosis;
    • You are caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
    • You are experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.

    Unless you are teleworking, once you begin taking paid sick leave for one or more of these qualifying reasons, you must continue to take paid sick leave each day until you either (1) use the full amount of paid sick leave or (2) no longer have a qualifying reason for taking paid sick leave. This limit is imposed because if you are sick or possibly sick with COVID-19, or caring for an individual who is sick or possibly sick with COVID-19, the intent of FFCRA is to provide such paid sick leave as necessary to keep you from spreading the virus to others.

    If you no longer have a qualifying reason for taking paid sick leave before you exhaust your paid sick leave, you may take any remaining paid sick leave at a later time, until December 31, 2020, if another qualifying reason occurs.

    In contrast, if you and your employer agree, you may take paid sick leave intermittently if you are taking paid sick leave to care for your child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19 related reasons. For example, if your child is at home because his or her school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, you may take paid sick leave on Mondays, Wednesdays, and Fridays to care for your child, but work at your normal worksite on Tuesdays and Thursdays.

    The Department encourages employers and employees to collaborate to achieve maximum flexibility. Therefore, if employers and employees agree to intermittent leave on less than a full work day for employees taking paid sick leave to care for their child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19-related reasons, the Department is supportive of such voluntary arrangements.

  3. May I take my expanded family and medical leave intermittently while my child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, if I am not teleworking?Yes, but only with your employer’s permission. Intermittent expanded family and medical leave should be permitted only when you and your employer agree upon such a schedule. For example, if your employer and you agree, you may take expanded family and medical leave on Mondays, Wednesdays, and Fridays, but work Tuesdays and Thursdays, while your child is at home because your child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons, for the duration of your leave.The Department encourages employers and employees to collaborate to achieve flexibility. Therefore, if employers and employees agree to intermittent leave on a day-by-day basis, the Department supports such voluntary arrangements.

Find the complete guidance at: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

If this guidance leaves you with questions or concerns, please do not hesitate to call us.

CARES Act Passage Brings Welcome Relief To Small Businesses

by: Russ RussellChristopher WellerCourtney WilliamsBlake Brookshire; and Barbara Wells

Good News!

Small business owners, would you like some good news for a change? We know we were relieved when we read the CARES Act Congress passed today. We are a small business too, and this law brings relief for small businesses in this difficult time.

What Does the CARES Act Do?

Under the CARES Act, the Government is making small business loans available immediately through banks and other SBA-certified lenders. Small business here means 500 or fewer employees. Both nonprofit and for-profit entities can apply for these loan. These loans under Section 7(a) are “paycheck protection loans.” The loans have the potential to function as a grant for most of the borrowed amount because when a borrower meets certain conditions the Government will forgive some parts of the loan amount. Clearly, this Act aims to retain workers on payrolls and to support small business operations during this challenging time. Generally speaking, employers need to consider the effect that changes to payroll levels will have on tax-free forgiveness of these loans (so long as the business uses the money for rent, interest on mortgage payments, certain utility payments, and payroll).

CARES Act highlights:

  • Covered Period:  covered expenses incurred between 02/15/2020 and 06/30/2020
  • Eligible Entities: Entities that existed as of 03/01/2020, and have 500 or fewer employees (counting each individual – full and part-time employees)
  • Available Loan Amount: Borrowers can receive loans equal to 2.5 times their monthly payroll expense, up to $10 million.
  • Non-profit Eligibility: The current legislation does not include the earlier provision that would have disqualified nonprofits that are eligible for payments under Medicaid (Title XIX of the Social Security Act).

The Next Right Thing?

Every small business has careful planning to do. The CARES Act and the FFCRA combine to create a legal landscape in which employers must understand the consequences of their choices. Every situation is different. Special rules apply to certain employees earning wages or salary in excess of $100,000 per year. Loan forgiveness may decrease if payrolls shrink. We can help you calculate the consequences of your choices.

Watch for more good news for small business here as we interpret the rest of the legislation!