The ® Lexis Practice Advisor LEXIS PRACTICE ADVISOR ® Journal ® Your Life Sciences ® TM practice is complex. Your legal resources don’t have to be. EMPLOYERS CONFRONTING THEIR OBLIGATIONS AS CORONAVIRUSEMPLOYERSMOTION CONFRONTING SPREADS SPECIAL EDITION 2020, ISSUE #8 - CORONAVIRUS SPECIAL THEIRTRADEMARKS OBLIGATIONS AS COVID-19CORONAVIRUSGROW IN SPREADS ClaimsPOPULARITY Impact Entire Insurance CoverageCOVID-19 Spectrum ClaimsDrafting Impact Choice-of-Law Entire Insurance DiagnosingProvisions and From biotech deal clauses to insight into the latest Coverage Spectrum FDA activity, get your Life Sciences “know-how” Treating Coronavirus in one convenient place. RisksNew inEmphasis M&A on the Diagnosing and Comprehensive practical guidance for your life science practice. 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SpecialWinter Edition 2019 / 20202020 Contents CORONAVIRUS SPECIAL EDITION 2020 Current Awareness Practice Notes 4 EMPLOYERS CONFRONTING THEIR 53 CORONAVIRUS TAX RELIEF OBLIGATIONS AS CORONAVIRUS Tax (COVID-19) SPREADS Labor & Employment 58 SEEKING TIME EXTENSIONS IN LITIGATION 17 DIAGNOSING AND TREATING Civil Litigation CORONAVIRUS RISKS IN 64 COVID-19 RAMIFICATIONS FOR M&A TRANSACTIONS Corporate and M&A PUBLIC COMPANIES Capital Markets & Corporate Governance 22 HHS ADDRESSES HIPAA PRIVACY AND SECURITY RULE ISSUES IN COMBATTING 70 SEC REPORTING COMPANIES: CORONAVIRUS CONSIDERING THE IMPACT OF THE Employee Benefits & Executive Compensation CORONAVIRUS ON PUBLIC DISCLOSURE AND OTHER OBLIGATIONS Capital Markets & Corporate Governance Practice Tips 76 SEC ISSUES STATEMENT ON CORONAVIRUS 26 CORONAVIRUS AND FORCE MAJEURE REPORTING CONSIDERATIONS AND CHECKLIST Commercial Transactions POTENTIAL RELIEF Capital Markets & Corporate Governance 30 COVID-19 CLAIMS IMPACT ENTIRE 79 NAVIGATING CORONAVIRUS: A GUIDE INSURANCE COVERAGE SPECTRUM Insurance FOR REIT GENERAL COUNSEL Real Estate 36 FDA EMERGENCY USE AUTHORIZATIONS Life Sciences 42 TELECOMMUTING EMPLOYEES: 17 30 BEST PRACTICES CHECKLIST Labor & Employment 51 TELECOMMUTING POLICIES: KEY DRAFTING TIPS Labor & Employment 4 Current Awareness | Lexis Practice Advisor® Labor & Employment Richard D. Glovsky, Jordon R. Ferguson, and Rufino Gaytán III LOCKE LORD LLP Employers Confront Their Obligations as Coronavirus (COVID-19) Spreads 4 www.lexispracticeadvisor.com This article provides practical guidance regarding how employers should address legal issues raised by the coronavirus (COVID-19). As the coronavirus spreads around the globe and cases are rapidly appearing in the United States, employers must confront issues in the workplace concerning risks to their employees. Families First Coronavirus Response Act (Including Emergency FMLA Expansion and Emergency Paid Sick Leave) President Trump signed The Families First Coronavirus Response Act (FFCRA) into law on March 18, 2020. It includes two major overhauls to leave programs for employers—an expansion to the Family and Medical Leave Act (FMLA) via the Emergency Family and Medical Leave Expansion Act, and newly provided Emergency Paid Sick Leave. According to guidance issued by the U.S. Department of Labor (DOL), both laws go into effect on April 1, 2020, and run through December 31, 2020. That guidance further confirms that neither of the new leave programs are retroactive, i.e., they apply to leave taken between April 1, 2020, and December 31, 2020. Additionally, the DOL has issued a model poster in English1 and Spanish2 that covered non-federal government employers must post, as well as an FAQ3 related to the poster. Federal government employers have separate model posters in English4 and Spanish.5 On March 27, 2020, President Trump signed the Coronavirus Aid, Relief, and Economic Security (CARES) Act into law. Among other A corporation, including its separate establishments or divisions, things, the CARES Act amends portions of the FFCRA. is considered to be a single employer and its employees should For more information on the FMLA, see COVID-19 or Other be each counted toward the 500-employee threshold. Where a Public Health Emergencies and the Family and Medical Leave Act corporation has an ownership interest in another corporation, the 6 Questions and Answers. two corporations are separate employers unless they are joint Emergency Family and Medical Leave Expansion Act employers as defined in the Fair Labor Standards Act (FLSA) with respect to certain employees. If two entities are deemed joint The main component of the Emergency Family and Medical Leave employers, all of their common employees must be counted in Expansion Act portion of the FFCRA is the addition of Public Health Emergency Leave, with certain job protection requirements and paid determining whether Public Health Emergency Leave applies. If and unpaid leave for certain eligible employees. two or more entities satisfy the integrated employer test under the FMLA, then all employees of all entities making up the integrated Public Health Emergency Leave applies to all private employers with employer will be counted in determining employer coverage for fewer than 500 employees, and it applies to all public employers. Public Health Emergency Leave. This criteria is different from the FMLA’s usual coverage threshold (i.e., a 50-employee minimum). Employees on leave, temporary Employers that are signatories to multi-employer collective employees jointly employed by one or more companies (regardless bargaining agreements may find some relief from this amendment if of where the jointly-employed employees are housed for payroll they make contributions to a multiemployer fund, plan, or program purposes), and day laborers supplied by a temporary agency are also based on the paid leave entitlements to which employees would counted toward the leave coverage limit. otherwise be entitled. 1. https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf 2. https://www.dol.gov/sites/dolgov/files/WHD/Pandemic/1422-spanish.pdf 3. https://www.dol.gov/ agencies/whd/pandemic/ffcra-poster-questions 4. https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Federal.pdf 5. https://www.dol.gov/sites/dolgov/files/WHD/Pandemic /1423-spanish.pdf 6. https://www.dol.gov/agencies/whd/fmla/pandemic www.lexispracticeadvisor.com 5 The amended FMLA, as relates to the new Public Health Emergency The amended FMLA also allows the Secretary of Labor to issue Leave, allows the Secretary of Labor to issue good-cause regulations regulations that exempt small businesses with fewer than 50 to exclude certain health care providers and emergency responders employees if the obligations would jeopardize the viability of the from eligibility. Guidance7 issued by the DOL indicates that business as a going concern. The DOL guidance8 provides that employers of “health care providers” and “emergency responders” an employer, including a religious or nonprofit organization, with are not required to provide those employees with Public Health fewer than 50 employees is exempt from providing Public Health Emergency Leave. Emergency Leave due to school or place of care closures or child care provider unavailability for COVID-19 related reasons if an authorized ■ A “health care provider” is anyone employed at any doctor’s officer of the business has made one of the following determinations: office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical ■ The provision of Public Health Emergency Leave would result in school, local health department or agency, nursing facility, the small business’s expenses and financial obligations exceeding retirement facility, nursing home, home health care provider, any available business revenues and cause the small business to cease facility that performs laboratory or medical testing, pharmacy, operating at a minimal capacity. or any similar institution, employer, or entity. This includes ■ The absence of the employee or employees requesting Public any permanent or temporary institution, facility, location, or Health Emergency Leave would entail a substantial risk to the site where medical services are provided that are similar to financial health or operational capabilities of the small business such institutions. This definition also includes any individual because of their specialized skills, knowledge of the business, employed by an entity that contracts with