A Wellington Application First Requires a Covered Loss

By Mariella De Stefano, from our Insurance Law Practice Group

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June 8, 2021 — In Construction Placo inc. c. Kingspan Insulated Panels Ltd., 2021 QCCS 1230, rendered on March 18, 2021, Construction Placo inc. [Placo], as cross-defendant, sought an order from the Court requesting Société d’assurance générale Northbridge [Northbridge] to assume its defence and to pay all costs associated with its defence within the scope of the cross-claim.

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What are you Building if you Don’t Show up?

If you have zoom fatigue, raise your hand.

My guess is that everyone has their hand raised. I know I do. Everyone is fed up with taking meetings on their screens, and so when something is voluntary, you’re going to opt out of it. I get it.

But what are you building if you don’t show up?

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Oregon Law Refines Restrictions on Noncompete Agreements

Oregon’s Senate Bill 169, signed May 21, 2021 strengthens Oregon’s existing restrictions on noncompete agreements.  Unlike Oregon’s 2019 law which imposed new notice requirements on employers seeking to enter into enforceable noncompetes, Senate Bill 169’s changes are more subtle though just as impactful.

Previously, noncompete agreements which failed to comply with Oregon’s statutory requirements were “voidable.”  Senate Bill 169 declares noncompliant noncompetes entered into after January 1, 2022 “void” ab initio.  This seemingly minor change may carry significant legal consequence if it ends up reducing the circumstances in which a former employer can sue for tortious interference.

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District Court Invalidates Medicare GME Regulation and Orders CMS to Recalculate Hospitals’ Medicare Reimbursement

Teaching hospitals should find that their Medicare reimbursement for training physicians will be a little sweeter thanks to a decision by the United States District Court for the District of Columbia.  Milton S. Hershey Medical Center, et al. v. Becerra, No. 19-2680 (D.D.C. May 17, 2021).  The hospitals challenged a 1997 regulation that set out a formula for counting the number of full-time residents and fellows. Under the Medicare statute, the government reimburses hospitals for salaries and administrative costs directly related to graduate medical education (“GME”). The statute contains a formula for determining the weighted number of full-time equivalent residents (“FTEs”) employed by the hospital.  The formula weights FTEs based on the length of their employment, and imposes a cap on the number of FTEs that a hospital can count for Medicare reimbursement. 42 U.S.C. § 1395ww(h)(3-5).  The formula also counts residents differently from fellows, who have completed a residency in a specialty and are receiving further training in a subspecialty; for purposes of the FTE count, the weighting factor for residents is 1.0 and for fellows the weighting factor is 0.5. 42 U.S.C. § 1395ww(h)(4)(C).  Congress also capped the number of FTEs that can be counted for purposes of Medicare reimbursement at the FTE count for that hospital as of December 31, 1996.

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ILN Today Post

Businesses urged to take action to protect against the growing threat of ransomware

In light of a growing number of large scale ransomware incidents that have severely impacted large business operations in the United States, the White House released a memorandum on June 2 providing guidance for corporate executives and business leaders to take certain actions to protect against the threat of ransomware. Private companies are encouraged to: Read more…

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EEOC Updates Guidance on COVID-19 Vaccination Policies, Including Mandates, Incentives, and Accommodations

Our colleagues Susan Gross Sholinsky, Lauri F. Rasnick, Jennifer Barna, Gretchen Harders, Nathaniel M. Glasser, and Nancy Gunzenhauser Popper of Epstein Becker Green have recently published an Act Now Advisory that will be of interest to our readers: “EEOC Updates Guidance on COVID-19 Vaccination Policies, Including Mandates, Incentives, and Accommodations.”

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Podcast: Federal and State Cannabis Rules Are Moving in Different Directions – Diagnosing Health Care

In this episode of the Diagnosing Health Care Podcast:  Federal and state cannabis regulation and enforcement appear to be moving in different directions. While the Food and Drug Administration (“FDA”) has broadened its net to target businesses making claims that their products can treat specific conditions, a growing number of states have passed bills that, among other things, legalize adult-use cannabis.

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Pennsylvania’s Living Donor Protection Act Provides FMLA Leave for Organ Donating Surgery

Beginning June 26, 2021, Pennsylvania’s Living Donor Protection Act (the “LDPA”) will provide time off to organ and tissue donors to cover time off for donation surgery, including necessary preparation and recovery.

Pennsylvania employees will be eligible for leave under the LDPA if they meet the following FMLA eligibility criteria: the employee must (1) work for a covered employer, (2) work 1,250 hours during the 12 months prior to the start of leave, (3) work at a location where 50 or more employees work or within 75 miles of it, and (4) have worked for the employer for 12 months. Under the FMLA, an eligible employee may take up to 12 workweeks of unpaid leave a year, and is entitled to return to their same (or equivalent) job at the end of their leave.

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The Pennsylvania Supreme Court Nixes a No-Poach Agreement Between Business Partners as Overbroad

As reported here and here, in December 2019 and January 2020, the United States Department of Justice brought its first criminal charges against employers who entered into “naked” wage fixing agreements and no-poach (e.g., non-solicitation and/or non-hire)  agreements with competitors. According to DOJ’s 2016 Antitrust Guidance for HR Professionals, such agreements are “naked,” and, therefore, illegal per se, because they are “separate from or not reasonably related to a larger legitimate collaboration between competitors.”  Although DOJ recognized that such agreements may not be illegal per se when made in furtherance of legitimate joint ventures or business, it provided scant guidance on what it would deem to be a legitimate joint venture or collaboration.  The Pennsylvania Supreme Court recently addressed the issue in Pittsburgh Logistics Systems v. Beemac Trucking, 2021 WL 1676399, at *1 (Pa. Apr. 29, 2021).  Relying in part on DOJ’s Guidance, the Court found that the no-poach agreement was unenforceable because it was overbroad and contrary to public policy.

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ILN Today Post

EEOC weighs in with updated guidance on vaccine mandates, incentives and more

Responding to COVID-19 was uncharted territory for many employers. The EEOC helped guide employers through many challenging employment aspects of the pandemic with regular updates to its Technical Assistance document, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. However, since addressing just a few vaccine-related issues in December 2020, the EEOC has been silent for months. With questions mounting, employers and business groups have clamored for answers from the EEOC on critical issues such as vaccine mandates, incentives, proof of status, and confidentiality. Now, with progress on vaccines well underway and many employers implementing return to office plans, the EEOC finally weighed in with updated guidance on May 28, 2021. Read more…

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