COVID-19 Viewpoints

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.

The CDC’s recent guidance suggesting that most fully vaccinated individuals may discontinue certain safety measures, such as masking and social distancing, has created significant confusion for employers navigating conflicting and ever-changing state and local COVID-19 workplace laws, regulations and guidance. While the most recent CDC guidance endorses resuming activities (indoors and out) without masks for most fully vaccinated individuals, the guidance around vaccination verification and disparate treatment between the vaccinated and unvaccinated is still lacking. Employers are now facing these sensitive but critically important return to office issues without the benefit of critical guidance from Federal, state and local regulators. We provide some guidance below regarding vaccine verification and some considerations for employers thinking about instituting vaccine policies.

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.

In this episode of our Exclusive Rights podcast series, Mintz IP attorneys Daniel Weinger and Todd B. Buck, PhD, discuss the recent decision by the Biden Administration to signal US approval of a proposal to waive intellectual property rights related to COVID-19 vaccines currently under review at the World Trade Organization (WTO).

On April 22, 2021, Reps. G.K. Butterfield (D-NC) and David McKinley (R-WV) introduced H.R. 2759, or the Pharmacy and Medically Underserved Areas Enhancement Act. Its introduction marks a fourth bipartisan effort in the House to enact the legislation, which would allow Medicare to directly reimburse pharmacists for delivering certain health care services to Medicare beneficiaries living in areas with limited access to primary medical care. Hindsight suggests that when introduced in the past, the Act may not have been ripe for consideration. But now, in the wake of the COVID-19 pandemic and on the heels of successful initiatives like the West Virginia vaccine rollout, Congress may not wish to table discussion of the legislation any longer.

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.

A reminder for how property owners and real estate developers can protect themselves – and their projects – from downstream distress. There are six key issues that owners should consider when contracting for their next project.

The Federal Communications Commission (FCC) released a Public Notice announcing that the application filing window for Round 2 of its COVID-19 Telehealth Program will run for seven days starting April 29, 2021. The application portal will open at noon ET on Thursday, April 29, and close one week later at noon ET on Thursday, May 6. Round 2 of the FCC's COVID-19 Telehealth Program will make an additional almost $250 million available to fund telehealth and connected care services provided by eligible providers during the ongoing COVID-19 pandemic.

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.

The ability to provide health care from a remote location has been around for many years, but with the arrival of COVID-19, hospitals, physicians, and other health care providers have had to rapidly rethink their traditional models of health care delivery.

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.

Mintz’s Annual Employment Law Summit brought together thought leaders to discuss the most pressing issues employers are facing in today’s unprecedented work environment. Attendees heard presentations on the continued impact of COVID-19; social justice and diversity, equity and inclusion initiatives; recent and anticipated changes to employment laws; and best practices for managing sensitive employee situations.

On February 26, 2021, the Department of Labor’s Employee Benefits Security Administration (EBSA) issued Notice 2021-01 (the “Notice”). The Notice was issued jointly with the Department of the Treasury, the Internal Revenue Service and the Department of Health and Human Services (the “Departments”). Entitled “Guidance on Continuation of Relief for Employee Benefit Plans and Plan Participants and Beneficiaries Due to the COVID-19 (Novel Coronavirus) Outbreak,” the Notice provides much needed guidance to group health plan sponsors on (among other things) when COBRA notice and election periods, which had been previously extended [in May 2020], will come to an end. This guidance was necessary because earlier regulatory relief extending COBRA notice and election periods was about to expire as a result of a statutory deadline. This post explains the impact of the Notice on sponsors of group health plans.

As COVID-19 vaccines become more available, employment-based programs requiring or incentivizing employee vaccination will become more commonplace. In a previous post, we covered recent employer guidance from the CDC, with a particular focus on mandatory workplace testing programs. This post examines how an employer might design a voluntary workplace vaccination program using incentives to encourage participation, and how to avoid potential pitfalls in doing so.

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.

Although the Biden-Harris Administration that assumed control of the Executive Branch on January 20, 2021 immediately ordered a regulatory freeze of new or pending rules while the new administration gets its bearings (as reported by our colleagues in this post), several important changes to the laws enforced by the Food and Drug Administration (FDA) were recently enacted by Congress. As legislative actions, those changes are of course unaffected by President Biden’s regulatory freeze and so we thought worth a summary to ensure our readers are up to speed on the large amount of activity that occurred in the final weeks of the 116th Congress and the Trump Administration.