COVID-19 Viewpoints

Read about the SEC’s approved changes affecting shareholder approval rules for certain capital raising transactions.

In Part 5 of our Roadmap Series, we take a closer look at COVID-19 screening and testing, including best practices and legal implications, as potential tools to maintain a safe workplace.

Read about the SEC’s FAQs, released on May 4, 2020, providing guidance on the agency’s COVID-19 order giving certain issuers more time to file disclosure reports.

Last week, the Centers for Medicare and Medicaid Services (CMS) announced additional waivers of limitations on Medicare reimbursement of telehealth services and updated its summary of COVID-19 blanket waivers. We’ve previously blogged about actions by CMS and other federal and state agencies to increase access to and encourage utilization of telehealth services during the COVID-19 pandemic through loosening of restrictions on telehealth reimbursement (see here and here). CMS is now taking additional steps to further these goals. Below is a summary of the major changes that CMS announced last week.

As we previously discussed, FINRA issued guidance to member firms and their associated persons in April 2020 to remain “vigilant in their surveillance against cyber threats and take steps to reduce the risk of cyber events.”

Responding to increased public and congressional criticism of its arguably too-flexible approach to regulatory oversight of serological tests used to detect COVID-19 antibodies, on May 4, 2020 the Food and Drug Administration (FDA) announced a revised policy aimed at reducing the risks associated with such tests.

Given the challenges presented by COVID-19, many businesses must consider large-scale, transformational changes to their operations. As social distancing continues and safety concerns pervade the public consciousness, adjustments to the physical workspace and business travel practices will be necessary to reflect these new considerations. In Part 4 of our COVID-19 Roadmap Series, we outline important planning steps and concerns employers need to consider relating to physical workspaces and business travel.

On March 25, 2020, New Jersey expanded the scope of leave available to employees in light of the COVID-19 pandemic. This legislation, S2304, affects New Jersey’s Earned Sick Leave Law, Family Leave Act, and Temporary Disability Benefits Law, altering them to increase coverage in public health emergency situations. Importantly, these alterations are permanent and apply to situations beyond the COVID-19 pandemic. New Jersey employers should become familiar with the newly expanded leave laws and make it a priority to adjust their employee leave policies accordingly. This post highlight S2304’s most significant changes.

The Food and Drug Administration (FDA) continues to churn out policy statements, guidance documents, and emergency use authorizations (EUAs) to address the COVID-19 public health emergency. At the outset of the pandemic in early 2020, the agency concentrated its efforts on measures relating to devices that may help directly diagnose, treat, or prevent COVID-19, such as facemasks, ventilators, and diagnostic test kits. Recently, however, FDA appears to have shifted its focus to devices that may assist in the defense against the spread of COVID-19. For example, FDA issued enforcement policies and EUAs that help to expand the availability and capability of various remote monitoring devices and systems that can be used to diagnose and monitor medical conditions while mitigating circumstances that could lead to patient and health care workers’ exposure to SARS-CoV-2 (the virus that causes COVID-19) for the duration of the public health emergency.

As parties to merger or acquisition agreements carefully review their agreements to see what, if any, impacts the COVID-19 pandemic may have, the recent decision from the U.S. District Court for the Southern District of New York in Newmont Mining Corp. v. AngloGold Ashanti Ltd. provides meaningful guidance for the interpretation of Material Adverse Effect (“MAE”) provisions in agreements governed by New York law.

We have been discussing the abrupt roll-out of remote workforce capabilities both in this space and in our recent webinar. As companies raced to get employees up and running remotely, business continuity was the primary focus, while privacy and cybersecurity issues likely took a backseat.

In Part 3 of our Roadmap Series, we outline important guidance, procedures, and concerns employers need to consider to successfully and safely bring back employees to their worksite. As authorities begin reopening economies and traditional workplaces once again open for business, employers are facing difficult challenges regarding reorganizing and protecting their places of business. However, the exact measures appropriate and effective for each workspace will depend heavily on the outcome of a worksite risk assessment.

This update covers federal and Massachusetts responses to the pandemic, including the Main Street Lending Program and the Municipal Liquidity Fund, Phase 4 stimulus provisions for disabled Americans, funding for Massachusetts nursing homes and congregate care, the state’s Reopening Advisory Board, and more.

In an effort to increase access to COVID-19 testing for Medicare and Medicaid beneficiaries, the Centers for Medicare & Medicaid Services (CMS) has issued a second round of regulatory waivers that includes relaxed Medicare requirements for ordering COVID-19 diagnostic laboratory tests, flexibility for Medicaid coverage requirements of COVID-19 tests, and Medicare coverage of COVID-19 serology tests to identify antibodies.

While the COVID-19 pandemic continues to keep most of America home, including state legislators, some states have managed to pass landmark clean energy legislation whilst prioritizing matters related to the novel coronavirus.

In what will likely be the first of many, the SEC brought an action against a company for false and misleading press releases related to the COVID-19 pandemic.

On April 29th, in connection with the National Emergency declaration related to COVID-19, the Department of Labor, the Department of the Treasury, and the Internal Revenue Service (the “Agencies”) jointly issued a final emergency regulation which aims to minimize the loss of employee benefits due to certain ERISA and Internal Revenue Code-related compliance failures. Specifically, the final regulation provides relief for HIPAA special enrollment rights, COBRA elections and notices, and ACA-mandated internal and external review timeframes. According to the final regulation, plans must disregard the period from March 1, 2020 until sixty (60) days after the announced end of the National Emergency, or such other date announced by the Agencies in a future notice. This period is referred to as the “Outbreak Period.”

Given the possible health impacts of COVID-19, maintaining access to health care and insurance coverage is front of the mind for just about everyone. Continuation coverage under COBRA offers employees a route to continue job-based coverage in the event of job loss or reduction of hours.

The Coronavirus Aid, Relief and Economic Security (“CARES”) Act has created a flurry of far reaching considerations for affected businesses, ranging from tax, employment, and even telehealth.