Blogs

Recent Blog Posts

  • CA Privacy Expert Suggests CCPA Enforcement Should be Delayed Santa Clara University professor and privacy law expert Eric Goldman says CCPA enforcement should be delayed. “The DOJ should relax the July 1, 2020 enforcement date. California has declared a state of emergency and is on indefinite lockdown due to COVID-19. This is not business as usual” – says Goldman. “These circumstances significantly hamper businesses’ ability to respond to the constantly-changing requirements of the draft regulations. Due to illness or layoffs, some businesses will not have employees available to implement the new... More
  • Canada Data Privacy Regulator: Limited Circumstances Allow Data Collection Without Consent Canada’s Office of the Privacy Commissioner weighs in on data processing under COVID-19: “There are some circumstances under which organizations may collect, use or disclose personal information without consent, including: Collection in the interests of the individual and consent cannot be obtained in a timely way, e.g. critical illness. Collection and use for making a disclosure required by law, e.g. public health authority requires it. Disclosure requested by a government institution under a lawful authority to obtain the information and is for the purpose... More
  • COVID-19 Resources for Employers Keeping up with the deluge of COVID-19 laws, regulations, interpretive guidelines, and the like is quite a challenge for employers. You need to react to constantly changing circumstances and do so in a way that gives your company the best possible chance to succeed. We have created a Coronavirus Resource page to help. We’ve not only created it, but we’re updating it constantly and you can subscribe to updates. What can you find there? I’m so glad you asked! We have: An explanation... More
  • COVID 19 Update Telemedicine: Enhanced Tools Available for Veterinarians FDA has recently announced it is relaxing its enforcement of telemedicine for veterinarians under two federal provisions:  (1) when prescribing extralabel drug use; and (2) when prescribing medicate feed pursuant to the Veterinary Feed Directive.  Both generally require an initial physical examination of animals prior to such prescription. FDA only enforces certain regulations governing a veterinarian’s relationship with its clients and patients.  As stated in a news release “Coronavirus (COVID-19) Update: FDA Helps Facilitate Veterinary Telemedicine During Pandemic,” The federal [veterinarian client... More
  • COVID 19 PROVES THAT ANIMAL RESEARCH REMAINS VITAL TO HUMAN AND ANIMAL HEALTH Despite myths perpetuated by animal activists, animal models remain critical to ensure that vaccines developed to prevent COVID 19 infections do not make those patients worse as a result of such treatment, as Dr. Fauci recently acknowledged during a briefing at the White House. As also reported in Catching up to Coronavirus: Top 60 Treatments in Development,  “[m]ost of the therapy candidates for COVID-19 . . . were vaccines that are only in animal testing stages.” Matthew R. Bailey, President, National Association... More
  • European Data Protection Supervisor: Pandemic Raises Fundamental Rights Questions The European Data Protection Supervisor weighs the impact of the COVID-19 on future data protection strategy and fundamental rights. “Covid-19 is a game changer. Thinking about the EDPS’ strategy for the next five years, we have to look again at our text. Whatever happens in the next few weeks, we know the words will not be the same. We will all be confronted with this game changer in one way or another. And we will all ask ourselves whether we are... More
  • Data Access Requests in the Age of COVID-19, Guidance from Ireland Ireland’s Data Protection Commission weighs in on the issue of COVID-19 and data access requests: “The Data Protection Commission acknowledges the significant impact of the Covid-19 health crisis which may affect organisations’ ability to action GDPR requests from individuals, such as access requests. While the statutory obligations cannot be waived, should a complaint be made to the DPC, the facts of each case including any organisation specific extenuating circumstances will be fully taken into account.” Organizations should: communicate with individuals about the handling of... More
  • Los Angeles Fills FFCRA Sick Leave Gaps The Los Angeles City Council passed an Ordinance on Friday that fills some key gaps left open by the FFRCA (Families First Coronavirus Response Act).   If you don’t know about the FFCRA  yet, please visit our Coronavirus Resources page to read all about it. This Supplemental Sick Leave Ordinance (“LA Supp Sick Ord”) provides 80 hours of paid sick leave, in addition to the 48 hours already provided to employees of larger businesses within the City of Los Angeles, to use... More
  • FREE WEBINAR – THE COVID-19 BAILOUT LEGISLATION AND THE AVIATION INDUSTRY: WHAT IT IS AND HOW YOU GET $$$ FREE WEBINAR – 2 PM, THURSDAY, APRIL 2 President Trump is poised to sign a record-breaking $2 trillion stimulus and aid package to help combat the COVID-19 epidemic.  As expected, there is a lot of money in the bill for aviation, including loan guarantees and payroll assistance for passenger and cargo carriers. There is also good news for other aviation related businesses. ... Read More ... More
  • NYDFS Extends Cybersecurity Compliance Deadline Due to COVID-19 Pandemic Coronavirus and Data Protection: New York Department of Financial Services had extended the deadline for compliance with its cybersecurity requirements. The Superintendent of Financial Services of the State of New York recognizes that COVID-19 may present compliance challenges for certain regulated entities and persons in meeting their legal obligations. Therefore the deadline for submission of Certifications of compliance with cybersecurity requirements, and transaction monitoring and filtering programs, is extended by 45 days from the original due date. Several other deadlines were extended as... More
  • Excusable Nonuse of TM Due to Coronavirus My colleague, Bridget Short, recently drafted an alert regarding an option for trademark owners seeking to avoid cancelation of a registration due to a temporary interruption in use and inability to file a declaration of use. Due to circumstances beyond their control, trademark owners may file a declaration of nonuse setting forth (1) the date when such use of the mark in commerce stopped; (2) the approximate date when such use is expected to resume; and (3) facts to show that... More
  • Think Twice Before Applying for “Coronavirus” Related Trademarks Whether it is a typo in a president’s tweet or simply the word “The,” trademark hopefuls are quick to jump at the opportunity to obtain a trademark in virtually any and all phrases. Recently, the terms “Coronavirus” and “Covid-19” are no different. As the Covid-19 pandemic sweeps across both the world and the United States, many onlookers may be considering whether to apply for trademarks in Coronavirus, Covid-19, or any number of related phrases. In fact, some companies and individuals have... More
  • Coronavirus, the Aviation Industry and Drug/Alcohol Testing With the wrenching and pervasive cessation of normal business and societal activities in the past few weeks, Fox Rothschild has been addressing questions from transportation industry clients concerning their ongoing responsibilities for complying with U.S. Department of Transportation (DOT) drug and alcohol testing requirements during these difficult times. On March 23, 2020, DOT issued Guidance on Compliance with Drug and Alcohol Testing Regulations. ... Read More ... More
  • Could COVID-19 Delay CCPA Enforcement? Should enforcement of the California Consumer Privacy Act be delayed? The current outbreak of COVID-19 warrants delaying enforcement of California’s new privacy law to January 2021, dozens of organizations say in a letter sent this week to state Attorney General Xavier Becerra. “Now is not the time to threaten business leaders with premature CCPA enforcement lawsuits,” the organizations write. “A temporary deferral in enforcement of the CCPA would relieve many pressures placed on organizations due to COVID-19 and would better enable business... More
  • Catalan DPA Issues Guidelines for COVID-19 Health Data Sharing Under GDPR Coronavirus and Data Protection guidance from the Catalan Data Protection Authority: Under Articles 6.1.(e) and 9.2.(i) GDPR, health authorities may share health data when this is needed for reasons of public interest in the field of public health, such as protection against serious trans-boundary health threats, or to guarantee high levels of quality and safety of healthcare and of medicines or health products, on the basis of Union or Member State law. Under Law 18/2009, public health employers who are aware of... More
  • Czech Republic Data Protection Authority Provides COVID-19 Data Processing Guidance The Czech Republic’s Data Protection Authority, Urad pro Ochranu Osobnich Udaju, provides its guidance on GDPR and COVID-19: Public health authorities are authorized to process personal data to the extent and for the purpose laid down by Act No. 258/2000 on public health protection. This includes taking appropriate measures to reduce the spread of contagious disease such as informing the population by sending alerts and calls in the form of text messages. Art 9 of GDPR allows processing of health data which... More
  • COVID-19/Coronavirus Patient Notice and Acknowledgement Forms Over the last several weeks, the CDC has issued and updated specific guidance on the COVID-19/Coronavirus pandemic for health care professionals on its website (accessible here: CDC Coronavirus – Health Care Professionals) and has advised health care facilities and clinicians (including physicians and dentists) to “prioritize urgent and emergency visits and procedures now and for the coming several weeks.” (See:  CDC Guidance for Health Care Clinics). For further details, please see our post: Coronavirus Resources for Physicians and Dentists. In connection with the CDC’s... More
  • Medicare and OCR Relax Telehealth Rules Under Medicare and HIPAA Fellow Fox Rothschild LLP attorneys Margaret J. Davino, Salvatore J. Russo and Nawa A. Lodin generously contributed this post. On March 17, 2020, the Centers for Medicare & Medicaid Services (CMS) broadened access to Medicare telehealth services to allow Medicare patients to receive more services from their doctors without travel to a health care facility.  This benefit is available on a temporary and emergency basis under the 1135 waiver authority and Coronavirus Preparedness and Response Supplemental Appropriations Act, to provide telemedicine... More
  • EDPB Issues Guidance on GDPR Compliance in the Age of COVID-19 Following a series of opinions from individual nations’ Data Protection Authorities, the European Data Protection Board (EDPB) has issued long-awaited guidance on compliance with the General Data Protection Regulation under the strain of a pandemic. The EDPB does not go into detail regarding legal bases but states that:  GDPR does not get in the way of fighting the global pandemic Transparency, proportionality and adequate protections are key Mobile device tracking should not be the first option and, if used, should be proportionate and highly... More
  • Austria: OK to Collect Workers’ Contact Info During Pandemic to Facilitate Efficient Communication The Austrian Data Protection Authority weighs in on Coronavirus and GDPR:  Employers may collect the personal contact information of employees for the purpose of efficient communication during the pandemic. This information may not be used for any other purpose and must be deleted after the pandemic is over. Collecting this information is permissible under Art. 6(1)(c), (d) and (f) GDPR and is subject to providing a notice of processing under Art 13 GDPR The legitimate interest in question is (a) the reduction of... More
  • FTC and FDA warn companies about making unsupported claims that products can prevent or treat coronavirus As the effects of coronavirus continue to ripple across the globe, the Federal Trade Commission (FTC) and Food and Drug Administration (FDA) have warned seven companies for purportedly “making deceptive or scientifically unsupported claims about their ability to treat coronavirus (COVID-19).”   The FTC press release is located here.  The FTC and FDA alleged that the companies were advertising products such as “teas, essential oils, and colloidal silver” as being able to treat or prevent coronavirus.   The letters warned the companies... More
  • PA Secretary of Health Clarifies Permitted Medical and Dental Procedures Yesterday,  Pennsylvania Gov. Wolf ordered the closure all non-life sustaining businesses in PA, but permitted ambulatory surgery centers and physician and dental offices to remain open, provided that they are not performing elective procedures or elective care.   This afternoon, the Pennsylvania Secretary of Health, Dr. Rachel Levine, confirmed what is meant by “elective” procedures. According to the Secretary, whether a procedure is “elective” needs to be determined by the treating physician in discussion with the patient.  Specifically, the physician and the... More
  • Coronavirus, Critical Infrastructure and the Aviation Industry Today’s new normal is that nothing will be normal.  It seems that each day we are greeted with yet another federal, state, or local order restricting activity.  These have ranged from travel advisories, to local bar and restaurant closures, to the statewide closing of all non-essential businesses. What all of these shut-down orders have in common, however, is that there is little or no lead time between the issuance of the order and when it goes into effect.... Read More ... More
  • Immigration Agencies Response to the COVID-19/Coronavirus Pandemic In an effort to allay concerns and to enable our clients to adjust plans relevant to nonimmigrant or immigrant visa status in light of the current unprecedented situation, we are providing you with this update regarding current operations of relevant government agencies and any special notifications, dispensations or waivers granted due to the COVID-19 pandemic.  Please note that this may not be a comprehensive list.  If you have concerns about your particular situation, please contact us at [email protected]  We are... More
  • Medicare and OCR Relax Telehealth Rules Under Medicare and HIPAA By Margaret J. Davino, Salvatore J. Russo and Nawa A. Lodin In the Medicare Telemedicine Healthcare Provider Fact Sheet published March 17, 2020, the Centers for Medicare & Medicaid Services (CMS) broadened access to Medicare telehealth services to allow Medicare patients to receive more services from their doctors without travel to a health care facility. This benefit is available on a temporary and emergency basis under the 1135 waiver authority and Coronavirus Preparedness and Response Supplemental Appropriations Act, to provide telemedicine services during the national... More
  • AILA Letter to DHS regarding Form I-9 Compliance during COVID-19 Public Health Emergency On March 16, 2020, the American Immigration Lawyers Association (AILA) sent a letter to the Acting Secretary of the U.S. Department of Homeland Security seeking guidance regarding employer I-9 Employment Eligibility Verification requirements during the Coronavirus (COVID-19) public health emergency. In the letter, AILA requested guidance regarding “Form I-9 verification and reverification, E-Verify and compliance requirements for U.S. businesses throughout the remainder of [the] national emergency”.  Of mounting concern among employers is the requirement that the I-9 process must be completed... More
  • Cutting Exempt Employee Salaries for Slowdowns Resulting From Virus Is Legal—But Be Very Careful! The Corona Virus scare is causing employers to lay people off and reduce their hours. For non-exempt, hourly people this is fairly easy, from a legal perspective, because if non-exempt people do not work, they do not get paid. The case is tougher for exempt workers. The FLSA requires employers to pay exempt employees at least $684.00 per week in salary, and that salary cannot be reduced (in most instances) by deductions. However, under the FLSA, an employer can prospectively... More
  • Additional Coronavirus Guidance for Dentists **For General Guidance on COVID-19 for Dental Practices, please see our post Coronavirus Resources for Physicians and Dentists. Dentists should also be aware of the following guidance: State Governors have issued directions to all industries regarding the outbreak.  Know what your Governor has said about dental practices (or health care practices in general). The CDC has now advised healthcare facilities and clinicians (including dentists) to “prioritize urgent and emergency visits and procedures now and for the coming several weeks.”  Specifically, the CDC has... More
  • Update: USCIS Announces Temporary Office Closure Related to COVID-19 ** As of March 25, 2020, USCIS has updated its temporary closures described below and has extended the suspension of in-person services to April 7, 2020. ** In an effort to slow the spread of COVID-19, USCIS announced temporary office closures effective March 18, 2020.  USCIS is suspending all in-person services at its field offices, asylum offices, and Application Support Centers (ASC) until at least April 1, 2020.   The suspension includes all in-person services at USCIS field offices across the United... More
  • Combatting Corona with the Power of the Broadway Pre-Sale The closure of Broadway theatres amidst the Corona pandemic came as a gut punch. It was swift, sharp and immediately changed the fate of the forty-one theatres that make New York City the center of the global theatrical market. It is a devastating and crippling event for our industry and the world at large, but there are ways in which we can mobilize to address its impact on the theatrical market – and the answer lies, at least in part,... More
  • COVID-19 Update: Limited Waiver of HIPAA Sanctions and Penalties for Certain Hospitals Effective March 15, 2020, certain hospitals that fail to comply with specific HIPAA Privacy Rule requirements will not be subject to HIPAA sanctions and penalties, according to a “COVID-19 & HIPAA Bulletin” issued by U.S. Health and Human Services Secretary Alex M. Azar. The waiver was implemented as a response to President Trump’s recent declaration of a nationwide emergency concerning COVID-19 and Secretary Azar’s declaration of a public health emergency on January 31, 2020. Note that this HIPAA waiver is limited.... More
  • Chancery Hearings and Trials to be Held Telephonically for 30 Days This morning, the Delaware Court of Chancery issued Standing Order No. 2 Concerning COVID-19 Precautionary Measures.  Pursuant to Standing Order No. 2, all Chancery hearings and trials will be conducted only telephonically for the next 30 days, absent a party requesting an in-person hearing and demonstrating imminent irreparable harm. Standing Order No. 2 replaces the Court of Chancery’s original standing order in its entirety, which was issued last week. A full list of the orders and related press releases can be found... More
  • Health Care Services Related to COVID-19 and USCIS’s Public Charge Rule By Catherine V. Wadhwani and Robert S. Whitehill Without fanfare, U.S. Citizenship and Immigration Services (USCIS) recently updated its website with an Alert https://www.uscis.gov/greencard/public-charge relating to its Public Charge requirements in the context of the Novel Corona Virus Disease (COVID-19) pandemic.  As concerns about the spread of COVID-19 in the U.S. increase, USCIS recognized that those grappling to fully understand its recent Public Charge Rule may be so concerned about the impact on their immigration status that they may refrain from... More
  • Cancellations at USPTO, PTAB, TTAB, etc. On Friday, the United States Patent & Trademark Office (USPTO) announced that it was cancelling all in-person meetings — including all examiner interviews, all meetings between examiners and applicants, and all hearings before the Patent Trial & Appeal Board (PTAB) and Trademark Trial and Appeal Board (TTAB). The USPTO noted that parties will receive further instructions on participating via video or telephone in advance of any such interview, meeting, or hearing. Last Thursday, the Federal Circuit announced that, with an exception... More
  • COVID-19’s Effect on Advertising By all accounts, and as predicated by multiple news outlets earlier this month, COVID-19 may have a substantial and chilling effect on advertising.  Adweek, for example, wrote an article in early March predicting how the coronavirus would disrupt the global advertising industry, not merely by major events being cancelled but also by a potential decrease in advertising spend and by new challenges in advertising production.  However, Adweek poignantly notes that TV advertising may not suffer as consumers increasingly choose to engage... More
  • The Delaware Judiciary’s Response to the Coronavirus (COVID-19) In light of the outbreak of the novel coronavirus (COVID-19), the Courts of the State of Delaware have issued various standing orders to institute precautionary methods in dealing with this worldwide pandemic.   A full list of the orders and related press releases can be found on the Delaware Judiciary’s website. A summary of the orders and press releases issued by each Delaware State Court is set forth below: Delaware Supreme Court Issued an Order dated March 13, 2020 declaring a Judicial Emergency, which... More
  • Coronavirus Resources for Physicians and Dentists With the recent outbreak of the Coronavirus (COVID-19) and the significant governmental actions being taken at federal, state and local levels, physicians and dentists around the country are seeking guidance on how to continue to treat patients while ensuring that the health of their employees and patients is protected. Whether your practice is open or temporarily closed, you may be wondering how you should handle patients who show potential symptoms of COVID-19 or have recently traveled abroad.  You may also be... More
  • Coronavirus and Multifamily Apartment Communities Fair to report I never thought I would post an entry about a global pandemic and multifamily apartment communities. We are truly in uncharted waters here and need to best navigate the current environment. Everyone is making decisions in real time with imperfect (and possibly changing) information. It goes without saying that the health and safety of our residents, guests, and employees remain paramount. In addition to following guidelines from the Centers for Disease Control as well as state and... More
  • COVID-19 Employment Law Issues (Friday the 13th Edition) One of my favorite things about California employment law is that it changes constantly. But this coronavirus situation changes minute to minute, and that’s hard to keep up with. Here are resources to help you stay current. Here’s a link to various sites that contain information – some by Fox Rothschild LLP, some by government agencies. One of the resources you’ll find there is a list of answers to many of the questions employers have. Another is a link to... More
  • Coronavirus and Foreign Student Considerations The recent wave of public and private university and college closings due to the COVID-19 (Coronavirus) is only going to increase throughout the United States.    Many colleges and universities have already moved to remote instruction with all classes online.   The cancellation of all remaining spring and winter sports championships by the NCAA is further evidence that schools are taking the outbreak seriously and not holding events that can encourage the spread of the pandemic.    Classes and events... More
  • HIPAA and COVID-19: ABCs For Working From Home If your company is a covered entity or a business associate, you face unique challenges when workforce members ask or are required to work from home. Hopefully, your company’s HIPAA Security Policies and Procedures address the use of portable devices, whether they are owned by the employer or by the employee, and your HIPAA security risk assessment should take into account any location in which electronic protected health information (PHI) might be created, received, maintained or transmitted.  Still, it’s important... More
  • Coronavirus and Airline Liability: Who’s Exposed? On March 11, 2020, an aircraft carrying an ill passenger landed at Palm Beach International Airport.  Apparently, the passenger had been feeling bad for a while, and had been tested for coronavirus.  A passenger on the plane was quoted as saying that the ill man’s wife: was sitting in the same row as me and mentioned to others that he wasn’t feeling well.... Read More ... More
  • Coronavirus Travel Alert Due to concerns relating to the spread of the coronavirus, President Trump announced today the upcoming suspension of travel from Europe to the United States, with the exception of the United Kingdom.  The travel suspension will go into effect on Friday, March 13, 2020 at midnight and remain in place for the next 30 days.   There will be certain exemptions for Americans who have undergone specific screenings.   The President indicated the restrictions will be adjusted based on current conditions. We will... More
  • More for Employers re: HIPAA Privacy and COVID-19 The FAQs included in my prior post address  employer response with an eye to HIPAA compliance.  What else can an employer do or not do with employee information related to COVID-19 status?   Even covered entities and business associates concerned with HIPAA must be alert to other laws that affect their communications and action plans.   Employers should check with labor counsel for laws and requirements that may apply.  Employers should also be aware that state-specific privacy and data security laws may... More
  • FAQs on HIPAA Privacy and COVID-19 Fox Rothschild partner Bill Maruca’s article, “Protecting Privacy During an Infectious Disease Panic”, is (unfortunately) as relevant today as it was when it was posted here more than 5 years ago. Swap Ebola for COVID-19, and the article provides useful guidance for covered entities and business associates subject to HIPAA and to employers, family and friends who are not. More recently, the U.S. Department of Health and Human Services published a Bulletin that emphasizes the important and HIPAA-permitted circumstances under which... More
  • Free Webinar on Coronavirus Issues in the Workplace With the rapidly evolving landscape, new issues arise daily for employers.  Join our Labor & Employment and Hospitality teams, on March 12th at 12pm pacific time, for a Q&A format webinar on addressing COVID-19 concerns at work.  While the focus will be on customer-facing industries such as hospitality and retail, most guidance is applicable to all.  Register here and we look forward to you joining us.... More
  • Update: Universities and Colleges: Coronavirus Planning Must Include Protecting Animals on Campus As concerns about coronavirus continue to escalate, universities and colleges have taken advantage of spring break to protect students and staff from circulating virus, and many are planning on remote teaching for the rest of the semester.  For schools with students who remain at on campus residences and/or employees with service or emotional support animals, the following should be considered: People with service animals cannot be discriminated against, but they are required to provide for the care of their service animal,... More
  • Novel Workplace Issues Addressing Novel Coronavirus With cases of COVID-19, or novel Coronavirus, at 87 and rising in the United States, communities are bracing for widespread impact.  Here are some issues for consideration in managing wellness (and fear) in the workplace: Protecting Employees  Reduce or cancel non-essential business travel (especially international).  Monitor relevant travel advisories and consider work-from-home arrangements upon return from travel.  Employees may refuse to travel under OSHA  in certain circumstances. Limit attendance at large conferences, if not already canceled. Limit workplace visitors, instead utilizing remote meetings or... More
  • Updated: Coronavirus Response Plans for Veterinary Practices As predicted, COVID-19 is spreading throughout the United States and globally.  State and Federal governmental agencies have implemented emergency response plans for highly contagious diseases, and businesses of all kinds are working to protect their employees and customers while maintaining business continuity if the coronavirus continues to spread. Today, as we prepare for a new reality, albeit temporary, veterinary practices where animals in need of critical and preventive care should continue to be properly cared for by highly skilled, dedicated professionals. ... More
  • Coronavirus and SAFETY Act 2.0 What do the Novel Coronavirus (n-CoV) and the SAFETY Act have in common? They were both topics addressed this week by TSA Chief Counsel Francine Kerner at the Fox Rothschild 2020 Airline Symposium. Chief Counsel Kerner is at the forefront of the Federal Government’s response to the coronavirus and was heavily involved in the new screening and quarantine requirements that affect both cargo and passenger aviation. ... Read More ... More