BUTLER SNOW CORONAVIRUS HUB
Business and Legal Considerations for the Global Pandemic
Butler Snow continues to actively monitor the fast-moving developments related to Coronavirus (COVID-19). As you know, the World Health Organization has now declared the virus a worldwide pandemic. As the situation continues to evolve almost by the hour, the need for accurate and timely information becomes more important than ever. As such, we have created an online Coronavirus Hub to provide our clients and friends with updated information regarding the impact of the pandemic on their business and their legal risks and obligations.
We appreciate your trust and confidence as we assist with these challenging issues. Our thoughts are with you, your loved ones and organizations as we all navigate this public health crisis together.
CARES Act Updates
HHS reverses course and again permits healthcare providers to apply Provider Relief Fund payments against patient care lost “revenues” rather than limiting such application only to patient care lost “net operating income”.
In the CARES Act that became law on March 27th of this year, $100 billion was set aside for “health care related expenses or lost revenues that are attributable” to the COVID-19 pandemic. Commonly referred to as the “Provider Relief Fund,” the stated purpose of this $100 billion fund (which has been supplemented with an additional $75 billion pursuant to the Paycheck Protection Program and Health Care Enhancement Act) is to address the economic harm suffered by healthcare providers that have incurred (or will incur) additional expenses and have lost (or will lose) significant revenue as a result of the pandemic. Provider Relief Fund (“PRF”) payments have been made from either the “General Distribution” tranche or various “Targeted Distributions”. Terms and Conditions attached to such payments require recipient healthcare providers to, among other things, submit reports to the U.S. Department of Health and Human Services (HHS) in such form and including such content as specified by the HHS Secretary.Read More.
This Benefits Brief is an update of an earlier version posted to the Coronavirus Hub on www.ButlerSnow.com to reflect subsequent IRS guidance.
With the economic fallout from the public health measures taken to mitigate the spread of the SARS-CoV-2 virus and COVID-19 disease, many employers have had to resort to unprecedented employment actions, including terminating, furloughing, or laying off employees, and dramatically altering historic employee benefit plans and perks. The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) passed by Congress and signed by the President on March 27, 2020 includes two provisions designed to help affected employees during these difficult times by liberalizing the distribution and participant loan provisions. In this Benefits Brief, we will briefly summarize the new coronavirus-related distribution provision and the change in the participant loan rules applicable to most tax-qualified retirement plans, including 401(k) and profit sharing plans, Section 403(b) plans, and governmental Section 457(b) plans.Read More.
In the CARES Act that became law with President Trump’s signature on March 27, $100 billion has been set aside for “health care related expenses or lost revenues that are attributable” to the COVID-19 pandemic. Health care providers that have received (or will receive) payments from either the General Distribution or any of the Targeted Distributions may be subject to certain audit requirements.Read More.
In the CARES Act that became law with President Trump’s signature on March 27, $100 billion (of the more than $2 trillion authorized in the bill) is set aside for “health care related expenses or lost revenues that are attributable” to the COVID-19 pandemic. An additional $75 billion was appropriated through the Paycheck Protection Program and Health Care Enhancement Act less than a month later. These funds are being made available through the U.S. Department of Health and Human Services’ (HHS) Public Health and Social Services Emergency Fund for provider relief (the “Relief Fund”).Read More.
On June 5, 2020, the Paycheck Protection Program Flexibility Act of 2020 (“PPP Flexibility Act”), was signed into law, amending and reforming certain aspects of the Paycheck Protection Program (“PPP”). The PPP Flexibility Act gives borrowers more flexibility by extending the time to use PPP loan and eases certain restrictions to make full loan forgiveness more obtainable.Read More.
The CARES Act, which was signed into law on March 27, earmarks $100 billion for “health care related expenses or lost revenues that are attributable” to the COVID-19 pandemic. Legislatively titled the “Public Health and Social Services Emergency Fund,” and colloquially referred to as the “CARES Act Provider Relief Fund,” the stated purpose of this $100 billion fund (which has been supplemented with an additional $75 billion pursuant to the Paycheck Protection Program and Health Care Enhancement Act) is to address the economic harm suffered by healthcare providers that have incurred (or will incur) additional expenses, and have lost (or will lose) significant revenue (particularly due to the cessation of elective procedures), as a result of the pandemic.Read More.
On May 5, 2020, the U.S. Department of Justice (the “DOJ”) announced that it has charged two men with, among other crimes, providing false information as part of their Coronavirus Aid, Relief and Economic Security (“CARES”) Act-created Paycheck Protection Program (“PPP”) loan application package. This is the first time that the DOJ has announced criminal charges related to PPP loans.Read More.
Nonprofit organizations are included among the several different types of beneficiaries under the CARES Act $2.2 trillion economic relief passed by Congress in response to the COVID-19 pandemic. That said, not all types of nonprofits are eligible under the different programs created by the CARES Act. The general overview that follows specifies the eligibility requirements among the different programs available to nonprofits under the CARES Act.Read More.
The CARES Act appropriated $100 billion to establish a Provider Relief Fund to distribute payments to health care entities across the country that have been affected by COVID-19. Earlier this month, HHS began the delivery of an initial $30 billion in relief funding. On April 22, the Department of Health and Human Services (HHS) announced additional allocations of money appropriated for the CARES Act Provider Relief Fund, which accounts for $70.4 billion in total funding.Read More.
As financial institutions begin to make the next round of Paycheck Protection Program (“PPP”) loans under the CARES Act, some would-be borrowers have begun suing lender financial institutions alleging the institutions have relied on improper criteria when making PPP loans, thereby violating the PPP and the CARES Act.Read More.
Medicare providers who have received payment from the Provider Relief Fund as of 5:00pm EST Friday, April 24, 2020 are eligible to apply for additional funds by submitting data about their annual revenues and estimated COVID-related losses to the Provider Relief Fund Application Portal.Read More.
On Thursday, April 23, 2020, the House of Representatives voted 388-5 to pass the Paycheck Protection Program and Health Care Enhancement Act, sending the bill to President Trump for his signature. The Senate previously passed the legislation by unanimous consent on April 22 (in the form of an amendment to H.R. 266, introduced in 2019). This bill represents the fourth major package passed by Congress to address disruptions caused by the COVID-19 pandemic. The new Act includes $75 billion (in addition to the $100 billion included in the CARES Act) for healthcare providers.Read More.
The CARES Act appropriated $100 billion to establish a Provider Relief Fund to distribute payments to health care entities across the country that have been affected by COVID-19. This past month, the Department of Health and Human Services (HHS) began the delivery of the initial $30 billion in relief funding. HHS will soon make targeted distributions to hospitals and other facilities that have been affected by the increased burden of caring for patients with COVID-19.Read More.
The COVID-19 pandemic is not only a global health crisis, but it is also causing an economic crisis as businesses furlough workers or shut down completely in order to comply with “Safer at Home” or “Shelter in Place” orders and promote social distancing. In the United States, in March 2020 alone, more than 10 million people filed for unemployment benefit.Read More.
On March 27, 2020, the CARES Act (1) created, among other things, the Paycheck Protection Program, an extension of the SBA’s current 7(a) Loan Program, and (2) modified the SBA’s Economic Injury Disaster Loan Program. The Economic Injury Disaster Loan Program is the SBA’s primary program for providing financial assistance to small businesses, private nonprofit organizations, and small agricultural cooperatives that are in a disaster area and suffered substantial economic injury as a result of the disaster.Read More.
The Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) includes several tax provisions in addition to the other voluminous economic stimulus provisions. A summary of key tax provisions in the CARES Act is as follows.Read More.
On Friday, March 27, the United States Congress passed an unprecedented $2 trillion economic stimulus package to benefit the U.S. economy. The bipartisan agreement comes after several days of intense negotiations and provides emergency financial assistance for individuals, families, and businesses affected by the Coronavirus pandemic. The legislation includes a plan to send $1,200 checks to many Americans, unemployment insurance for those who lose their jobs in the crisis, a $500 billion Treasury fund to shore up industries damaged by coronavirus and $349 billion in small business loans.Read More.
On March 25, 2020, the Senate passed the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act), which provides crucial support and relief for businesses, including $349 billion for Small Business Administration (SBA) loans under its 7(a) loan program.Read More.
Commercial Litigation Updates
The impacts of COVID-19 closures in the United States first began to materialize a few months ago, in mid-March 2020. Since then, however, over fifty lawsuits have been filed against colleges and universities on behalf of students seeking refunds for tuition and fees due to campus closures in response to COVID-19. The number of such filings is unlikely to stop with fifty: U.S. News and World Report ranks approximately 1,400 schools that are regionally accredited and that offer four-year undergraduate degree programs. The U.S. Department of Education, however, counts over 4,000 colleges and universities nationwide.Read More.
Governments are easing their shelter-in-place orders and companies are beginning to determine what it means to open their spaces back up and let their employees come back in to the office. But, what does this mean from an e-discovery perspective?Read More.
Before 2020, most people only associated the term Corona with a beer. Now, Corona will be at the heart of the American judicial system for years to come. Legal experts anticipate a significant increase in the number of class actions as a direct result of the COVID-19 crisis. In fact, the dam has already started to break for universities (alleged to have failed to refund tuition payments), banks (alleged to have improperly distributed relief funds); music venues and promoters (alleged to have failed to offer refunds for canceled events), and many other industries that are also reeling from the effects of the COVID-19 pandemic.Read More.
Many Americans have heard of the Stafford Act, 42 U.S.C. § 5121, et seq., which empowers the federal government to provide states certain types of monetary and non-monetary assistance, in instances of declared emergency. However, far fewer Americans have heard of the Emergency Management Assistance Compact (“EMAC”), approved by Congress in Public Law 104-321, pursuant to Article I, section 10 of the United States Constitution. See id. (“[n]o State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State.”)Read More.
When the Governor of Louisiana issued a COVID-19 proclamation postponing or canceling certain gatherings of 250 or more people, the owners of the Oceana Grill, a restaurant in the heart of the French Quarter, filed a lawsuit that will be of interest to many businesses.Read More.
Butler Snow attorneys are advising clients on numerous legal issues relating to the Coronavirus and its consequences including, among others, the invocation and enforceability of force majeure provisions in contracts. While Butler Snow attorneys are well-versed in all states where our firm is present, this article is intended to address the interpretation of contractual force majeure provisions in Louisiana as well as the scheme for addressing “fortuitous events” in the Louisiana Civil Code.Read More.
Supply shortages, stressed customers, government actions, and other disruptions during the COVID-19 crisis are affecting you. Your suppliers may be failing to deliver goods and services to you as promised. You may find it increasingly hard to meet your own contracts with your customers.Read More.
As concerns continue to be raised and addressed with respect to the Coronavirus, businesses should be alert to the real potential that they may face commercial challenges from potential disruptions related to its existence, spread and containment. Suppliers may delay delivery of products or raw materials or otherwise fail or be unable to perform contractual obligations or even try to charge higher prices.Read More.
Federal Reserve and Treasury Department Actions Updates
On May 18, 2020, the Federal Reserve Bank of New York (the “Reserve Bank”) released application materials for the Municipal Liquidity Facility (the “Facility”) established in connection with the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). Additionally, on May 11, 2020, the Federal Reserve released a revised term sheet (the “Term Sheet”) for the Facility. This post summarizes the current structure, eligibility, application process and terms of the Facility.Read More.
The Federal Reserve System (the “Fed”) is the central bank of the United States and primarily interacts with banks and financial institutions to conduct monetary policy and promote the stability of the U.S. financial system. The Fed has taken a variety of actions to help minimize the adverse effects of the COVID-19 pandemic.Read More.
Government Relations Updates
Click for state policy updates from our Government Relations practice.Read More.
Health Law Updates
The U.S. Department of Health and Human Services (HHS) recently announced that it would soon be implementing new reporting requirements for hospitals, physicians, and other healthcare providers who received General and Targeted distributions from the Provider Relief Fund (PRF), established through the CARES Act that became law with President Trump’s signature on March 27, 2020. $100 billion (of the more than $2 trillion authorized in the bill) is set aside for “health care related expenses or lost revenues that are attributable” to the COVID-19 pandemic. An additional $75 billion (made available through the Paycheck Protection Program and Health Care Enhancement Act) was distributed less than a month later.Read More.
On April 30, 2020, CMS issued several new and revised blanket waivers for health care providers retroactively effective March 1, 2020, through the end of the emergency declaration. CMS’s authority to grant blanket waivers stems from President Trump’s emergency declaration under the Stafford Act and Secretary Azar’s declaration of a public health emergency. The new and revised blanket waivers cover a broad range of requirements applicable to various types of providers and are addressed in more detail below:Read More.
Nearly one month after the Centers for Medicare and Medicaid Services (“CMS”) issued guidance recommending that health care providers delay elective surgeries and medical procedures, CMS, on April 19, 2020, issued the first in a series of recommendations on how states and regions with stabilized COVID-19 outbreaks that meet certain criteria can begin reinstituting elective surgeries and medical procedures.Read More.
At a White House press briefing on April 7, CMS Administrator, Seema Verma, announced that $30 billion of $100 billion in CARES Act funding designated for healthcare providers would be distributed this week. The announcement appears to revise a provision in the CARES Act, Title VIII of Division B, which designates the HHS Public Health and Social Services Emergency Fund as the vehicle for distribution of these funds, via an “applications” process “on a rolling basis.” As of the time of this posting, further guidance or regulations pertaining to this section of the Act or the announcement had not been posted.Read More.
On March 30, 2020 (retroactively effective as of March 1, 2020), CMS issued blanket – nationwide – waivers of sanctions under the Stark Law in response to the COVID-19 public health emergency.Read More.
On March 13, 2020, pursuant to section 1135(b) of the Social Security Act, the Secretary of the United States Department of Health and Human Services (HHS) invoked his authority to waive or modify certain requirements as a result of the consequences of the COVID-19 pandemic, as determined by the Centers for Medicare & Medicaid Services (CMS). In addition to the blanket waivers issued by CMS on March 13 for many Medicare provisions, on March 25 and March 27 CMS granted the following waivers requested by Tennessee and the Tennessee Hospital Association related to federal Medicaid and Medicare requirements:Read More.
On March 30, 2020, CMS announced its “Hospitals Without Walls” initiative, which, among other things, invokes the HHS EMTALA waiver effective immediately. Specifically, the CMS Hospitals Without Walls Initiative waives enforcement of EMTALA to permit hospitals, psychiatric hospitals, and critical access hospitals to perform medical screening exams at locations offsite from the hospital’s campus to prevent the spread of COVID-19, so long as it is not inconsistent with the state emergency preparedness or pandemic plan.Read More.
Recognizing the impact that COVID-19 can have on research and the NIH grant application process, the NIH has issued 5 pieces of guidance between March 9 and 16, 2020 addressing various impacts of COVID-19 on NIH research grants.Read More.
On March 17, 2020, in response to the COVID-19 emergency, Medicare announced that it will reimburse physicians and other certain healthcare providers for telehealth service visits at the same amount as in-person visits regardless of where the patient is located. While the restrictions for telehealth services offered by fee-for-service providers have been relaxed, geographic and site restrictions for telehealth services provided by rural health clinics still apply.Read More.
As we reported in another item posted here, on March 13, 2020, pursuant to section 1135(b) of the Social Security Act, the Secretary of the United States Department of Health and Human Services (HHS) invoked his authority to waive or modify certain requirements as a result of the consequences of the COVID-19 pandemic, as determined by the Centers for Medicare & Medicaid Services (CMS).Read More.
The FDA this month released guidance surrounding the conduct of clinical trials involving medical products during the COVID-19 pandemic.Read More.
On Wednesday, March 18, the President signed the Families First Coronavirus Response Act after the United States Senate passed HR 6201. This legislation contains a number of provisions that remove cost-barriers to COVID-19 testing, including:Read More.
Physician offices across the country are rescheduling routine care clinic visits in an effort to protect patients, healthcare providers and workforce. The government is working to remove obstacles that would interfere with transitioning these clinic visits to telehealth services. Yesterday, Medicare announced that it will reimburse physicians and other certain healthcare providers the same amount as in-person visits regardless of where the patient is located.Read More.
On March 13, 2020, the Centers for Medicare and Medicaid Services (CMS) issued blanket waivers of certain requirements following the President’s National Emergency Declaration. Current waivers are briefly summarized below. Forthcoming Butler Snow articles will provide greater details and analysis of certain waivers and pending guidance as that becomes available. In addition to the blanket waivers, providers may seek specific waivers directly from CMS.Read More.
Mississippi healthcare providers seeking relief for expenses incurred for PPE and COVID-19 testing for staff during the COVID-19 pandemic may now submit applications through the Mississippi Development Authority’s (“MDA”) portal (https://www.mississippi.org/healthcareproviders/) for reimbursement under MDA’s Healthcare Providers PPE and Testing Reimbursement Program (the “Program”). As stated in our previous article (https://www.butlersnow.com/2020/07/mississippi-legislature-appropriates-cares-act-funds-for-healthcare-providers/) concerning the Mississippi Legislature’s appropriation of CARES Act funds, House Bill 1782 allocated approximately $30.2 million dollars to the MDA for the purpose of providing relief to certain providers for “purchasing personal protective equipment (PPE) and providing for COVID-19 testing for staff.”Read More.
Section 5001 (Division A, Title V) of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) passed by Congress earlier this year established the $150 billion Coronavirus Relief Fund (“Relief Fund”). Under this provision of the Act $150 billion was made available by the U.S. Department of the Treasury to states, tribal governments, and certain units of local government for specified uses related to the COVID-19 pandemic. Under the Relief Fund’s distribution formula Mississippi received $1.25 billion, Tennessee received $2.6 billion, and Louisiana’s distribution was $1.8 billion.Read More.
On July 8, 2020, Mississippi Governor Tate Reeves signed into law Senate Bill No. 3049, the “Mississippi Back-to-Business Liability Assurance and Health Care Emergency Response Liability Protection Act,” legislation designed to provide broad protections from civil lawsuits for various COVID-19 – related activities.Read More.
On May 7, 2020, the Mississippi State Department of Health (“MSDH”) issued a State Health Officer’s Order relaxing its April 24, 2020 Order regarding the provision of outpatient medical services and elective surgeries and procedures. Specifically, the Order provides that, effective May 11, 2020, “Tier 1, 2, and 3” outpatient medical services may be conducted “based on need according to physician judgement.”Read More.
On April 15, 2020, in response to Executive Order 1470 issued by Mississippi Governor Tate Reeves, the Mississippi State Department of Health (“MDOH”) issued interpretive guidance to health care facilities and providers with regard to the Executive Order’s exception to the prohibition on performing non-essential surgeries and procedures for “any procedure that, if performed in accordance with the commonly accepted standards of clinical practice, would not have the potential to deplete the hospital capacity, medical equipment or PPE needed to cope with the COVID-19 disaster.”Read More.
On April 10, 2020, noting “the rapidly increasing case count of COVID-19 in Mississippi and the limited supply of healthcare equipment and PPE,” Mississippi Governor Tate Reeves issued Executive Order 1470 requiring all licensed health care professionals and health care facilities to immediately delay “all non-essential adult elective surgeries and medical procedures” until April 27, 2020.Read More.
On Thursday, March 19, Mississippi Governor Tate Reeves announced the expansion of Medicaid coverage for telehealth services, in an effort to limit unnecessary travel, clinic visits, and possible exposure – through April 30, 2020.Read More.
The Mississippi State Board of Medical Licensure issued a proclamation on Sunday, March 15, announcing measures to combat the spread of the novel coronavirus. The proclamation allows for the temporary suspension or modification of any rule or regulation put in place by a state agency.Read More.
On November 5, 2020, in connection with the statewide public health emergency that he declared on March 11, 2020, and noting that (1) “the State of Louisiana moved into Phase 1 of recovery on…May 15, 2020”, (2) “the State of Louisiana moved into Phase 2 of recovery on…June 4, 2020”, and (3) “the State of Louisiana moved into Phase 3 of recovery on…September 11, 2020”, Louisiana Governor John Bel Edwards issued a proclamation, effective November 6, 2020, continuing the Phase 3 order that he originally issued on September 11, renewed on October 8, and supplemented on October 22, and also continuing the face covering order that he originally issued on July 11.Read More.
On November 5, 2020, in further response to the public health emergency that he declared on March 11, Louisiana Governor John Bel Edwards issued a proclamation extending certain emergency provisions, including the relaxation of certain licensure requirements for out-of-state and out-of-country health care professionals, to combat the spread of the novel coronavirus in Louisiana.Read More.
On May 15, 2020, the same date on which Louisiana Governor John Bel Edwards lifted the statewide stay at home order as further discussed in this blog entry, the Louisiana Department of Health issued an emergency order continuing (and not further expanding) the effectiveness of its April 20, 2020 updated notice/order permitting 3 specific categories of medical and surgical procedures to be performed, and providing further guidance concerning certain other healthcare services that may be provided, during the declared statewide COVID-19 public health emergency. As previously reported, on April 24, 2020, the Department issued a clarification message intended to “simplify and clarify” the April 20 updated notice/order that remains in effect. This clarification confirms that any physician “operating in good faith will not be in violation of the [April 20 updated notice/order]”. Accordingly, although the statewide stay at home order has now been lifted, certain restrictions continue in connection with medical and surgical procedures and various other healthcare services “until further notice” as further described herein.Read More.
On May 14, 2020, noting that (1) “since the time of the original Stay at Home order, the number of new COVID-19 cases and COVID-related hospitalizations in Louisiana have decreased, with the peak of hospitalizations occurring on or near April 13, 2020”, (2) “on April 16, 2020, the White House Coronavirus Task Force issued guidelines entitled ‘Opening Up America Again’ that provided guidance to the states on how various parts of the economy could be re-opened” in 3 phases, and (3) “the State of Louisiana is on track to meet the requirements to move safely into Phase I of recovery on Friday, May 15, 2020,” Louisiana Governor John Bel Edwards issued a proclamation, effective the morning of May 15, 2020, lifting the statewide stay at home order that he originally issued on March 22, 2020 (and subsequently extended by proclamations issued on April 2 and April 30), in connection with the statewide public health emergency that he declared on March 11, 2020.Read More.
On March 19, in further response to the public health emergency that he declared on March 11, Louisiana Governor John Bel Edwards issued a proclamation announcing additional measures to combat the spread of the novel coronavirus in Louisiana and specifically encouraging the use of telehealth. See Louisiana Governor Encourages the Use of Telehealth During Coronavirus Emergency.Read More.
On March 19, in further response to the public health emergency that he declared on March 11, Louisiana Governor John Bel Edwards issued a proclamation announcing additional measures to combat the spread of the novel coronavirus in Louisiana.Read More.
On October 30, 2020, in further response to the public health emergency, Tennessee Governor Bill Lee issued Executive Order 67 extending the state of emergency in Tennessee and, among others, suspending Title 63, Title 68, and Chapter 140 of the Tennessee Code to the extent necessary to permit authorized professionals licensed under these provisions “to perform tasks outside of their licensed scope of practice” in an effort to “relieve the capacity strain on certain staffing functions.”Read More.
On August 28, 2020, Governor Bill Lee issued Executive Order 59 which extends the state of emergency related to the COVID-19 crisis until September 30, 2020. To help facilitate ongoing targeted regulatory flexibility to respond to continuing effects of COVID-19, the order also extends certain health-care related provisions from Executive Order No. 36 until September 30, 2020. More specifically, Executive Order 59 does the following:Read More.
On July 1, 2020, Governor Bill Lee issued Executive Order 53 which provides limited COVID-related liability protection for health care providers. Executive Order 53 is effective as of July 2, 2020 and will remain in effect until July 31, 2020 unless extended.Read More.
On June 29, 2020, Governor Bill Lee issued Executive Order 50 which extends the state of emergency related to the COVID-19 crisis until August 29, 2020. To help facilitate the treatment and containment of COVID-19, the order also extends health-care related provisions from Executive Order No. 36 and Executive Order No. 38 until August 29, 2020.Read More.
On April 17, 2020, Governor Bill Lee issued Executive Order No. 28 which amends Executive Order No. 15 and removes additional regulatory barriers to facilitate the treatment and containment of COVID-19.Read More.
On March 26, 2020, Tennessee Governor Bill Lee signed Executive Order No. 20, with immediate effect. Executive Order No. 20 amended and significantly expanded the health care specific sections of Executive Order No. 15, dated March 19, 2020, which has been previously summarized and posted on our COVID-19 website (see https://www.butlersnow.com/2020/03/gov-lee-releases-executive-order-15-with-focus-on-health-care/).Read More.
On March 23, 2020, Governor Bill Lee issued Executive Order #18, which restricts medical facilities from performing non-emergency procedures in order to conserve essential items needed to facilitate the response to COVID-19.Read More.
Late yesterday, Governor Lee conducted his daily 3:00 Press Conference and Update regarding COVID-19 and discussed his just released Executive Order #15. The order is extensive and is heavily focused on the health care industry. Many provisions in statutes and rules are suspended along other necessary measures to facilitate the treatment and containment of COVID-19.Read More.
On March 17, 2020, TennCare published guidance regarding testing and telehealth services pertinent to healthcare providers that serve TennCare beneficiaries. Effective immediately and lasting until April 30, 2020, all of TennCare’s health plans – Amerigroup, BlueCare Tennessee, and UnitedHealthcare Community Plan (“UHC”) – are allowing “home” as an originating site in response to the COVID-19 national emergency.Read More.
On March 13, 2020, the Tennessee Board of Licensing of Health Care Facilities issued Policy Memorandum #82 entitled “Interpretation and Temporary Waiver of Rules Related to Treatment and Containment Of COVID-19”. Policy Memorandum #82 remains in effect until October 7, 2020 or an earlier date determined by the Board.Read More.
Labor and Employment Updates
In recent months, the Centers for Disease Control and Prevention (CDC) has continued to revise and refine its prior guidance defining close contact exposure and expand its list of medical conditions that pose an increased risk of severe illness from coronavirus disease 2019 (COVID-19). In this new guidance, the CDC reminds the public and officials that COVID-19 is a new virus and government officials and scientists are learning more about COVID-19 every day.Read More.
The Centers for Disease Control and Prevention (CDC) currently estimates that a limited supply of COVID-19 vaccine will become available before the end of 2020. While this is good news for those of us who look forward to returning to our favorite pre-pandemic activities, it presents difficult questions for employers. Can an employer require employees to be vaccinated? Should an employer do so? Like most things in 2020, the answer is not easy.Read More.
A judge in the U.S. District for the Southern District of New York struck down certain employer-friendly provisions in the Department of Labor’s (DOL) Families First Coronavirus Response Act (FFCRA) regulations on August 3, 2020, four months after the regulations went into effect. This ruling was in response to a legal challenge by the state of New York to portions of a DOL final rule implementing the FFCRA.Read More.
Earlier this Spring, OSHA instituted employer recording requirements to document employees who contract COVID-19. Those requirements have been updated multiple times since their inception. Below, Butler Snow provides the most recent guidance for employers navigating their COVID-19 recording requirements as outlined in OSHA’s May 19, 2020 Enforcement Guidance.Read More.
Employers will continue having to address concerns related to COVID-19 in the workplace as far into the future as one can predict. Of immediate concern to Employers is curtailing the spread of COVID-19 in the workplace. One tool Employers can use to address the spread of COVID-19 is the use of individual face masks. However, how Employers address the use of face masks by employees is far from straight forward, as guidance from federal, state and local governments agencies varies widely.Read More.
On Monday, President Trump signed a Proclamation suspending the issuance of new employment-based visas in an effort to limit the entry of immigrants into the country. The ban restricts the issuance of certain H-1B, H-2B, J trainee, and L intracompany visas.Read More.
COVID-19 and the related stay-at-home orders have impacted every employer differently. Some were able to shift to a telework model, while others modified their workplace operations or closed their doors completely. But, as the country moves towards reopening the economy amid the continuing threat of COVID-19, every employer is now grappling with not only how to protect employees from infection but also their business from liability. Even employers who have prepared and implemented well-designed return to work plans are questioning: What other steps can we take to protect our business from employee claims related to COVID-19?Read More.
As “safer at home” and “shelter in place” orders are lifted, employers need to develop effective and legally compliant strategies for bringing employees back to work. This panel discussion addressed the various legal and practical issues, and risks, that arise when bringing employees back from furlough or layoffs, as well as transitioning employees back from telework to “on site” work. The session covered the latest medical and legal guidance on maintaining a safe workplace during the COVID-19 pandemic, as well as various laws to keep in mind (and legal pitfalls to avoid) in developing your business’s return to work strategy.Read More.
As employers look to transition workers back into the workplace as stay-at-home orders and other business restrictions expire, many considerations exist, legal and otherwise. These considerations have become more immediate with states, such as Georgia, “reopening” immediately and Tennessee and others scheduled to do so in the coming days and weeks.Read More.
As the CDC and OSHA continue to update and modify their recommendations for best practices and their mandates for safe workplaces related to the COVID-19 pandemic, it may feel like a daunting task to not only keep up with the changes but to actually enforce the new safety procedures in the workplace. However, failure to follow these rules could lead to both a sick workforce and some expensive consequences for employers. In addition to state and federal enforcement of workplace safety requirements through OSHA and other agencies, employers may also open themselves up to private “enforcement” through workers compensation actions and wrongful death and personal injury claims filed by individual employees or their survivors. At this point, the ball is already rolling for employment litigation related to COVID-19 and allegedly unsafe workplaces, and we can safely assume it will only pick up speed.Read More.
Over the last few months, the federal Occupational Safety and Health Administration (OSHA) has continued to provide guidance addressing safety concerns in the workplace in response to the COVID-19 pandemic. In the last month alone, OSHA has released enforcement guidance to employers and agency officials as follows.Read More.
The Families First Coronavirus Response Act (FFCRA), including the Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLA) was enacted on March 18, 2020. As outlined in prior articles on the Butler Snow COVID-19 Hub, these new laws provide for up to 80 hours of paid sick leave and up to 10 weeks of paid family and medical leave for certain specified reasons related to COVID-19, for employees of covered employers.Read More.
Employers: during a pandemic that appears to hit patients over 65 years and older the hardest, are you taking the appropriate steps to ensure that you do not discriminate against your older employees, while also protecting them from potential workplace harassment?Read More.
Butler Snow attorney Todd P. Photopulos was interviewed on the Employment Law Alliance’s Employment Matters Podcast alongside US immigration law experts where they discussed the recent proclamation from the Trump administration.Read More.
Butler Snow recently provided guidance for employers regarding OSHA’s illness recording requirements for employees who contract COVID-19. As discussed in that article, since only “work related” incidents must be recorded under OSHA regulations, a key challenge arises: it is nearly impossible for employers to delineate between “work-related” and “non-work-related” COVID-19 incidents. Recognizing this challenge, on April 10, 2020, OSHA issued additional guidance on what cases are to be considered “work-related.”Read More.
Butler Snow attorney Todd P. Photopulos recently served as a panelist on the Employment Law Alliance’s Employment Matters Podcast about how the COVID-19 pandemic is affecting travel.Read More.
Legal obligations and risks for employers continue to evolve in relation to the COVID-19 pandemic. For essential service providers and others who have been able to stay up and running during the pandemic, maintaining workplace safety is crucial.Read More.
COVID-19 has caused a tidal wave of new considerations for companies, causing a wide-ranging ripple effect in the way American businesses operate. Given the projected statistics of the number of Americans who will eventually be infected with the virus throughout the U.S., it is inevitable that many (more) American workers will contract COVID-19. At all times, but particularly during the coronavirus pandemic, employers must remain mindful of OSHA workplace injury and illness recording requirements.Read More.
While most of us have been focused on the new federal laws in the form the Families First Coronavirus Response Act and CARES Act the past few weeks, employers must not forget some of the old laws that can be implicated as action is taken to combat a slack in business or loss of business altogether due to the Coronavirus pandemic. One old federal law in particular is the Worker Adjustment and Retraining Notification Act of 1988 (more popularly known as WARN) as employers are often left with little choice but to significantly cut employee work hours, layoff or furlough employees, or unfortunately close the business completely during the economic downturn.Read More.
As the number of individuals being tested and diagnosed with COVID-19 continues to increase, the likelihood that an employee will report a confirmed diagnosis also increases. Employers should take steps now to understand COVID-19 in order to respond appropriately to an employee’s diagnosis.Read More.
The swift economic upheaval and health impact of the COVID-19 outbreak in the United States and around the world is unprecedented in the last century. President Trump proclaimed the COVID-19 outbreak in the United States to be a national emergency that began March 1, 2020.Read More.
On March 27, 2020, the EEOC answered employers’ questions related to the intersection of COVID-19 with the Americans with Disabilities Act (ADA), the Genetic Information and Nondiscrimination Act (GINA), the Age Discrimination in Employment Act (ADEA), Title VII, the Pregnancy Discrimination Act (PDA) and the Rehabilitation Act. The entire question and answer session may be seen here: https://www.youtube.com/watch?v=i8bHOtOFfJURead More.
Butler Snow attorney Todd P. Photopulos was interviewed on the Employment Law Alliance’s Employment Matters Podcast about the impact of the COVID-19 pandemic on US business immigration law and policy.Read More.
Butler Snow’s Labor & Employment attorneys have compiled some of the most frequently asked questions we have received regarding the FFCRA. Employers should be aware that there are still many unanswered questions regarding the FFCRA and how it will be interpreted and enforced. For many of the questions we have received, there currently is not a certain answer. The questions and answers below are based on the information available at this time and may be updated as the situation develops.Read More.
Based on guidance from the U.S. Department of Labor and Mississippi Governor Tate Reeves, the Mississippi Department of Employment Security (“MDES”) is modifying the existing unemployment compensation rules to allow workers to file claims for unemployment benefits who are:Read More.
The current National Emergency is resulting in rapid changes to US immigration law and policy. We are monitoring those changes and will continue to update these FAQs with new developments.Read More.
President Trump signed into law the economic stimulus bill aimed at curbing the impact of COVID-19 on businesses and individuals. Earlier this week, the U.S. House of Representatives unanimously passed a corrected version of the COVID-19 response bill, H.R. 6201, the Families First Coronavirus Response Act. The U.S. Senate overwhelmingly passed that same bill earlier today. The Act will go into effect no later than 15 days after the date of enactment.Read More.
As if employers and their HR personnel do not have enough to deal with, all must be mindful of the protections and prohibitions found under the National Labor Relations Act (“NLRA”) when addressing the many employment-related issues brought on by the coronavirus. Whether you have a union or not, the NLRA can be implicated when making difficult employment decisions in order to ride out the virus wave.Read More.
The solution to preparing for the Coronavirus in your workplace is based in common sense and should be treated just like any other important area of any business. Employers should develop a policy outlining the company’s plan to deal with an outbreak amongst its workforce and develop and implement clear and concise procedures for implementing the policy. The CDC provides employers with a common sense list of recommended strategies to implement now.Read More.
Mississippi Governor Tate Reeves issued two executive orders on March 16, 2020, to address the COVID-19 pandemic.Read More.
When it comes to COVID-19, clients are interested in not only protecting their employees, but also have concerns about how to handle business disruptions. When it comes to protecting their workforce, most employers want to know how much they can inquire about an employee’s health and whether they can require an employee to stay home. Another concern is whether an employer can require an employee that recently visited an affected region to stay home for a period of time. Based upon guidance from the Equal Opportunity Employment Council, an employer may send employees home if they display symptoms of illness during seasonal influenza or similar illnesses like COVID-19.Read More.
As the situation regarding COVID-19 continues to evolve, we will continue to monitor frequently asked questions from employers and prepare our best guidance based on the information currently available. We will continue to update this list of questions and supplement the answers as the situation continues to develop.Read More.
Other Business Updates
On October 20, 2020, the FDIC issued an interim final rule (the “Interim Final Rule”) to provide banks temporary relief from the Part 363 audit and reporting requirements. Due to participation in various government stimulus efforts, including the Paycheck Protection Program, the Paycheck Protection Program Liquidity Facility, the Money Market Mutual Fund Liquidity Fund, and receipt of deposits through federal stimulus payments, banks have experienced large inflows of cash. The Interim Final Rule is applicable to all FDIC insured financial institutions with at least $500 million in consolidated total assets.Read More.
On October 2, 2020, the Small Business Administration (“SBA”) issued long-awaited clarity on the procedures Paycheck Protection Program (“PPP”) borrowers, and their potential acquirors, must follow in a “change of ownership” transaction. Procedural Notice 5000-20057 (the “Notice”) sets forth (1) what constitutes a “change of ownership” requiring SBA consent; (2) how parties may avoid the need for SBA consent; (3) the procedure for obtaining SBA consent; and (4) certain post-closing consequences for the party acquiring ownership of the PPP borrower.Read More.
A veteran teacher recently asked me, “How do you keep up with all this stuff? I have been teaching anatomy and physiology for forty years but thank goodness there haven’t been any new organs added or any bodily functions changed during that time.” Alas, plan sponsors, administrators, and benefits professionals have not enjoyed the luxury of a similar static subject matter. Indeed, keeping current with seemingly constant changes in employee benefits law is a challenge, and it has become even more arduous during the COVID-19 pandemic, as Congress, the Internal Revenue Service, and the Department of Labor have all been prolific in passing legislation or issuing regulations and other guidance to address actual and anticipated benefit plan problems arising as a result of the pandemic. Additionally, many of the States are mandating particular coverages under group health insurance policies.Read More.
At the onset of the pandemic, many financial institutions offered credit accommodations, such as short-term deferrals and other loan modifications, to borrowers in response to the significant adverse impact caused by COVID-19. As these initial deferral periods reach their end, the Federal Financial Institutions Examinations Council (the “FFIEC”), which is comprised of the CFPB, the FDIC, the Federal Reserve, the NCUA, and the OCC, has issued a Joint Statement on Additional Loan Accommodations Related to COVID-19 (the “Joint Statement”) to provide principles for financial institutions to consider when working with borrowers on loan accommodations.Read More.
The Back to Business Mississippi Grant Program (the “Program”) was created by the 2020 COVID-19 Mississippi Business Assistance Act (the “Act”). The Program, which is available until November 1, 2020, allows an eligible business to receive up to $25,000 (the “Back to Business Grant”) to mitigate certain losses it incurred due to COVID-19. This article sets forth: (1) what is considered an eligible business, (2) general information about the Back to Business Grant, and (3) how to apply for the Back to Business Grant.Read More.
During the early stages of the COVID-19 pandemic in the United States, we wrote an article discussing the potential benefits and limitations of waivers of liability for businesses considering ways to protect against potential liability for COVID-19 exposure claims. We explained that, despite the uncertainties of whether such a waiver would be enforced by courts, sound legal principles in this area of law could provide much-needed guidance to businesses and industries committed to continuing essential operations. Since our initial publication, discussions around potential liability of businesses for COVID-19 exposure claims have grown, and some states have even sought to limit liability for such claims by proclamation and legislation. We have closely monitored emerging trends in the area of liability waivers. Based on the developments we have observed, we saw it fit to revisit the topic of waivers in this brief update.Read More.
This year’s Covid-19 crisis has jolted the gaming industry. As of May 1, all casinos in the United States, commercial and tribal, were closed. Since then, state by state, gaming regulators have been formulating protocols for reopenings, in consultation with their governors, public health officials, gaming regulators and industry counterparts.Read More.
Since March, businesses across the country have closed to comply with various local and state orders entered suspending business operations to prevent the spread of COVID-19. Some of these businesses have filed insurance claims seeking coverage for the losses associated with the suspension of business. Historically, some insurance policies address coverage associated with viruses and actions taken by the government, but the coverage issues created by the Shelter-in-Place orders are novel in most jurisdictions. In the recently filed lawsuits, the policy language the businesses are invoking vary, but the arguments for coverage are similar. Accordingly, the ultimate determination of whether the lost business income will be covered under the policies will depend upon the specific policy at issue and prior precedent in the jurisdiction where the case is pending.Read More.
Since mid-March, courts across the country have entered varying orders addressing the national emergency due to the COVID-19 pandemic and its effect on litigation. The orders vary from limiting courthouse admission to certain individuals to suspending all deadlines and trials. The information set forth below provides a snapshot of the types of orders being entered as of April 24, 2020 and the impact they are having on civil cases. The first section addresses the general orders issued by supreme courts or across districts. The second section addresses specific trial court orders issued in light of the general orders, which have largely been entered upon discovery and scheduling motions filed by litigating parties.Read More.
We recently blogged about increased data security risks with employees working remotely during the COVID-19 pandemic. According to Google, scammers are sending 18 million hoax emails about COVID-19 to Gmail users every day. Recently the FBI warned about these increased risks of phishing schemes relating to the COVID-19 pandemic. The FBI gave several examples of recent COVID-19 phishing schemes which typically impersonate vendors asking for payment outside the normal course of business due to COVID-19.Read More.
The current coronavirus (also known as “COVID-19”) pandemic has changed how industries across the United States and the world are conducting business. It has cast uncertainty and apprehension into even the most routine commercial interactions. Despite these circumstances, many industries continue to provide their customers with essential services necessary for continued economic stability and public safety. On one hand, continuing operations means businesses are supplying integral services and helping prop up the American economy during a time of economic downturn. On the other hand, these businesses are operating in unchartered territory, which carries costs and risks of its own.Read More.
On April 2, 2020, Chris Wells, the Interim Executive Director of the Mississippi Department of Environmental Quality, issued guidance to the regulated community regarding compliance with regulatory requirements during the COVID-19 Pandemic. Read the guidance below.Read More.
Many employees are working remotely during the COVID-19 pandemic. The COVID-19 pandemic has led to specific data security risks. Phishing emails are the leading cause of business data breaches. We have seen the following phishing emails specific to the COVID-19 pandemic.Read More.
The coronavirus has quickly spurred significant changes in most people’s daily lives and routines. In light of the widespread closure of public places and a growing number of safer-at-home orders, nearly everyone has found themselves spending much more time at home. Residential deliveries have surged, and many Americans have construed social distancing guidelines to permit small gatherings of friends and families inside homes. But what if an insured with coronavirus exposes someone to the virus? Or what if a guest becomes infected with coronavirus at an insured’s home? These interactions could result in an uptick of homeowners liability insurance claims arising from an insured causing someone to be exposed to COVID-19.Read More.
More cities and states are issuing “shelter in place” orders (or at least recommendations) to combat the spread of COVID-19. Some states are banning gatherings of various sizes and limiting the number of people who can go to work. This Article will address what businesses can do to comply with these orders and protect their workplace, and it will also provide resources relevant to affected jurisdictions.Read More.
Months and months ago you planned a wonderful vacation to Italy, or you scheduled an important business trip to Spain, or a cruise around the Greek Isles, or a shopping trip to New York, or a college assessment in California, or a trip to Disney World. When you made your reservations, you noticed a “strong suggestion” that you purchase travel insurance to “protect your trip” in case anything happened before or during the excursion. Being a prudent traveler, you bought the coverage, hoping it would not be needed.Read More.
The U.S. Small Business Administration (SBA) recently designated the Coronavirus (COVID-19) pandemic as a disaster qualifying for its Economic Injury Disaster Loan Program in states and territories approved by SBA through a disaster declaration (Disaster Declaration) after requests by a state’s or territory’s Governor.Read More.
Product Liability Updates
Employers across multiple industries (not just healthcare!) are being cited by OSHA for failing to protect employees from COVID-19, and the number of inspections and citations will likely continue to grow in the foreseeable future.Read More.
It’s been nearly six months since the HHS Secretary declared COVID-19 a public health emergency. As communities emerge from quarantine, businesses are on high alert regarding potential COVID-19 liability. Some businesses have already been afforded protection—suppliers of so-called COVID-19 countermeasures may have immunity under the Secretary’s Prep Act Declaration, medical providers and nursing homes may have immunity under various state laws and declarations, and others may have defenses based on regulatory guidance.Read More.
Late last year we covered a decision finding a mine operator could not be held liable for unpermitted discharges under the Clean Water Act because it had properly disclosed them to the state permitting authority, which “chose not to list them in the Permit.” S. Appalachian Mountain Stewards v. Red River Coal Co., Inc., 420 F. Supp. 3d 481, 495–96 (W.D. Va. 2019). The court reasoned that the mine had “done what” the permitting authority “has told it to do,” and “should be able to rely upon the clear directives of its regulators without being subjected to liability.” Id. at 497. In the court’s view, although the federal government “disagree[d] with what” the state permitting authority required, “it would be unfair to place [the mine] in the middle of a battle between federal and state regulators.” Id.Read More.
The COVID-19 pandemic has forced us to confront an uncomfortable, ubiquitous reality about the human experience: Sometimes, despite our best efforts, catastrophe shows up at our doorstep, uninvited and unexpected, unleashing havoc on our lives and businesses. However, what it has also shown is that those who were prepared — even minimally — endured a lot less stress and were able to spend valuable time concentrating on larger, more important issues, rather than worrying about having enough toilet paper or setting up a home office.Read More.
In today’s global economy, product liability defense counsel must consider the location a product was manufactured and be prepared to defend —including by seeking the exclusion of—decisions to manufacture abroad. These considerations will only become more pressing during and in the wake of the COVID-19 pandemic, especially for products manufactured in China.Read More.
Over the last few weeks, the COVID-19 pandemic has wreaked havoc on small and large companies in the United States and throughout the world. The pandemic has forced companies to drastically alter their daily operation procedures to comply with state and federal mandates aimed at slowing the spread of COVID-19.Read More.
Earlier this week, we discussed current trends and future implications of COVID-19 on businesses operating in the products arena, noting the most direct impact so far on the pharmaceutical and medical device spaces. Recognizing the potential liabilities this products sector could face in the future, on March 17, 2020 the Secretary of Health and Human Services (“Secretary”) issued a “PREP Act Declaration” proclaiming legal immunity for manufacturers and suppliers of certain products used to combat COVID-19. The following day, Congress passed, and the President signed, the Families First Coronavirus Response Act, H.R. 6201, which expands protections for makers of masks not previously covered under the PREP Act. Businesses in these spaces should be aware of these developments.Read More.
While some businesses should anticipate challenges accompanying uncertainty in meeting production and sales goals, others whose products are directly or tangentially related to the medical field should remain steadfast in following best practices and in-place protocols while satisfying increasing demand so as to avoid unnecessary risk down the road.Read More.
Public Finance Updates
The “Lifting Our Communities through Advance Liquidity for Infrastructure (LOCAL Infrastructure) Act” (the “LOCAL Infrastructure Act”) and the “American Infrastructure Bonds Act of 2020” (the “AIBs Act”) were recently introduced in the Senate in a bipartisan effort to assist local governments as they respond to the COVID-19 pandemic. If enacted, the LOCAL Infrastructure Act would restore tax-exempt advance refundings for municipal bonds and the AIBs Act would create a new class of “direct-pay” taxable municipal bonds. This post summarizes both items as introduced.Read More.
Our thoughts are with you, your loved ones and organizations as we all navigate this public health crisis together. We are providing this alert to our public finance clients and other professionals regarding COVID-19 and its potential impact on secondary market disclosure.Read More.
The IRS has issued Notice 2020-22 (see https://www.irs.gov/pub/irs-drop/n-20-22.pdf) to provide further guidance to employers seeking to obtain the relief of the refundable tax credits provided in both (i) the Families First Coronavirus Act (the “Families First Act”) and (ii) the CARES Act.Read More.
On April 9, 2020, the IRS issued Notice 2020-23 (the “Notice”) to provide additional extensions of certain tax filing deadlines, which Notice supplements Notice 2020-18 and Notice 2020-20. The IRS previously issued Notice 2020-18 on March 20, 2020, which extended the filing date for (i) 2019 individual tax returns and (ii) first-quarter estimated tax payments from April 15, 2020 to July 15, 2020. The IRS subsequently issued Notice 2020-20 on March 27, 2020, which extended the filing dates and payments for gift and generation skipping transfer tax returns until July 15, 2020.Read More.
On March 26, 2020 the Mississippi Department of Revenue issued a response to requests for relief. The response covers four main areas:Read More.
The Families First Coronavirus Response Act (the “Act”) provides for paid sick leave and expands certain provisions of the family and medical leave act (“FMLA”) to provide support for employees that are absent from work due to the impact of COVID-19. (For a summary of the Act, click here.)Read More.