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  • Civil Settlement in PPP Loan Fraud Case Opens New Battle Lines The U.S. Justice Department announced its first civil settlement with a Paycheck Protection Program borrower alleged to have committed fraud in connection with this highly popular COVID-19 relief program. A bankruptcy online retailer and its chief executive officer agreed to pay $100,000 in damages and penalties to resolve claims that they committed fraud in connection with multiple PPP loan applications. The company, SlideBelts Inc., also agreed to repay its PPP loan in full. The Paycheck Protection Program is one of the signature provisions... More
  • Provider Relief Fund Reporting Portal Open for Registration Only, New Reporting Guidance Issued On January 15, 2021, the U.S. Department of Health and Human Services opened the reporting portal for individuals who had received Provider Relief Funds (PRF) from the Coronavirus Aid, Relief, and Economic Security (CARES) Act. The portal is currently open for “registration” only. HHS has not yet set up the reporting portion of the portal and the date by which ... Continue Reading ... More
  • Congress Enhances Significant Tax Breaks for Businesses in Consolidated Appropriations Act By Maureen Monaghan and Adam Young  The Consolidated Appropriations Act, 2021 (Act), signed into law on December 27, 2020, amends certain tax provisions of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) and the Families First Coronavirus Response Act (FFCRA). It also clarifies the tax treatment of Paycheck Protection Program (PPP) loan forgiveness, extends certain deferred payroll taxes and expands the deduction for business meals, among other provisions. While the Act is helpful in extending and expanding current tax benefits,... More
  • For Existing PPP Borrowers, Stimulus Bill Expands Forgivable Uses and Eases Tax Consequences By Gabriel B. Herman The $900 billion Consolidated Appropriations Act of 2021 (the Act) modifies the Paycheck Protection Program (PPP) in a variety of business-friendly ways likely to benefit both existing PPP borrowers and businesses that receive a second PPP Loan. Specifically, the Act includes the following noteworthy changes: Uses Eligible for Forgiveness The Act expands on the types of expenses that PPP borrowers may use their proceeds to pay and later seek forgiveness. Notably, these changes apply to existing borrowers that have not... More
  • PPP Data Dump Places Loan Forgiveness Applications Under a Microscope By Matthew D. Lee and Marissa Koblitz Kingman This month’s court-ordered release of Paycheck Protection Program (PPP) loan data is expected to result in intense scrutiny of the loan forgiveness process, highlighting the need for recipients to proceed with caution when filing forgiveness applications. Multiple news organization sued the Trump administration in May demanding that it release information on the businesses that benefited from federal pandemic relief programs. A federal judge ordered the administration to disclose the information and on the evening of December... More
  • Stimulus Package Expands PPP, Simplifies Loan Forgiveness and Adds Disaster Grants By Paul B. Edelberg, Elizabeth J. Hampton and Gabriel B. Herman In its massive new pandemic relief and stimulus package, Congress has significantly modified the Paycheck Protection Program (PPP) to allow for second draws from the program, to simplify the loan forgiveness process, to provide restaurants access to greater relief and to extend the program through March 2021. The proposed law also includes economic disaster grants and debt relief provisions, as well as bolstering the Small Business Administration’s existing Microloan Program. The Coronavirus... More
  • Home for the Holidays in California Many California workers will really be staying at “home for the holidays” given the state’s broad new Stay-at-Home Order that effects California by region.  Currently two regions, Southern California and San Joaquin Valley are subject to these new restrictions as of December 6th at 11:59 pm.   The other three regions have not yet met the threshold, but all are expected to hit that mark soon. Many thanks to John Jung for summarizing the new order in this Alert, a must-read for... More
  • Key Steps the Pharma and Bioscience Sectors Must Take Ahead of Federal Scrutiny of COVID-19 Relief Funding November 23, 2020 – Alerts By Ernest E. Badway An unprecedented explosion of government investigation and enforcement is at hand as federal regulators focus their efforts on ferreting out any fraud or abuse of the $1 trillion in COVID-19 relief funding programs through loans, grants and tax credits. For pharma and bioscience companies, it is imperative to take steps now to limit the risks and consequences of such investigations. Regulatory threats to these companies may be forestalled by quick action to preserve evidence and correct... More
  • Demanding Cal/OSHA COVID-19 Regulation Set to Become Effective The Emergency COVID-19 Prevention Regulation adopted by Cal/OSHA late this month will go into effect as early as Monday, November 30, 2020. When it becomes effective, the regulation will be the most sweeping and demanding body of COVID-19-related requirements imposed to date on California employers. Employers should prepare now to comply. Nearly All Employers will be Subject to the Regulation The regulation generally will apply to all places of employment in California regardless of the type or size of the business. The... More
  • SBA Announces New Paycheck Protection Program Loan Necessity Questionnaire By Paul B. Edelberg On October 26, the Small Business Administration (SBA) published a notice in the Federal Register seeking approval from the Office of Management and Budget to release two new forms to be sent to borrowers under the Paycheck Protection Program (PPP) in preparation for audits by the agency. Because these audits have significant legal implications for borrowers such as disqualification and potential civil and criminal liability, entities that obtained PPP loans should consult counsel and exercise great care in answering... More
  • Compassionate Release – Are You Eligible? By Marissa Koblitz Kingman Since the pandemic began, the federal courts have been inundated with Compassionate Release applications from attorneys seeking the immediate or early release of clients in custody. Compassionate Release is indeed a feasible option for some people who are incarcerated or about to surrender to a federal prison. Because Compassionate Release is a worthwhile opportunity, it is extremely important that you have a knowledgeable attorney to assist you during the process. What is Compassionate Release? A person requests Compassionate Release... More
  • HHS Issues ‘Last Call’ for Provider Relief Funds – Apply by Nov. 6 for Share of $20 Billion Distribution An additional $20 billion in “Provider Relief Funds” is being made available pursuant to the Coronavirus Aid, Relief, and Economic Security (CARES) Act through a “Phase 3” General Distribution. However, time is running out for health care providers to apply to the U.S. Department of Health and Human Services for these funds. The application deadline for what may be the ... Continue Reading ... More
  • 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
  • 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
  • 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