• For information and local guidance please use the link below which includes reopening guidelines for golf courses, retail, restaurants, attractions, accommodations, and non-tourism business.  For more information, please read Myrtle Beach Chamber’s Reopening Guidelines and City of Myrtle Beach’s Coronavirus Advisory.

• Accelerate SC is South Carolina’s Covid-19 response system. The link below will re-direct you to the website that is continuously being enhanced to help citizens connect to important information during these changing times.  To learn more, visit https://accelerate.sc.gov/

• According to the latest data, since the beginning of February, visitor spending has plunged by a staggering $4 billion or 47 percent below the previous year’s levels.
• Recent reports were mixed for South Carolina’s economy. Jobs were added, but the unemployment rate increased. Housing market indicators were mostly positive.
• Since November 2019, total payroll employment was down by 65,800 jobs, on net. The most jobs lost over the year were in leisure and hospitality, followed by government.
• South Carolina’s economy expanded by 16,300 jobs (0.8 percent), on net, in November.
• For more details on the impacts of Covid-19 on the economy, see the links below:
  • https://www.scprt.com/research
  • https://indd.adobe.com/view/0d8ae917-e9e1-4308-98b8-ba586f040e0e
  • https://www.sccommerce.com/sites/default/files/2020-11/Economic_Outlook_November_2020_0.pdf

1. On January 6, 2021, the Supreme Court of South Carolina issued an Order stating in light of the ongoing increase in Covid-19 cases throughout South Carolina, “all in-person proceedings beginning on or after January 11, 2021 are hereby suspended until further Order …”  There are two exceptions:
   1. Circuit Courts may hear in-person emergency matters including, but not limited to, matters relating to Bonds and Bench Warrants.
   2. Family Courts statewide may hear in person emergency matters including, but not limited to, DSS Emergency Protective Custody, Juvenile Detentions, Bench Warrants, and Emergency Petitions for Orders of Protection from Domestic Abuse.

• Individual law firms are determining their own responses to COVID-19. The Pearce Law Group, P.C. is willing and ready to assist you with your legal needs and concerns. While we may choose to have a virtual meeting or phone conversation to adhere to current social distancing standards, we continue to assist clients and potential clients throughout this global pandemic while adhering to local and federal guidelines and ensuring the safety of our attorneys, staff, clients, and loved ones throughout the process.
• We are open, taking precautions, monitoring the evolving situation, and continue to work to assist our clients. We have also taken steps to ensure business continuity should we have to close the physical office and work remotely.

• The U.S. Small Business Administration is providing federal disaster loans for businesses of all sizes, private nonprofits, homeowners, and renters. (See link below).
• SBA disaster loans can be used to repair or replace the following items damaged or destroyed in a declared disaster: real estate, personal property, machinery, inventory and business assets.
• The following are the types of loans the SBA is currently providing:
  • Home and Personal Property Loans- If you are in a declared disaster area and are the victim of a disaster, you may be eligible for financial assistance from the SBA, even if you do not own a business.
  • Business Physical Disaster Loans- Any business or organization located in a declared disaster area and that incurred damage during the disaster may apply for a loan to help replace or restore damaged property.
  • Economic Injury Disaster Loans- If you are in a declared disaster area and have suffered economic injury regardless of physical damage, you may qualify for an Economic Injury Disaster Loan (EIDL).
  • Military Reservists Economic Injury Loans– If you have an essential employee who is a military reservist called to active duty, SBA provides loans to help eligible small business with operating expense.
• You can apply for this loan online or fill out a paper application.
  • https://disasterloan.sba.gov/ela/Information/Index

• Yes, unemployment benefits are available to individuals who are unemployed through no fault of their own. If an employer must shut down operations and no work is available, individuals may be eligible for unemployment benefits.
  • This extends to situations where an employer must lay off employees due to the loss of production caused by the coronavirus.
  • It also extends to an individual who is unemployed through no fault his/her own where an employer reduces the number of hours an employee works.
• South Carolina law allows for the removal of charges from contributory employers when unemployment benefits are paid as a result of a natural disaster, either declared by the President of the United States or the declaration of emergency by the Governor.
• The latest Federal Aid packages stand to dramatically modify the standard terms and conditions of Unemployment Insurance and those changes will be implemented on a state by state basis. In SC, SCDEW is the agency charged with responsibility for implementing these COVID-19 specific Unemployment Insurance programs and they have created an information clearinghouse for both employees and employers at https://dew.sc.gov/covid-hub .
• NOTE: Employers who intend to lay-off or furlough workers due to COVID-19 related impacts to their businesses must take proactive steps, including EMPLOYER FILED CLAIMS, through SCDEW to better protect both the company and its employees.

• Physical Loss of or Damage to the Insured’s Property
  • Business interruption insurance typically appears as an add-on to commercial property insurance policies. This coverage makes the insured whole for lost income and additional expenses incurred during a period when business operations are interrupted because of a covered cause of lost.
    • The policy language can vary as some policies only cover specific perils such as a fire, hurricane or floor while some policies cover “all risks”.
  • Insurers are beginning to deny COVID-19 claims by stating actual physical loss or damage is required to the structure or property before this policy can be invoked. However, insureds should not take “no” for an answer as there are arguments to be made.
• Contingent Business Interruption Coverage- Damage or Loss Suffered by Suppliers and Customers
  • A lot of businesses have suffered losses from COVID-19 due to the impact on third-parties i.e. their suppliers and customers. These losses may be covered by policies that provide so-called contingent business interruption coverage.
    • Insureds who may have suffered supply-chain losses should see whether their policy provides contingent coverage.
• Many insurers have added exclusions precluding claims for business-interruption losses related to any “virus, bacterium or other microorganism that induces or is capable of inducing physical distress, illness or disease.” If your policy has such an exclusion, you may have difficulty attaining coverage for COVID-19 related losses. However, it is important that this language be reviewed carefully and potentially with the assistance of an attorney who can better advise you whether the exclusion applies or no.

• The doctrines of impossibility or impracticability may apply if a party can no longer comply with the terms of their contract due to COVID-19. These doctrines are state specific.
• As the phrases imply, the general premise behind these doctrines are that after a contract is created, through no fault of the breaching party, performance is made impracticable or impossible.
  • Both the doctrine of impossibility and the doctrine of impracticability require a fact-specific review of the contract and circumstances and both doctrines are narrowly interpreted.  However, these doctrines may provide some relief for certain contracting parties as it relates to COVID-19
• In addition to those two doctrines, frustration of purpose will likely be a common defense asserted by contracting parties because of COVID-19.
  • This doctrine applies when the basic purpose of the contract no longer makes sense given an unforeseen event.
• If you believe you cannot perform under a contract or, conversely, have received notice from the other contracting party that it is asserting one of these doctrines/defenses, it is important to speak with a local attorney to evaluate your contract.
• Your contract may also have a force majeure provision, which may excuse performance. For more information, see the next FAQ.

• A force majeure (a French phrase meaning superior force”) clause in a contract, generally, lists unforeseeable circumstances that would allow either party to be relieved of their respective contractual obligations.
• Force majeure clauses list specific events and any interpretation of whether COVID-19 will qualify will likely require any analysis of the relevant state law and the terms of the contract.

• • Covid-19 will likely qualify as a force majeure event if that provision specifically includes references to a “pandemic”, “epidemic” and/or “disease”.
  • However, it is unknown COVID-19 will be considered “an act of God” – a phrase commonly used in force majeure clauses. It is expected that this will be a litigated issue across the states.
  • There are other catch-all phrases in force majeure clauses, such as “disasters”, “national emergencies”, “government regulations” or “acts beyond the control of the parties.”
  • Whether certain performance will be excused will be a fact-intensive scenario and will rest on the language of the provision and the causal factors for the breach.

• Force majeure provisions generally require that the party asserting it as an excuse of performance notify the other party to the contract of the relevant qualifying event.
• If your contract contains a force majeure provision that you believe may apply to allow your non-performance, contact an attorney at The Pearce Law Group, P.C..  Our attorneys can assist you in reviewing your contract and help you determine whether a force majeure clause applies or does not and help you in asserting a force majeure clause or defending against the assertion of a force majeure clause.

• Many clients have inquired about potential Workers’ Compensation claims arising from employees contracting COVID-19 during the course of their employment. As with any communicable disease, the answer is not black and white. Circumstances regarding any alleged workplace exposure would need to be investigated. As with any ordinary virus, if it’s a condition that the general public is equally exposed to, the workers’ compensation policy would likely NOT apply. However, if the employee could prove that their job put them at greater risk than the general public of contracting the virus, some jurisdictions may grant coverage. Employers who have conducted their hazard risk assessment will be better prepared and have a better understanding of their true workplace risk of exposure.

• The nature and magnitude of claims related to COVID- 19 and the financial impact are unknown. In most scenarios, businesses would be challenged to find coverage for losses stemming from this pandemic; however, with ever-changing legislative landscape, coverage could be afforded under some policies. Below is a summary of key insurance coverages and how they would typically respond.
• Business Income
  • Typically, in order for Business Income coverage to trigger on a standard Commercial Property policy, there must be an underlying covered cause of loss. This means fire, windstorm, hail or other similar type of event would have to occur. Diseases and viruses are not typically insured perils. Without the underlying coverage trigger, business income coverage would not respond. An endorsement for “communicable disease and food contamination” is available from insurance carriers. Often used by food-related industries, this endorsement is not added automatically and is very narrow in its definition of a communicable disease or contamination. Even with this endorsement, to trigger coverage there typically must be an order to shut down operations by a local, state or federal Department of Health (civil authority) in the jurisdiction of the affected property.
  • The communicable disease endorsement has a sublimit that may contain an aggregate and typically has a 72-hour waiting period with a limited period of restoration. It is not nearly as broad as the business income typically seen with a property loss.
  • An inability to access a business due to an order by a civil authority is something that can trigger a business income loss when caused by a “covered caused of loss” in the policy. This coverage is very difficult to trigger and typically has geographical limitations and exclusions that may apply.
• Commercial General Liability and Pollution Liability
  • Commercial General Liability and Pollution Liability insurance policies may respond in a situation where an individual alleges they were infected with the coronavirus while on the insured’s property. The burden of proof would be with the injured party to prove causation and associated damages.
• Directors and Officers
  • Directors and Officers policies may provide coverage for the costs and liabilities arising from shareholder lawsuits alleging that the company failed to act reasonably and plan appropriately in response to the coronavirus. Examples of this may include a failure to create adequate supply chains or failing to reveal financial risks that would result in financial loss to the organization.
• Employment Practices
  • Employment Practices liability policies may provide coverage if claims are submitted as a result of sick leave and other human resource-related policies associated with the company’s coronavirus response plan.

• For now, OSHA and its state partners are viewing COVID-19 as implicating standards for General Industry (29 CFR 1910), Subpart J – General Environmental Controls, Subpart Z – Toxic and Hazardous Substances, and  Recordkeeping / Reporting.  Importantly, COVID-19 is a recordable illness if a worker is infected as result of performed work-related duties.

• Develop an Infectious Disease Preparedness and Response Plan
  • Stay up to date with guidance from federal, state, and local health agencies and incorporate those recommendations and resources into workplace-specific plans.
  • Plans should consider and address the level of risk associated with various worksites including:
    • Where and how workers might be exposed to COVID-19;
    • Non-occupational risk factors at home and in community settings;
    • Workers’ individual risk factors; and
    • Controls necessary to address those risks.
  • Plans should also consider recommendations from appropriate agencies regarding development of contingency plans for situations that may arise as a result of outbreaks such as:
    • Increased rates of worker absenteeism;
    • Need for social distancing, staggered work shifts, downsized operations, remote services, and other exposure-reducing measures;
    • Options for conducting essential operations with exposure-reducing measures; and
    • Interrupted supply chains or delayed deliveries.
  • Prepare to Implement Basic Infection Prevention Measures
    • Employers should implement hygiene and infection control practices including:
      • Providing alcohol hand rubs (at least 60% alcohol) and implementing hand washing stations and frequency procedures;
      • Encouraging respiratory etiquette;
      • Encouraging sick workers to stay home and identifying and sending home sick workers who come to work;
      • Providing customers, public, and employees with trash receptacles;
      • Exploring policies such as flexible worksites, flexible work hours, or other practices to encourage social distancing
      • Prohibiting employees from sharing materials, rooms, or equipment unless thorough sanitizing practices have been implemented that meet manufacturer’s instructions for use of all cleaning and disinfection products; and
      • Consulting EPA-approved disinfectant labels to use COVID-19 combative disinfectant products.
    • Develop Policies and Procedures for Prompt Identification and Isolation of Sick People
      • This process includes identification and isolation of potentially infectious individuals as well as procedures for discharging them to home for medical attention.
    • Develop, Implement, and Communicate About Workplace Flexibilities and Protections
      • This process includes actively encouraging sick employees to stay home, ensuring that sick leave policies are made known to employees and are flexible and consistent with new public health guidance, not requiring healthcare provider’s note for employee absence, permitting employees to stay home to care for a sick family member, and working with insurance companies and state and local health agencies to provide information to workers and customers about medical care in the event of a COVID-19 outbreak.
    • Implement Workplace Controls
      • OSHA provides a “hierarchy of controls” framework to control workplace hazards. The best way to control a hazard is to systematically remove it from the workplace, but this may not be possible in the realm of COVID-19. The next most effective protection measures are listed from most effective to least effective below. It is likely that when considering ease of implementation, effectiveness, timing, and cost, a combination of these control measures will be necessary to protect workers and others from exposure to COVID-19.
        • Engineering Controls:
          • These are cost-effective in most situations and involve isolating employees from work-related hazards to reduce exposure. Examples include installing high-efficiency air filters, increasing ventilation rates in the work environment, installing physical barriers (such as clear plastic sneeze guards), installing a drive-through window for customer service, and specialized negative pressure ventilation in aerosol generating production situations.
        • Administrative Controls:
          • These require action by the worker or employer and are typically changes in work policy or procedures to reduce or minimize exposure to a hazard. Examples include sick worker procedures, best practices encouragement through signage, education, or other efforts, establishing social distancing work flexibility policies, discontinuing nonessential travel, developing emergency communications plans, providing specialized training for at risk workers or those who use equipment and appropriate sanitization policies and practices.
        • Personal Protection Equipment (PPE):
          • These may be needed to prevent certain exposures, but should be used in consolation with other prevention strategies. Examples include gloves, goggles, face shields, face masks, and respiratory protection. PPE is selected based upon hazard to the worker and must be properly fitted, worn, refitted, inspected, maintained, replaced, and disposed of as necessary. PPE should be regularly cleaned and a plan should specify timely cleaning procedures. PPE must always be cleaned after each use. PPE should never be shared or exchanged without cleaning.
          • If you employ workers who work within 6 feet of patients known to be, or suspected of being infected with COVID-19, or if you employ workers involved in aerosol-generating procedures, your company will be subject to increased PPE and respiratory protection standards through the use of respirators. For a comprehensive review check OSHA’s Respiratory Protection Standard, 29 CFR 1910.134 at osha.gov/laws-regs/regulations/standardnumber/1910/1910.134. PAPR, HEPA, SAR, or other types or respiration devices may be necessary depending on potential exposure to workers and company operations or industry type.
        • Follow Existing OSHA Standards
          • Although no specific OSHA standards address COVID-19, certain provisions of OSHA may apply to prevent occupational exposure to COVID-19 including:
            • OSHA’s PPE standards. They are available at osha.gov/laws-regs/regulations/standardnumber/1910#1910_Subpart_I; and
            • The General Duty Clause, Section 5(a)(1) of the OSHA Act of 19970, 29 USC 654(a)(1) which requires employers to furnish each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” It is available at osha.gov/laws-regs/oshact/completoshact.
          • The rest of OSHA standards applicable to the COVID-19 pandemic can be found via the Recordkeeping and Reporting Occupational Injuries and Illness, General Industry, and Federal Agencies charts accessible at osha.gov/SLTC/covid-19/standards.html.
        • Identify Classification of Worker Exposure to COVID-19 for Employees
          • OSHA has developed an Occupational Risk Pyramid for COVID-19 that classifies occupational hazard risk from very high, high, medium, and to lower risk hazards. Th
        • Implement Travel Plans with Workers Living or Travelling Abroad
          • Employers with workers who are on international business or abroad in any capacity should consult the “Business Travelers” section of the OSHA COVID-19 webpage.
          • These employers and their employees should also consult CDC travel warnings and the US Department of State travel advisories.
          • Employers should advise employees abroad that USDOS cannot provide them with medications or supplies in the event of COVID-19 outbreak.
        • Consult OSHA Assistance, Services and Programs
          • OSHA offers compliance assistance specialists who can provide information to employers and workers about standards, short educational programs, rights and responsibilities, and information on additional compliance assistance resources through their website at osha.gov/complianceassitance/cas or at 1-800-321-OSHA or through you local OSHA office.
          • OSHA offers no-cost on-site safety and health consultation services for small businesses in all states, with priority given to high-hazard worksites. Find your local on-site consultation office via osha.gov/consultation, or call 1-800-321-OSHA.
          • OSHA also provides cooperative programs, strategic partnerships and alliances, and voluntary protection programs that your company may qualify for. Consult the OSHA webpage for more information.

Federal

• Resources
  • CDC COVID-19 Webpage
  • CDC Business and Employer Resource Webpage
  • CDC National Pandemic Influenza Plans
  • OSHA/HHS Guidance on Preparing Workplaces for COVID-19
  • OSHA COVID-19 Webpage
  • OSHA Hazard Recognition: Workers who may have exposure risk
  • OSHA Standards and Directives (compliance)
  • OSHA Control and Prevention (employer type breakdown)
  • Small Business Administration Disaster Loan Assistance Application Page
  • Small Business Administration Disaster Loan Assistance Information
  • Families First Coronavirus Act
    • Emergency Paid Sick Leave Summary
    • USDOL FFCRA: Questions and Answers
  • FEMA Pandemic Influenza Continuity of Operations Instructions
  • IRS Extend Filing and Payment Deadline to July 15, 2020

State

• Resources
  • South Carolina Governor Webpage
  • SCDHEC COVID-19 Webpage
  • SCDHEC Interim Guidance for Businesses and Employers
  • SCDHEC Retail Food Service Establishments & COVID-19 Information
  • South Carolina Judicial Branch Coronavirus Information Webpage
  • South Carolina Supreme Court Order on Statewide Evictions and Foreclosures
  • United States District Court Standing Order on Court Operations in Response to COVID-19
  • Executive Order 2020-08 Declaring State of Emergency
  • Executive Order 2020-10 Suspends Dine-In Consumption
  • SCDOR Offers More Time to File Returns and Pay Taxes Due
    • Filing deadline and Payment deadline July 15, 2020 corresponding to IRS deadline
  • SCDOR SC Information Letter #20-3: Tax Relief for Persons and Businesses Impacted by Coronavirus (COVID-19)
• Contact
  • Lowcountry Regional SCDHEC: (843) 953-0038
  • Midlands Regional SCDHEC: (803) 576-2980
  • Pee Dee Regional SCDHEC: (843) 661-4830
  • Upstate Regional SCDHEC: (864) 282-4138
  • SC Infectious Disease Outlet: (803) 898-0861 or (888) 847-0902
  • SC After Hours/Epi-on-Campus Outlet: (888) 847-0902

Miscellaneous

• Resources
  • Marsh Coronavirus Planning, Response, and Recovery PowerPoint (Business Resource)
  • Marsh Coronavirus Planning, Response, and Recovery Webpage
  • World Health Organization COVID-19 Pandemic Information Webpage
  • Compiled State and Local COVID-19 Response Information
  • McGriff Coronavirus Advisory: Planning and Response for Employers
  • World Health Organization Checklist for Influenza Pandemic Preparedness Planning
  • Missouri Department of Health and Senior Services Pandemic Influenza Business Planning Toolkit