COVID-19 Viewpoints

Employers reacted in a variety of ways to cope with the unprecedented financial impact of COVID-19.  Many of the initial executive compensation responses were designed as cost-cutting measures that would ease cash flow burdens and provide flexibility in uncertain times.  Now, as the “new normal” American workplace begins to take shape, employers must begin to shift their focus to whether their current executive compensation practices are designed with sufficient incentives to retain key employees and to spur recovery and sustained growth.  This post reviews the range of cost-cutting measures companies have enacted over the past few months, and provides guidance on executive compensation issues employers should consider as they move forward in a COVID-19 world.

We have been blogging about the various actions that numerous government agencies were taking to combat COVID-19 fraud (see here and here). These agencies and their respective law enforcement efforts have yet to slow down and appear to have accelerated as greater coordination begins to take root. As of May 29, 2020, the U.S. Food and Drug Administration (FDA) has issued 64 warning letters to companies making claims about a product alleged to be a COVID cure, treatment, or preventative product, while the U.S. Federal Trade Commission (FTC) had issued many, many more than that. In some cases, these warning letters are joint letters that come from both government agencies, which is never a good sign. The FTC in particular is making announcements on a regular basis about large batches of warning letters being issued, such as this one from May 21 highlighting that 50 more marketers of fraudulent COVID-19 products had received such a missive from the FTC. 

Massachusetts has unveiled its plan to reopen from the shutdown enacted in response to the COVID-19 outbreak. This plan was formalized on May 18th in Governor Baker’s “Order Implementing a Phased Reopening of Workplaces and Imposing Workplace Safety Measures to Address COVID-19” (the “Order”). The reopening plan is divided into four flexible phases, each lasting a minimum of three weeks, although a resurgence of the virus could necessitate a return to an earlier phase of the plan and extend the reopening timeline.

Many Massachusetts businesses now have concrete guidance on the measures they are required to complete before reopening their workplaces, and a tentative timeline on when they might be able to reopen. Businesses must meet the required Mandatory Safety Standards for Workplaces (the “Safety Standards”) in order to reopen. Currently, only the Phase 1 standards have been released, with the release of other phase standards to follow as the plan progresses. In addition, as the plan progresses, the requirements for businesses in earlier phases will likely be updated as the public health emergency develops. Businesses should track updates from Massachusetts authorities going forward, including guidance from local jurisdictions.

Last week, the Centers for Disease Control and Prevention (the “CDC”) issued updated guidance detailing steps employers and office building managers should take prior to reopening. This guidance follows the beginning stages of most states’ business reopening efforts. The guidance focuses on four major topics: Evaluation of the Workspace, Assessment of Risk, Implementation of Workplace Controls, and Education.  In short, the guidance encourages employers to evaluate and address potential COVID-19 related hazards, and provides steps businesses can take to minimize exposure or transmission once their doors are opened. This new guidance echoes and supplements the CDC’s previous interim guidance as well as OSHA guidance, particularly with respect to the implementation of hazard controls.[1]  We summarize significant portions of the CDC’s updated guidance in this post.

The Mintz immigration alert provides background and details about USCIS’s May 27, 2020 announcement that it plans to raise filing fees by an average of 21%.

New York State has issued industry-specific interim guidance for “Phase 2” businesses, which includes a number of “minimum requirements” certain businesses must meet before reopening their workplaces in light of COVID-19. The new Phase 2 guidance provides specific guidelines relating to office-based jobs (excluding medical offices); real estate services; select in-store retail; commercial building management; retail rental, repair and cleaning services; and vehicle sales, leases and rentals.  Importantly, this new guidance applies to “non-essential” businesses in these industries where regions are permitted to reopen, as well as “essential” businesses throughout the state that were previously permitted to remain open.  As various regions begin progressing through the reopening phases under the New York Forward initiative, businesses should become thoroughly familiar with these new obligations and begin taking steps toward achieving compliance.

Massachusetts issued a moratorium on evictions on April 20, 2020. In this video, Kelly Frey, a member of Mintz’s  Real Estate Litigation practice addresses what recourse landlords have to collect rent under this order.

FINRA, through its most recent Regulatory Notice 20-16 , shares certain common practices they have seen taken by member firms to enhance supervision in the remote work environment due to the COVID-19 pandemic.

This week, the Centers for Disease Control and Prevention (the “CDC”) released interim guidelines addressing COVID-19 antibody testing. The CDC expressed concerns about the current accuracy of antibody testing and advised businesses against using the results of antibody testing (also known as serologic testing) to make any decisions about returning workers to the workplace.

This advisory discusses regulatory and investment community developments related to human capital management and provides suggestions for companies newly focused on HCM.

This alert provides information about USCIS’s reopening of domestic offices for non-emergency appointments on or after June 4 to resume services suspended due to COVID-19.

While Congress and the Administration spent much of May working to address the economic, social, and public health impacts of the COVID-19 pandemic, there was still significant activity on energy and sustainability-related matters. 

Privacy risks of using big data in the fight against COVID-19 are significant, and have caught the attention of Republicans and Democrats alike. Earlier this month we reported on a bill introduced on May 7 by Republican members of the Senate Commerce, Science and Transportation Committee: the COVID-19 Consumer Data Protection Act of 2020.”  

As the COVID-19 pandemic continues to disrupt businesses and markets, and companies begin to look to bankruptcy courts for relief from the resulting liquidity and operational distress, the issue of creditor and shareholder “blocking rights” seems likely to become an important topic as parties attempt to protect their investments.

On May 18, 2020, the Baker-Polito Administration revealed its four-phased approach to reopening the Massachusetts economy and getting people back into the workplace in a safe manner, all while gradually easing social restrictions in order to minimize the negative health impacts of COVID-19.

Recent Executive Orders by New York Governor Cuomo and Administrative Orders by the New York State courts effectively have stayed the enforcement of residential and commercial evictions and foreclosures in New York through June 20, 2020, and barred the commencement of any such new proceedings until further order of the courts.

In a May 21 letter to Treasury Secretary Steven Mnuchin, three Republican senators—Senator Lisa Murkowski (R-AK), Senator Susan M. Collins (R-ME), and Senator Thom Tillis (R-NC)—have requested that Treasury modify existing Internal Revenue Service (“IRS”) guidance on “start of construction” to provide production tax credit (“PTC”) and investment tax credit (“ITC”) relief to wind and solar projects affected by COVID-19 related disruptions.

On Friday, May 15, 2020, the Small Business Administration, in consultation with the U.Sh Department of the Treasury, released the Paycheck Protection Program (PPP) Loan Forgiveness Application. The application is accompanied by instructions on how to complete the application. Together, the application and the instructions answer a number of ambiguities about whether and how an employer will be able to receive forgiveness of all or a portion of a loan received under the PPP.