In response to the COVID-19 pandemic, the United States Department of Labor (“DOL”) has issued updated guidance addressing common workplace issues arising under the Occupational Safety and Health Act, the Fair Labor Standards Act (“FLSA”) and the Family and Medical Leave Act (“FMLA”).  While none of the guidance constitute changes to governing law, the DOL seeks to reinforce existing laws and aid employers in making sound employment related decisions in light of the crisis.

OSHA Guidance:

On March 9, 2020, the Occupational Safety and Health Administration (“OSHA”) issued guidance on preventing worker exposure and preparing the workplace for COVID-19. https://www.osha.gov/Publications/OSHA3990.pdf. In its guidance, OSHA highlighted various steps employers may take to reduce the risk of worker exposure to COVID-19 and developing infectious disease preparedness and response plans.  In creating such plans, OSHA recommends, among other things, that employers:

  • Identify potential sources of exposure to workers (e.g. exposure to the general public, customers and sick coworkers)
  • Prepare to implement preventative measures to limit potential exposure (g. discourage workers from sharing desks, phones and common workspaces)
  • Implement enhanced sterilization and cleaning procedures (e.g. cleaning surfaces with disinfectants)
  • Develop policies and procedures to promptly identify and isolate employees who have been exposed to COVID-19
  • Develop and implement flexible work schedules and telecommuting policies to reduce interaction between employees

For those employers requiring the use of respirators in the workplace, on March 14, 2020, OSHA issued new temporary guidance regarding the enforcement of its Respiratory Protection Standard.  This guidance provides discretion to Compliance Safety and Health Officers and is aimed at ensuring healthcare workers have full access to needed N95 respiratory protection in light of anticipated shortages. https://www.osha.gov/memos/2020-03-14/temporary-enforcement-guidance-healthcare-respiratory-protection-annual-fit.

OSHA recommends employers follow existing CDC guidelines, including taking measures to conserve supplies of these respirators while safeguarding health care professionals (“HCP”).   One such measure is that healthcare employers may provide HCP with another respirator of equal or higher protection, such as N99 or N100 filtering facepieces, reusable elastomeric respirators with appropriate filters or cartridges, or powered air purifying respirators (“PAPR”).  Another measure is that healthcare employers may change the method of fit testing from a destructive method (i.e., quantitative) to a non-destructive method (i.e., qualitative).  For filtering facepiece respirators, qualitative and quantitative fit-testing methods are both effective at determining whether the respirator fits properly.  See 29 CFR § 1910.134, Appendix A, Fit Testing Procedures.  The fitted respirator can then be safely used for work tasks that on respiratory protection.  For additional guidance, see Strategies for Optimizing the Supply of N95 Respirators.

DOL Guidance on the FLSA:

The DOL’s Wage and Hour Division also issued guidance, in the form of Questions & Answers on common issues that employers may face under the FLSA in connection with responding to COVID-19.  The FLSA Questions and Answers provide guidance on the following topics:

  • Pay to non-exempt employees during business closures
  • Pay to exempt, salaried employees including requiring such employees to use vacation or leave without pay during business closures
  • Restrictions on employees able to work including:
    • Hours/Days an employee can work
    • Expansion of job duties
    • Use of Volunteers
    • Use of Temporary employees
  • Requiring or encouraging employees to telecommute, including:
    • Reimbursement for expenses
    • Telework or Home office requirements/inspection

The DOL’s full Questions and Answers guidance for FLSA may be located at https://www.dol.gov/agencies/whd/flsa/pandemic. While the guidance addresses current federal law, it is noted that employers should determine whether any additional obligations are imposed under state or local laws or applicable collective bargaining agreements.

DOL Guidance on the FMLA:

The DOL also issued Questions and Answers guidance to assist employers with compliance with the FMLA for absences related to COVID-19.  The guidance addressed the following topics:

  • Employees affected by COVID-19 may be entitled to FMLA leave to care for themselves or an infected family member
  • FMLA need not be provided to employees absent from work to avoid exposure
  • FMLA need not be provided to employees absent to care for healthy children dismissed from school
  • Current federal law does not provide for paid leave
  • Employers may send employees home if they show symptoms of COVID-19 in compliance with laws prohibiting discrimination and after determining that no reasonable accommodation exists to safely maintain the employee at the workplace
  • Employees may be required to provide clearance to return to work after recovering from COVID-19
  • Employers may modify paid leave policies in nondiscriminatory manners and in compliance with state and local laws
  • Employers may layoff employees due to temporary closures in compliance with discrimination laws and the Worker Adjustment and Retraining Notification (“WARN”) Act

The DOL’s full Questions and Answers guidance for FMLA may be located at https://www.dol.gov/agencies/whd/fmla/pandemic.  While the guidance addresses current federal law, it is noted that employers should determine whether any additional obligations are imposed under state or local laws or applicable collective bargaining agreements.

Takeaway for Employers:

While the DOL guidance do not modify any existing laws, employers may find them helpful for compliance during the COVID-19 pandemic.

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

Since our last alert on the Coronavirus Disease 2019 (“COVID-19” or “Coronavirus”), dated March 2, 2020, the number of cases of Coronavirus has increased significantly, as has the number of affected countries. On March 11, 2020, the World Health Organization (“WHO”) characterized COVID-19 as a pandemic.

In the United States, the federal government is working with state and local partners, as well as health departments to respond to the potential widespread transmission of COVID-19 in the United States. The Center for Disease Control and Prevention (“CDC”) has implemented its pandemic preparedness and response plans, including providing specific guidance measures to prepare communities to respond to local spread of the Coronavirus. While the CDC continues to provide support and guidance, the federal government is encouraging state and local health departments to assist in managing the testing and response to COVID-19. As of March 8, 2020, state and local public health labs in all 50 states have kits to test for the Coronavirus.

New York State Response:

The New York State Department of Health (“NYSDOH”) has been closely monitoring the situation, and New York State has responded to a significant increase in the Coronavirus in the state. On March 7, 2020, there were a total of 76 confirmed cases of the Coronavirus in New York State. As of March 11, 2020, there were a total of 216 confirmed cases statewide, with 121 in Westchester County and 52 in New York City.

On March 7, 2020, New York Governor Andrew Cuomo declared a state of emergency to help New York more quickly and effectively contain the spread of the virus. Among other things, the declaration will allow:

  • expedited procurement of cleaning supplies, hand sanitizer and other essential resources;
  • allowing qualified professionals other than doctors and nurses to conduct testing;
  • expedited procurement of testing supplies and equipment;
  • expedited personnel onboarding;
  • expedited leasing of lab space;
  • allowing EMS personnel to transport patients to quarantine locations other than just hospitals

On March 10, 2020, Governor Cuomo implemented an emergency measure to contain the Coronavirus “cluster” in New Rochelle for a two-week period, by closing schools, houses of worship and other large gatherings within a one-mile radius in New Rochelle. In addition, National Guard troops have been deployed to a Health Department command post in New Rochelle to assist with the outbreak in that community. Employers should consider how this order may impact the use of sick time under earned sick time laws. The New York City Earned Safe and Sick Time Act and the Westchester County Earned Sick Leave Law, both allow for paid time off due to office or school closures during public health emergencies.

In addition, New York State and New York City have prepared interim containment guidelines for home self-monitoring from possible exposure to the Coronavirus.

New York State Guidance on Monitoring:

The NYS Guidance provides directives for isolation or quarantine based on the status of the individual. The NYSDOH uses the following definition to determine whether to institute mandatory or precautionary quarantine:

  • Mandatory Isolation – required for persons who have tested positive for the Coronavirus, whether or not displaying symptoms.
  • Mandatory Quarantine – required for persons who:
  1. have been in close contact (6 feet) with someone who has tested positive for the Coronavirus, but is not displaying symptoms, or
  2. have traveled to China, Iran, Japan, South Korea or Italy, and is displaying symptoms of the Coronavirus.
  • Precautionary Quarantine – for persons who meet one or more of the following criteria:
  1. has traveled to China, Iran, Japan, South Korea or Italy while the Coronavirus was prevalent, but is not displaying symptoms;
  2. is known to have had exposure to a positive person, but has not had direct contact with a positive person, and is not displaying symptoms.

The NYS Guidance provides that persons who are isolated or quarantined must be treated with compassion and respect, and Local Health Departments (“LHD”) must help these individuals to meet their housing, social, medical, mental health and economic needs. The NYSDOL recommends that LHDs issue orders to implement mandatory isolation or quarantine, while written agreements should be used for precautionary quarantine in order to increase compliance. Under the NYS Guidance, LHDs must immediately issue an order for mandatory isolation or quarantine once notified.

Prior to the implementation of mandatory isolation or quarantine, LHDs must assess whether the person’s home is safe to allow the person to remain and avoid transmission to others in the household. If the home is not safe to avoid transmission, the LHD must identify a safe place for the exposed person and/or their household members to live during the monitoring period. During mandatory isolation or quarantine, LHDs must perform at least one in person visit per day, and establish electronic communication as least once per day that establishes presence in the residence. The LHD must also create an action plan for what to do if the isolated person becomes ill.

For a precautionary quarantine, the person must have separate quarters with separate bathroom facilities, and a way to self-quarantine from household members as soon as a fever or other symptoms develop. There are no required in-person visits by LHDs. However, there must be electronic communications at least once a day utilizing a mechanism to get a status and health update, and to provide advice.

The NYS Guidance cautions that “No person subject to an order shall have an adverse employment impact.” Moreover, no LHD or political subdivision in the state may release any information related to a person who is subject to an isolation or quarantine order, and any requests for information must strictly adhere to HIPAA and related privacy laws.

New York City Guidance on Self-Monitoring:

The NYC Guidance is written in a question and answer format, and provides information concerning self-monitoring for people who return from countries designated by the CGC, and their return to work or school.

The NYC Guidance provides that anyone returning from an area designated by the CDC, within the last 14 days, will be screened at the airport for COVID-19 symptoms and risk factors for the virus. After the screening:

  • Travelers arriving in NYC, who have no symptoms, will be transported to a quarantine location in NYC, as directed by the CDC.
  • Most travelers who have no symptoms will be given information about home self-monitoring, and can continue to their destination. Their local health department will be in contact with them to provide more information.
  • Others with possible exposure to the virus may be asked to home self-monitor by the NYC Health Department.

For those who are asked to self-monitor, they should take the following measures:

  • take their temperature twice a day;
  • check for symptoms, such as cough or shortness of breath;
  • stay at home and remain out of public areas. Do not go to work or school. However, members of the household that were not in one of the CDC-designated countries may continue to go to work or school;
  • continue this for 14 days since leaving the CDC designated country;
  • if a fever or symptoms appear during self-monitoring, avoid close contact with others (6 feet) and call the NYC Health Department at 347-396-7990 for further instructions;
  • if a medical problem develops during self-monitoring for which they need to see a doctor or health care provider, call the provider ahead of the visit and let them know about recent travel;
  • if a medical emergency develops during self-monitoring, call 911 and advise the operator about recent travel;
  • although it is normal to feel sad, anxious or overwhelmed, if symptoms become worse, reach out for support by calling NYC Well at 888-NYC-WELL

The NYC Guidance further provides that after the 14-day self-monitoring period, if no fever or symptoms appear, the person can return to work or school. No formal clearance process is necessary. Moreover, “[t]here is no medical reason for your work or school to exclude you after the home self-monitoring period is over,” and a report can be made to the NYC Commission on Human Rights, by calling 311 and saying “human rights.” To the extent requested, doctor’s notes are available on the NYC Health Department’s website at nyc.gov/health/coronavirus.

New York State Guidance on Testing:

Finally, until New York reaches full testing capacity, the NYSDOH has issued a guidance for authorization for COVID-19 testing in order to ensure that resources are being distributed efficiently. Testing shall be authorized by a health care provider when:

  • an individual has come in proximate contact (i.e., same office, classroom or gathering) with another person known to be positive for the Coronavirus;
  • an individual has traveled to a country that CDC has issued a Level 2 or 3 Travel Health Notice, and shows symptoms of illness; or
  • an individual is quarantined (mandatory or precautionary), and has shown symptoms of the Coronavirus; or
  • an individual is symptomatic and has not tested positive for any other infection; or
  • other cases where the facts or circumstances warrant testing as determined by a treating clinician in consultation with state and local health department officials.

Takeaway for Employers:

Employers should continue to monitor guidance from the CDC, the NYSDOH, and state and local government agencies for further updates concerning responses to the Coronavirus, and consider how these guidelines impact their employment policies, including privacy, discrimination and earned sick leave policies.

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If you have any questions regarding this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

The Novel (new) Coronavirus disease 2019 (“COVID-19” or “Coronavirus”) is a rapidly spreading respiratory illness that started in Wuhan, China, but has spread to a growing number of locations internationally, including the United States. It is raising important issues for employers, as employers must balance their obligation to maintain a safe and healthful workplace with an employee’s right to be free from discrimination. While this alert addresses the legal framework pertaining to Coronavirus risks in the workplace, the information from public health officials is changing rapidly as the disease spreads, so employers should continue to monitor guidance provided by agencies charged with guiding the public, such as the U.S. Centers for Disease Control and Prevention (“CDC”) and local public health agencies.

Government Response

On January 31, 2020, U.S. Department of Health and Human (“HHS”) declared a public health emergency for the United States to aid the nation’s healthcare community in responding to the Coronavirus.  Because of this declaration, the U.S. government has taken the following unprecedented steps with respect to travel:

  • Suspended entry of foreign nationals who have been in China within the past 14 days.
  • Suspended entry of foreign nationals who have been in Iran with in the past 14 days.
  • U.S. citizens, residents and their immediate family members who have been in Hubei province and other parts of China can enter the United States, but they are subject to health monitoring and possible quarantine for up to 14 days.

The CDC has issued a Level 3 travel warning for China, Iran, Italy and South Korea, and is recommending that individuals avoid all nonessential travel to these countries. Further, the CDC has issued a Level 2 alert – Practice Enhanced Precautions – for Japan, and a Level 1 watch – Practice Usual Precautions – for travel to Hong Kong. As of this time, however, cases have been identified on all continents except Antarctica.

The CDC has indicated that the fact this disease has caused illness, death and sustained person-to-person spread is concerning, and the preliminary information raises the level of concern about the immediate threat for the Coronavirus for certain communities in the United States. The CDC’s current risk assessment is that the “potential public health threat posed by COVID-19 is very high, to the United States and globally.”  However, most people in the United States, will have “little immediate risk or exposure” to this virus, as follows:

  • For the general public, who are unlikely to be exposed to this virus, the immediate health risk is considered low.
  • For people in communities where ongoing spread of the Coronavirus has been reported, they are at elevated though still relatively low risk of exposure.
  • Healthcare workers caring for patients with Coronavirus are at elevated risk of exposure.
  • Those in close contact with persons with Coronavirus are also at elevated risk of exposure.
  • Travelers returning from affected international locations where community spread is occurring also are at elevated risk of exposure.

Some states and municipalities have also issued guidance addressing the Coronavirus, but New York has not.  As of March 2, 2020, there is one confirmed case of Coronavirus in New York City

CDC Interim Guidance for Businesses and Employers

The CDC published an Interim Guidance for Businesses and Employers, to help prevent workplace exposure to the Coronavirus in non-healthcare settings, and to plan in the event of more widespread, community outbreaks.  However, the Interim Guidance cautions employers to use the guidance to determine the risk of Coronavirus, and not to make determinations of risk based on race or country of origin, and to maintain confidentiality of people with confirmed disease.  The Interim Guidance advises employers to:

  • Actively encourage sick employees to stay home.
    • Ensure sick leave policies are flexible and consistent with public health guidance and that employees are aware of the policies
    • Talk with companies that provide your business with contract or temporary employees about the importance of sick employees staying home and encourage them to develop non-punitive leave policies.
    • Do not require a healthcare provider’s note for employees who are sick with acute respiratory illness to validate their illness, as healthcare providers may be extremely busy
    • Employers should maintain flexible policies that permit staying home to care for a sick family member.
  • Separate sick employees who appear to have acute respiratory symptoms and send them home immediately.
  • Emphasize staying home when sick, respiratory etiquette and hand hygiene of all employees
    • Place posters that encourage staying at home when sick, and that display cough and sneeze etiquette, and hand hygiene, where they are likely to be seen
    • Provide no-touch disposal receptacles for use by employees
    • Instruct employees to clean their hands often
    • Provide soap and hand sanitizer in the workplace
  • Perform routine evening cleaning. Provide disposable wipes so that commonly used surfaces can be wiped down by employees before each use.
  • Advise employees before traveling to take certain steps
    • Check the CDC’s Traveler’s Health Notices for the latest guidance for each country
    • Advise employees to check themselves for symptoms of acute respiratory illness before starting travel
    • Notify their supervisor if they become sick while traveling and promptly call a healthcare provider
  • Additional measures in response to currently occurring sporadic importations of the Coronavirus. 
    • Employees who are well but have sick family members at home with Coronavirus should notify their supervisor and refer to the CDC guidance for how to conduct a risk assessment of their potential exposure.
    • If an employee is confirmed to have the Coronavirus, employers should inform fellow employees of their possible exposure in the workplace, but maintain confidentiality as required by the Americans with Disabilities Act.
    • Employees exposed to a co-worker with confirmed Coronavirus should refer to the CDC guidance for how to conduct a risk assessment of their potential exposure.

CDC Information for Healthcare Professionals

The CDC has also published multiple guidance information for health care professionals, including interim guidance for the following:

Creating an Infectious Disease Outbreak Plan

The CDC also encourages employers to plan to be able to respond to a possible Coronavirus outbreak in the United States.  The CDC recommends the following guidelines for creating an infectious disease outbreak plan:

  • Identify possible work-related exposure and health risks to employees (including reviewing materials from the Occupational Safety and Health Administration (“OSHA”)).
  • Coordinate policies to make sure they are consistent with existing state and federal workplace laws, including with leaves, accommodations, and flexible working arrangements.
  • Establish flexible working arrangements, including telecommuting, and staggered shifts to increase the physical distance among employees if state and local health authorities recommend the use of social distancing strategies.  For employees who can telework, consider IT needs to support a remote workforce while maintaining data security, especially for Health Insurance Portability and Accountability Act (“HIPAA”)-covered entities.
  • Identify essential business functions, essential jobs or roles, and critical elements within a company’s supply chains required to maintain business operations and plan for interruptions.
  • Set up authorities, triggers and procedures for activating and terminating the company’s infectious disease outbreak response plan, altering business operations, and transferring business knowledge to key employees.
  • Plan to minimize exposure between employees.
  • Establish a process to communicate information to employees and business partners on your outbreak response plan.
  • Plan for school closures.
  • If there is an outbreak, consider canceling non-essential business travel per the CDC’s travel guidance.
  • Coordinate with state and local health departments


Considerations for Employers

ADA and FMLA Protections

Under the Americans with Disabilities Act (“ADA”), as amended by the ADA Amendments Act, an employee with Coronavirus could fall within the definition of a “qualified individual with a disability” and be protected by the ADA, as well as state and local disability laws.  Moreover, individual exposed to Coronavirus, or thought to be exposed (such as those who travelled to high risk areas), may be able “regarded as” having the illness.

Similarly, an employee diagnosed with Coronavirus would likely constitute a serious health condition under the Family and Medical Leave Act (“FMLA”) and eligible for FMLA leave.

Testing

Under the ADA, an employer cannot make medical inquiries of employees unless it is voluntary or job-related and consistent with business necessity. If an employer makes such inquiries, it must follow the ADA guidelines pertaining to medical records, which require that they be maintained as confidential and kept separate and apart from the employee’s personnel file.  The employer must also limit the distribution of such information to individuals with a legitimate need to know.

Nonetheless, if an employee poses a direct threat to the health or safety of himself/herself or to others, then an employer can require the employee to disclose health information. A positive test for the Coronavirus would likely fall within this category. Similarly, an employee who may have been exposed to the Coronavirus and demonstrates symptoms, may also fall within this category. If the employee is represented by a union and covered by a collective bargaining agreement, the employer may have an obligation to notify the bargaining representatives and to meet, confer, and possibly negotiate before implementing mandatory testing.

The CDC’s test to determine whether an individual has contracted Coronavirus is, at this time, only available at a laboratory that the CDC has designated as qualified but will soon share the tests around the country. It is unclear whether testing will be made available to most health care practitioners.  New York has asked the CDC for authorization to test in-state, rather than requiring samples to be sent to the CDC’s headquarters. New York is also creating its own test for COVID-19.

It is not clear whether employees who are concerned about exposure to COVID-19 may seek a test for Coronavirus from their own health care provider. Thus, if any employee raises a concern about exposure to Coronavirus and potential symptoms, employers should encourage the employee to seek emergency assistance and contact their state/local health department(s).

Travel and Quarantine (Mandatory or Self-Imposed)

As noted above, the CDC has advised avoiding all nonessential travel to China, South Korea, Iran and Italy, and has warned against travel to Japan. The United States has imposed mandatory quarantines for over 300 individuals at military bases in California, Colorado, Nebraska, and Texas. Based on HHS guidance, many employers are also requiring a 14-day self-quarantine – restricting employees who have returned from certain countries with a higher risk of COVID-19 from coming into the office.

During a self-imposed quarantine, employers may permit employees to work remotely, if their job duties permit. For employees who cannot work from home, employers may want to consider whether to apply paid time off under vacation, sick, and/or other time off policies and applicable law, or to provide pay to quarantined employees separate and apart from the employee’s accrued time off. Employers must also consider applicable collective bargaining agreements in the case of union-represented workers.

Employers should consider whether travel to large conferences or events is essential at this time and may wish to make attendance optional, especially if it is likely that attendees will have traveled from areas impacted by COVID‑19. With regard to making attendance optional, employers should make clear that employees need not provide any explanation for their decision not to attend, in order to maintain confidentiality of protected characteristics, such as the employee’s health (e.g., compromised immune system, pregnancy, etc.) or caregiver status (e.g., elderly relatives in the home).

Packages

The World Health Organization (“WHO”) has issued guidance confirming that it is safe to receive packages from China and other places where the Coronavirus has been identified.

Places of Public Accommodation

Title III of the ADA requires places of public accommodation to afford the full range of their services and activities to individuals with disabilities.  If an employer’s place of business is open to the public, and thus some or all of its workplace is considered a place of public accommodation, the employer should be cautious when refusing service to certain groups of individuals.  Employers should ensure that customers are not refused service or singled out based on their ethnicity or national origin.

Communications with Employees

Many employers are sending communications to employees with general information about the Coronavirus, including the symptoms. Additionally, some employers have advised their employees that if they are concerned that they may have been exposed to the Coronavirus, or if they have recently traveled to certain countries with a higher risk of COVID-19, they should not come into work and should contact the local health department or the CDC. As noted above, the U.S. government is recommending that anyone returning from China engage in a 14-day self-imposed quarantine.

Discrimination

If an employer has a reasonable belief that an employee may have the Coronavirus, then the employer may send that person home to protect the rest of the workforce. However, discrimination claims can arise if an employee is singled out based on some protected characteristic. Employers should be mindful to treat all employees with potential exposure the same, and not just those employees who may be of Chinese descent.

Visa Renewals

The U.S. suspension of entry of immigrants and non-immigrants who were physically in China, can impact U.S. employers, as can an employer’s reluctance to permit employees to go abroad for visa renewals and extensions of work authorizations. Employers should consider the possible problematic effects of the lack of work authorizations. If travel to an employee’s country of origin is not feasible, employers may suggest that employees seek extensions of non-immigrant status with U.S. Citizenship and Immigrations Services. When a timely application is made, this can secure continued work authorizations.

What Employers Should Do Now

  • Appoint a single individual as the point of contact within your company for questions about Coronavirus to ensure a coordinated and consistent response to all inquiries.
  • Provide employees with updated information about the symptoms of the Coronavirus.
  • Educate supervisors on the company’s planned preventative steps.
  • Review whether travel is necessary to high-risk areas.
  • Determine if additional obligations are imposed by HIPAA Privacy Rules.
  • Assure that your policies and practices meet OSHA and CDC standards, especially for health care employees when blood-borne pathogens may be present.
  • Consider whether any issues need to be addressed with the company’s collective bargaining unit and whether there are any provisions in the collective bargaining agreements may be affected.
  • Address requests from employees for leaves and accommodations and remind employees of leave and call-out policies.
  • Determine if telework is available for employees who will not be allowed in the office due to exposure or symptoms.  Otherwise, determine whether such employees will be paid for the leave or, can use other types of accrued paid leave.
  • Consider creating an infectious disease outbreak plan.

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If you have any questions concerning this alert, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP