Category: COVID-19

Santa Clara County Orders Businesses to Track Employees’ COVID-19 Vaccination Status

Santa Clara County wasted no time in altering its public health regulations in response to the county’s graduation to the ‘yellow tier’ of California’s Blueprint For a Safer Economy on May 18, 2021.  Within hours, the County announced a new Public Health Order that went into effect on May 19, 2021.

The Order retires several of the most burdensome requirements of the County’s October 5, 2020, Risk Reduction Order.  As a result, businesses are no longer required to (1) maximize the number of people who work remotely; (2) submit Social Distancing Protocols to the County Public Health Department; or (3) observe County-issued limitations on in-person capacity.

However, the Order imposes several new requirements on employers, including:

  1. Face Coverings: All businesses must require employees and customers to wear face coverings in accordance with the Mandatory Directive on Use of Face Coverings.
  2. Capacity limitations: Some businesses remain subject to State-issued COVID-19-related capacity limitations and must limit the number of people inside their facilities to a certain percentage of their usual maximum occupancy.
  3. Industry-Specific Requirements: Businesses must follow any industry-specific guidance from the State.
  4. Mandatory Reporting Regarding Personnel Contracting COVID-19: Businesses must require that all personnel immediately alert the business if they test positive for COVID-19 and were present in the workplace either:
    1. within the 48 hours before the onset of symptoms or within 10 days after onset of symptoms if they were symptomatic, or
    2. within 48 hours prior to the date on which they were tested or within 10 days after the date on which they were tested if they were asymptomatic.

If a business learns that any of its personnel have tested positive for COVID-19 and were at the workplace during the specified time frame, the business is required to report the positive case within 24 hours to the County Public Health Department at sccsafeworkplace.org.

Businesses must also comply with all case investigation and contact tracing measures directed by the County.

  1. Ascertainment of Vaccination Status: Businesses must ascertain the vaccination status of all personnel. Under the order, personnel includes employees, contractors, and volunteers. Until a person’s vaccination status is ascertained, they must be treated as not fully vaccinated.  Personnel who decline to provide vaccination status must also be treated as unvaccinated.

Businesses must complete their initial ascertainment of vaccination status for all personnel within 14 days of May 19, 2021, or no later than June 1, 2021.  Thereafter, businesses must obtain updated vaccination status for all personnel who were not fully vaccinated every 14 days (e.g., June 15, June 29, July 13, etc.).  Businesses must maintain appropriate records to demonstrate compliance with this provision.  The County has provided a template self-certification form for this purpose.

  1. Mandatory Rules for Personnel not Fully Vaccinated: Businesses must require all personnel who are not fully vaccinated to:
    1. comply with all applicable provisions of the Mandatory Directive on Use of Face Coverings, and
    2. comply with all applicable provisions of the Health Officer’s Mandatory Directive on Unvaccinated Personnel.

In announcing the new Order, the County’s Health Officer indicated additional changes will occur in conjunction with California’s “reopening” on June 15, 2021.  Dr. Cody predicted the future changes will even further differentiate between vaccinated and unvaccinated people.

Employers doing business in the County must act quickly to reconcile their new obligations under the Order with other California laws, chiefly the Fair Employment and Housing Act (“FEHA”), which is enforced by the state’s Department of Fair Employment and Housing (“DFEH”).  The DFEH previously issued guidance for employers that will assist in this endeavor.

Jackson Lewis P.C. © 2021

ARTICLE BY Patrick C. Stokes and Kate L. Brown of Jackson Lewis P.C.
For more articles on COVID-19 Vaccination Status, visit the NLRCoronavirus News section.

COVID-19 Vaccine Passport Programs: Privacy and Security Considerations

As access to COVID-19 vaccines becomes more prevalent, and we begin to conceptualize what a post-pandemic world might look like, many governments are assessing the idea of a COVID-19 vaccine passport framework.  In late March, the European Commission announced its plan for a COVID-19 Digital Green Certificate framework (“the framework”) to facilitate “safe free movement of citizens within the EU during the COVID-19 pandemic”. The Digital Green Certificate provides proof that an individual has either: 1) been vaccinated against COVID-19, 2) received a negative test result or 3) recovered from COVID-19.  But while the benefits to such a plan are clear, there are significant privacy and security issues to consider.

Shortly after the European Commission released the proposal of the framework, the European Data Protection Board (EDPB) and the European Data Protection Supervisor (EDPS) issued a joint opinion on the framework in respect to personal data protection implications (“the joint opinion”).  The joint opinion addressed the personal data implications of the framework, and highlighted, above all, that such a framework must be consistent and not conflict with application of the General Data Protection Regulations (“GDPR”), and that there should be adoption of adequate technical and organizational privacy and security measures in the context of the framework.

Below are key recommendations from the joint opinion:

  • Categories of Personal Data. While Annex I of the framework sets out categories and data fields of personal data that would be processed under the framework, the joint opinion emphasizes that the “justification for the need for such data fields” should also be included in the framework, as well as developing “more detailed data fields (sub-categories of data)…under the already defined categories of data should be added”. These revisions will help ensure that the framework is consistent with several GDRP principles including data minimization (i.e. not processing more than the data necessary to fulfil the purpose for which the data was collected) , purpose limitations (personal data shall only be collected for a specified, explicit and legitimate purpose) , and impact assessment (the obligation under the GDPR which requires controllers to conduct a data protection impact assessment before processing personal data would have to be redone if data fields were altered).
  • Adoption of Adequate Technical and Organizational Privacy and Security Measures in the Context of the Proposal. The joint opinion highlights that the framework should explicitly state that controllers and processors of personal data “shall take adequate technical and organizational measures to ensure a level of security appropriate to the risk of processing, in line with Article 32 GDPR”.  Also included, the joint opinion suggests “the establishment of processes for a regular testing, assessment and evaluation of the effectiveness of the privacy and security measures adopted”, as well as including language in the framework consistent with the GDPR to prevent confusion and ensure relevance.  Finally, the joint opinion notes that adoption of privacy and security measures should be taken both at the time of the determination of the means for processing, as well as by the time of the processing itself.
  • Identification of controllers and processors. The joint opinion recommends that the framework specify “the list of all entities foreseen to be acting as controllers, processors and recipients of the data in that Member State”. Identifying these entities will provide EU citizens with an understanding of “whom they may turn to for the exercise of their data protection rights under the GDPR, including in particular the right to receive transparent information on the ways in which data subject’s rights may be exercised with respect tot the processing of personal data”.
  • Transparency and data subject’s rights. The personal data related to the framework is particularly sensitive.  As a result, the joint opinion urges the European Commission to “ensure that the transparency of the processes are clearly outlined for citizens to able to exercise their data protection rights”.
  • Data storage. The joint opinion notes that to ensure GDPR principles surrounding data storage principles (e.g. storing data no longer than is necessary for the purposes for which it was processed) in the context of the framework, where possible, the framework should “explicitly define” and if not possible, then at least provide the “specific criteria used to determine such storage period”.
  • International data transfers. Finally, the joint opinion recommends “explicitly clarifying whether and when any international transfers of data are expected” as well as including safeguards “to ensure that third countries will only process the personal data exchanged for the purposes specified” within the framework.

The EU is not the only region implementing or considering a vaccine passport program.  Israel’s vaccine passport, the Green Pass, is already up and running (available to the 80% of the adult  population that is fully vaccinated), and several private companies are trying to develop globalized vaccine passport programs.  For example, one large tech company’s vaccine passport technology is being tested by the State of New York, for some sports venues and arenas.  Likewise, another technology, the Common Pass  if implemented will help individuals when travelling globally to demonstrate their COVID-19 status. It is worth noting however, that some states are actively banning vaccine passport technology and requirements.  For example, just last week in Florida, Governor Ron DeSantis signed into law legislation prohibiting businesses, schools and government offices from requiring proof of vaccination, with fines of up to $5000. And in general, public support of vaccine passports in the U.S. seems to vary by activity. According to a recent Gallup poll the majority of Americans support proof of vaccination for travel by airplanes and attending events with large crowds. Conversely, Americans are less supportive of proof of vaccination at work, staying in a hotel or dining at a restaurant.

Whatever the program, the privacy and security considerations surrounding the collection of personal data are similar, and become increasingly complicated in the context of a global vaccine program where overlapping, and sometimes conflicting, data privacy and security laws and guidance come into play.   In the U.S. alone, there are numerous laws which may be implicated when vaccine related data is collected from individuals in the public or private setting – such as for employees or customers.  These include the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), state laws, and the CCPA.  In addition to statutory or regulatory mandates, organizations will also need to consider existing contracts or services agreements which may provide for or limit the collection, sharing, storage, or return of data. Moreover, if a vendor were involved in a vaccine passport program, contracts/agreements would need to include confidentiality, data security, and similar provisions. This is most important if the vendor will be maintaining, storing, accessing, or utilizing the information collected about the organization’s employees or customers.

In short, a vaccine passport program may play a crucial role in ensuring a safe and healthy return to normalcy across the globe.  Nevertheless, the legal risks, challenges, and requirements of any such program, whether in the public and private forum, must be considered prior to implementation.

Jackson Lewis P.C. © 2021

ARTICLE BY Joseph J. Lazzarotti,  Jason C. Gavejian and Maya Atrakchi of Jackson Lewis P.C.
For more articles on coronavirus vaccines, visit the NLR Coronavirus News

In-N-Out Burger Served with COVID-19 Workplace Safety and Wage Violation Lawsuit

This week’s spotlight among COVID-19 related workplace litigation involves a common trend of employees alleging retaliation for reporting workplace COVID-19 safety hazards along with unrelated wage and hour allegations.

In Becerra v. In-N-Out Burger, a former butcher for the burger joint filed a Private Attorney General Act (PAGA) complaint alleging various violations of the California Labor Code and unfair business practices. According to the complaint, In-N-Out failed to enforce COVID-19 safety measures, including social distancing and requiring employees to wear personal protective equipment (PPE). The plaintiff claims the meat department was full of sick employees, many of whom exhibited COVID-19 symptoms, but In-N-Out did not place them on medical leave.

The plaintiff filed a report with the L.A. Public Health Department regarding the meat department’s alleged failure to observe safety protocols, and he informed other butchers of their right to report workplace safety concerns. The plaintiff contends that, as a result of his reporting workplace conditions and encouraging other employees to report, In-N-Out retaliated against him by giving him a “final warning” for attendance violations.

In-N-Out reports that it terminated the plaintiff’s employment because he provided false documentation about an absence and exhausted his sick leave. The plaintiff alleges that his previous absences were excused, and that he and similarly aggrieved employees were terminated for attempting to use sick leave. He also claims that In-N-Out failed to pay separated employees their final wages and provide accurate wages statements.

The plaintiff’s allegations are based in the early months of the pandemic when PPE was sparse and employers grappled with how to adjust their workplaces.  However, the alleged wage-related claims will cover a larger time frame.

Employers have learned a lot over the past year in terms of COVID-19 workplace safety.  Employers should remain vigilant, focusing on proper safety protocols and keeping potentially sick employees out of the workplace.

© 2021 BARNES & THORNBURG LLP

ARTICLE BY Colleen Naumovich and Kathleen M. Anderson of Barnes & Thornburg LLP
For more articles on COVID-19 Workplace Safety and Wage Violations, visit the NLR Coronavirus News section.

CDC: Masks Are No Longer Required in Most Settings for Vaccinated People

On Thursday, May 13, 2021, the Centers for Disease Control (CDC) announced new guidance stating it is safe for fully vaccinated people to not wear masks or physically distance in any non-health care setting.1

Per this guidance, fully vaccinated people can now resume most activities without wearing a mask or physically distancing. Unvaccinated people, however, should still consider the risks of particular indoor and outdoor activities now deemed safe for vaccinated people, such as restaurant dining, exercising indoors, or attending a crowded outdoor event, and take necessary precautions.

This is only guidance. Individuals may still be required to wear masks, and businesses may still be required to enforce mask-wearing as required by federal, state, or local law. For example, travelers will still be required to wear masks on all forms of public transportation and in public transportation hubs within the United States.

Additionally, in this latest guidance, the CDC recommended that fully vaccinated people can refrain from testing and self-quarantining before and after domestic and international travel and following a known exposure if asymptomatic, unless the individual lives or works in a high-congregated setting, such as a correctional facility or homeless shelter.

As the country continues to emerge from the pandemic, individuals and businesses should be mindful of this changing landscape as federal and state agencies begin to loosen pandemic requirements. For specific questions concerning national and state COVID-19 legal developments, please contact your Dinsmore attorney.

[1] Guidance for Fully Vaccinated People, Centers for Disease Control, May 13, 2021, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated-guidance.html.

ARTICLE BY Faith C. Whittaker of Dinsmore & Shohl LLP
For more articles on CDC mask guidance, visit the NLR Coronavirus News section.

College Health Association Recommends COVID Vaccine Mandate for Colleges and Universities

As higher education institutions across the country wrestle with how best to safely return campuses to in-person instruction, the American College Health Association (“ACHA”) has issued important new recommendations related to COVID-19 remediation. As a strategy for enhancing campus safety in the face of the ongoing global pandemic, the ACHA is recommending that institutions implement a COVID-19 vaccine mandate covering all on-campus students arriving for the fall term, subject to supply limitations or conflicting state law.

In issuing this recommendation, the ACHA observed that such a vaccine mandate “offers the most effective way for institutions of higher education to return to a safe, robust on-campus experience.” Further, the ACHA observed that such a mandate is in keeping with current practice on most campuses, which already have certain vaccine mandates in place.

The ACHA noted that its recommendation is buoyed by the expectation that the Food and Drug Administration (“FDA”) will convert existing vaccines from an emergency use authorization status (“EUA”) to full approval by fall. At the same time, it is observed that even the current EUA status should not “preclude an institutional vaccine requirement.”

ACHA recommendations further encourage institutions to: engage in appropriate educational communications related to the vaccine; consider how best to support students coming from regions of the globe that do not have access to an FDA-approved vaccine; and evenly apply appropriate vaccine mandate exemptions.

While a campus vaccine mandate may offer campuses a vital tool in the return to safe, in-person instruction, it is important that policies implementing such a strategy be equitable and consistent. Further, institutions should ensure that they have an exemption review process in place to address requests for medical and religious exemptions from any vaccination requirement. Of course, it is likely that some mandates will face public and, perhaps, legal scrutiny.

© Steptoe & Johnson PLLC. All Rights Reserved.

ARTICLE BY Jim Newberry of Mark E. Hanshaw of Steptoe & Johnson PLLC
For more articles on COVID vaccine mandates, visit the NLRCoronavirus News section.

Congratulations Bankruptcy Graduates! You Are Now Eligible for PPP Loans.

To be eligible for a Paycheck Protection Program (“PPP”) loan, the applicant must certify on the borrower application that the applicant and any owner of 20% or more of the applicant are not “presently involved in any bankruptcy.”  This eligibility requirement spawned numerous lawsuits between debtors and the United States Small Business Administration (“SBA”) in the year since the SBA took this position.  In every case under the first round of funding under the CARES Act, the SBA argued that entities in bankruptcy were not eligible for PPP loans.  And with the second round of funding arriving in 2021, the SBA did not change its position.

Now, with the May 31 deadline for PPP loan applications looming, the SBA has published additional guidance, which provides that entities that have concluded a bankruptcy proceeding are not, for PPP eligibility, considered “presently involved in any bankruptcy.”

In its answer to Frequently Asked Question Number 67 about the PPP loan program, the SBA states that, for PPP eligibility purposes, a party is no longer involved in bankruptcy under these circumstances:

Chapter 7 – The Bankruptcy Court has entered a discharge order.

Chapters 11, 12 and 13 – The Bankruptcy Court has entered an order confirming the plan.

Any Chapter – The Bankruptcy Court has entered an order dismissing the case.

For an entity to be eligible for a PPP loan, the above orders must be entered before the date of the PPP loan application.  If an entity is permanently closed, through bankruptcy or otherwise, it is not eligible for a PPP loan.

Consequently, if you have resolved a bankruptcy case in the past year, and you are otherwise eligible for a PPP loan, you can apply for a loan.  The SBA’s full statement can be found here: https://www.sba.gov/sites/default/files/2021-04/PPP%20FAQs%204.6.21%20FINAL-508.pdf.

© 2021 Ward and Smith, P.A.. All Rights Reserved.

ARTICLE BY Lance P. Martin of Ward and Smith, P.A.
For more articles on bankruptcy, visit the NLRBankruptcy & Restructuring section.

 

 

Are Adverse Reactions to COVID-19 Shots Recordable to OSHA? It Depends.

The Occupational Safety and Health Administration (OSHA) has determined that it will consider an adverse reaction to the COVID-19 vaccine “work-related” recordable illnesses if an employee is required to take the vaccine as a condition of employment.

In its online Frequently Asked Questions (FAQs) about COVID-19, on April 20, 2021, the agency stated that an adverse reaction to the vaccine would be recordable if the reaction meets the definition of a recordable injury or illness:

  1. It is work-related, which OSHA presumes if the vaccine is mandated by the employer;
  2. It is a new case; and
  3. The illness meets at least one of the general recording criteria in 29 CFR 1904.7 (e.g., days away from work, restricted work or transfer to another job, or medical treatment beyond first aid).

OSHA distinguishes between mandatory vaccines and those that are recommended by an employer. If the vaccine is truly voluntary, the agency does not require the employer to record an adverse reaction on the employer’s OSHA 300 log. On the other hand, if the employer mandates the vaccine, the employer must record it if it otherwise meets recording criteria. OSHA states that this current position on vaccines is an exercise of its enforcement discretion, but it means the agency could change course in the future.

The FAQs detail factors OSHA will consider in determining whether an employee’s vaccination is truly voluntary. Primarily, the choice to accept or reject the vaccine cannot affect the employee’s employment or professional advancement and they cannot suffer any negative repercussions from choosing not to receive the vaccine. On the other hand, if employees are not free to make this decision and would face adverse action if they do not take it (e.g., the employee cannot return to work or is terminated for refusing vaccination), then OSHA would not consider it as merely recommended. In that case, an employer would need to follow the guidance in terms of assessing recordability for any adverse reactions to the vaccine.

OSHA clarifies situations in which employers recommend but do not require vaccination. For example, the agency will view a vaccination as voluntary and recommended even if the employer makes the vaccine available at work, if the employer makes arrangements for employees to get the vaccine at an offsite location (e.g., pharmacy, hospital, or local health department), or if the employer offers the vaccine as part of a voluntary health and wellness program at the workplace.

Unfortunately, the FAQs do not address employer incentive programs to encourage employee vaccination, such as offering financial incentives, eligibility for raffle drawings to win prizes, or paid time off to receive or recover from the vaccine. At times, OSHA has viewed incentive plans as potentially punitive to employees who miss out on benefits offered to others. At this point, it is unclear what enforcement position OSHA will take in these situations. Interestingly, Chicago enacted an ordinance to protect employees from adverse employment actions if they take and recover from vaccines during working hours.

As businesses continue to reopen and employees return to work, employers will have to decide whether to mandate or simply encourage vaccination for its workforce. Based on OSHA’s FAQs, employers should assess whether they are requiring vaccination or whether they are making it truly voluntary for their employees, as this will determine whether they will need to record adverse reactions on OSHA 300 logs.

Jackson Lewis P.C. © 2021

ARTICLE BY Courtney M. Malveaux of Jackson Lewis P.C.
For more articles on COVID-19 shots, visit the NLR

Coronavirus News section.

Making Time for Small Talk: And Other Tips for Making Remote Work a Success – Part II

This is part two of a 3-part series, and the second of several posts addressing remote work considerations arising out of the COVID-19 pandemic.

This series explores tips from companies that have figured out how to run a business with a remote workforce, with advice on how to help re-engage your remote workforce, or, if you already have a good system in place, how to make sure you keep employees productive and satisfied.  Don’t miss Tip One.

Tip Two:

Be Flexible and Trust

The companies that were working remotely before the pandemic have been teaching and guiding us through this past year, and one major lesson is the ability (and need) to be flexible in the remote environment. For most employers, there is less of a need to require employees to be “on” at all moments of the day. If nothing else, remote work during a pandemic – with homeschooling and child and family responsibilities increased during the normal workday – has shown us that employees can manage their time to work best for them, and still get their work done.

Flexibility depends on trust. The remote work environment presents us with the requirement to trust employees, yet building trust in a remote environment can be difficult. Without the opportunity to observe a coworker working diligently, or bringing notes to a meeting, or sharing insights with colleagues in the hallway, can make trust hard to embrace. But rapport between coworkers and interpersonal trust is what helps employees understand and ultimately help each other (which is critical to a successful enterprise). So how do you get it?

Monitoring and micro-managing to ensure output does not tend to work (in fact, it never works). Employees under surveillance know they are not trusted, and that results in employees with higher levels of anxiety and stress. This, then, results in increased burnout and dissatisfaction, undermining the entire point of a company’s goal, which is to improve work product and output.

The first step in building trust is for leadership to show, and put trust in, employees who will then in turn trust leadership; according to the Harvard Business Review this is called reciprocal leverage. The more trust your employees have in the leadership of the company, the more stability they feel, and the more likely they will be to work productively and seek to impress.

But how do you know if they are doing the work?  Check-ins and a review of employee production will generally tell you what you need to know. Is your workforce producing work product and output? If it has declined or is notably absent, there is a problem that must be addressed. If not, perhaps embracing flexibility and trust is working. Employers can and should take action through discussions or discipline when the remote work requirements are not being met. Trusting the employee to continue to perform and produce quality work does not mean remaining on the sidelines if that does not appear to be successful. The idea, however, is that it can be the exception, not the rule.

© Polsinelli PC, Polsinelli LLP in California

ARTICLE BY Mary Kathryn Curry of Polsinelli PC
For more articles on remote work, visit the NLR Coronavirus News section.

Twisting Arms to Get Jabbed, White House Says: ‘Vaccination Incentives All Around!’

On April 21, 2021, in a further push to encourage COVID-19 vaccinations for those individuals who have been hesitant, the White House issued a fact sheet titled, “President Biden to Call on All Employers to Provide Paid Time Off for Employees to Get Vaccinated After Meeting Goal of 200 Million Shots in the First 100 Days.” This announcement further signals the administration’s dedication to vaccinating the U.S. population and its willingness to offer incentives to employers that support their employees in becoming vaccinated. Employers that have remained neutral on this issue could be persuaded to “take up arms” and join the fight against COVID-19.

Specifically, the fact sheet calls on employers “to offer full pay to their employees for any time off needed to get vaccinated and for any time it takes to recover from the after-effects of the vaccination.” To aid in this, the fact sheet announces a new tax credit for nonprofits and businesses with fewer than 500 employees. This tax credit is an extension and expansion of the tax credits initially provided by the Families First Coronavirus Response Act (FFCRA) in 2020 and that were subsequently extended until September 30, 2021, by the recent passage of the American Rescue Plan Act of 2021 (ARPA). The tax credit as amended by the ARPA allows qualifying businesses to recoup the costs of providing paid leave to employees who cannot work or telework as a result of “obtaining immunization related to COVID-19 or recovering from any injury, disability, illness, or condition related to such immunization,” in addition to the other qualifying reasons for emergency paid sick leave.

IRS Guidance on ARPA Tax Credits

Also on April 21, 2021, the Internal Revenue Service (IRS) issued a news release elaborating on the White House’s fact sheet. The IRS news release largely summarizes its earlier April 2021 guidance, which details the procedural aspects of the tax credit. As the IRS explained in its earlier guidance, the “refundable” tax credits under the ARPA provide an offset “against the employer’s share of the Medicare tax.” This means that “the employer is entitled to payment of the full amount of the credits if it exceeds the employer’s share of the Medicare tax.” The IRS guidance further explains:

The tax credit for paid sick leave wages is equal to the sick leave wages paid for COVID-19 related reasons for up to two weeks (80 hours), limited to $511 per day and $5,110 in the aggregate, at 100 percent of the employee’s regular rate of pay. The tax credit for paid family leave wages is equal to the family leave wages paid for up to twelve weeks, limited to $200 per day and $12,000 in the aggregate, at 2/3rds of the employee’s regular rate of pay. The amount of these tax credits is increased by allocable health plan expenses and contributions for certain collectively bargained benefits, as well as the employer’s share of social security and Medicare taxes paid on the wages (up to the respective daily and total caps).

According to the IRS guidance, to claim the tax credits, eligible employers must “report their total paid sick leave and family leave wages (plus the eligible health plan expenses and collectively bargained contributions and the eligible employer’s share of social security and Medicare taxes on the paid leave wages) for each quarter on their federal employment tax return, usually Form 941, Employer’s Quarterly Federal Tax Return.” The IRS guidance further provides:

In anticipation of claiming the credits on the Form 941, eligible employers can keep the federal employment taxes that they otherwise would have deposited, including federal income tax withheld from employees, the employees’ share of social security and Medicare taxes and the eligible employer’s share of social security and Medicare taxes with respect to all employees up to the amount of credit for which they are eligible.

For additional information, interested employers can review the Form 941 instructions.

Finally, the guidance states the following:

If an eligible employer does not have enough federal employment taxes set aside for deposit to cover amounts provided as paid sick and family leave wages (plus the eligible health plan expenses and collectively bargained contributions and the eligible employer’s share of social security and Medicare taxes on the paid leave wages), the eligible employer may request an advance of the credits by filing Form 7200, Advance Payment of Employer Credits Due to COVID-19. The eligible employer will account for the amounts received as an advance when it files its Form 941, Employer’s Quarterly Federal Tax Return, for the relevant quarter.

Key Takeaways

The expansion of qualifying reasons to provide paid sick leave and obtain tax credits is an important development for all eligible employers because it provides another tool for many employers seeking to incentivize employees to get vaccinated. Now employers are not fighting this incentive battle alone when trying to encourage employees to become vaccinated; the government is upping the ante to incentivize employers to provide further relief and rewards to employees for getting vaccinated.

Of course, there are numerous other ways that both eligible and ineligible employers can incentivize employees to get vaccinated, and there are both pros and cons to mandatory vaccination policies. While a thorough discussion of these issues is beyond the scope of this brief update, employers interested in learning more about the legal and practical considerations for implementing vaccination policies (whether mandatory for an entire workforce, mandatory for a subset of employees based on job duties and exposure risk, or completely voluntary), can review our articles on vaccination policies and vaccine passports.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

ARTICLE BY Michael K. Mahoney,  James M. Paul  and Colin H. Hargreaves of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
For more articles on coronavirus vaccinations, visit the NLR Coronavirus News section

Bradley’s Bankruptcy Basics: COVID-19 Bankruptcy Relief Extension Act Extends Various CARES Act Amendments to the Bankruptcy Code

Last March, in response to the COVID-19 pandemic, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) made several changes to the Bankruptcy Code, including those changes discussed in more detail here. As it became clear that we would be dealing with COVID-19 for much longer than previously anticipated, Congress passed the Consolidated Appropriations Act (CAA), which made additional changes to the Bankruptcy Code, including those explored in more detail in this article.

Originally, several of the Bankruptcy Code amendments included in the prior legislation were scheduled to sunset in March 2021, on the first anniversary of the CARES Act. However, on March 27, 2021, hours before the originally scheduled sunsets, the COVID-19 Bankruptcy Relief Extension Act of 2021 (Extension Act) was passed. While the Extension Act extended certain aspects of the Bankruptcy Code amendments included in the CARES Act, it did not extend any of the amendments in the CAA.

Below is a summary of various CARES Act and CAA amendments to the Bankruptcy Code and their respective sunset dates as modified by the Extension Act.

Set to Sunset on December 27, 2021

  • COVID stimulus payments do not constitute property of the bankruptcy estate.
    • CAA Section 1001(a)
    • Modifies Bankruptcy Code Section 541(b)(11)
  • Chapter 13 debtors who have missed three (3) or fewer mortgage payments due to COVID-19 or have entered into a loan forbearance or mortgage modification agreement can seek an early bankruptcy discharge.
    • CAA Section 1001(b)
    • Modifies Bankruptcy Code Section 1328(i)(1)
  • Debtors in bankruptcy or individuals who have received bankruptcy discharges cannot be denied relief under the CARES Act or denied a mortgage forbearance or protection under foreclosure and eviction moratoria.
    • CAA Section 1001(c)
    • Modifies Bankruptcy Code section 525(d)
  • Mortgage servicers can file a Supplemental Proof of Claim for forborne amounts pursuant to a CARES Act forbearance within 120 days of the expiration of the forbearance period.
    • CAA Section 1001(d)
    • Modifies Bankruptcy Code Sections 501(f) and 502(b)(9)
  • Any party in standing, including a mortgage servicer, can file a motion to modify a Chapter 13 plan to provide for payment for a CARES Act Supplemental Proof of Claim.
    • CAA Section 1001(e)
    • Modifies Bankruptcy Code Section 1329(e)

Set to Sunset on March 27, 2022

  • COVID-19-related income is not included when calculating a debtor’s “current monthly income.”
    • CARES Act Section 1113(b)(1)(A)
    • Modifies Bankruptcy Code Section 101(10A)(B)(ii)(V)
  • COVID-19-related income does not constitute a Chapter 13 debtor’s “disposable income.”
    • CARES Act Section 1113(b)(1)(B)
    • Modifies Bankruptcy Code Section 1325(b)(2)
  • A Chapter 13 debtor whose plan was confirmed prior to March 27, 2021, and who is experiencing a COVID-19-related hardship can move to modify his plan to allow for plan payments over a period of seven (7) years, rather than a period of three (3) or five (5) years.
    • CARES Act Section 1113(b)(1)(C)
    • Modifies Bankruptcy Code Section 1329(d)(1)

© 2021 Bradley Arant Boult Cummings LLP

ARTICLE BY Elizabeth R. Brusa, Christian W. Hancock and
Alexandra Dugan of Bradley
For more articles on bankruptcy, visit the NLR Bankruptcy & Restructuring section.