Category: Administrative & Regulatory

President Biden’s FY 2022 Budget Request Includes $11.2 Billion For EPA

On May 28, 2021, the Biden-Harris Administration submitted President Joseph Biden’s budget for fiscal year 2022 (FY 2022) to Congress. According to EPA’s May 28, 2021, press release, the budget request advances “key EPA priorities, including tackling climate change, advancing environmental justice, protecting public health, improving infrastructure, creating jobs, and supporting and rebuilding the EPA workforce.” The President’s FY 2022 budget request supports:

  • Rebuilding Infrastructure and Creating Jobs: The budget provides $882 million for the Superfund Remedial program to clean up some of the nation’s most contaminated land, reduce emissions of toxic substances and greenhouse gases (GHG) from existing and abandoned infrastructure, and respond to environmental emergencies, oil spills, and natural disasters;
  • Protecting Public Health: The budget includes $75 million to accelerate toxicity studies and fund research to inform the regulatory developments of designating per- and polyfluoroalkyl substances (PFAS) as hazardous substances while setting enforceable limits for PFAS. In FY 2022, EPA will advance public health by providing an additional $15 million and 87 full-time equivalent employees (FTE) to build agency capacity in managing chemical safety and toxic substances under the Toxic Substances Control Act (TSCA);
  • Tackling the Climate Crisis with the Urgency Science Demands: The FY 2022 budget recognizes the opportunity in tackling the climate crisis by developing the technologies and solutions that will drive new markets and create good paying jobs. The budget restores the Air, Climate, and Energy Research Program and increases base funding by more than $60 million, including $30 million for breakthrough research through the Advanced Research Projects Agency-Climate (ARPA-C) with DOE. The budget provides an additional $6.1 million and 14 FTEs to implement the recently enacted American Innovation and Manufacturing (AIM) Act and reduce potent GHGs while supporting new manufacturing in the United States;
  • Advancing Environmental Justice and Civil Rights: The budget includes more than $900 million in investments for environmental justice-related work, collectively known as EPA’s Accelerating Environmental and Economic Justice Initiative, elevating environmental justice as a top priority across the agency. The budget also proposes a new national program dedicated to environmental justice to further that goal;
  • Supporting States, Tribes, and Regional Offices: Almost half of the total budget, $5.1 billion, will support states, tribes, and localities through the State and Tribal Assistance Grants account;
    • Prioritizing Science and Enhancing the Workforce: The FY 2022 budget includes an increase of 1,026 FTEs “to stop the downward slide in the size of EPA’s workforce in recent years to better meet the mission.” Within this increase are 114 FTEs to propel and expand EPA’s research programs to ensure the agency has the science programs that communities demand from EPA. Also included are 86 additional FTEs to support the criminal and civil enforcement programs to ensure that environmental laws are followed.
    ©2021 Bergeson & Campbell, P.C.
ARTICLE BY Lynn L. Bergeson of Bergeson & Campbell, P.C.
For more articles on the Biden Administration, visit the NLR Administrative & Regulatory section. 

White House to Business: “Take Ransomware Crime Seriously”

As we come out of the COVID-19 pandemic, it appears that another type of infection is threatening business and ransomware continues to spread.

  • Colonial Pipeline
  • JBS (world’s largest meatpacking company)
  • Massachusetts Steamship Authority
  • Scripps Health
  • City of Tulsa

A roll call of entities suffering major ransomware attacks just in the few weeks.    After the Colonial Pipeline attack, President Biden issued an Executive Order establishing some baselines for cybersecurity with respect to government contracts and improving detection of cybersecurity incidents on federal government networks, among other things.   The White House has now issued a rare “wake-up call” to private business in the form of an open letter “to corporate executives and business leaders.”

Deputy National Security Advisor for Cyber and Emerging Technology Anne Neuberger wrote that while the Biden administration has placed an emphasis on resilience, the “private sector has a distinct and key responsibility.”

“All organizations must recognize that no company is safe from being targeted by ransomware, regardless of size or location.  But there are immediate steps you can take to protect yourself, as well as your customers and the broader economy.”   Neuberger continued that private companies that “view ransomware as a threat to their core business operations rather than a simple risk of data theft will react and recover more effectively.”

The letter encourages business to do what regular readers of this blog, or attendees at our webinar events, have heard for many years:  understand your business risk, convene leadership teams to discuss the ransomware threat, and review corporate security posture and business continuity plans.

Neuberger’s letter highlights best practices to help defend against ransomware attacks:

  • Implement the best practices from the President’s Cybersecurity Executive Order
    • Prevent Intrusion (Section 3 – multi-factor authentication)
    • Minimize impact of intrusion pre-detection (Section 3 – data encryption, zero-trust environment)
    • Detect and respond to intrusion (Section 6 – incident response playbook, Section 7 – endpoint detection and response, centralized threat-hunting, Section 8 – logging)
    • Learning (and disseminating) lessons from intrusion
  • Backup your data, system images, and configurations, and keep the backups offline
  • Regularly test your data resiliency
  • Update and patch systems promptly
  • Test your incident response plan (do you have one?)
  • Check your security team’s work using a third party pen tester
  • Segment your networks

In April, the Federal Trade Commission published a Business Blog post entitled “Corporate boards:  don’t underestimate your role in data security oversight”   This piece, combined with today’s open letter from the White House, should be mandatory reading for board members.   The need for proactive and preventative measures increases by the day.   We can assist with a wide range of activities, including:

  • Cyber Risk Assessment/Management
  • Employee Training
  • Incident Response Planning
  • Disaster Recovery/Resiliency Planning
  • Cyber Liability Insurance Placement

©1994-2021 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

ARTICLE BY Cynthia J. Larose of Mintz
For more articles on cybersecurity, visit the NLRCommunications, Media & Internet section.

The Elements of Your COVID-19 Voluntary Vaccine Policy

About half of the U.S. working age, vaccine-eligible population has now been vaccinated, according to Centers for Disease Control and Prevention (“CDC”) tracking data.  New CDC guidelines allow the fully vaccinated to unmask, except were applicable law or private businesses and workplaces say otherwise.

If that was supposed to be an incentive, it has yet to kick in.  COVID-19 vaccination rates are slowing considerably. There is growing concern for getting everyone safely back to work—and soon— especially among small- to mid-size employers still emerging from the pandemic.

Making vaccinations mandatory is technically an option, but many employers don’t want to go there, and an increasing number of  states are in the process of banning it anyway.  Thus, there is no shortage of ideas for incentivizing employees to get the shot—from on-site opportunities to extra vacation days, and employers are ardent for knowledge about which employees have already been vaccinated.

Nondiscriminatory incentives for getting the shot and a valid mechanism for learning who got it—those points and more can be deployed in a voluntary vaccine policy.  Here are the key elements:

Education:

Anti-vaccine messaging is all over the internet, but the case for the safety and effectiveness of the COVID-19 vaccines gets better every day.  Employers, especially small- to mid-size employers, can leverage both public and private resources to make the case to their employees.  For example, the CDC has done its job in addressing vaccine safety, vaccine benefits, and perhaps most importantly, vaccine myths and facts.  But one of its best educational contributions to date is this video that directly addresses, in compelling fashion, the most common concerns about how the vaccines were safely developed in such a short time, and whether the new mRNA technology is known to be safe.  Beyond public sources, holding private sessions for employees with local professors or doctors of epidemiology can not only make a compelling case for vaccination, but also debunk in real time the growing list of anti-vaccine myths about COVID-19 vaccination.

Voluntary Policy:

With limited exceptions for certain disabilities and religious observances, under current Equal Employment Opportunity Commission (EEOC) guidance (and subject to state law), it is legally permissible for employers to mandate that employees receive a COVID-19 vaccine as a condition of employment.  A voluntary policy should explain that, and state that the employer has opted not to make vaccination a condition of employment.  Instead, the employer strongly encourages all eligible employees to be vaccinated against COVID-19 on a voluntary basis, subject to the individual advice of the employee’s doctor and the recommendations of the CDC and the FDA.  This explanation that the program could be made mandatory but is not will itself be an incentive for some.

Incentives:

As cited above, there are many types of incentives for vaccination—transportation reimbursement, one-day on-site shot clinics, additional days of vacation or other paid leave (a popular option), extra sick days off specific to the aftereffects of vaccination, monetary payments, merchandise or gift card perks, and entertainment events.  Usually any such incentives come with an eligibility time limit—for example, for all employees fully vaccinated by August 1.  The policy should also address proof of eligibility, such as submission of a copy of the vaccination card, or a print screen of the provider’s online record of the vaccination.  Caveat:  Last week, the EEOC issued updated guidance allowing vaccine incentives—so long as such incentives do not unduly pressure employees to disclose protected medical information.

Legal Compliance: 

For any of these incentives to pass legal muster, they should be made subject to existing employer policies, such as advance notice for use of PTO, and separate maintenance of medical records.  In addition, incentive policies should provide for “exception awards” for those employees with a medical condition and/or disability that conflicts with getting vaccinated; and employees with sincerely held religious beliefs, observances, or practices that conflict with getting vaccinated.  Eligibility rules for such awards must be carefully crafted and allow for the employer to engage in the interactive process to seek out accommodations that will enable the employee to be vaccinated.  In addition, the policy should prohibit disclosure of certain information unnecessary to the eligibility for the program—such as genetic information.

Additional Elements: 

Other considerations for a voluntary vaccine policy include the question of whether it will need to be administered annually, which seems likely enough; how time off for the vaccine and any aftereffects will be scheduled; whether employees will be put on notice that they assume the risks—of vaccination or of coming to work unvaccinated; and nondiscrimination and nonretaliation (especially by co-workers) as to those who choose to vaccinate or not vaccinate.

As COVID-19 continues to abate and, as we watch for mutations in the virus as well as in state and federal law, employers must stay up-to-date with their policy guidance and risk management.

© 2021 Foley & Lardner LLP

ARTICLE BY Kenneth C. Broodo of Foley & Lardner LLP
For more articles on voluntary COVID-19 vaccinations, visit the Coronavirus News section.

As Local Mask Mandates Expire, How Should Employers Respond?

Following the May 13, 2021, and May 16, 2021, guidance from the U.S. Centers for Disease Control and Prevention (CDC) relaxing mask requirements for fully vaccinated individuals outside of healthcare and select other settings, most state and local government mask mandates have been lifted or will soon be allowed to expire. As a result, many employers across the U.S. are exploring their options regarding their masking policy.

Recap of the CDC’s guidance

The CDC’s guidance states that fully vaccinated individuals “can resume activities without wearing a mask or staying 6 feet apart, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.”

Essentially, this means that fully vaccinated individuals can leave their masks at home unless a state or local mask mandate or a business’ policy says otherwise. The CDC also suggests fully vaccinated individuals with compromised immune systems ask their healthcare provider about continuing to wear a mask and/or social distance.

As for unvaccinated individuals, the CDC recommends continuing precautions, including wearing a mask and social distancing.

WHAT DOES IT MEAN TO BE FULLY VACCINATED?

According to the CDC, individuals are considered fully vaccinated:

  • Two weeks after their second dose in a 2-dose vaccine series, such as the Pfizer or Moderna vaccines
  • Two weeks after a single-dose vaccine, such as Johnson & Johnson’s Janssen vaccine

Also at the federal level, the Occupational Safety and Health Administration (OSHA), which oversees workplace safety, directed employers to the new CDC guidance. However, employers should be aware that OSHA continues to consider an Emergency Temporary Standard which may include mask guidance and requirements.

Expiring local orders

State and local laws mandating masks continue to decrease in number and Wisconsin is following this trend. On March 31, 2021, the Wisconsin Supreme Court invalidated the statewide mask mandate. On June 1, 2021, the City of Milwaukee’s mask ordinance will expire, and the City of Madison’s and Dane County’s joint mask requirement ends June 2, 2021.

Three common approaches to changing workplace mask policies

Considering recent changes in state and local mask mandates as well as mounting pressure from employees to make policy adjustments, many non-healthcare employers are changing their mask policies. Although there has been a spectrum of approaches, the following are three common ones:

1. WAIVING MASK REQUIREMENTS FOR FULLY VACCINATED EMPLOYEES

Many employers are sticking closely to the recent CDC guidance by retaining a mask requirement for employees who are not fully vaccinated and allowing fully vaccinated employees to forgo masks. A key decision point for employers when choosing this approach is whether to require proof of vaccination. Many employers are relying on the honor system as there are important legal considerations before asking employees about their vaccination status.

2. RETAINING MASK REQUIREMENTS REGARDLESS OF VACCINATION STATUS

Some employers are retaining mask requirements for all employees. Reasons for this may include: an inability to socially distance in the workplace, uncertainty regarding the potential OSHA standard or a local order requiring that masks remain in place.

3. ELIMINATING THE MASK REQUIREMENT ALTOGETHER

Some employers are eliminating mask requirements for all employees. Reasons for this approach may include: a fully vaccinated workforce, an outdoor work environment or the ability to socially distance during the entire workday with limited crossover. It is important to note that this approach carries the most risk for employers because the CDC still recommends masking in public spaces in certain instances, like being unvaccinated, and OSHA continues to consider an Emergency Temporary Standard.

Communicate any changes and be clear that unmasking is optional

Any changes to an employer’s mask policy should be formally communicated to employees via the same methods used to convey general workplace guidance. Such policy changes should emphasize that unmasking, as allowed by the policy, is optional, thereby allowing individuals who wish to continue masking, for whatever reason, to do so.

Each approach comes with varying legal risks and benefits, depending upon the specific facts related to the workforce, industry and other variables. Employers considering changes to their mask policies should contact legal counsel to discuss these issues and update their COVID-19 safety plans to reflect any changes to their practices.

Copyright © 2021 Godfrey & Kahn S.C.

ARTICLE BY Rebeca M. Lopez and Sarah K. Mueller
of Godfrey & Kahn S.C.
For more articles on mask mandates, visit the NLRCoronavirus News section.

IRS Guidance Clarifies “Involuntary Termination” for the COBRA Subsidy

In Notice 2021-31, the Internal Revenue Service (IRS) provides broad guidance in a question-and-answer format on the application of the American Rescue Plan Act of 2021 (ARP) regarding premium assistance under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) continuation coverage provisions. Perhaps most critical for group health plan administrators and insurers, the IRS has defined and illustrated the use of the term “involuntary termination of employment,” which is the primary trigger (the other is a reduction in hours) for premium assistance obligations under the ARP.

Background

Section 9501 of the ARP provides for a temporary 100%reduction in the premium otherwise payable by certain individuals and their families who elect continuation coverage due to a loss of coverage as the result of a reduction in hours or involuntary termination of employment under COBRA (and, in certain cases, under state “mini-COBRA” laws). Such persons may be “Assistance Eligible Individuals” for whom group health plan administrators and insurers must provide certain notices and facilitate a premium reduction, if elected. For more background regarding the premium subsidy under the ARP, see our prior article.

What is an involuntary termination of employment?

The notice generally defines an involuntary termination of employment as follows:

a severance from employment due to the independent exercise of the unilateral authority of the employer to terminate the employment, other than due to the employee’s implicit or explicit request, where the employee was willing and able to continue performing services

Ultimately, however, the determination of whether a termination is involuntary is based on the facts and circumstances.

What are some examples of an involuntary termination of employment?

  • Good Reason – An employee-initiated termination of employment is involuntary if it occurred for good reason due to employer action that results in a material negative change in the employment relationship for the employee analogous to a constructive discharge.
  • Impending Termination – An employee-initiated termination of employment is involuntary if the employee was willing and able to continue performing services, but the employee initiated termination having knowledge that the employee would have otherwise been terminated by the employer.
  • Illness or Disability – An employer-initiated termination resulting from the employee’s absence from work due to an illness or disability is an involuntary termination if before the action there is a reasonable expectation that the employee would have returned to work after the illness or disability has subsided. However, mere absence from work due to illness or disability before the employer has taken action to end the individual’s employment is not an involuntary termination.
  • Cause – An employer-initiated termination of employment for cause is involuntary. However, if the termination is due to gross misconduct, the termination is not a qualifying event under COBRA and will not result in premium assistance.
  • Change of Work Location – An employee-initiated termination as the result of a material change in the geographic location of employment for the employee is involuntary.
  • Window Program – An employee-initiated termination of employment through a window program that is offered in connection with an impending termination and that meets the requirements of Treas. Reg. § 31.3121(v)(2)-1(b)(4)(v) is involuntary. Such a window program is generally one that provides an early retirement benefit, retirement-type subsidy, Social Security supplement, or other form of benefit for a limited period of time (no greater than one year) to employees who terminate employment during that period or to employees who terminate employment during that period under specified circumstances.
  • Nonrenewal – An employer’s decision not to renew an employee’s contract if the employee was otherwise willing and able to continue the employment relationship and was willing either to execute a contract with terms similar to those of the expiring contract or to continue employment without a contract is generally an involuntary termination. However, if the parties understood at the time they entered into the expiring contract, and at all times when services were being performed, that the contract was for specified services over a set term and would not be renewed, the completion of the contract without it being renewed is not an involuntary termination.

What are some examples of terminations of employment that are not involuntary?

  • Retirement – An employee’s retirement generally is not an involuntary termination. However, if the facts and circumstances indicate that, absent retirement, the employer would have terminated the employee’s employment, that the employee was willing and able to continue employment, and that the employee had knowledge that the employee would be terminated absent the retirement, the retirement is an involuntary termination.
  • Workplace Safety – An employee-initiated termination due to general concerns about workplace safety typically is not involuntary. However, if the employee can demonstrate that the employer’s actions (or inactions) resulted in a material negative change in the employment relationship analogous to a constructive discharge, the termination is involuntary.
  • Childcare – An employee-initiated termination resulting from the employee’s child being unable to attend school or because a childcare facility is closed due to COVID-19 generally is not involuntary.
  • Death – The death of an employee is not an involuntary termination of employment.

© 2021 Bradley Arant Boult Cummings LLP

ARTICLE BY B. David Joffe and Caleb L. Barron of
Bradley Arant Boult Cummings LLP
For more articles on free COBRA premiums, visit the NLR Coronavirus News section.

CBD Here, CBD There, CBD Everywhere: Tension Between State and Federal Authorities Leaves CBD Companies in Limbo

You can’t miss them: signs reading “CBD PRODUCTS SOLD HERE” are appearing in gas stations and drug stores across the country. Cannabidiol (“CBD”), a naturally occurring non-psychoactive compound derived from the cannabis plant, is a mainstream product marketed as a supplement that provides health benefits to its users. Proponents claim CBD provides pain relief and reduces feelings of anxiety and depression, among other health benefits. In 2018, the United States Food and Drug Administration (“FDA”) approved Epidiolex, a CBD oral solution, for the treatment of seizures associated with Lennox-Gastaut syndrome and Dravet syndrome, diseases that generally appear in early childhood.

While CBD’s effects are promising, the FDA considers CBD a “new drug” under the Food, Drug and Cosmetic Act (“FD&C”). Under the FD&C, it is generally illegal to introduce a new drug into interstate commerce. The question, therefore, begs – if the FDA considers the sale of CBD illegal, then why are we seeing CBD for sale everywhere?

In 2018, the Agriculture Improvement Act (“2018 Farm Bill”) removed hemp from the definition of marijuana under the federal Controlled Substances Act (“CSA”). Consistent with the 2018 Farm Bill, Pennsylvania adopted a Hemp Program. The program permits the Pennsylvania Department of Agriculture to grant licenses to entities to grow, cultivate, and sell hemp. Under the program, licensees are permitted to grow hemp for the purpose of producing CBD. Other states have adopted similar programs, and under lawful state programs, the industrial hemp industry is growing (pun intended). By 2024, the United States CBD market is expected to reach $20 billion in sales. By 2028,  the value of the global industrial hemp market is projected to reach $27.7 billion.

So what’s the hold up? Since 2015, the FDA has issued warning letters to more than a dozen CBD companies for alleged violations of the FD&C. In the warning letters, the FDA claims to have reviewed the companies’ websites (including social media accounts) for evidence of FD&C violations. The FDA explains that the marketed CBD products are “drugs” under the FD&C because the products are “articles intended for the use in the diagnosis, cure, mitigation, treatment, or prevention of disease and/or intended to affect the structure or any function of the body.” 21 U.S.C. § 321(g)(1). The FDA says that the products are “new drugs” because CBD is not generally recognized as safe and effective. See 21 U.S.C. § 321(p). Under the FD&C, new drugs may not be legally introduced or delivered for introduction into interstate commerce without prior approval from the FDA, or unless they are over-the-counter drugs lawfully marketed under 21 U.S.C. § 505G.

Clearly, there is conflict between state and federal authorities. While businesses face exposure under the FD&C, states like Pennsylvania permit CBD production. In the absence of regulation and consistent enforcement, it is likely that the CBD industry will continue to grow.  Due to the complexities in the laws, companies operating in the CBD sector may face difficulties in risk management, banking, and logistics. SMGG is tracking changes in the CBD laws and rulemaking process, and we are ready to advise you or your company in navigating CBD’s complex legal landscape.

©2021 Strassburger McKenna Gutnick & Gefsky

ARTICLE BY Matthew J. Morella of Strassburger McKenna Gutnick & Gefsky

Not With a Bang but a Whimper

In a non-precedential Order issued by the US Court of Appeals for the Federal Circuit—on remand from the US Supreme Court’s April 2021 decision upholding Google’s fair use defense to Oracle’s copyright infringement claim—the Court recalled its mandate in the case “solely with respect to fair use,” leaving intact the Federal Circuit’s May 2014 judgment favoring Oracle on the question of copyrightability. Oracle America Inc. v. Google LLC, Case Nos. 17-1118; 1202 (Fed. Cir. May 14, 2021)(PER CURIAM). After recalling its mandate, the Federal Circuit issued its order without further briefing by the parties.

© 2021 McDermott Will & Emery

ARTICLE BY Ewa A. Wojciechowska of McDermott Will & Emery
For more articles on IP law, visit the NLRIntellectual Property section.

The Need for Speed: Five Drivers Affecting Developments in Climate Action

Current climate action around the globe and in the U.S. signals the very real possibility that efforts to address climate change are not moving fast enough for some. The landmark Dutch court decision ordering Royal Dutch Shell PLC to cut 2019 greenhouse gas emissions levels by 45% by 2030 and the results of recent energy company shareholders’ meetings provide two examples, highlighting that change is in the air. We list five drivers, among many, affecting recent developments in climate action:

1. The Courts – Recent court verdicts are accelerating climate change action at home and abroad. In the U.S. Supreme Court, decisions on climate-related cases lodged by state and local governments are advancing climate issues toward a future Supreme Court ruling on whether climate torts belong in state or federal court. Citing its recent BP PLC et al. v. Mayor and City Council of Baltimore decision, the high court vacated and remanded First, Ninth, and Tenth circuits decisions, to allow for expanded jurisdictional reviews. In the Netherlands, a Dutch court ordered Royal Dutch Shell PLC to cut its greenhouse gas emissions to align with the Paris Agreement. This result could trigger “a wave of climate-related litigation.”

2. The Biden Administration – The Biden Administration’s “whole-of-government” approach to climate change is having an enormous impact. The President’s decision to rejoin to the Paris Agreement sends a message heard around the world that the U.S. is serious about climate change. The Administration’s full court press on climate issues encompasses everything from policies to federal appointees to the Social Cost of Carbon to a sustainable federal supply chain to the acceleration of the electric vehicle transformation.

3. Financial Governance – The Treasury Department’s new climate hub as well as the Securities and Exchange Commission’s anticipated climate-related disclosures requirement reflect the depth and breadth of renewed focus on climate change within the financial sector. Additional emphasis on Environmental, Social, and Governance (ESG) initiatives will include an environmental justice focus.

4. Investors – Climate action affected the latest shareholder votes within the energy industry. ExxonMobil shareholders elected two environmentally conscious directors to the board, while Chevron shareholders pushed the company to cut greenhouse gas emissions. Increasingly, those who finance businesses are getting involved in the climate change battle, as witnessed by Goldman Sachs’ $750B climate commitment, Citibank’s $1.5T sustainability program, and the global banking and insurance industry coalition, Glasgow Finance Alliance for Net Zero.

5. Demographics – It is clear that new voices are entering the climate change debate, with increasing influence. Millennials, Generation Z, and environmental justice communities in general view the climate issue differently than generations past. Industry must account for their perspectives and influence both today and tomorrow.

With these changes in the air, the regulated community will want to consider how to adapt to an accelerating climate change focus.

© 2021 Beveridge & Diamond PC

ARTICLE BY Jennifer J. Leech and Benjamin F. Wilson of Beveridge & Diamond PC

For more articles on climate, visit the NLR Environmental, Energy & Resources section.

A Return to Normal?

On Friday, May 28th, Governor Murphy will be lifting the State of New Jersey’s mask and social distancing mandate for mo2st businesses. That said, the most recent Executive Order makes clear that businesses can require mask use if they want and cannot stop people from wearing masks, if they so choose.

“Indoor public spaces” will no longer require masks or social distancing, HOWEVER, this does NOT include indoor worksites of employers that do not open their indoor spaces to the public for purposes of sale of goods, attendance at an event or activity, or provision of services. So in the typical closed office environment, individuals continue to be required to wear face coverings, subject only to exceptions that have previously existed, such as when employees are at distanced workstations or in their own offices, and shall continue to maintain six feet of distance from others to the maximum extent possible, except in the circumstances described therein. That said, if you have a business where customers are coming into the building to get products or services, mask use and social distancing will not be required by law. Additionally those who are not vaccinated are “strongly encouraged” to continue to wear a mask when indoors.

© 2021 Giordano, Halleran & Ciesla, P.C. All Rights Reserved

ARTICLE BY Jay S. Becker,  Jeri L. Abrams and
Ari G. Burd of Giordano, Halleran & Ciesla, P.C.

For more articles on COVID-19, visit the NLR Coronavirus News section.

“We are not going to be moving slowly” SEC Director on ESG Disclosure Requirements

The Securities and Exchange Commission (SEC) requests public comments to be made ahead of their decision to possibly strengthen Environmental, Social, and Corporate Governance (ESG) disclosures for corporations. Specifically, this action would hold companies more accountable for their possible contributions to global climate decline. While the comment period is open until June 13th, SEC Director of the Division of Corporation Finance John Coates urges submissions sooner rather than later.

“We’re not going to be moving slowly,” Coates said in a round table discussion of the SEC action hosted by New York University Vincent C. Ross Institute of Accounting Research on April 30th. “We’re going to be moving relatively promptly on this front, and if you really want your contributions read, I would send them in earlier than June 13th.”

Coates assured that more detailed attention will go into the submissions received ahead of the deadline.

“If you get them in earlier… we will be able to spend more time carefully reading them right away. We will eventually process all of them, just to be clear, but it may take more time for the ideas of them to get into our head so sooner rather than later, would be great.”

Among the comments already submitted, there is a wide range of opinions on whether the SEC is overstepping its responsibilities in taking on climate issues by requiring more transparency from companies. While some commenters tell the SEC to leave any climate policy to elected officials, others are enthusiastic about more uniform and structured approaches to accountability.

Some opinions fall in the middle, where commenters want to see the SEC simply enforce existing guidelines, set by organizations such as the Task Force on Climate-Related Financial Disclosure (TCFD) and the Sustainability Accounting Standards Board (SASB), instead of creating new and possibly confusing procedures. This is in response to arguments that the current course of action in climate reporting is insufficient, and corporations have found ways to escape sharing climate impact with their shareholders in the past.

Kelsey Condon, a whistleblower attorney at Kohn, Kohn and Colapinto, published an article on this issue stating, “This policy change is important for whistleblowers to be aware of because a corporation’s misleading statements on these subjects are now likely to be treated as material by the SEC and may actually be prosecuted. Corporate insiders, i.e., whistleblowers, are well-positioned to report to the SEC when they know that a company’s statements about climate and ESG are false or designed to be misleading.”

And that, “Whistleblowers are a crucial source of information and evidence, providing a window into the opaque and sophisticated worlds of corporate inner workings and criminal networks, which law enforcement would otherwise not have. In this way, whistleblowers are our best hope for holding corporations to their environmental promises through such reporting. Now, the SEC may actually take action on such reports, and whistleblowers will enjoy the safeguards that come with reporting to the SEC, such as anti-retaliation protection, anonymity, and awards.”

With stricter regulations would come a greater need for those ready to blow the whistle on companies still failing to accurately communicate their environmental impact.

To read previously submitted comments, or submit your own, click here.

Copyright Kohn, Kohn & Colapinto, LLP 2021. All Rights Reserved.

ARTICLE BY Grace Schepis of Kohn, Kohn & Colapinto

For more articles on the SEC, visit the NLR Securities & SEC section.