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Nelson Mullins COVID-19 Resources

Nelson Mullins is continuing to monitor developments related to COVID-19, including guidance from the Centers for Disease Control and various federal, state, and local government authorities. The firm is taking appropriate precautionary actions and has implemented plans to ensure the continuation of all firm services to clients from both in office and remote work arrangements across our 25 offices. 

In addition, click the link below to access extensive resources to address a wide variety of topics resulting from the virus, in general and by industry,  including topics such as essential businesses, force majeure, business interruption insurance, CARES Act and FFCRA, and others. 

Nelson Mullins COVID-19 Resources

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Bostock v. Clayton County and Implications for Title VII Litigation

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Bostock v. Clayton County and Implications for Title VII Litigation
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Gold Dome

June 24, 2020

Gold Dome Report - June 24, 2020

Legislative Day 38

With only two legislative days remaining in the 2020 Legislative Session, floor activity in the House and Senate hit a fever pitch as legislators jockeyed to get their measures amended, approved, and agreed to. While many measures remain in limbo entering the final 48 (or so) hours, several bills did achieve final passage today, including legislation regulating pharmacy benefit managers (HB 918 and SB 313), a bill creating a judicial process for restriction of certain misdemeanor and pardoned criminal records (SB 288), and a measure requiring reporting of any unpermitted release of ethylene oxide to the Environmental Protection Division (SB 426). However, at least three major issues remain unresolved at our deadline — whether legislators will take a pay cut in FY 2021, whether businesses and healthcare providers will attain civil liability limitation for COVID-19-related claims, and what will be in (and out) of the final FY 2021 State Budget. 

While legislators and lobbyists widely expected to see the Conference Committee Report on the FY 2021 State Budget today, progress remains under wraps and conferees remain scarce in their respective chambers. Still, the air in the halls is thick with rumors of adjournment sine die coming tomorrow, a day earlier than planned. Legislators will have to sign off on a spending plan before that can happen, so we will keep our ears to the ground for evidence the end is near. Developments are sure to begin moving fast; keep up in real-time with the #GoldDomeReport

In this Report:

  • Notable Floor Action 
  • Committee Reports
  • Rules Calendars for Legislative Day 39

Notable Floor Action

Senate

The Senate’s calendar was relatively light for Day 38 of the Legislative Session with only 13 bills and resolutions on the actual Rules Calendar. While the Senate worked diligently, they did manage to have a little fun and recognize some of their colleagues who are not returning to the legislature in 2021. Those in the Senate who are retiring are the following Senators: Ellis Black (R-Valdosta); Steve Henson (D-Tucker); Bill Heath (R-Bremen); Renee Unterman (R-Buford); William Ligon, Jr. (R-Brunswick); Jesse Stone (R-Waynesboro); and John Wilkinson (R-Toccoa). Below is a highlight of actions taken, including some “special actions” to finalize legislation which received changes in the House.

  • HB 759, by Representative Butch Parrish (R-Swainsboro), is Georgia’s annual dangerous drug update in Title 16. The legislation was carried in the Senate by Senator Dean Burke, MD (R-Bainbridge) and swiftly cleared the Senate with a vote of 49-0. This bill moves to Governor Kemp’s desk.
     
  • HB 417, by Representative Alan Powell (R-Hartwell), regulates trauma waste management practitioners ( those who provide clean up services at a trauma scene) in Chapter 46A of Title 43. Senator Tyler Harper (R-Ocilla) presented this legislation which also passed quickly off the Senate Floor with a vote of 43-7. It also moves now to Governor Kemp’s desk.
     
  • HB 918, by Representative Sharon Cooper (R-Marietta), addresses the practice of pharmacy and in particular the Pharmacy Audit Bill of Rights which imposes limitations relating to audits so that an audit is not to include more than 100 prescriptions per audit and an entity isl not to audit more than 200 prescriptions in any 12 month period, provided that a refill does not constitute a separate prescription. Senator Chuck Hufstetler (R-Rome) presented this legislation to the Senate and it passed with a vote of 47-3. It also moves now to Governor Kemp’s desk.
     
  • HB 765, by Representative Mitchell Scoggins (R-Cartersville), seeks to increase the minimum compensation for magistrate court judges by 20 percent in Title 15. These judges were left off the legislation, SB 171, passed in 2019 addressing salaries for constitutional officers. An amendment proposed and adopted would have permitted these salaries to become effective on January 1, 2022. The legislation failed with a vote of 28-19. There were arguments made that imposing a salary increase now, while the Senate and House were taking pay cuts, was incorrect and that magistrate courts judges are not constitutional officers and are paid by local governments. Senator Chuck Payne (R-Dalton) carried this legislation on the Senate Floor; he requested a vote to reconsider which received a vote of 26-23. A motion was then made to table; the bill was tabled.
     
  • HB 786, by Representative Andy Welch (R-McDonough), addresses judicial workloads and creates additional judgeships in the Cobb, Ogeechee and Flint Circuits. The legislation was presented in the form of a Committee Substitute from Senator Jesse Stone (R-Waynesboro) and despite questions around the tying of the hands of the General Assembly with a cost imposed on future legislatures the bill passed as amended (which permits the effective date to be January 1, 2022) by a vote of 46-3. Senator Stone indicated that judicial circuits are reviewed every three years to determine judicial workload and the need for additional staffing, noting that these circuits had need and especially now with the backlog of cases due to COVID-19. The legislation now requires the House to agree to the changes. 
     
  • HB 877, by Representative Don Hogan (R-St. Simons), permits golf carts to be altered to become “slow moving vehicles” (between 21-25 miles per hour) so that they may have a VIN, an inspection and receive a tag. This legislation, which amends Title 40, was presented on the Senate Floor by Senator William Ligon, Jr. (R-Brunswick) and passed with a vote of 49-0; it moves now to Governor Kemp’s desk.
     
  • HB 953, by Representative Bonnie Rich (R-Sugar Hill), is the Department of Administrative Services’ bill to help streamline and expedite contract purchasing of goods in Chapter 5 of Title 50. Senator William Ligon, Jr. (R-Brunswick) presented the bill on the Floor; an amendment was offered, and adopted, which allows the state to enter into cooperative purchasing agreements. The legislation passed, as amended, by a vote of 45-1; it must return to the House for that body to agree to the Senate’s changes.
     
  • HB 972, by Representative Penny Houston (R-Nashville), addresses penalties for violations of pipeline safety standards and regulations which are prescribed and enforced by the Public Service Commission in O.C.G.A. 46-2-91. The changes align Georgia’s penalties with those imposed by the federal government. Senator John Albers (R-Roswell) presented the bill; it passed with a vote of 45-0. 
     
  • HB 1039, by Representative Sam Watson (R-Moultrie), addresses O.C.G.A. 13-12-3 so as to provide additional protections for consumers who enter into service contracts with automatic renewal provisions. The protection includes that consumers are to receive notice. The company is to receive: 1) a written or electronic acknowledgement from the consumer of receipt of the notification; and (2) an affirmative written or electronic response that the consumer does not intend to terminate the service contract. Senator Ellis Black (R-Valdosta) brought this bill to the Floor which caused a number of questions. Two amendments were offered; one was adopted to the proposal (the one which provides for an effective date). Senator Greg Dolezal (R-Cumming) spoke in opposition to the proposal because of potential “unintended consequences” as the measure was broadly written. The Technical Association of Georgia did support the legislation. 
     
  • HB 1125, by Representative Trey Kelley (R-Cedartown), amends Titles 31 and 45 which changes mammogram coverage for individuals covered by the State Health Benefit Plan who are at high-risk for breast cancer. Currently, the plan permits mammograms for those individuals who are age 35 and older; this moves the age to age 30 and older. It is to be known as Lacee’s Law. Senator Kay Kirkpatrick, MD (R-Marietta) presented the legislation to the Senate; the bill passed 48-0.
     
  • HR 1163, by Representative Matthew Gambill (R-Cartersville), is the annual road and bridge naming bill. It seeks to name a bridge in Bartow County for recently retired Justice Robert Benham and also adds four other road dedications. Senator Brandon Beach (R-Alpharetta) presented the bill in the Senate which passed by Committee Substitute with a vote of 50-1; the legislation must now be agreed to by the House.

In special actions, the Senate took up these measures:

  • SB 377, by Senator Burt Jones (R-Jackson), is the Department of Insurance bill relating to the required number of inspections which are to be conducted of elevators on an annual basis - essentially once in a 12 month period. It increases the number of buildings for which a private professional provider may provide required plan reviews and inspections when the county or municipality is unable to provide such services within a certain time period; reduces the number of required elevator inspections per year; removes the requirement that certain parties with whom the Department of Insurance contracts must perform the administration of certain duties of the Commissioner of Insurance and receive fees for services directly from consumers; Senator Jones moved that the Senate agree to the House Substitute; his motion carried with a vote of 35-15. Agreed
     
  • SB 295, by Senator John Wilkinson (R-Toccoa), is a bill addressing Titles 15 and 48 regarding pay raises for constitutional officers. It is a clarification that such is not a “double dipping” for the raises. Senator Wilkinson asked that the Senate agree to the House Substitute; his motion carried 51-1. Agreed
     
  • SB 391, by Senator Kay Kirkpatrick, MD (R-Marietta), seeks to allow in Titles 26 and 33 for early prescription refills in emergency situations and coverage provisions for those and also permits a pharmacist to dispense a 30-day supply (in declared emergency situations or during a hurricane). Senator Kirkpatrick asked the Senate to agree to the House Substitute; the Senate agreed with a vote of 52-0. Agreed
     
  • SB 408, by Senator Brian Strickland (R-McDonough), addresses Title 34 and state employees’ sick leave for family members and also adds the Department of Labor’s requested language to extend the unemployment provisions used during COVID-19 and establishes a Work Sharing Program. Senator Strickland asked the Senate to agree to the House Substitute; his motion carried with a vote of 49-1. Agreed
     
  • SB 442, by Senator William Ligon, Jr. (R-Brunswick), addresses property owner associations, relating to long-term rentals in O.C.G.A. 44-3-26. It prohibits an amendment be made to the instrument so as to prohibit or restrict a nonowner occupied lot from continuing to be leased or rented for an initial term of six months or longer pursuant to the preamended instrument; provided, however, that upon the conveyance for value of such lot, such lot is required to be made to conform to the instrument as amended. Senator Ligon moved that the Senate agree to the House Substitute; his motion carried with a vote of 36-14. Agreed
     
  • SB 123, by Senator William Ligon, Jr. (R-Brunswick), addresses waste management and coal ash and the landfill fees charged. Senator Dolezal (R-Cumming) pointed out line 57 in the bill to his colleagues around the surcharges which were to be spent in local areas and not sent to county general funds; he noted that was not taking place. The Senate agreed to Senator Ligon’s motion with a vote of 39-9. Agreed
     
  • SB 462, by Senator John Kennedy (R-Macon), moves the Georgia Industrial Loan Act oversight from the Department of Insurance to the Department of Banking and Finance in Chapter 3 of Title 7. Senator Kennedy indicated that this move will be a savings of $190,000 annually to the state. Senator Kennedy asked that the Senate agree to the House Substitute and his motion carried with a vote of 50-0. Agreed
     
  • SB 288, by Senator Tonya Anderson (D-Lithonia), permits records to be restricted in certain misdemeanor cases in order to give individuals a “second chance” and access employment and housing opportunities. The bulk of the bill’s language is in Titles 24 and 35. Senator Anderson outlined the changes made in the House and asked the Senate to agree to the House Substitute. Her motion carried unanimously with a vote of 46-0. Agreed

House

The House took up the following measures of note today:

  • SB 28, authored by Senator Lester Jackson (D-Savannah), addresses copays which are permitted to be collected and establishes that they must be reasonable in relation to the insurance plan’s covered benefits in O.C.G.A. 33-24-59-25. Representative Karen Mathiak (R-Griffin) carried the bill in the House, noting that it codified a Department of Insurance rule. The House approved the legislation with a vote of 145-0.
     
  • SB 288, authored by Senator Tonya Anderson (D-Lithonia), permits records to be restricted in certain misdemeanor cases in order to give individuals a “second chance” and access employment and housing opportunities. The bulk of the bill’s language is in Titles 24 and 35. The House approved the bill by a 159-0 vote, and the Senate later Agreed to the House Substitute to constitute final passage. 
     
  • SB 344, authored by Senator Jeff Mullis (R-Chickamauga), amends Titles 24 and 35 to allow for prisoners and crime lab employees to appear for certain court proceedings via video conference. The House rejected the measure by a 82-82 vote but voted to reconsider by a 94-71 vote. The bill returns to the General Calendar. 
     
  • SB 367, authored by Senator P.K. Martin IV (R-Lawrenceville), amends Title 20 to reduce the number of State-mandated assessments in K-12 schools to near the federal minimum. The House approved the measure by a 151-0 vote, and the bill returns to the Senate for reconciliation. 
     
  • SB 394, authored by Senator Brian Strickland (R-McDonough), amends Titles 16, 45, and 49 to allow the Attorney General’s Office to investigate and prosecute human trafficking crimes. The House approved the measure by a 102-64 vote, and the bill proceeds to the Governor’s desk. 
     
  • SB 426, authored by Senator Brian Strickland (R-McDonough), amends Title 12 to provide for the reporting of any unpermitted release of ethylene oxide to the Environmental Protection Division of the Department of Natural Resources. The House approved the bill by a 150-0 vote, and the bill proceeds to the Governor’s desk. 
     
  • SB 429, authored by Senator William Ligon, Jr. (R-Brunswick), is Georgia’s annual modernization of the Code to correct errors and omissions. Representative Timothy Barr (R-Woodstock) presented the legislation which the House approved with a vote of 166-0, and it now moves to the Governor’s desk.
     
  • SB 477, authored by Senator Larry Walker (R-Perry), amends O.C.G.A. 17-6-4 regarding family violence cases. It requires the officer to consider whether the injuries are offensive or defensive in nature and clarifies that the officer determine the dominant aggressor rather than the primary aggressor. Representative Bonnie Rich (R-Sugar Hill) presented the legislation and remarked that the changes would help limit the numbers of children being taken into DFCS custody. The House approved this measure with a vote of 145-2 , and it now proceeds to the Governor’s desk.
     
  • SB 482, authored by Senator Dean Burke (R-Bainbridge), amends Title 31 to provide for a state all-payer claims database to be housed within the Office of Health Strategy and Coordination. The House approved the measure by a 144-4 vote, and the bill returns to the Senate for reconciliation.

Committee Reports

House Special Committee on Access to the Civil Justice System

The House Special Committee on Access to the Civil Justice System, chaired by Rep. Trey Kelley (R-Cedartown), met late on Tuesday afternoon to consider one bill. SB 359, authored by Sen. Chuck Hufstetler (R-Rome) and originally a bill on surprise billing, was presented as a substitute bill that strips the original content and replaces it with broad civil liability protections related to the COVID-19 pandemic. Chairman Kelley presented the substitute, which has been dubbed the “Georgia COVID-19 Pandemic Business Safety Act.” The substitute provides that “[n]o person or sports venue shall be held liable for damages in an action involving a COVID-19 liability claim against such person or sports venue unless the claimant proves that the actions of the person or sports venue showed gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.” The substitute also includes specific liability limitations for healthcare facilities and sports venues (a rebuttable presumption of assumption of risk for the latter). There is a rebuttable presumption of meeting the standard of care for persons or entities show completion of an instructional program through DPH and compliance with guidelines in effect at the time of the occurrence of the alleged claim. 

There were a number of individuals who spoke to the proposal, including David Hanson, an attorney representing the Medical Association of Georgia and MagMutual, calling for liability limitation but pointing out a number of issues with the draft. Many of those discussing the concerns which were around definition of the term claimant, addressing transmission issues for healthcare providers, and establishing an effective date based on the statute of limitations. Chairman Kelley asked that language be provided to him on Wednesday; an additional meeting is expected on this bill.

Note that a similar bill on liability, HB 167, has now cleared both the House and Senate and awaits agreement in the House. 

Rules Calendars for Legislative Day 39

In addition to any bills postponed from prior Rules Calendars, the House is expected to take up the following measures on Thursday for Legislative Day 39:

  • SB 211  Advertisement and Sale of Meat; representation of nonanimal products and non-slaughtered animal flesh as meat; render unlawful
     
  • SB 316  Military Spouses; licensed in other states to practice certain professions; obtain a license by endorsement to practice in this state; provide
     
  • SB 341 — Peace Officers; re-employment of retired peace officers and correctional officers during disasters and emergencies; provide
     
  • SB 413 — Conflicts of Interest in Zoning Actions; definition of the term applicant; expand

At the time of publication, the Senate had not yet set its calendar for Legislative Day 39.