COVID-19 Viewpoints

Amidst multiple investigations into the privacy and security practices at Zoom Video Communications (“Zoom”), New York Attorney General Letitia James recently announced a settlement agreement with Zoom after the failings of the platform were brought to light by the spike in Zoom video conference participants amid the COVID-19 pandemic.

A few weeks ago, we posted about a publication by the Office of Inspector General for the U.S. Department of Health and Human Services (OIG) of responses to certain frequently asked questions (FAQs) received from the health care community regarding regulatory flexibility for providers that needed it to adequately respond to COVID-19 concerns.  This flexibility specifically relates to the OIG’s administrative enforcement authorities, including the federal Anti-Kickback Statute (AKS) and Civil Monetary Penalties Law prohibiting beneficiary inducement (Beneficiary Inducement CMPL).

In Part Seven of our Roadmap Series, we take a closer look at the impact of COVID-19 on employee mental and physical well-being, and what employers can do to assist their workforce.

On Monday, April 27, Representatives Diana DeGette (D-CO) and Fred Upton (R-MI) announced the next steps for 21st Century Cures 2.0 (Cures 2.0), legislation that will build on the original 21st Century Cures Act enacted in December 2016 (Cures 1.0). While Cures 1.0 aimed to speed up the process of bringing new treatments to market, Cures 2.0 is generally envisioned to emphasize public health and streamlined care delivery, particularly in light of the COVID-19 pandemic. Elements envisioned to be in Cures 2.0 were outlined in a recently published concept paper that we discuss in this post.

A letter issued by the Office of Legislative Affairs at the Department of the Treasury Thursday suggests that some relief is on the way for a renewables industry that has been battered by the COVID-19 crisis and has expressed concern about fast-approaching tax credit deadlines.

This update covers federal and Massachusetts responses to the pandemic, including the U.S. Treasury Implementation of CARES Act programs, new proposals for small- and mid-sized businesses, the Paycheck Protection Program (PPP), and new Massachusetts rules related to masks, car dealers, and retailers.

Imagine that after weeks of working remotely due to COVID-19, you return to your office only to discover a stack of papers on your desk in a folder titled “requests for reimbursement.”  You peer through the contents and find cell phone bills, a receipt for a $750 printer, a bank statement with the account fees highlighted, a clothing store shipping invoice with $49.95 of expedited shipping, a receipt for a 50” television, and a screenshot of mobile payment service request with an electric plug emoji from a username you have never seen before.  Why are these documents on your desk and what do you have to do as an employer?

California Labor Code § 2802 (“Section 2802”) requires employers to reimburse California employees for “all necessary business expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.”   Its purpose is to prevent employers from passing their operating expenses to their employees.  However, Section 2802 only requires reimbursement for “necessary” and “reasonable” costs incurred by the employee as a condition of continued employment.  Previously, many employers allowed remote working as a convenience for their employees.  Because working remotely was not required, many employers could decline “work from home” reimbursements because the employee’s expenses were voluntary (i.e. the employee chose to work remotely).  However, COVID-19 and the resulting shelter-in-place orders have redefined the working landscape, requiring many employees to work remotely to keep businesses afloat. 

Citing poor quality, the U.S. Food and Drug Administration (FDA) has barred the importation of certain KN95 filtering facepiece respirators manufactured in China. On May 7, 2020, FDA revised and reissued the Non-NIOSH-Approved Disposable Filtering Facepiece Respirators Manufactured in China Emergency Use Authorization (EUA) that provided eligibility criteria authorizing the importation of respirators from China that are not approved by the National Institute for Occupational Safety and Health (NIOSH) (i.e., not certified as meeting the N95 standard).

The coronavirus pandemic has caused unprecedented disruptions and damage across the world, and its grave impact has been felt acutely by international students in the United States.

As we continue to plan and prepare for the reopening of businesses, Part Six of our Roadmap series examines the when, what, where, and how of returning to work. Given the many considerations this process entails, we encourage employers to begin engaging with these issues now and to consult with counsel so that plans are in place and the groundwork is laid for the eventual reopening of the workplace, whenever that may be.

Last month, we reported that the United States Senate, Committee on Commerce, Science, and Transportation, conducted a hearing on “Enlisting Big Data in the Fight Against Coronavirus.” Specifically, the Committee focused on “examin[ing] recent uses of aggregate and anonymized consumer data to identify potential hotspots of coronavirus transmission and to help accelerate the development of treatments.”

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.”

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.

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.

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.

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.