According to Centers for Disease Control and Prevention (CDC) director Robert Redfield, it is possible that there will be a second COVID-19 wave during the next winter season, which may present additional difficulties if it coincides with the flu season. Some government officials have predicted even longer pandemic timelines. Dr. Anthony Fauci, Director of the National Institute of Allergy and Infectious Diseases (NIAID) and White House health advisor, warned that COVID-19 may reemerge seasonally.
In a world where COVID-19 might continue well into the future, businesses may want to supplement their force majeure clauses with provisions to specifically account for pandemic-related disruptions delaying, precluding, or prohibiting performance obligations. These supplementary “COVID-19 provisions” can provide flexibility, efficiency, and a greater degree of certainty in an agreement. By supplementing agreements with COVID-19 provisions, attorneys can offer their clients cost-effective solutions beyond invoking the force majeure clause.
Common Limitations in Force Majeure Clauses
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