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US COVID-19: Risky Business – Navigating Workplace Issues Involving High Risk Employees

As states across the country see spikes in COVID-19 cases, employers continue to wrestle with how to handle “high risk” employees, i.e., employees who are at an increased risk for severe illness from COVID-19.  Guidance from a variety of agencies on the topic, including the Equal Employment Opportunity Commission (“EEOC”), the Centers for Disease Control and Prevention (“CDC”), and the Occupational Safety and Health Administration (“OSHA”), has been published in waves, leaving many to wonder how this guidance may or may not continue to be relevant.

Below are six important areas of the law to consider when navigating this evolving landscape.  As a reminder, each individual employee’s circumstances are unique, so while employers should have a consistent procedure in place for triaging high risk employees’ presence in the workplace, employers should also be prepared to develop individualized solutions based on an employee’s specific needs.

  • The Americans with Disabilities Act (“ADA”): Employees with certain underlying health conditions may qualify as “high risk” and thus be entitled to a reasonable accommodation under the ADA.  While accommodations may include a leave of absence or telework arrangement, other possible accommodations include permitting the employee more frequent hygiene breaks, excusing the employee from attending group meetings/gatherings, and reconfiguring the employee’s workspace.  It is important that employers not act unilaterally with respect to implementing accommodations.  Instead, the interactive dialogue process should be used early on to identify what, if any, accommodations an employee may need and/or receive.  As a reminder,
  • US COVID-19: Remember the FMLA: DOL Issues New Q&A on COVID-related FMLA Issues

    July 24, 2020

    Categories

    With all of the attention being given to COVID-19-related leave under the Families First Coronavirus Response Act (“FFCRA”), we mustn’t forget the (traditional) Family and Medical Leave Act (“FMLA”).  To remind us, the federal Department of Labor (“DOL”) recently issued new FMLA Q&A on COVID-19-related subjects.

    COVID-19 Testing:  The DOL clarified that the FMLA’s “reinstatement” requirement does not interfere with an employer’s ability to require all employees to take a COVID-19 test before coming to the office.  (See Q&A #13.)  This is because employees who have taken FMLA leave are still subject to the same actions that would have applied to the employee had the employee not taken FMLA leave.

    For BCLP discussions about what the federal Equal Employment Opportunity Commission (“EEOC”) has said about COVID-19 related testing, see this blog post on 4 Takeaways from the EEOC’s New Guidance on Antibody Testing, Older Workers, and Accommodations and this one on EEOC Updates COVID-19 Guidance, Permitting Employers To Administer COVID-19 Tests and Clarifying Accommodation Obligations.

    Telemedicine:  The DOL clarified that, until December 31, 2020, and in light of the current pandemic-related demands on health care providers and PPE/supplies, “telemedicine” visits will count as “in-person visits” for FMLA purposes.  (See Q&A #12.)  This decision is significant because one of the common categories of serious health condition under the FMLA – “incapacity plus treatment” – requires certain “in-person” visits to a health care provider.  According to the DOL, a telemedicine visit will constitute an in-person visit as long as it:

    • Includes an

    US COVID-19: New FFCRA Q&A – Return to Work Issues

    July 22, 2020

    Categories

    On July 20, as part of a barrage of new guidance relating to the Families First Coronavirus Response Act (“FFCRA”), Family and Medical Leave Act (“FMLA”), and Fair Labor Standards Act (“FLSA”), the federal Department of Labor (“DOL”) issued four new FFCRA Q&As relating to “return to work” issues.

    Three of the new Q&As (95-97) explain the interconnection between FFCRA leave and furlough:

    • Hours of FFCRA leave taken prior to furlough count against an employee’s total FFCRA leave entitlement (i.e., the fact that an employee took FFCRA leave and subsequently was furloughed does not mean that the employee’s FFCRA entitlement starts over upon return to work);
    • Hours/weeks on furlough do not count against an employee’s FFCRA entitlement;
    • Post-furlough requests for FFCRA leave should be treated as “new” requests for FFCRA leave (i.e., employees should be required to provide appropriate documentation in support of post-furlough leave requests); and
    • Employers may not make furlough decisions (such as which employees to recall from furlough) based on a desire to avoid providing FFCRA leave.

    The remaining new Q&A (94) relates to the “reinstatement” obligation under the FFCRA.  While recognizing that employees who take protected FFCRA leave are, generally, entitled to be restored to their same or equivalent position when returning from leave, the DOL clarifies that employers may take certain steps to reduce potential exposure of employees in the workplace.

    Specifically, in regards to an employee who took Paid Sick Leave under the FFCRA to care for a family member who was

    FTC Deceptive Advertising Health Claims Settlement – Scientific Proof Required

    July 1, 2020

    Categories

    “Treats Chronic Pain… Clinically Proven… Smart Device… Approved by the FDA…” These are all claims the Federal Trade Commission (FTC) says defendants made advertising the Willow Curve, a low-level light therapy device  (LLLT), and all of which the FTC says are false and deceptive. In a settlement announced June 25, 2020, the Willow Curve LLLT device defendants will be subject to a $22 million judgment which includes penalties being paid by two individual physicians who led the involved company LLCs. Defendants also will be prohibited from future allegedly deceptive refund and native advertising campaigns.

    “’When LLLT sellers say their devices will relieve pain, they’d better have the scientific proof to back it up,” said Andrew Smith, Director of the FTC’s Bureau of Consumer Protection, in a June 25 press release. ‘People looking for drug-free pain relief deserve truthful information about these products.’”

    FTC Complaint Causes of Action. The complaint asserts  the following six counts against defendants which target all aspects of the allegedly improper marketing and sales of the product.

  • False or Unsubstantiated Efficacy Claims
  • False Proof Claims
  • False Claims About FDA’s Review
  • Deceptively Formatter Advertisements
  • Defendants’ Provision of Means and Instrumentalities of Deception
  • False Refund and Risk-Free Claims
  • The complaint also contains substantial snapshots of advertising and marketing materials, including scripting of infomercials, native content “research” materials, and alleged testimonials.

    All of the claims are based on alleged violations of the Federal Trade Commission (FTC) act, specifically  Sections 5(a) and 12, 15 U.S.C. §§ 45(a) and 52,

    Managing Counter-Party Risk in the Pandemic – Part III:

    Part III: Supplier considerations: Assessing and leveraging your leverage

    As most global markets attempt a return to normal (or a new form of normal) business, it is hard to imagine a sector or an industry that isn’t already reeling from the effects of the past three months. Getting back on your feet is hard enough in the current environment, without having to worry about further setbacks impacting your business. But how would you react if your key supplier called tomorrow to let you know that they were insolvent and unable to provide you with goods or services? Worse, what if you had already placed (and paid for) a large order with them that was critical to your ability to continue business?

    In addition to the customer risk mitigation measures we looked at in Part II of this series, management needs to have in place systems and options to avoid the impact of supply-chain risk. Continuously monitoring your supply chain is essential during this period, to avoid the risk of your suppliers’ misfortunes infecting your own business (particularly for your critical suppliers and those for which there doesn’t appear to be a possible replacement).

    But what is the legal position? What can (and can’t) you do if you catch wind that your key supplier is about to pull down the shutters? In the US, a termination provision in your supply agreement allowing you to terminate for insolvency or bankruptcy events (so-called ipso facto clauses) is completely unenforceable. In fact, any

    Boston Fed Releases Updated FAQs, Forms and Agreements Related to the Main Street Lending Program

  • On June 8, the Federal Reserve Bank of Boston (the “Boston Fed”) released updated and revised Frequently Asked Questions regarding the Federal Reserve’s Main Street Lending Program (“MSLP”). On June 11, the Boston Fed released updated and revised documentation with respect to the MSLP.
  • For Lenders: On June 15, the MSLP Program went live for lender registration. Click here for more details and to register.
  • Definitions:

  • “New Loans” are those MSLP loans originating on or after April 24, 2020 in a minimum principal amount of $250,000 up to a maximum principal amount that is the lesser of (i) $35 million or (ii) an amount that, when added to the borrower’s existing outstanding and undrawn available debt, is less than or equal to 4.0x the borrower’s 2019 adjusted EBITDA.
  • “Priority Loans” are those MSLP loans originating on or after April 24, 2020 in a minimum principal amount of $250,000 up to a maximum principal amount that is the lesser of (i) $50 million or (ii) an amount that, when added to the borrower’s existing outstanding and undrawn available debt, is less than or equal to 6.0x the borrower’s adjusted 2019 EBIDTA.
  • “Expanded Loans” are those upsized tranches of the borrower’s existing loans (those loans originated before April 24, 2020) ranging from a minimum principal amount of $10 million up to a maximum principal amount that is the lesser of (i) $300 million or (ii) an amount that, when added to the borrower’s existing outstanding and undrawn available debt, is less than or equal
  • Breaking Down the Reasonable Security Landscape

    June 17, 2020

    Categories

    We invite you to join BCLP’s Data Privacy and Cyber Security co-leader Jena Valdetero, Crypsis Group’s VP of Cyber Risk and Resilience Management Art Ehuan and Trend Micro’s Chief Cybersecurity Officer Ed Cabrera for their webinar “Breaking Down the Reasonable Security Landscape,” which will examine the meaning of reasonable security, and the effectiveness of reasonable security programs.

    UK Coronavirus Furlough Wind Down – Dates and Costs for UK Retailers to Note

    The Coronavirus Job Retention Scheme (“CJRS”) was launched on 20 April 2020 in the UK, and numerous household names in British retail have sought to rely on the scheme by furloughing staff. As at 31 May 2020, HMRC reported that 8.7 million jobs had been furloughed in the UK, with a total value of claims made at around £17.5 billion1; which is representative of almost a quarter of employees in Britain.2

    On 12 June 2020, the UK government released new guidance3 to implement flexible furlough and gradually wind down the CJRS to its expected end date of 31 October 20204. The government’s go-head to many non-essential retailers to re-open their doors on 15 June 2020 aligns closely with this wind down.

    Retailers with UK employees will need to make early assessments as to whether (and, if so, how) they will continue to furlough employees going forward. We set out some key dates below to bear in mind:

    10 June 2020: Apart from those returning from family leave, furlough claims can only be made in respect of employees who have already been registered under the CJRS by this date. 16 June 2020: In addition to knowing when the changes take effect, UK retailers need to bear in mind the risk that they may also trigger collective consultation obligations. The obligation to collectively consult may be triggered by a proposal to change terms and conditions or make redundancies of 20 or more employees at 1 establishment within a 90 day period (whether or not

    Managing Counter-Party Risk in the Pandemic – Part II

    Part II: Customer Considerations: Risk Mitigation = Smarter Sales

    In the coming months, very few companies, whether public or private, will be able to avoid including statements in their quarterly reports or financials that attribute single or double digit percentage declines in revenue to doubtful accounts and insolvencies of major customers caused by the pandemic. For many, if not most, that disclosure will continue beyond Q4 of 2020 and through 2021.

    In prior periods, lenders and other key stakeholders may have been tolerant to these one-off, non-systematic declines due to unanticipated insolvencies of customers (and the ability to replace the revenue/income either through liquidation of collateral or replacement of customers). After all, none of us have a crystal ball, and many of the insolvencies were unforeseen (or unexpected). To the extent they had it, lenders and other creditors didn’t have to worry about being able to liquidate collateral – a market was almost always available to sell collateral (or sell their products elsewhere), and there was plenty of money in the market to facilitate transactions (and curb the downside risk).

    Post-pandemic, while companies may still not have crystal balls, they at least have tarot cards and Ouija boards – and the signs are strong that market participants will be impacted across industries on a global basis. Lenders and other key stakeholders will want to know what measures were taken to mitigate those reported declines, particularly if the secondary markets to mitigate risks of nonpayment will be stretched (or perhaps non-existent)

    Final CCPA Regulations Submitted to California Office of Administrative Law

    June 3, 2020

    Categories

    After a long wait, the California Attorney General submitted final CCPA regulations to the California Office of Administrative Law (“OAL”) today. He requested that the OAL expedite its review of the final regulations so that they would become effective by the statutorily mandated date of July 1, 2020.

    Note that to date the Attorney General has indicated that he will not delay enforcement of the Act, or of the regulations when they are published. As a result, the Attorney General has implied that all businesses should be compliant with the Final Regulations by July 1, 2020.

    A copy of the final regulations can be found on CCPA-Info.com. Among other things, the final regulations require most companies to update the following CCPA-related documents:

    • Privacy notice. • Data subject request protocol • Data subject request communications templates • Possible additional disclosures for “financial incentives.”

    Given the number of companies that are moving to modify policies in the next four weeks, if you would like our assistance, please contact us as soon as possible so that we can add you to our workflow.

    Update: June 2020 California Consumer Privacy Act (“CCPA”) Litigation Tracker

    June 3, 2020

    Categories

    As of January 1, 2020, California became the first state to permit residents whose sensitive personal information is exposed in a data breach to seek statutory damages between $100-$750 per incident, even in the absence of any actual harm. Further, the California Attorney General may bring a civil action against any entity violating the CCPA, seeking an injunction and civil penalties between $2,500 (for each violation) and $7,500 (for each intentional violation).

    Click here to read the Alert in full.

    COVID-19 redundancy issues: HR frequently asked questions in multiple jurisdictions

    We understand that our clients and contacts will be addressing complex redundancy issues related to COVID-19 in multiple jurisdictions. BCLP, together with our local counsel friends, have produced a global Q&A document covering 40 jurisdictions. We cover questions around dismissals, compensation, collective consultation and alternatives to redundancy.

    Please download our global Q&A document here.

    The document covers the following questions:

    • Is there any legislation, order or mandate prohibiting an employer from dismissing an employee in circumstances where the employer has obtained the benefit of Coronavirus government support?
    • Does an employee with a qualifying period of employment have any statutory protection against redundancy dismissal?
    • What redundancy compensation is payable to an employee who is dismissed by reason of redundancy?
    • Should an employer take into consideration a Coronavirus government support scheme before dismissing an employee?
    • Are employers subject to separate collective consultation obligations?
    • If an employer is subject to collective consultation obligations, is there any defence for a failure to comply?
    • If an employer is subject to collective consultation obligations, what is the sanction for a failure to comply?
    • What alternatives to redundancy dismissal are open to an employer?

    A Guide to Navigating COVID-19 Price-Gouging Litigation Against Manufacturers, Suppliers, and Retailers of Food and Consumer Goods in the U.S.

    The COVID-19 pandemic has led to sharp spikes in demand for basic necessities, alcohol-based disinfecting products, and essential food staples. Consumers have been willing to pay a premium to stock up on these items from both brick-and-mortar and online marketplaces.  While there is no federal law establishing clear guidelines regarding price gouging, many states have laws that limit or prohibit sellers from charging excessive prices for certain consumer products, which are triggered by the declaration of an emergency by federal, state, and/or local officials. Plaintiffs’ lawyers and states’ attorneys general have begun bringing state and nationwide class actions for price gouging against suppliers, distributors, and retailers of essential products, and we expect this litigation to increase in coming months.

    In this three part series, we provide the statutory landscape and analyze the newly filed litigation, outline some key litigation strategies, and advise on best practices for manufacturers and retailers to minimize risk of litigation or investigation for pricing practices.

    PART ONE:  Landscape of COVID-19 Price Gouging Regulation

    Part One of this report provides an overview of the statutory landscape governing price gouging and summarizes some of the newly filed cases.

    Statutory Landscape

    Most of the 50 states have enacted specific laws prohibiting price gouging; in other states, actions are brought under general consumer protection statutes.  Many states’ price-gouging statutes do not provide a private right of action, instead vesting prosecutorial authority in the state attorney general’s office.

    While most states prohibit price gouging, the laws vary greatly.  Many states, such

    Paycheck Protection Program Loan Forgiveness Application Answers Many Questions—But Not All

    The Small Business Administration’s (“SBA”) release of its official loan forgiveness application under the Paycheck Protection Program (“PPP,” Section 1102 of the CARES Act) answered a number of questions that borrowers and their legal and accounting advisers had regarding the program. But the application also leaves some questions unanswered, and borrowers, their lawyers, and their accountants are eagerly awaiting the release of promised loan forgiveness regulations that are expected to be posted online in coming days or weeks on Treasury’s website.

    Borrowers should consult all existing regulations and guidance as they prepare to apply for PPP loans and as they prepare to apply for loan forgiveness. What follows is a high-level discussion of what we have observed in the latest guidance, but borrowers should be aware that the official federal guidance is changing weekly if not daily, and, depending on the complexity of a borrower’s application, consultation with a lawyer or accountant may be vital to ensuring compliance with the program. We also note that the original applications for PPP loans were revised after being initially provided and, while we have no reason to believe the loan forgiveness application will be revised at this point, the possibility certainly exists.

    What We Know Now

    Following disbursement of the PPP loan proceeds, each borrower has an eight-week period during which certain costs incurred or paid may be forgiven by the government. A number of practical questions about accounting for the how, when, and what surrounding payments during the 8-week forgiveness period have been cleared by

    COVID-19 in 19 Teleconference: UK Coronavirus Job Retention Scheme – what next for employers?

    We are holding a regular series of bite-sized 19-minute teleconferences on the key COVID-19 employment law issues employers need to think about.

    Our second teleconference looks at the UK government’s furlough scheme. The UK government recently announced that the scheme will extend until 31 October 2020, albeit in a different format from 1 August 2020.

    This session will cover:

    • Key aspects of the current furlough scheme.
    • Some of the practical issues that employers are currently experiencing under the furlough scheme.
    • An overview of the proposed changes to the furlough scheme.
    • Issues to consider after 1 August 2020.
    • The next “cliff-edge”.

    Event details Date Wednesday 20 May 2020 Time 11.30-11.49am (BST) Dial-In Instructions Provided to registrants in advance of the teleconference.

     

    Register to attend >

    Back to Business: Re-opening Guidance for California Retailers

    As states continue to wrestle with when to reopen, California has unveiled a phased-in plan that gives counties control over how quickly to reopen, and provides guidelines specific to each industry. What does this mean for your business? What procedures should you consider implementing? Joined by Rachel Michelin, president of California Retailers Association, presenters will offer a number of best practices and model guidelines to help retailers, not only in California, but across the U.S., protect against the spread of COVID-19 to keep workers and customers safe.

    As part of our continuing series of teleconferences on the impacts of COVID-19, presenters will cover the following topics:

    • Creating a worksite specific plan
    • Employee Training
    • Individual control measures and screening
    • Cleaning and disinfecting protocols
    • Physical distancing guidelines

    Date Wednesday, May 20, 2020 Time 10:30 a.m. to 11 a.m. PDT 11:30 a.m. to 12 p.m. MDT 12:30 p.m. to 1 p.m. CDT 1:30 p.m. to 2 p.m. EDT

    Register

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