OCR Loosens HIPAA Enforcement Amidst Coronavirus Pandemic

Let’s face it, there has not been much positive news lately surrounding the Coronavirus (“COVID-19”).  However, the Office For Civil Rights (“OCR”), the agency within the Department of Health and Human Services (“HHS”) that enforces the Health Insurance Portability and Accountability Act (“HIPAA”) Privacy and Security Rules, announced several recent measures to allow health care providers avoid certain HIPAA penalties and sanctions amidst the COVID-19 pandemic.

There are several measures OCR/HHS has taken to lessen the regulatory burden of HIPAA for health care providers amidst COVID-19.

To read this full blog post by Duane Morris partner Neville Bilimoria, please visit the Duane Morris Health Law Blog.

Emergency Powers Law in New Jersey

The COVID-19 pandemic has presented us with questions and issues we’ve never considered before, or at least didn’t give much serious thought. With the invocation of emergency powers by Governor Philip D. Murphy on March 9, 2020, businesses and individuals alike may ask themselves why they need to cooperate and comply with them.

To read the full text of this article by Duane Morris partner Paul Josephson (originally published in the New Jersey Law Journal), please visit the firm website.

Employers Now May Take Employees’ Temperatures, Says EEOC

The Equal Employment Opportunity Commission (EEOC) gave employers the green light to take employees’ temperatures to try and ward off the spread of the coronavirus in guidance updated March 18. But will taking temperatures really work?

“Generally, measuring an employee’s body temperature is a medical examination,” the EEOC stated. The Americans with Disabilities Act (ADA) prohibits medical examinations unless they are job-related and consistent with business necessity.

Because the Centers for Disease Control and Prevention (CDC) and state and local health authorities have acknowledged community spread of COVID-19, the respiratory illness caused by the coronavirus, and have issued related precautions, “employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever,” the agency stated. And some people with a fever do not have COVID-19. […]

Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York City, said there may be an obligation to pay employees for time spent waiting to have their temperatures checked. […]

To read the full article, visit the SHRM website.

WFH USA. It’s the End of the (Work) World As We Know It

Shelter-in-place. Social distancing. Elbow bumping instead of handshakes.

No more shared boxes of pizza. Massive stockpiling. Obsessive washing of hands.

The new habits and lexicon of the American workforce reflect the vocabulary of the COVID-19 coronavirus that was first identified in Wuhan, China, in December and has spread globally, striking home in all 50 states and ushering in new habits and social awareness — along with fear and anxiety. […]

‘Seismic’ changes ahead

Welcome to Remote America, a world in the making that is constantly in flux, with widespread flex-time and WFH adoption, unexpected tech challenges for benefits professionals, greater emphasis on mental health benefits and attention from HR on a myriad of new issues. […]

Michael Gradisek, the head of the benefits group at Philadelphia-based Duane Morris, said his employer clients have been asking mostly about the legal differences between layoffs and furlough, COBRA healthcare plans and compensation issues.

“Furlough is a term of art that is a temporary layoff, where we can keep staff on health, mental and vision, but those benefits depend on the insurance contract,” which is typically classified as unpaid leave, he says.

Benefits coverage is “case-by-case by each company and each contract. No good deed goes unpunished. What happens if we keep you on the plan, and someone ends up on a ventilator for two months? Those are the questions insurance carriers will be asking. That’s their job,” he noted from his home office, where he’s been in self-isolation since returning on Friday from a business trip from London.

Gradisek noted that in Europe, many of the bars and restaurants were open, and the crisis didn’t hit home for many Europeans until owners canceled the Premier League soccer games, similar to the NBA, NHL and preseason baseball shutdowns in the U.S. “My company said, ‘Glad you made it back. Don’t come in for two weeks,’ ” he says.

Their benefits practice has been “crazy busy and going berserk with calls” during the crisis, he says.

“Employers are starting to hoard cash, which is a smart thing. Can we voluntarily not make payments for executive comp plans and large payments? These are the questions we’re getting,” he says. “Some CEOs don’t want to take bonus money and put the company in a cash-strapped position.”

He noted various questions about delayed comp plans, and cited IRS code 409A, which does not allow for voluntary deferrals. “The IRS wants executives to take the money and pay the tax,” he says, noting that there are exemptions only if not deferring payments or paying bonuses may “jeopardize the solvency of the service recipient” or the company as a going concern.

“Is a million bucks going to stop the company from being a going concern? Employers are talking about it in reviews and discretionary bonuses. Those are all based on company and market conditions,” he says, noting one client that was weighing layoffs and reduction of certain staff salaries by 30%. […]

To read the full article, visit the Employee Benefit News website.

Department of Education Issues Guidance on Safeguarding Civil Rights During COVID-19 Pandemic

As with all crises, this pandemic is a rapidly evolving situation that is forcing schools to quickly implement new policies and practices, often operating on limited information and without the usual procedural safeguards and vetting. Such an environment creates a risk of the unintended consequences of those new policies/procedures resulting in potentially discriminatory effects to students.

Recognizing this risk, the Department of Education’s Office for Civil Rights published guidance on March 16, 2020, reminding schools that students’ civil rights must be safeguarded during responses to the COVID-19 pandemic. OCR’s guidance encourages schools to take measures to protect against COVID-19, but to do so in a manner that is free from discrimination and continues to accommodate people with disabilities.

To read the full text of this Duane Morris Alert, please visit the firm website.

Employers Can Make Tax-Free Payments to Employees Under IRS Section 139 During COVID-19 Pandemic

On March 13, 2020, COVID-19 was designated a disaster under the Robert T. Stafford Disaster Relief and Emergency Assistance Act. As a result, employers are permitted to make tax-free reimbursements and payments to employees under Internal Revenue Code Section 139. This Alert will outline the rules governing these reimbursements and considerations that employers must take into account when implementing such a program.

To read the full text of this Duane Morris Alert, please visit the firm website.

FDA Guidance Aims to Accelerate Availability of COVID-19 Tests

On March 16, 2020, the U.S. Food & Drug Administration (FDA) issued new guidance aimed at accelerating the availability of COVID-19 diagnostic tests developed by laboratories and commercial manufacturers. The guidance, which took immediate effect upon release, contains recommendations for clinical laboratories and commercial manufacturers regarding development of diagnostic tests for COVID-19 during the current public health emergency.

To read the full text of this Duane Morris Alert, please visit the firm website.

Coronavirus and Construction Contracts

As you have undoubtedly heard, coronavirus disease 2019 (COVID-19) is affecting the global construction industry.

Notably, as of March 17, Boston halted all construction jobs in the city for two weeks due to the COVID-19 pandemic. This decision has affected approximately 21.4 million square feet of new or renovated development across 97 projects. Other municipalities have implemented travel restrictions and shelter-in-place orders requiring individuals to stay at home except as necessary to provide certain essential business and government services. These domestic actions, coupled with tighter border controls and quarantines at the international level, will inevitably result in supply chain disruption and labor force shortages.

To read the full text of this Duane Morris Alert, please visit the firm website.

Declaration Provides Immunity for Certain COVID-19 Pandemic Medical Countermeasure Activities

In an effort to encourage development of drugs, devices and biologics useful for the treatment, diagnosis, and prevention of COVID-19 respiratory illness, the Secretary of Health and Human Services has issued a declaration providing statutory immunity under the Public Readiness and Emergency Preparedness (PREP) Act. This declaration is separate from the Public Health Emergency declared under Section 319 of the Public Health Service Act on January 31, 2020, and is a part of the continued effort by the federal government to expedite development and distribution of medical products that can address the COVID-19 pandemic.

To read the full text of this Duane Morris Alert, please visit the firm website.

Consider a Virtual Shareholder Annual Meeting During the COVID-19 Pandemic

t may be time for your company to reconsider your usual plans for the annual meeting. We don’t know how long the COVID-19 situation may last or how severe it may get, but with some careful advance planning, you may be able to proceed without putting you or your shareholders at risk.

On March 13, the SEC staff issued their “Staff Guidance for Conducting Annual Meetings in Light of COVID-19 Concerns.” The staff noted that some issuers are considering delaying their annual meetings. They encouraged those issuers to promptly notify shareholders of any proposed delays, also noting that issuers must comply with state law and any applicable securities exchange requirements. Clearly, it may make sense to consider delaying your annual meeting, especially if you anticipate (or want) a large turnout.

To read the full text of this Duane Morris Alert, please visit the firm website.

© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.

The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

Proudly powered by WordPress