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  • HHS Extends COVID-19 Related Public Health Emergency through January 20, 2021 On October 2, 2020, Health and Human Services (HHS) Secretary, Alex M. Azar II, announced the renewal of the public health emergency declaration due to the continued consequences of the COVID-19 pandemic. The 90-day renewal is effective October 23, 2020, and extends until January 20, 2021. The renewal impacts a number of regulatory flexibilities and temporary rules applicable to health ... Continue Reading ... More
  • California’s Blueprint for a Safer Economy Several weeks have gone by since Governor Newsom paused California’s reopening plan due to a surge in COVID-19 cases, leaving California businesses with little guidance as to when they could resume reopening.  On August 28, 2020, the state finally released The Blueprint for a Safer Economy.  This new blueprint for reopening is a four-tier, color-coded system that lays out the restrictions for each activity in each county, with Tier 1 being the most restrictive. Tier 1 – Purple: Widespread Tier 2 –... More
  • Guidance on Temperature Taking From the European Data Protection Supervisor The European Data Protection Supervisor has issued guidance on data protection and body temperature taking. Key takeaways: Basic body temperature checks designed to measure body temperature only, operated manually and not followed by registration, documentation or other processing of individuals’ personal data are, in principle, not subject to the regulation. Other systems of temperature checks, operated manually or automatically, followed by the processing of individuals’ personal data are subject to the regulation. Depending on the processing capabilities of the systems used, additional data protection... More
  • Will You Be Ready for a Paycheck Protection Program Audit? By Matthew S. Adams, Matthew D. Lee and Christopher J. Pippett The Small Business Administration (SBA) has opened the portal for applications for forgiveness of Paycheck Protection Program (PPP) loans established under the Coronavirus Aid, Relief and Economic Security Act (CARES Act). The commencement of the loan forgiveness application process raises two important questions for many borrowers: To what extent will the loan be forgiven? Will the loan and application be audited by the SBA? The answer to the first question is fairly straightforward. A borrower’s loan... More
  • FPRs in the Time of COVID-19 As if the global pandemic was not enough to cause franchisors and their attorneys heartburn, the North American Securities Administrators Association released a commentary titled “Disclosing Financial Performance Representations in the Time of COVID-19” to add another spice to the stomach turning situation. While it provides franchisors with recommendations on evaluating existing FPRs, it does not exactly provide guidance on what to do after you conduct that evaluation. Should a franchisor leave their FPR as is if there is not... More
  • FDA Warns Consumers and Health Care Professionals Not to Use Certain Hand Sanitizer Products The U.S. Food and Drug Administration (FDA) issued a flurry of Press Releases and Alerts from mid-June through the end of July warning consumers and health care professionals not to use certain alcohol-based hand sanitizers due to the dangerous presence of methanol (or wood alcohol), a substance often used to create fuel and antifreeze that can be toxic when absorbed ... Continue Reading ... More
  • Are COVID Immunity Laws Good for Franchising? (This post solely reflects the views of the author, and not that of Fox Rothschild or any of its other attorneys.) While I am not opposed to immunity laws generally, I am not fan of immunity that is too broad. Given that stance, I have grave concerns about the liability protections and COVID immunities being offered to business in the context of the HEALS Act and other legislation at the Federal and state level. Why? Because I am not sure they... More
  • HEROES + HEALS = ?????: COVID Relief 3.0 is a Mystery This is like watching sausage being made – it isn’t pretty. The House passed its $3 Trillion COVID rescue package (the HEROES Act) about a month ago. But the Senate’s HEALS Act is still a work in progress with an unpredictable future. And of course the internally split Senate must negotiate final legislation with the House. In the meantime, workers and businesses are forced to battle the virus, navigate challenging re-openings, and handle employment complications without much comfort as to... More
  • Will COVID-19 Pandemic Hasten Federal Privacy Law? Will the Coronavirus pandemic provide the push needed for a U.S. Federal Privacy law? “The leaders of the House subcommittee responsible for drafting Federal privacy legislation agree about the need to resume working together in order to pass a national standard, while the panel’s top Republican called for clarity on liability protections.” “Although the pandemic broke the rhythm of our talks,” said Rep. Cathy McMorris Rodgers, R-Wash., “it has made the need for a strong national privacy standard more urgent.” “Data privacy is... More
  • The Green Phase Rules Have Changed in Pennsylvania I blogged a while ago about the Green Phase of reopening in Pennsylvania, and how it did not mean “go” but something more nuanced. Something like “proceed with caution”. Today, Governor Wolf called for even more vigilance, out of concerns based on modeling done by Children’s Hospital of Philadelphia showing that the coronavirus is sweeping back into the Northeast from the South and West. Consequently, effective July 16, 2020, at 12:01 am,  Governor Wolf has issued a new order directing targeting... More
  • Spanish Data Protection Authority Offers Guidance on COVID-19 Access Apps The Spanish data protection authority AEPD has published helpful guidelines around the design and use of apps to control access to public places and social distancing. Collect only what you need Use only for the social distancing purpose Be mindful of third party providers in the app Delete when no longer necessary Beware of children’s data Details in this client alert.... More
  • California to Rollback Reopening Plans as COVID Cases Surge Governor Gavin Newsom announced on Twitter today that the state is rolling back its reopening plans. As a result, restaurants, wineries, movie theaters, family entertainment centers (e.g., bowling alleys, miniature golf, batting cages, and arcades), zoos, museums, and card rooms statewide are required to close all indoor operations. Bars are required to cease all operations – in- and outdoor. The governor imposed additional restrictions in 30 specified counties (Colusa, Contra Costa, Fresno, Glenn, Imperial, Kern, Kings, Los Angeles, Madera, Marin, Merced,... More
  • Early Cases Demonstrate the Justice Department’s Commitment to Aggressively Prosecute PPP Loan Fraud By Matthew D. Lee and Marissa Koblitz Kingman Shortly after the Small Business Administration began accepting applications for Paycheck Protection Program (PPP) loans, two Rhode Island businessmen quickly applied for a combined $543,881 from the program. A few days later, the Justice Department announced that both were criminally charged with conspiracy to make false statements to influence the SBA and conspiracy to commit bank fraud, becoming the first individuals to face criminal charges related to the program, which was created by... More
  • Notice Posting Requirements Are – and Remain – Postponed Due to the Coronavirus Pandemic In an early May 2020 decision, the Board declared a temporary pause in charged parties (usually an employer) complying with the NLRB’s standard notice posting remedy in response to the ongoing COVID-19 public health crisis. Thereafter, on May 20, 2020, General Counsel Peter B. Robb issued GC Memo 20-06 and made this temporary change applicable to informal settlement agreements (as a notice posting is typical in such arrangements). A party that is liable for violations of the Act and/or who enters... More
  • San Francisco Passes Emergency Reemployment Ordinance Joining Los Angeles and Long Beach, San Francisco has enacted an ordinance requiring certain employers to recall workers laid off due to the COVID-19 crisis before hiring new employees. Hyunki (John) Jung provides all the details here. As always, check out (or, if you’re so inclined, subscribe to) our Coronavirus Resource page for the latest developments. We understand as well as anyone how difficult it is for employers and HR professionals to keep up with the latest developments in this area... More
  • The essential role of animal studies in expediating medical research to battle the COVID-19 pandemic Animal studies have and will continue to serve an essential role in medical development and public and animal health. This stays true for the current global efforts to find treatments and vaccines to combat the COVID-19 pandemic caused by the SARS-CoV-2 virus. Animal studies are not only critical for understanding pathogenesis of COVID-19, but also required to evaluate the safety and efficacy of a drug or vaccine at preventing COVID-19. The importance of animal studies is exemplified by several works... More
  • FTC Offers Tips for Data Protection in Products Related to Fighting COVID-19 From Fox Rothschild’s Privacy Compliance & Data Security blog The Federal Trade Commission (FTC) has offered tips for data protection during the COVID-19 crisis. Consider privacy and security as you’re developing your products and services, and not after launch. Although we will be flexible and reasonable when it comes to bringing enforcement actions against companies engaged in good faith, thoughtful efforts to address the effects of the pandemic, it doesn’t pay to be in the news for privacy and security problems. Use privacy... More
  • European Data Privacy Regulators Promise to Enforce Data Privacy Despite Pandemic The COVID-19 pandemic has upended global business, but European regulators say it won’t stop them from promoting privacy and data protection, according to the International Association of Privacy Professionals. “What’s clear about the regulators’ enforcement strategies is that they each intend to keep pushing data protection forward, knowing its general importance is only growing as the effects of COVID-19 continue to take shape” Ireland: No particular stance across the board on any type of softening of approach. “We’ll consider any reasonable request... More
  • FTC Offers Tips for Data Protection in Products Related to Fighting COVID-19 The Federal Trade Commission (FTC) has offered tips for data protection during the COVID-19 crisis. Consider privacy and security as you’re developing your products and services, and not after launch. Although we will be flexible and reasonable when it comes to bringing enforcement actions against companies engaged in good faith, thoughtful efforts to address the effects of the pandemic, it doesn’t pay to be in the news for privacy and security problems. Use privacy protective technologies, eg decentralized protocols that allow users... More
  • Resources Regarding “People First Initiative” Available on IRS Website On March 25, 2020, following the onset of the COVID-19 pandemic, the IRS unveiled its People First Initiative to provide wide-ranging compliance relief to taxpayers experiencing hardships relating to the health crisis. This relief includes issues ranging from postponing certain payments related to Installment Agreements and Offers-in-Compromise to collection and limiting certain enforcement actions. The IRS has created a resource page on its website (www.irs.gov) providing significant details regarding the People First Initiative, including Frequently Asked Questions and Answers about... More
  • U.S. Tax Court to Begin Accepting Hand Deliveries on July 10 Following up our post earlier today that the Tax Court will resume receiving mail on July 10, 2020, the Tax Court has issued another announcement regarding its operations.  Also beginning on July 10, the Clerk’s Office will accept hand-delivered documents between the hours of 8:00 AM and 4:30 PM, Monday through Friday. Please check out Fox Rothschild’s COVID-19 resource page, which is available here. For more up-to-date coverage from Tax Controversy and Financial Crimes Report, please subscribe by clicking here.... More
  • Tips and Tricks for Assessing FFCRA Benefit Payments As this pandemic began to take hold in the U.S., I was the one arguing “there is no way they will shut down all of California, it just isn’t practical!”  Nearly four months later, I stand corrected (with a mightily bruised ego).  With July 4th in our sights, COVID is accelerating across the country and keeping employers on their heels in dealing with still-regular regulatory changes.  Not the least of which is the FFCRA. California has seen two record days of... More
  • Telemedicine for Veterinary Practices during COVID-19 As the spread of COVID-19 continues to increase rapidly across the globe, there are still many uncertainties between the relationship of animals and the virus. The Centers for Disease Control and Prevention (CDC) is only aware of a small number of animals infected with the virus after close contact with infected people. While human to animal transition of COVID-19 is rare, the CDC and American Veterinary Medical Association (AVMA) constantly provide updated guidelines on the operation of veterinary practices, as... More
  • Israeli Privacy Leaders Form Data Protection Foundation in Response to COVID-19 Tracing Plan Following the decision of the Israeli government to submit a bill allowing phone tracking by the Secret Service for the purpose of COVID-19 tracing, a group of Israeli privacy experts and leaders, including Haim Ravia, Tehilla Shwartz Altshuler, Karine Nahon, Michael Birnhack, Niva Elkin-Koren, Anat Ben-David, Eran Toch, former heads of the Israeli data protection authority Yoram Hacohen and Rivki Dvash and others, is forming a data protection foundation to serve as an alternative to the Israeli data protection authority. The Israeli authority, they say, has been excluded from the... More
  • Tax Court Announces Resumption of Mail Delivery Due to the COVID-19 pandemic, operations of the United States Tax Court have been severely impacted.  The Tax Court’s building in Washington, D.C. has been closed since March 19, 2020, all trial sessions have been cancelled through the end of June, and all Tax Court employees, including judges, have been working remotely. Due to the closure of the Tax Court building, no mail has been delivered to the building. All mail was to be held until the Court reopened, although many... More
  • Trump’s Executive Order Suspends Nonimmigrant visas, including H-1B, L-1 and J-1, for the rest of the year Yesterday, June 22, 2020, President Trump issued the anticipated Proclamation suspending the entry into the US of certain nonimmigrant visa holders.  Specifically, the following new restrictions are in effect 6/24/2020: The executive order applies to foreign nationals who seek to enter the United States in H1B, H-4, H2B, L-1, or L-2 status (as well as all accompanying or following to join family members). The order also applies to those requesting admission in J status “…who are participating in an intern, trainee, teacher,... More
  • UK’s ICO Issues Data Privacy Advice for the ‘New Normal’ As lockdown restrictions  ease and businesses begin to reopen, the UK Information Commissioner’s Office (ICO) has set out the key steps organizations need to consider around the use of personal information. The guidance focuses on six principles: Only collect and use what is necessary Keep it to a minimum Be clear, open and honest with staff about their data Treat people fairly Keep people’s information secure Staff must be able to exercise their information rights Details in my client alert.... More
  • The FLSA and Temperature Checks: The Doctrine of “Integral and Indispensable” Comes to the Forefront The other day I went to the eye doctor and, before I could go in, an employee checked my temperature. This phenomenon is going to become perhaps a constant fact of life when businesses open, employees return to work and employers want to be sure that they are virus-free and the workplace is safe. That is all well and good but, for employers, the issue arises of whether submitting to such a check is compensable time. That is an uncertain... More
  • Branded Face Masks – New Opportunity? Something we may never have thought would take off – branded face masks – are now on the rise.  With CDC recommendations and state/local orders recommending or even requiring employees (and sometimes even all citizens outside of their homes) to wear masks, businesses have an unexpected yet significant marketing opportunity to present their brand in a new setting.  This is particularly true for certain types of businesses, such as consumer-facing retail stores, restaurants/bars, and sports team.  Companies specializing in branded... More
  • DHS Extends Temporary flexibility for Form I-9, Employment Eligibility Verification, and due dates for Responding to Notices of Inspection In May, the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced an extension of the flexibility in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19. On March 19 due to precautions implemented by employers and employees associated with COVID-19, the Department of Homeland Security (DHS) announced that it would exercise prosecutorial discretion to defer the physical presence requirements associated with the Employment Eligibility Verification (Form I-9) under section 274A of the... More
  • HHS Announces Relief Fund Payments for Medicaid & CHIP Providers, Safety Net Hospitals and Enhanced Provider Relief Fund Portal In a Press Release issued Tuesday afternoon, the U.S. Department of Health and Human Services (HHS) announced they will distribute approximately $15 billion to eligible providers that participate in state Medicaid and Children’s Health Insurance Program (CHIP) programs that have not received a payment from the Public Health and Social Services Emergency Fund (Provider Relief Funds) and $10 billion in ... Continue Reading ... More
  • Israel Steps Back From Law Involving Secret Service in COVID-19 Tracing Following widespread protest by the Israeli privacy community and the population at large, a decision by the Israeli Supreme Court and a statement from the head of the Israeli Secret Service that its involvement is not necessary given the current state of the pandemic—the Israeli cabinet has decided to withdraw a controversial law allowing monitoring of COVID-19 spread through invasive cellphone tracking by the Israeli Secret Service. Details from Ynet.... More
  • EDPB Cautions Against Broad Suspension of Privacy Protections in Name of Pandemic Response The European Data Protection Board (EDPB) has issued a strong statement on the suspension of certain aspects of the General Data Protection Regulation in Hungary. Per the EDPB: Restrictions adopted in the context of a state of emergency suspending or postponing the application of data subject rights … without any clear limitation in time, [is not] compatible with the essence of the fundamental rights and freedoms. Read a more detailed analysis in my client alert... More
  • PA Dental Practices Permitted to Re-Open for Routine Cleanings On June 3, 2020, the Pennsylvania Department of Health (DOH) issued revised Guidance permitting dental practices to re-open for non-urgent and non-emergent care, including, but not limited to, routine cleanings.  Dentists around the State have been awaiting this green light from the DOH, as it has been difficult for practices to re-open without being able to perform routine cleanings. The ... Continue Reading ... More
  • OSHA Revises Guidance Addressing Privacy and Employee COVID-19 Screening The U.S. Occupational Safety and Health Administration (OSHA) revised guidelines May 19 that require employers to determine whether employees who have contracted COVID-19 did so in the workplace. According to OSHA’s record-keeping requirements, employers are required to conduct investigations about the cause of an employee’s infection with certain parameters. Employers “should not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers’ lack of experience in this area.” OSHA also notes that it “is sufficient in most... More
  • OSHA Revises its Guidance for Recording Work-Related COVID-19 Cases The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) generally requires employers to report and record workplace injuries. OSHA has published revised guidance regarding its recordkeeping requirements for employers. Beginning May 26, 2020 and until further notice, OSHA is requiring most employers with more than 10 employees to record work-related employee COVID-19 illnesses. While this applies to many ... Continue Reading ... More
  • Wave of Wage-Hour Lawsuits Coming? Beware of the Danger Zones I have been writing about wage hour issues that are implicated or raised by the continuing COVID-19 situation. Well, here’s another one. I warn that as businesses start to open up (or not), employees (and, more to the point, plaintiff-side lawyers) will be seeking to sue employers on a number of grounds, some of which rely on circumstances that might have well been beyond the control of their employers. To start with, employers must be aware that they will not... More
  • Pennsylvania: “Green” Reopening Phase Does Not Mean “GO!” If you’re in the Keystone State, you know that many counties will be moving into the Yellow and Green Phases of Governor Wolf’s Reopening Pennsylvania Plan on June 5th. This blog previously covered the requirements of the Yellow Phase.  But what does “Green” mean? One thing that “Green” definitely does not mean in is “Go”. That said, there a number of broader re-openings in the Green Phase as opposed to the Yellow Phase: Continued telework is “strongly encouraged”. Businesses with in-person operations must... More
  • Premium Processing Resumes: June 2020 Phase-In Dates On Friday, May 29, 2020, U.S. Citizenship and Immigration Services (USCIS) announced plans for the phased-in resumption of premium processing for eligible I-140 Immigrant Petition for Alien Worker petitions and eligible I-129 Nonimmigrant Worker petitions. (See USCIS website at https://www.uscis.gov/news/alerts/uscis-resumes-premium-processing-certain-petitions.) USCIS temporarily suspended premium processing availability for all eligible Form I-129 and I-140 petitions on March 20, 2020, due to the coronavirus (COVID-19) national emergency.  After nearly two months without premium processing, this is welcome news. Of course, the announcement includes... More
  • Los Angeles County Re-Opens for Burgers & Haircuts! On this sunny Saturday the County of Los Angeles has opened for business just a little bit more. Angelenos can go to a restaurant (preferably with patio seating), and have a burger and a beer served to them by a server in a mask and a face shield.  The guests must also wear a mask when not eating.  Tables must be six feet apart, and restaurants are limited to 60% capacity.  Best to make a reservation.   And no, you can’t sit... More
  • Update on Court Operations in Delaware (both Federal and State) Under Exigent Circumstances Created by COVID-19 – as of May 30, 2020 With courts across the United States in different and various stages of re-opening to get back to some level of normalcy under the exigent circumstances created by the global coronavirus pandemic, I thought it would be helpful to my clients, co-counsel, and others outside of Delaware to provide an update on the Courts’ operations in Delaware (both federal and state courts) and re-opening plans as of May 30, 2020. Federal Courthouse in Delaware With respect to the federal courthouse in Delaware, which... More
  • USDOL Clarifies the Fluctuating Work Week Method of Paying Overtime and Its Relationship to Provision of Bonuses: Keep Those Interpretations Coming! The USDOL has been pretty busy lately issuing new rules and interpretations about FLSA issues, including vague, nuanced issues like the inclusion (or not) of bonuses in the regular rate and the circumstances under which employers can utilize bonuses. The agency has again issued such a clarification allowing employers to provide bonuses (and hazard pay) to workers paid on a “fluctuating workweek” method. The agency explains that these changes will give employers new freedom to pay workers in the midst... More
  • COVID-19 Update: USCIS to reopen June 4 on limited basis On May 27, 2020 U.S. Citizenship and Immigration Services announced that it is preparing some domestic offices to reopen and resume non-emergency public services on or after June 4.  Routine in-person services at USCIS field offices, asylum offices and application support centers (ASCs) has been suspended since March 18 to help slow the spread of coronavirus (COVID-19).  USCIS is following the Centers for Disease Control and Prevention’s guidelines to protect our workforce and the public.  As services begin to reopen,... More
  • Memorial Day 2020 Longtime readers of this blog know that Memorial Day is special around here. Memorial Day, of course, is the day established by General John A. Logan, Commander in Chief of the Grand Army of the Republic, when we pause to remember, and honor, those who gave, as Abraham Lincoln so eloquently expressed it, the last full measure of devotion for their country. In this vein, not too long ago, the podcast 99% Invisible did a fascinating report on the history of,... More
  • Protecting Your Organization Against Paycheck Protection Program Qui Tam Actions Our colleague Jana Volante Walshak has published an article addressing the steps that businesses can take now to protect themselves against qui tam actions related to the CARES Act Paycheck Protection Program. Many organizations may have thought the “hard part” was over when they received loans under the Paycheck Protection Program. In reality, the hard part is only beginning for loan recipients as they attempt to comply with the program’s constantly changing regulatory scheme. The uncertain nature of the rules and regulations... More
  • A Cautionary Tale About COVID-19 and Animals We have heard conflicting reports about the potential spread of COVID-19 to and from people and animals, and between animals. Many government and industry officials have stated that there is no evidence that dogs and cats can transmit the virus to humans. Yet, as discussed by veterinary pathologists in a recent paper, the “absence of evidence [of zoonotic, reverse zoonotic, or inter/intra species COVID transmission] is not the same thing as evidence of absence.” See “A Critical Needs Assessment for... More
  • Time to Update Your Injury and Illness Prevention Plan So many aspects of daily life and doing business have changed during this global pandemic. If you have employees in California, it’s time for your injury and illness prevention plan (IIPP) to change, too. By way of background, California Labor Code § 6401.7 requires that every employer have a written program that, among other things, identifies workplace hazards and trains employees on how to address them. It also requires that employers update their plans when new hazards emerge. Well, if you’ve... More
  • J-1 Waiver Physicians: COVID-19 Reduction in Hours and Telehealth (Limited) Temporary Flexibility On May 11, 2002, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum relating to certain J-1 waivered foreign medical graduates during the COVID-19 national emergency. The memo, captioned “Temporary Policy Changes for Certain Foreign Medical Graduates During the COVID-19 National Emergency” was issued solely as guidance to USCIS officers with regard to H-1B physicians who received and are fulfilling either an Interested Government Agency (IGA) waiver or Conrad 30 waiver. Relating to the COVID-19 pandemic, the memo addresses... More
  • COVID-19 and I-9 Compliance: 30-Day Extension of Temporary Flexibility regarding In-Person Review of Documents for Certain Employers On Thursday, May 14, 2020, U.S. Immigration and Customs Enforcement (ICE) announced a 30-day extension to its previously announced temporary flexibility provisions relating to I-9 Employment Eligibility Verification compliance during the COVID-19 national emergency. Extension of the flexibility provisions is the result of “continued precautions related to COVID-19”. The COVID-19 I-9 flexibility provisions were originally valid for only 60 days and were set to expire on May 19, 2020. For eligible employers, the temporary flexibility measures defer the statutory physical presence... More
  • OSHA Safety Considerations for Reopening Dental Practices during the COVID-19 Pandemic The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) is keenly aware of the need to protect employees of dental practices returning to work during the COVID-19 pandemic.  On May 11, 2020, OSHA issued an alert listing safety tips employers can follow to help protect dental industry workers from exposure to COVID-19.  OSHA’s alert is consistent with the ... Continue Reading ... More