Legal Guidance for Employers on Navigating New Wellness/Health Policies – On Demand Webinar

A recent survey of Missouri manufacturers by Missouri Enterprise found that understanding wellness and health guidelines due to Covid-19 is a top challenge for moving forward.

In “Legal Guidance to Help Employers Navigate New Wellness/Health Policies,” a webinar from Missouri Enterprise, I discuss major obstacles and gray areas related to protecting employees in the new normal of Covid-19.

Watch the webinar to learn how to navigate the new health order while protecting employees on the job. Questions include:

• Can employers require employees to get flu or Covid-19 vaccinations?
• What questions can an employer legally ask when an employee calls in sick?
• What can an employer do if an employee doesn’t want to return to work because they are afraid of getting sick?
• Can an employer require high-risk employees (due to age or health) to stay home?
• What information can an employer share with other employees if an employee is being tested for the virus?
• Can a company require an employee to leave work if they seem ill?
• Can an employer be held liable if an employee contacts the virus at the workplace?
• If the virus spread through the workplace, is it considered a workers’ comp injury?

Click below to watch the webinar: Continue reading »

Employers Must Report Work-related COVID-19 Cases to OSHA

Under new guidelines from OSHA, employers must record all work-related COVID-19 cases that meet the following three conditions:

1. The case is confirmed as COVID-19 as defined by the CDC.
2. The case is determined to be work-related.
3. The case results in any of the following:
   1. Death
   2. Significant injury or illness diagnosed by a medical professional
   3. Days away from work
   4. Restricted work or transfer to another job
   5. Medical treatment beyond first aid
   6. Loss of consciousness.

In addition, per the new guidelines: Continue reading »

PPP Loan Forgiveness Application Now Available

Updated 7/6/2020

The Small Business Administration (SBA) and the Department of Treasury have released the Paycheck Protection Program (PPP) Loan Forgiveness Application.

The application deadline for the Paycheck Protection Program has been extended to August 8, 2020. Updated loan forgiveness instructions and forms are available here:

PPP Loan Forgiveness Application Instructions for Borrowers

PPP Loan Forgiveness Application Form – Revised June 16, 2020

Self-Employed: Continue reading »

Safe Harbor Deadline for Repayment of PPP Loans Extended from May 14 to May 18

On May 13, 2020, the Small Business Administration (SBA), in consultation with the Department of the Treasury, extended the safe harbor deadline to repay Paycheck Protection Program (PPP) loans to May 18, 2020. Previously in its PPP Loans Frequently Asked Questions (FAQs), the SBA reminded borrowers to carefully review the required certification on the PPP loan application that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.”

In further guidance, the SBA provided that any borrower of a PPP loan that repays the loan in full by the specified safe harbor deadline will be deemed by the SBA to have made the required certification concerning the necessity of the loan request in good faith.  According to the newly issued FAQ #47, Continue reading »

Warning to Employers and Medical Providers Alike Regarding Releasing COVID-19 Test Results!

So, your furloughed employee[i] is returning to work – Hooray!? Not so fast. Employers and the medical providers who are treating and perhaps testing these employees/patients for COVID-19 need to be wary about who is able to disclose and use testing information and to whom.  Both sides must tread carefully and follow strict guidelines in such situations.

For over two decades, the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) has governed disclosure of an individual’s protected health information and has prevented a medical provider from unilaterally disclosing sensitive health information to employers.  Even faced with a previously unimaginable global pandemic, from its implementation in 2003, the HIPAA Privacy Rule has had procedures in place that address this thorny legal issue.

Take the following hypothetical example: An employer furloughs an employee as a reduction in work force for financial reasons. While on furlough, the rumor mill is active and the employer “hears” that this employee may have been experiencing COVID-19 symptoms while on furlough.  May the employer reach out to the employee’s medical provider to obtain medical information specifically related to COVID-19 testing? May the provider release such information if the employer contacts the provider to inquire? Work-arounds exist under the HIPAA Privacy Rule or may exist when the employer pays for COVID-19 testing.

Option 1:  Consent Upfront. Continue reading »

Federal Reserve Offers Lending Program for Small and Medium-Size Businesses

UPDATED 11/9/2020

The Federal Reserve announced on April 9, 2020 that it has established a $600 billion lending program focused on aiding small and medium-size businesses who were in good financial standing prior to the onset of the COVID-19 crisis. This program will enable the purchase of qualifying loans from lenders lending to U.S. businesses with up to 10,000 employees or up to $2.5 billion in 2019 annual revenues. Additionally, it looks like firms who have taken advantage of the SBA Paycheck Protection Program will be eligible to participate in this program as well.

The Federal Reserve’s Main Street Lending Program will operate through two facilities: the Main Street New Loan Facility (MSNLF) and the Main Street Expanded Loan Facility (MSELF). Eligible lenders may originate new loans (under MSNLF) or increase the size of (“upsize”) existing loan/tranches (under MSELF) made to eligible businesses. The program is not operational at this time, but the comment period just closed on April 16, 2020. Accordingly, we can expect the program to start and have an application available soon.

The MSNLF will purchase participations in eligible loans originated by lenders on or after April 8, 2020. The MSELF will purchase upsized tranches or loans originated by lenders before April 8, 2020 that meet specific eligibility criteria. In either case, the purchases will be on a risk-shared basis with the lender retaining 5% of the loans and the relevant facility purchasing 95% participation in the loans originated by eligible lenders. This 95% purchased participation will be through a single special purpose vehicle on a recourse basis as set up by a Reserve Bank branch.

We will first discuss the borrower, lender, asset, and entity eligibility requirements that are the same across both facilities before delving into the facility-specific issues.

Common Requirements

Eligible lenders include U.S. insured depository institutions, U.S. bank holding companies, and U.S. savings and loan holding companies (“lenders”). While eligible borrowers are businesses with up to 10,000 employees or up to $2.5 billion in 2019 annual revenues. Borrowers must be a business created or organized in the United States or under the laws of the United States with significant operations in, and most of its employees based in, the United States. Borrowers who participate in program may not also participate the Primary Market Corporate Credit Facility as established by the Federal Reserve.

Eligible loans are unsecured term loans made by a lender(s) to a borrower that has: Continue reading »

Unemployment Benefits in the Time of Covid-19

The United States has seen a staggering rise in claims for unemployment with nearly 3.3 million new jobless claims. With no clear end to the COVID-19 crisis in sight, Congress passed legislation and states have revised policies to ease the growing unemployment burden. This article provides an overview of the unemployment provisions of the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) and new measures taken by Missouri and Illinois to provide relief.

The CARES Act

The CARES Act provides for $260 billion to dramatically expand unemployment coverage for workers who are unable to work as a result of the pandemic.

In the event a worker becomes unemployed as a result of COVID-19, the worker will be eligible for Federal Pandemic Unemployment Compensation (FPUC) of $600 per week. This payment is in addition to any benefits a worker is entitled to under applicable state law. The supplemental payments will be provided through July 31, 2020.

The CARES Act also provides for 13 weeks of Pandemic Emergency Unemployment Compensation (PEUC), in addition to regular length of time a worker may receive regular state benefits. To receive these extended benefits, a worker must be actively searching for work, though the CARES Act requires states to provide flexibility in applying this requirement when COVID-19 restricts an individual’s ability to look for work.

Workers who usually do not qualify for unemployment benefits, including those who are self-employed, independent contractors and freelancers, among others, will be eligible for Pandemic Unemployment Assistance (PUA). PUA is also available to those who have already exhausted all rights to regular unemployment benefits (including the extended benefits described above). Certain criteria specific to the COVID-19 pandemic apply to individuals seeking PUA. For those who meet the criteria, PUA is available for weeks of unemployment, partial unemployment, or inability to work caused by COVID-19 for up to 39 weeks of the time period of January 27, 2020 through December 31, 2020.

Another portion of the CARES Act expands “work sharing” programs to provide partial benefits to workers with reduced hours. These programs allow employers to put workers on part-time status with partial unemployment benefits. Currently, the cost of these programs, intended to prevent layoffs, is borne by individual states. The CARES Act provides funding to states to promote and utilize these programs.

Missouri’s Response

The recently passed Families First Coronavirus Response Act (FFCRA) goes into effect April 1, 2020. The FFCRA provides states an initial influx of funding to handle the dramatic increase in unemployment benefit applications and allowed flexibility in modifying policies and procedures. Missouri Governor Mike Parson announced changes being made by the Missouri Department of Labor and Industrial Relations:

Continue reading »

Privacy and Cybersecurity Practices for Working Remotely During COVID-19

Just as we are adapting our daily lives, cyber-criminals have adapted their nefarious activities to capitalize on people’s fears and potential system weaknesses during COVID-19. Hackers are targeting connection vulnerabilities and sending phishing emails with COVID-19-related subject lines or pretending to be a boss/coworker using a personal account. They have also been sending malware with fake COVID-19 tracker maps, WHO, or CDC information and making social media posts or comments with pleas related to COVID-19.

Reasons systems and data could be particularly vulnerable during COVID-19 include:

• Human error;
• Unvetted personal devices;
• Devices behind in patches or updates;
• Public Wi-Fi networks; and
• Lack of remote work ‘protocol’ or training.

As a result, now more than ever you need to review your company’s data and privacy policies and ensure your workforce can successfully work from home. To illustrate just how important this is, consider Privacy Rights Clearinghouse’s statistic that 11,613,547,443 records have been breached since 2005.

Coronavirus Scams and the FTC

Hat tip to my friend, Harold Kirtz, who is a senior litigator with the FTC:

It is important that we, and our employees, families and friends, be vigilant for various scams playing off coronavirus fears.  For your information, click on the link below for a good summary from the FTC concerning various of these types of scams. 

More than ever, it is important that we engage in safe internet practices.

Coronavirus Scams – What the FTC is Doing

Additional Resources:

COVID-19 Business Operations for Danna McKitrick

Coronavirus/COVID-19 Resource Center

Posted by Attorney David R. Bohm. Bohm is an experienced litigator working with health care, government, and business clients on employment, intellectual property, and complex contract issues. He is also skilled in alternative dispute resolution as a means to solve disagreements without litigation.

(c) tashatuvango www.fotosearch.com

Thoughts for Business Owners Trying to Run a Business During a Pandemic

Who would have thought we’d be in a situation like this? This is the 21st century, not the Middle Ages. The need for action is certain, but the need for panic is not. In fact, panic makes the matter worse for all concerned.

On the personal front, take care of yourself first. You need to have your wits about you at a time like this.

• Keep your mind busy with something other than worry. If you have a hobby, now is a good time to engage in it. Read a book; write a letter; call your mother. If working 80 hours a week has limited time with your kids, spend some time with them now. Just speak to them with open-ended questions. Find out what’s on their minds. Do something together.
• Help someone else – you’ll feel good about it.
• We’ve all heard the saying that every problem is an opportunity. One of the best ways to stay calm is to do something. You can’t sit and fret your way out of this.

On the business front, now is a great time to analyze your situation, both short- and long-term.

Continue reading »