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US COVID-19: Employee Temperature Screening: What Employers Need To Consider When Deciding Whether To Implement a Screening Process

April 14, 2020

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In light of concerns about the spread of the novel coronavirus in the workplace, employers are confronting important questions pertaining to the screening of employees for COVID-19 symptoms, including as it pertains to taking employees’ temperatures: May (or must) we screen employees for fevers, and if so, how should we implement such a practice?

In Part 1 of this two-part blog series, we address issues relating to the decision of whether employers may (or must) implement a temperature screening protocol.  In Part 2, we will provide guidance on how to do so.

Non-Discriminatory Temperature Screening Is Permitted

Taking an employee’s temperature is considered a medical exam under the Americans with Disabilities Act (“ADA”) and would normally be subject to strict restrictions. However, the federal Equal Employment Opportunity Commission (“EEOC”) has expressly stated in updated guidance that employers are permitted to screen employees for fevers due to the COVID-19 pandemic.  Some state agencies are following suit; for example, the California Department of Fair Employment and Housing recently issued guidance indicating that temperature checks are permissible and non-discriminatory under the present circumstances, so long as they are conducted on all personnel entering a facility.

Federal Guidance Supports Temperature Screening In Certain Circumstances

At the federal level, the Centers for Disease Control and Prevention (“CDC”) has advised all employers to consider “community level spread” of COVID-19 when determining appropriate workplace precautions, stating that workplaces in communities with minimal to moderate community spreading should, among other things, “[c]onsider regular health checks (e.g.,

COVID-19 in 19: Proactively Safeguarding Your Business from Potential Allegations of Price Gouging in the U.S.

April 10, 2020

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Continuing in our series of concise COVID-19 teleconferences, BCLP’s Susan Brice and Zeke Katz will briefly discuss the evolving impact of price gouging laws at the state and federal level in the United States, and what businesses can do in order to best protect themselves from price gouging claims, investigations and penalties.

Date Monday, April 13, 2020 Time 1 p.m. to 1:19 p.m. PDT 2 p.m. to 2:19 p.m. MDT 3 p.m. to 3:19 p.m. CDT 4 p.m. to 4:19 p.m. EDT

Register

COVID-19 in 19: Paycheck Protection Program

April 9, 2020

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COVID-19 in 19: Paycheck Protection Program

April 9, 2020

Authored by: BCLP

As part of our continuing series of 19-minute teleconferences on the impacts of COVID-19, lawyers with BCLP will address the CARES Act’s forgivable loan program for small businesses. Topics addressed will include terms of the program, eligibility requirements, and how small businesses can have their loan forgiven.

Date Thursday, April 9, 2020 Time 12 p.m. to 12:19 p.m. PDT 1 p.m. to 1:19 p.m. MDT 2 p.m. to 2:19 p.m. CDT 3 p.m. to 3:19 p.m. EDT

Register to attend >

 

U.S. FDA Relaxes Menu and Nutrition Facts Labeling Requirements in Response to Pandemic

In response to the COVID-19 pandemic, the U.S. Food and Drug Administration (FDA) has temporarily relaxed some of its requirements concerning menu and nutrition labeling, and extended certain enforcement deadlines.

Menu Labeling

The FDA has announced that it “will not object” if, during this public health emergency, restaurants and retail food establishments do not meet menu labeling requirements requiring disclosure of calories and other nutritional information.

The FDA regulations  typically apply to restaurants and similar retail food establishments that are part of a chain with 20 or more locations, doing business under the same name, and offering for sale substantially the same menu items.

The FDA stated that this policy is intended to provide flexibility to restaurants and food establishments that may have to rapidly transition to take-out only or that are experiencing disruptions in their supply chains requiring substitutions. To provide further guidance, it has issued Temporary Policy Regarding Nutrition Labeling of Standard Menu Items in Chain Restaurants and Similar Retail Food Establishments During the COVID-19 Public Health Emergency.

Nutrition Facts Label Enforcement

As we previously reported, although January 1, 2020, was the deadline for many companies to implement the new Nutrition Facts label, the FDA earlier stated that it would not take any enforcement action for the first six months, or until after July 1, 2020. The FDA has now announced that it intends to work cooperatively with manufacturers for the remainder of the year, and “will not focus on enforcement actions

FDA and FTC Warn Against Making Unapproved COVID-19 Claims

April 8, 2020

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In response to the outbreak of COVID-19, the Food and Drug Administration (FDA) and Federal Trade Commission (FTC) have issued several new warning letters to companies claiming their products prevent, treat or cure the novel coronavirus. This follows the seven warning letters jointly issued by the agencies in early March.

  • Gaia’s Whole Healing Essentials LLC was warned for selling colloidal silver products with claims that the products can build immunity and possess anti-viral properties for the treatment or prevention of COVID-19.
  • Homeomart Indibuy was warned for claiming that its homeopathic drug products treat respiratory illnesses and act as a prophylactic to protect from COVID-19 infection.
  • Health Mastery Systems DBA Pure Plant Essentials was warned for selling essential oils with claims that the products are safe and/or effective for the treatment or prevention of COVID-19. In addition to identifying improper claims made on the manufacturer’s website, the warning letter also scrutinized the express and implied claims made in social media posts including the following hashtags: “#coronavirus #covid #prevention #preventativehealth #symptoms #essentialoil #aromatherapy.”
  • NeuroXPF was warned for advertising that its cannabidiol (CBD) product prevents and treats COVID-19. Given the existing regulatory scrutiny on the growing CBD industry, we expect particularly aggressive enforcement against CBD manufacturers who make unsubstantiated and/or unapproved claims regarding COVID-19.

States have also begun enforcement actions. Last month, the Missouri Attorney General sued televangelist Jim Bakker and his company, Morningside Church Productions Inc., for claiming, on a broadcast featuring a naturopathic doctor, that the product Silver Solution

Several U.S. Retailers Forced to Close by Law Enforcement as Non-Essential

Several U.S. retailers that remained open in the face of state and local shutdown orders have now been forced to close by local law enforcement.

Retailers that remain open should ensure that they qualify as “essential” under applicable state and local orders, that they have proper documentation for their employees and facilities demonstrating that they are essential, and that they comply with any health safety and social distancing requirements. BCLP is tracking these orders and the developing guidance, and a map of states with stay-at-home orders is available here.

Businesses forced to close include several national craft and fabric store chains, and specialty stores that sell video games, sports equipment, furniture, clothing and accessories, shoes, books, music, jewelry, and luggage.

What qualifies as an “essential business” may vary under each order, and the approach taken by enforcement agencies may also vary. For example, stores selling CBD products have been allowed to remain open in some jurisdictions, but forced to close in others.

Law enforcement actions also varied against firearms and ammunition retailers, until the federal government last week updated its Guidance on the Essential Critical Workforce (the “Guidance”) to include “workers supporting the operation of firearm or ammunition product manufacturers, retailers, importers, distributors, and shooting ranges.”

Some statewide orders, such as California, base their definition of an essential business on the Guidance while others, such as Oregon, do not. In updating the Guidance, Christopher Krebs, director of the Cybersecurity and Infrastructure Security Agency (CISA), stated “this advisory list

NAAG Polices COVID-19 Price Gouging, Demands Fair Pricing Policies and Actions

April 6, 2020

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The National Association of Attorneys General (NAAG) is actively monitoring consumer product prices and working to eliminate price gouging in the U.S. during the COVID-19 pandemic. At least 33 attorneys general signed on to letters issued recently to a number of major online retailers and online sales platforms.

The letters indicate that while the AGs “appreciate reports of the efforts made by platforms and online retailers to crack down on price gouging,…we are calling on you to do more at a time that requires national unity.”

Specifically, the letters ask for three concrete actions:

  • Set policies and enforce restrictions on unconscionable price gouging during emergencies.
  • Trigger price gouging protections independent of, or prior to an emergency declaration.
  • Create and maintain a ‘Fair Pricing’ Page/ Portal where consumers can report price gouging incidents to you directly.
  • In connection with these actions, the AGs are asking companies to proactively monitor consumer sales activity, to track spikes in pricing and stop or block such activity, with the goal to “prevent unconscionable and unjustified price increases.”

    The AGs hope to work with retailers to develop a system whereby the retailers will provide consumer’s complaints of price gouging to the AGs’ offices to “facilitate appropriate referrals for enforcement or prosecution.”

    On the NAAG consumer protection website consumers can find a link to submit a complaint to their AG. The site also highlights a number of specific enforcement actions various AGs have taken. These include:

    • Missouri AG obtaining a TRO to stop sales

    Year in Review: 2019 Food and Beverage Litigation and Regulatory Roundup

    2019 was another active year for new regulatory activity and litigation targeting the food, beverage, and supplement industries.

    In this roundup, Bryan Cave Leighton Paisner LLP presents a collection of regulatory developments, key court decisions, and notable settlements that were reached in 2019 and early 2020.

    The highlights of this 2019 roundup include:

    • New federal legislation governing food labeling.
    • New regulations and a burst of litigation regarding CBD-based products.
    • An update on slack fill litigation.
    • Notable rulings, trials, and settlements.
    • Prop 65 and food safety update.
    • A preview of areas to watch in 2020.

    We will continue our commitment to monitoring and analyzing industry trends in these areas and advising clients on legal and regulatory developments.

     

    U.S. CORONAVIRUS RELIEF BILL: The CARES Act – Provisions Affecting Employers and Employees

    April 3, 2020

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    Following tense negotiations throughout last week, the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act” or “Act”) became law on March 27, 2020.  The CARES Act represents the third Phase of Congressional relief responding to the novel coronavirus (COVID-19) pandemic.  Phase I (Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020 (P.L. 116-123)) and Phase II (Families First Coronavirus Response Act (P.L. 116-127)) were signed into law on March 6 and 18, respectively.   At 883 pages, the CARES Act is the largest relief bill in U.S. history and addresses on multiple fronts the hardships faced by individuals and businesses throughout this crisis.  These efforts include an unprecedented expansion of unemployment benefits, significant funding for the health care industry, aid to large and small businesses valued in the billions, and even direct payments to individuals.

    The majority of economic relief provisions for U.S. workers and employers is provided in Titles I through IV of Division A of the Act (Division B consists of emergency appropriations to fund various program). The CARES Act also has specific provisions regarding relief for airlines, financial institutions, and other sectors that are considered critical to national security.  Titles I through IV of Division A of the CARES Act is are described in relevant part below.

    Title I – Keeping American Workers Paid and Employed Act

    Title I of the CARES Act provides relief through employee paycheck protections, loan forgiveness, and small business contracting relief.  The Act enables the Small Business Administration (“SBA”) to provide

    Bay Area Counties Require Essential Businesses to Establish and Post Social Distancing Protocols

    Seven Bay Area counties renewed and modified their shelter-at-home orders yesterday, extending the shutdown period through May 3, and in all cases but one, requiring that all essential businesses that remain open establish and post social distancing protocols by April 2 at 11:59 p.m.: San Francisco, Marin, Contra Costa, Santa Clara, San Mateo, Alameda, and Santa Cruz.

    Santa Cruz County also extended its order through May 3, but does not include the same provision requiring establishment and posting of social distancing protocols.

    The orders specify that social distancing protocols must be substantially in this form, and be posted at or near the entrance of the business where it is easily viewable by the public and employees. A copy of the social distancing protocol must also be provided to each employee performing work at the business.

    The social distancing protocol must explain how the business is achieving the following, as applicable:

    • Limiting the number of people who can enter into the facility at any one time to ensure that people in the facility can easily maintain a minimum six-foot distance from one another at all times, except as required to complete the Essential Business activity;
    • Where lines may form at a facility, marking six-foot increments at a minimum, establishing where individuals should stand to maintain adequate social distancing;
    • Providing hand sanitizer, soap and water, or effective disinfectant at or near the entrance of the facility and in other appropriate areas for

    U.S. Congress CARES: Legislative Overview of Tax Provisions

    April 1, 2020

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    The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act” or “Act”) was signed into law by President Trump on Friday, March 27, 2020.  The Act provides tax benefits to businesses and individuals and includes a number of changes to the Internal Revenue Code, including changes to the limitations on the deduction for net operating losses (“NOLs”) and business interest expense.  A number of the CARES Act provisions reverse or defer the effective time for certain changes made by Public Law 115-97, informally known as the 2017 Tax Cuts and Jobs Act (“TCJA”).  We will be releasing additional alerts to provide more in-depth analysis of certain of the tax benefits included in the CARES Act.

    Tax Benefits for Businesses 1. NOL carryback and excess business losses

    The CARES Act temporarily repeals the prohibition on the carryback of NOLs in order to obtain a current refund of U.S. federal income taxes paid in prior tax years.  The provisions allow the carryback of NOLs generated in tax years 2018, 2019, and 2020 to each of the five (5) taxable years preceding the year such NOL arose.  Further, for tax years 2018, 2019, and 2020, taxpayers can use their NOLs up to the full amount of taxable income (rather than up to 80% of taxable income).  There are special rules for real estate investment trusts and life insurance companies, as well as rules related to the repatriation tax and farming losses.

    The CARES Act also retroactively delayed the imposition of the excess business loss

    COVID-19: Considerations for Retailers on Employee Furloughs in U.S. and California

    As an alternative to laying off employees, many retailers may be considering furloughs – unpaid leaves or drastic reductions in work hours or work schedules – that allow them to retain employees and possibly continue to provide certain benefits. Retailers should be aware that furloughs still likely trigger notice requirements under state WARN laws, and in California may be considered a termination of employment requiring payment of final wages.

    This post provides an overview of furlough considerations with respect to unemployment benefits, WARN laws, possible termination implications, reduced hours or work share, use of vacation time, and benefits.

    Unemployment Insurance

    Furloughed employees, as well as many employees with reduced hours, are eligible for unemployment insurance benefits. In California, Governor Newsom’s Executive Order N-25-20 removes the waiting period to receive benefits. More information on filing for unemployment benefits is available here.

    WARN Laws

    The federal Worker Adjustment and Retraining Notification (WARN) Act requires employers with at least 100 employees who lay off at least 50 employees to provide advance notice of the “employment loss.” However, furloughs of less than 6 months do not qualify as an employment loss under the federal law.  At least 20 states have WARN laws, and the laws vary from state to state.

    California’s WARN law, which applies to employers with 75 or more employees who lay off at least 50 employees, applies to furloughs exceeding a “de minimis” amount of time. The California Court of Appeal has held that a four- or five-week furlough

    Lead Generation and the TCPA: How to Protect Your Company from Downstream Bad Actors

    Many businesses, including retailers, rely on inbound lead generators to identify prospective customers for telephone or text-based direct marketing campaigns.  Sourcing inbound leads from a variety of providers allows firms to tap into market segments that might otherwise be unavailable to them and improve conversion rates on their marketing spend.  But outsourcing lead gen to downstream providers also carries risk, as it is not uncommon for the original source of the lead to be several layers removed, making it difficult to verify the quality of the leads or to ensure that the proper consents were obtained.  Given the daily deluge of class action lawsuits brought under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (”TCPA”) by industrious plaintiff’s lawyers, it is only a matter of time before your company comes into their crosshairs.  How can you protect your company?

    The TCPA prohibits calls or texts to a cellular telephone using an automated telephone dialing system (“ATDS”) or prerecorded voice, or calls to a landline using a prerecorded voice, without the express consent of the called party (or contrary to a do-not-call listing).  47 U.S.C. § 227;  47 C.F.R. § 64.1200.  Violators are subject to $500 in statutory damages for each call or text, or $1,500 for knowing violations, thus making TCPA class actions an irresistible enticement to the plaintiff’s bar.  Although liability under the TCPA generally falls upon the entity that generated the call or text, the courts have held that sellers can be vicariously liable for the actions

    What Retailers Need to Know About the CARES Act, SBA Lending, and Loan Forgiveness

    March 26, 2020

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    The Coronavirus Aid, Relief, and Economic Security, or “CARES Act”—the third emergency bill that Congress has prepared in response to the Coronavirus (COVID-19) pandemic—is likely to be signed into law by Friday, March 27, 2020. Bryan Cave Leighton Paisner lawyers have been analyzing drafts of the bill, scouring its relevant provisions, and stand ready to advise clients on what impact it may have on their businesses and whether those businesses may be eligible for assistance.

    The bill has significant relief for small businesses, including $349 billion in Small Business Administration (SBA) loan guaranties and subsidies and additional funding for SBA programs. Highlights include:

    • Expansion of SBA’s 7(a) Loan Program to Support New “Paycheck Protection Program” Loans. The SBA’s existing 7(a) program will see:
      • Increase in maximum loan amount to $10 million.
      • Allowable uses expanded to include:
        • Payroll support (including paid sick or medical leave);
        • Employee salaries;
        • Mortgage, rent and utility payments;
        • Insurance premiums; and
        • Other debt obligations.
    • Loan Forgiveness. Certain borrowers would be eligible for loan forgiveness equal to the amount spent during an eight-week period after the origination date of the loan on:
      • Payroll costs;
      • Interest payment on any mortgage incurred before Feb. 15, 2020;
      • Rent on any lease in force before Feb. 15, 2020; and
      • Utilities for which service began before Feb. 15, 2020.

    The amount forgiven would be reduced in proportion to any reduction in employees retained compared to the prior year and to the reduction

    U.S. COVID-19: Commercial Leases – Rent Obligations in the United States

    March 26, 2020

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    While it is true that a number of States and local municipalities have stopped all eviction proceedings and many courts are currently closed, the issue of rent remains front and center between landlords and tenants. The following sets forth some guidelines to begin thinking about these issues:

    • Review your Leases. Payment obligations will generally rest on the specific language of the lease, but the answers may not be as clear as a landlord or tenant might assume. Provisions often relegated to the “Miscellaneous” section in leases (e.g., force majeure, severability, independent covenants etc.) may take center stage.
      • Lease provisions that landlords should focus on include:
        • Requirements that rent be paid without deduction or set-off;
        • Provisions that afford a landlord broad rights to shut down its building in an emergency without any abatement of rent;
        • Force majeure clauses that carve out monetary obligations from their applicability;
        • In the retail setting, operating covenants and, if breached, the effect on percentage rent;
        • Provisions that spell out the independent nature of lease covenants, arguing that the tenant’s obligation to pay rent is independent from the obligation of the landlord to keep its building open; and
        • The availability of their tenants’ credit support – Are letters of credit getting close to expiration and what are the draw procedures (and is the bank’s draw office available for presentment)?
      • Lease provisions that tenants should focus on include:
        • Abatement and other rights in the event of loss of access to the building or cessation of landlord’s

    COVID-19: Employee Assistance, Benefits and HR Guidance for Retailers

    March 24, 2020

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    As retailers continue to respond to the COVID-19 crisis, the following posts from our colleagues at BCLP At Work and Benefits BCLP can help navigate through the various employee assistance and benefits programs, and help answer human resources questions.

    For more information, contact the authors or visit our COVID-19 Thought Leadership web page.  You can also seek assistance from our COVID-19 Client Task Force.

     

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