COVID-19 Viewpoints

The New York State Department of Labor (NYSDOL) has released its HERO Act minimum standards and template policies related to airborne infectious disease prevention. Employers now have 30 days after the standards’ publication – until August 5, 2021 – to either: (1) adopt one of the model standard exposure prevention plans applicable to their industry, or (2) develop and establish an alternative prevention plan that meets or exceeds the minimum standards.

This alert discusses the US State Department’s July 6, 2021 announcement that National Interest Exceptions (NIEs) to the COVID-related travel ban are now valid for 12 months — up from 30 days — and that multiple entries are permitted.

In this video, Mintz Employment Member, Jen Rubin, discusses a few important issues employers need to know with respect to vaccination programs.

Now that widespread vaccination appears to be slowing the pandemic, and in light of the CDC’s guidance regarding measures fully vaccinated individuals can take, returning to the office has become a priority for employers across the nation. In this video, Mintz Employment Member, Jen Rubin, discusses some concepts employers should consider as they plan to return employees to the office. 

It’s been a long road to recovery for employers since New York first issued its NY Forward reopening requirements for offices and other similar environments back in May 2020.  Today, as New York reached a key vaccination metric – 70% of adults have now received at least one vaccine shot – Governor Cuomo announced that New York businesses will no longer be required to abide by the current industry-specific guidelines in order to reopen.  Accordingly, the current NY Forward guidelines on capacity restrictions, social distancing, cleaning and disinfection, health screenings, contact tracing, and other virus-related restrictions are now lifted in most commercial settings. 

It’s been a busy month (year?) for New York employers – one that has brought several important updates with respect to employers’ reopening plans. On the heels of the State’s May 19th adoption of the recent CDC guidance outlining increased privileges for fully vaccinated individuals, New York State updated its NY Forward COVID-19 reopening guidance on June 8, 2021, including its guidance geared toward office environments. As a reminder, New York businesses opting to reopen during the COVID-19 pandemic must do so consistent with the State’s industry-specific reopening guidelines, found here; affirm their compliance with same prior to reestablishing in-person operations; and implement a written safety plan governing its workplace safety protocols.

The U.S. Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) announced they would again extend flexibility relating to in-person Form I-9 compliance.

The New York State Legislature recently passed the Health and Essential Rights Act (the “HERO Act”), which has been delivered to Governor Cuomo for his signature. The legislation seeks to address continued COVID-19 safety concerns in the workplace and is designed to codify, supplement, and replace numerous executive actions that have been issued throughout the pandemic. The HERO Act would also pass into law significant new health and safety obligations for New York employers, including the formation of joint labor-management workplace safety committees to help ensure worker safety. Employers should prepare now to come into compliance with the new law, which we summarize below.

On May 13, 2021, the Centers for Disease Control and Prevention (the “CDC”) published guidance indicating that fully vaccinated individuals do not need to wear a mask or physically distance in certain indoor and outdoor environments, except where otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance. The guidance does not apply to healthcare settings and certain other environments.

This alert advises caution regarding international travel and covers the CDC’s January 26, 2021 order on COVID-19 testing, current travel bans and their exemptions and waivers, visa processing, and additional notes on entry into the US.

As we previously reported, President Biden signed into law a $1.9 trillion dollar stimulus bill, the American Rescue Plan Act (ARPA). This historic legislative package provides much needed relief to millions of Americans impacted by the COVID-19 pandemic and essential resources to address the ongoing public health emergency. Among other things, the ARPA allocates funds to the Department of Health and Human Services (HHS) for COVID-19 testing, contract tracing, vaccines, supplies, and other related treatment. To alleviate the strain of the COVID-19 pandemic on America’s public health care system, it includes funding for rural health providers, community health centers, and skilled nursing facilities, and makes important modifications to the Medicare and Medicaid programs. This post summarizes the Medicaid provisions contained in the ARPA and their proposed changes to the Medicaid program.

On March 29, 2021, the Federal Communications Commission (“FCC” or “Commission”) adopted an Order establishing rules and procedures for Round 2 of the COVID-19 Telehealth Program (the “Program”) to continue supporting telehealth services, which have proved to be so vital during the COVID-19 pandemic. In a News Release accompanying the Order, FCC Acting Chairwoman Jessica Rosenworcel highlighted that “[t]his past year has proven, without a doubt, that telehealth technology is critical to helping address inequities in access to health care services” and that Round 2 of this program will help address these challenges “head on.”

As we enter the second year of the COVID-19 pandemic, New York employers must now grapple with another new paid leave requirement from New York State.  A new law signed by Governor Cuomo on March 12, 2021 amends New York’s Labor Law and entitles employees up to four hours of paid leave per COVID-19 vaccine injection.  The law is effective immediately, and the law’s leave entitlement is set to expire on December 31, 2022. We note key provisions of the new law below.

Despite the threat of COVID-19 paralyzing much of the country in 2020, government health care fraud enforcement continued even though the Department of Justice (DOJ) had the added burden of pursuing COVID-19 related fraud. Mintz’s Health Care Enforcement Defense team has reviewed the key policy issues, statistics, settlements, and court decisions from 2020, and in this report we reflect on those developments and also predict the trends in health care enforcement in 2021 and beyond.

The CDC has issued new guidance focused on ensuring employees’ informed consent for COVID-19 testing in the workplace. This builds on earlier guidance the CDC issued regarding workplace testing programs last fall. Because the CDC notes that employers should not conduct testing without an employee’s informed consent, employers should be prepared to answer employee questions and concerns by utilizing the recommend framework discussed below.

For bankruptcy litigators – or any business which has been frustrated to receive a demand letter after one of its customers filed bankruptcy – one particular amendment stands out in the CARES ACT bill. The Act amended Section 547 of the Bankruptcy Code to provide suppliers and landlords with an additional potential challenge to actions brought to “claw back” payments made by a debtor in the 90 days preceding bankruptcy.

As 2021 begins and intellectual property (IP) strategies are being developed for the new year, it is a good time to reflect on what IP issues were prominent in 2020.  According to many readers, hot topics included Chinese foreign filing licenses, patenting involving either artificial intelligence (AI) or COVID-19, inter partes review, and attorney fee awards.