COVID-19 Viewpoints

In Part Eight of our Roadmap Series, we take a closer look at wage and hour compliance concerns that may arise during the COVID-19 pandemic, and what employers can do to minimize these pitfalls.

Remember that wage and hour concerns, and how to properly address them, will often depend on whether a company is dealing with exempt employees (i.e., employees not entitled to overtime pay regardless of the number of hours worked in a day or week) or non-exempt employees (i.e., employees entitled to overtime pay if the employee works more than eight hours a day or forty hours in a week, depending on the state). This critical distinction will largely govern how employers should consider and plan for the issues described below.

This update covers federal and Massachusetts responses to the pandemic, including the House Democrats’ phase 4 economic stimulus proposal, the SBA’s report on PPP implementation plus criticism of how it manages EIDL, and Massachusetts’s reopening plan and its proposed $1B supplemental budget to cover Covid-19 spending.

COVID-19 has flipped the landlord-tenant relationship on its head. Prior to the COVID-19 pandemic, the relationship between landlords and tenants—and the payment of rent—was governed by the terms of the lease.

Facing the many challenges posed by the COVID-19 pandemic, employers are considering their obligations to their workforce in the event of a reduction in force related to COVID-19 (“COVID-19”). This post provides an overview of an employer’s WARN Act obligations in the event a COVID-19-related closure or reduction in force.

This alert reviews the risks of a down round financing and lists steps that a company considering this option during the COVID-19 pandemic can take to reduce those risks.

In the current environment, there exists historic levels of “dry powder” in the private equity industry. We have previously provided thoughts regarding challenges and opportunities facing the private equity industry generally.

Today the Small Business Administration (SBA) issued additional guidance with respect to the “necessity” certification required under the CARES Act in connection with the Paycheck Protection Program (PPP). The relevant guidance appears in FAQ 46, and it is very good news for borrowers who received PPP loans under $2 million (together with PPP loans to affiliates, if any). The SBA, in consultation with the U.S. Department of Treasury, has determined that a safe harbor will apply with respect to SBA’s review of the certification of necessity in connection with respect to such loans. Specifically, “[a]ny borrower that, together with its affiliates, received PPP loans with an original principal amount of less than $2 million will be deemed to have made the required certification concerning the necessity of the loan request in good faith.”

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.

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. 

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.

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).

Read about considerations for drafting material adverse change clauses in mergers & acquisitions in light of uncertainties associated with the COVID-19 pandemic.

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.