Category: COVID-19

How to Improve Cities After COVID-19: What to Know About the Revitalizing Downtowns Act

In July, Democratic Senators Gary Peters and Debbie Stabenow (along with Democratic  Representatives Dan Kildee, John Larson, and Jimmy Gomez) introduced the Revitalizing Downtowns Act (“The Act”) to Congress. With the goal of reviving urban districts and downtown commerce, the Act would establish a new federal tax credit that encourages property developers to convert unused office space into residential or mixed-use space.

The Act defines an obsolete office structure as a building at least 25 years old, and at least 20 percent of the residential conversion must be dedicated to affordable housing. If these criteria are met, 20 percent of the conversion expenses will be covered by the tax credit. The Act has  growing support from economic development organizations across the country, including the International Downtown Association and the Federal City Council. Together, 37 organizations formed the Revitalize Our Cities coalition, committed to reenergizing downtown spaces and strengthening the U.S. economy.

The Act presents a substantial opportunity to improve American cities of all sizes. Justin P. Weinberg, Partner in Charge at Taft Stettinius & Hollister’s Minneapolis office, said of the Act, “It’s an opportunity to revitalize and reenergize existing spaces. Giving new purpose – and attracting new tenants – to buildings that would otherwise be vacant means more people, customers, and workers to build and sustain a strong community and business district where there wasn’t one before.”

How Can Federal Tax Credits Help Unused Office Space Redevelopment?

With employees still working from home and a permanent return to the office for countless businesses seeming more uncertain as the COVID-19 pandemic continues, many office buildings may remain vacant and unused, leaving downtowns with fewer opportunities for investment and revenue generation.

“This Act would be huge in encouraging all types of business to invest in downtown markets. It would be most helpful though if the tax credit provided could be used in conjunction with other credits, such as historic tax credits, Low-Income Housing Tax Credits (“LIHTCs”) and/or new markets and also incentivized business owners to open. Residential development works best if it is in conjunction with other retail, services and other amenities and, of course, plenty of parking,” said Kelly Rushin Lewis, partner in Jones Walker’s tax practice and leader of the firm’s tax credit finance team.

For buildings needing a lot of work, tax credits are essential to ensuring the project has the necessary financing. Without them, many projects requiring a lot of renovations and updates may not be able to move forward, Ms. Lewis said.

“Tax incentives are a key tool in attracting private capital in neighborhoods or towns in need of revitalization. These conversions can be much more challenging than building from the ground up, especially if dealing with vacant buildings that may have environmental, zoning, code compliance, or other latent issues that may be expensive to correct. The projects often are just not financially feasible and will not get done without those incentives,” she said. “A credit or some other incentive for potential tenants in the commercial spaces would be helpful – many business owners may be reluctant to be the first or one of few to open in what may be an otherwise quiet downtown. Tax incentives would encourage them to come and hopefully give them a cushion while the neighborhood is being revitalized.”

Another potential impact of the bill would be the increased investment in affordable housing. With many cities large and small struggling to provide enough affordable housing, the Act would create an opportunity to develop vacant buildings into much-needed affordable housing developments.

“Now more than ever, investment in affordable housing is critical.  Housing costs are at an all-time high with demand outpacing supply. The costs of acquiring housing is high and the cost of building it is as well,” Ms. Lewis said. “Affordable housing developments do so much more than create housing – they create jobs and careers in everything from construction, accounting, legal work, property management, and more.”

In addition to creating jobs, the creation of affordable housing has the potential to slow down the gentrification affecting many large cities, said Lacy Clay, a former congressman from Missouri and a Senior Policy Advisor at Pillsbury Winthrop Shaw Pittman LLP.

“If you can convert these older buildings into affordable housing units, then you will slow down the gentrification process taking place in quite a few of these urban centers. You can look at any major city now and see that low to moderate income families and people of color are being pushed out of those cities, and then to further into the suburbs,” he said. “This would help reverse those trends.”

How Investing in Affordable Housing Actually Can Help with the Current Labor Shortage.

The Revitalizing Downtowns Act is a timely piece of legislation for investing in urban centers during the COVID-19 pandemic. For many industries, it appears that widespread remote work is here to stay, and it is critical that American cities reflect that new reality. By providing incentives for developers and property owners, the Act makes these necessary overhauls far more viable. “Tax incentives reduce investors’ financial risk,” explained Mr. Weinberg. “[This makes] taking on such a project highly attractive.”

The bill’s emphasis on affordable housing is especially notable. Through this provision, legislators hope to provide equal footing for renters and thereby attract young talent to fill employment needs.

“I want to compliment Senator Stabenow and Gary Peters and Dan Kildee for coming up with this innovative way to be able to bring populations back in a way that does not exclude communities of color, but will include communities of color,” Mr. Clay said. “If you build enough affordable housing units, according to the legislation, at least 20 percent of any of those redevelopments have to be dedicated to affordable housing.”

Through investing in affordable housing, downtowns would benefit from an increased flow of commerce, as well as a buffer against the ongoing U.S. labor shortage and or talent mismatch.

“The trick is to prioritize affordable housing without eliminating or displacing families in market-rate housing that do not otherwise qualify for affordable housing,” said Mr. Weinberg. “But if done well, a city that strikes the right balance of available affordable housing benefits from additional economic stability and makes itself a sustainable destination for business, families, and communities.”

Copyright ©2021 National Law Forum, LLC
For More Articles on Real Estate, visit the NLR Construction & Real Estate section.

COVID Testing Fraud: Examples, Warnings, Guidelines, Recent Charges

Introduction

Fraudsters and criminals have wasted no time capitalizing on the public fear and sentiment of the novel coronavirus pandemic (“COVID-19”). Common fraudulent schemes include fake cures, free testing materials in exchange for personal information, billing frauds, coding frauds, loan frauds, and other testing frauds.

This has caused a direct increase in federal scrutiny as well as multiple legislative actions such as paid-leave guarantees and the establishment of the Paycheck Protection Program (“PPP”). Thus, the COVID-19 pandemic has put all companies in every industry sector at risk of a federal investigation.

In addition to understanding COVID-19-related frauds and their warning signs, it is also important to be aware of the latest federal responses. As explained by fraud defense attorneys, this article expands upon some of these considerations.

COVID-19 Testing Frauds

COVID-19 testing frauds are fraudulent scams or schemes involving testing supplies, testing services, test results, etc. These types of frauds can be civil or criminal at the federal level. Civil frauds or civil offenses do not involve the intent to defraud someone.

Despite this, there are still offenses that individuals and companies can be subject to for unintentionally defrauding someone. Criminal frauds or criminal offenses require the intent to defraud. This “intent” requirement can be explicit, inferred, or imputed with actual or constructive evidence.

Because continuous testing for COVID-19 for many individuals is very important, federal authorities have found it necessary to scrutinize this process as well as the suppliers of COVID-19 equipment and the labs that offer testing services.

Laboratories have faced a particularly high level of scrutiny from federal agencies due to their intricate involvement in COVID-19 diagnostic, testing, and processing services. Certain mistakes can be deemed fraud and lead to intense federal investigations and multiple fines and penalties for those labs and individuals involved.

Examples of COVID-19 Testing Frauds

Some examples of testing frauds relating to COVID-19 include the following:

  • Collecting payments from the government for tests and not providing the results;
  • Fraudulently billing federal government benefit programs for COVID-19 testing;
  • Making false statements about the results of COVID-19 tests;
  • Making false statements about the authorization of COVID-19 tests;
  • Making false statements in order to win contracts for COVID-19 testing kits;
  • Collecting payments for COVID-19 testing kits that are never delivered;
  • Using COVID-19 tests from abroad that are not authorized to be used as tests within the United States; and
  • Selling fraudulent testing kits.

“The COVID-19 pandemic has created many legal risks and obligations for companies that are already struggling to stay afloat. In addition to new laws and compliance obligations, the risk of an impending federal investigation for COVID-19 testing fraud is a real possibility. All companies—especially healthcare entities and laboratories—face this risk and need to therefore ensure that their interests, rights, and reputation are properly safeguarded. Retaining an attorney experienced COVID-19 testing fraud and the federal process is your first and best defense.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.

Federal Agency Warnings and Guidelines Regarding COVID-19 Frauds

Many U.S. federal agencies have released warnings, guidelines, and other alerts that aim to inform the public about what to expect and how to prepare for various COVID-19-related consequences. Below are a few examples:

  • The Food and Drug Administration (“FDA”): The FDA’s focus remains on increasing the availability of tests to the public, vaccines, and devices to help fight the pandemic such as ventilators and personal protective equipment. In addition, the FDA is also monitoring the human and animal food supply as well as taking prompt action in response to fraudulent COVID-19 products.
  • The Federal Trade Commission (“FTC”): The FTC’s consumer advice focuses on informing consumers of what to watch out for and how to spot potential frauds. For instance, if anyone charges you for help signing up for the vaccine, it is a fraud; COVID-19 vaccines are free. Also, if someone offers you a COVID-19 vaccine for a fee, it is a fraud; only state and federal approved locations offer the COVID-19 vaccine.
  • The Securities and Exchange Commission (“SEC”): The SEC’s Office of Investor Education and Advocacy has issued an Investor Alert warning investors about investment frauds such as claims that a certain product or service will stop the virus. The SEC is focused on examining social media content and Internet promotions that claim that a certain product of a company will prevent, detect, or cure the virus and that the stock of these companies will surge in price. These frauds are displayed as “research reports” but are nevertheless fraudulent schemes.
  • The Department of Justice (“DOJ”): The DOJ has informed the public that it is committed to investigating, detecting, and prosecuting conduct relating to COVID-19. It warns that criminals and fraudsters will likely use new tools and methods to perpetrate their crimes around the world. The DOJ has a special “National Center for Disaster Fraud Hotline” where individuals can report the nature of a suspected fraud/scam as well as a complaint form for individuals to fill out.

Recent DOJ Investigation and Charges for COVID-19 Fraud

The Department of Justice is one of the leading federal agencies that has been the leader in investigating and prosecuting COVID-19-related testing frauds. The DOJ recently brought charges against fourteen people for an alleged COVID-19-related healthcare fraud scheme that led to over $143 million in false billings.

The charges are against a telemedicine company executive, marketers of the business, medical business owners, and a physician. Specifically, on May 26, 2021, the DOJ brought criminal charges against these individuals in a total of seven federal districts across the nation.

The defendants in this case exploited the pandemic by offering COVID-19 tests to Medicare beneficiaries, drive-through testing sites, and medical offices in order to induce the recipients to provide their personal identifying information (and saliva and a blood sample). The defendants misused the information they received from the recipients and submitted unrelated, medically unnecessary claims to Medicare for very expensive tests.

Some cases involved COVID-19 tests that were not provided to the beneficiaries or that were not reliable. The proceeds from this fraudulent scheme were laundered through shell corporations and the defendants used these proceeds to purchase luxury real estate and exotic automobiles.

In other cases, the defendants allegedly exploited CMS policies that provided increased access to care by submitting false and fraudulent claims to Medicare for telemedicine visits that never occurred. Medical professionals allegedly offered and paid bribes in exchange for their referral of medically unnecessary testing. The DOJ’s Fraud Section is committed to prosecuting this and other cases that capitalize on the pandemic in order to fraudulently gain a financial benefit.

Conclusion

COVID-19 has created a host of new legal and regulatory requirements as well as compliance obligations for companies and individuals. Failure to follow these regulations or conform to these compliance obligations could lead to fraud allegations.

Several federal agencies including the SEC and DOJ have been both eager and successful at investigating and prosecuting COVID-19 testing frauds.

Companies that need to be especially attentive to federal laws and compliance obligations in the midst of the virus include laboratories and other testing service companies. These entities run a high risk of a federal investigation because of the nature of their business, which entails individual testing, diagnostic, and processing services.

Oberheiden P.C. © 2021

Article By Dr. Nick Oberheiden of Oberheiden P.C.

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

Legal Marketing Budgets with Good2BSocial [PODCAST]

Rachel and Jessica meet with Guy Alvarez, founder and CEO of Good2BSocial, to review legal marketing budget changes since the beginning of the COVID-19 pandemic.

Please read on below for a transcript of our conversation, transcribed through artificial intelligence.

Rachel

Hello, and welcome to Legal News Reach, the official podcast for the National Law Review. Stay tuned for a discussion on the latest trends, legal marketing, SEO, law firm best practices, and more.

Rachel

So my name is Rachel, a web content specialist for the National Law Review.

Jessica

And my name is Jessica and I do about the same.

Rachel

In this episode, we’ll be taking a look at legal marketing budgeting post COVID-19, with Guy Alvarez, founder and CEO of Good2bSocial. Would you like to tell our listeners a little bit about yourself?

Guy

Sure, Rachel. So as you said, my name is Guy Alvarez. I am a former practicing attorney. And currently I am the founder and chief engagement officer at Good2bSocial. Good2bSocialis a digital marketing agency that specializes in the legal industry. And basically what we do is we help our clients, law firms, as well as legal vendors and others, to leverage digital technology to accomplish their business objectives.

Jessica

We’ve worked with you guys before just on various things. So this is great, we get to have you in here and talk to you today. I’m excited, I’m excited to get started. Some things that are on legal marketers’ mind at this point with the covid 19 pandemic, hopefully coming to a close, what is the way they can handle their marketing budget? How has the pandemic affected the budgeting?

Guy

A great question, Jessica. And that’s a question I get a lot from both small firms as well as large law firms. So obviously, what’s changed significantly with COVID is the inability to really see other people in person, right. So a lot of firms in the past have dedicated their marketing budget, a lot of it has gone into conferences, or trade shows, or live events. And obviously, for the most part, those things aren’t happening today. Or if they’re happening, they’re happening in a very limited way. Also, people don’t really like to travel or travel as much. So that’s also made an impact in terms of their marketing budget, from the business development side. A lot of budget in the past has gone to client entertainment, right? So lawyers taking out clients dinners, or sporting events or theater or things like that. And those things aren’t happening either. So what we’re seeing is really a shift in terms of budget from the real world into the virtual world. And as a result, we’re seeing law firms spend a lot of their budget on digital marketing, right ways that they can enhance their website, ways that they can communicate to their clients and prospects, their knowledge, their experience, and basically stay top of mind and develop strategic relationships. So we’ve seen a lot of investment into webinars, it looks like almost every law firm is doing webinars these days, law firms are spending money on and creating podcasts like this one. So we’re working with a lot of firms who have decided to create one or more podcasts and they want to put it out. And then also firms are spending money on online advertising. More and more firms are struggling to take a dip into online advertising, whether that is paid social media like LinkedIn, and Facebook and Instagram, as well as Google ads and other forms of online advertising.

Jess

How much in general should a law firm look to spend on their marketing budget?

Guy

Great question. Historically, we have seen firms spend somewhere between two to 3% of their overall marketing budget on marketing activities. What we’re seeing now is firms are investing more closer to five to 6%. And the reason for that is because beat they don’t have the ability to get in front of their clients in person. So they’re looking to spend money to get in front of their clients through digital means.

Jess

That seems kind of interesting, especially since it’s shifting to online versus in person. Is that normal that it would double even though it’s digital now instead of you know, the wining and dining that hadn’t before?

Guy

Unfortunately, I feel like a lot of firms don’t know what they’re doing. So they’re wasting a lot of money, right? They’re spending money on advertising online without really understanding how to do it. So I’ll give you a perfect example. A lot of firms, especially corporate law firms right now are experimenting with LinkedIn advertising because LinkedIn is a great way to get in front of a professional audience. If you go to LinkedIn or if you talk to the LinkedIn sales people, they’ll basically tell you to spend as much as you possibly can, so that you can reach your target audience. So let’s say, let’s say you’re trying to reach in House counsel in the state of California, right? Let’s say you have a firm, and you really want to reach in House Counsel, and you go to LinkedIn, and LinkedIn will give you a recommended budget of between, let’s say, eight, and $20 per click, you know, that’s what they want you to bid, right. And so if you talk to LinkedIn, they’ll say, Oh, well, in this case, you should fit the $20. That way, you can make sure that your ad is going to be seen by your target audience. But the reality is, it doesn’t really work that way. Sure, if you’re going to bid more money, there is a possibility that more people will see it. But that’s not necessarily the case, you could bid less money. And if you have a really good offer, or a really good ad or post, people aren’t going to click on it, and then more and more people aren’t going to see it. It’s the same as if like, let’s say you went to an art auction, right? And someone’s was auctioning a painting. And the auctioneer said, Okay, we’re going to start the auctioning at $1,000 for this painting. And you raise your hand and you say, you know, a million dollars? Well, why would you do that? What you don’t know yet, you know, maybe you put it in for $2,000 $3,000 $10,000. So that’s why firms are spending money, but they’re not spending it in a productive, efficient manner. And part of the reason for that is that they’re just not familiar with how paid LinkedIn or other forms of advertising online, really work. And so that’s why we’re seeing more and more money spent, but not necessarily the most efficient type of spending.

Jess

So this is kind of a good Segway into my next question that I had. So how do firms know how to spend for a new law firm versus an established one?  A new law firm probably isn’t going to have the necessary background and know how to spend their money wisely.

Guy

So there’s two ways that you can, you know, make sure that you’re doing the best you can. One is you can hire an agency like ours, who has experience and knowledge and knows what they’re doing and has done it a billion times. Or you can train your team, right? invest in training, invest in getting them up to speed, so that when, when they’re doing it, they know what they’re doing.

Jess

I’m not surprised to hear that from you. I’m sure how many people you work with,they need help knowing how to budget. And that’s great, because that’s what you guys are there for to help guide them through that.

Guy

Yeah, and they could spend a little bit of money with us managing it, but at the end of the day, they’re getting a much better bang for their buck, because they’re not wasting a ton of money. I’ll give you another example. I see a lot of law firms that are doing Google advertising. And Google advertising can be really expensive, right? But what they’re doing is when they create the ad, they’re linking their ad back to their websites. And that’s a big No, no, you don’t want to link an ad back to your website, you want to link the ad to a landing page, where the visitor really has the option of either filling out a form or picking up the phone. If you’re sending them back to your website, they might forget why they thought there, they might start to explore other things. And all of a sudden, you wasted a ton of money, and you’re not getting the results that you wanted. So that’s just another simple example, of firms not knowing how to spend their money and spending their money in a non efficient way.

Rachel

So to sort of go off of that, we’ve spoken a little bit about how law firms should allocate their budget, and how they can best use their marketing dollars. But I was wondering if you could talk a little bit about what are the most important areas to focus on right now in terms of legal marketing spend.

Guy

Or so as I said, a lot of the money that used to go to trade shows conferences, sponsorships, you know, it’s not being spent anymore, because, you know, people aren’t going to real world events. So from my perspective, the best way to spend money is to give your audience your target audience and it could be either existing clients or new potential clients is to communicate to them the knowledge and the experience that your firm and that your attorneys have. And that’s why content is so important. Right, a lot of firms I know are like, Oh, you know, we want to improve our search engine visibility, we want to, you know, but they don’t understand that the only way to do that is by creating really good, valuable content. That’s the number one priority. Same thing with social media, if you’re not creating client centric, valuable thought leadership content, you’re not going to have a very successful social media strategy. So really, the focus should be first and foremost, on creating that really great content. And the way to do that is to really understand what your audience is interested in. They’re not necessarily interested in your awards, or your new hires or your qualifications, sure, that matters to them down the road. But right now, what they’re most interested in is, what their business and the problems or issues that they’re facing. So the more that you can put yourself in the shoes of your clients or your prospects, and create content that’s going to be really valuable and interesting to them, the more you’re going to have success from a marketing perspective. So I think first and foremost, the investment should be around client centric, thought leadership content. That’s number one. Number two, is I think you need to invest in a way to measure everything you’re doing, right? If I’m spending a ton of money, and then I asked you, well, you know, how are you doing? What are you getting out of it? And you don’t have an answer, then how can you possibly improve on what you’re doing? So you need the tools and technology to properly measure the effectiveness of your legal marketing? expenditures. And a lot of firms don’t have that, right. Some firms might measure and say, Oh, yeah, we look at Google Analytics. And I said, Great, well, what do you do after that? What do you do with the data? We send it to our lawyers, okay. And then what happens? Nothing happens. So if all you’re doing is looking at data, and not analyzing it, and not coming out with some meaningful insights out of it, then you’re not really gaining much. So you need to invest in technology. And in people that understand what’s working, what’s not working, and what you can do to adapt or change so that you can get the results that you want.

Rachel

We talked a little bit about measuring ROI and measuring how these campaigns are performing. What metrics should they be paying attention to? And how can they really get started?

Guy

That’s a great, great question, right? A lot of times, I speak to marketers, and they’re really frustrated, cuz they say to me, God, you know, we just got, you know, 1000 new followers on LinkedIn, or we just got 20 new likes on Facebook, or we just improved our traffic, we’re getting now 2000 unique visitors to our website. But the lawyers don’t care, right. And the reason the lawyers don’t care is you need to be able to tie your metrics to actual business objectives, right? lawyers don’t care how many likes or follows or shares are bought, they don’t care. They care about, did we get any new business? Or were we mentioned in an article or publication, or you know that we get a new speaking opportunity? So you need to closely tie your digital metrics into real business objectives? In order to really be able to quantify, yes, we did this invested investment, and this is what resulted out of it. And I’ll give you another example. So as I said earlier, a lot of firms, especially over COVID, you know, have invested heavily on webinars, it looks like every firm was doing a webinar almost every day. But if you ask most of them, you know, what did you do after the webinar? How did you follow up, most of them may be sent out an email, thanking everyone. And that’s it. So now you spent all this time, effort and money in creating a webinar, and you did nothing to follow up. And so that is the types of things you need to do is make sure that you’re not only investing in the creation, but also measuring the execution afterwards and have a plan for how you’re going to be able to turn website or webinar visitors or registrations into potential clients.

Jess

That’s interesting. So that long game of follow up, is that one of the ways these firms can make sure that they’re getting the desired ROI Is that just one of the techniques? or What else could they implement?

Guy

Yeah, that that’s a very important technique, right? Because one of the things I tell law firms is, don’t think about it just because you weren’t you attend a webinar, it doesn’t necessarily mean you’re ready to hire someone, you know, you might just be interested in the topic, or maybe your boss has asked you about it, but they may not be ready to hire you. So you have to invest in the long term. And you got to make sure that okay, we did the way when it was about 100 registrations, and out of those 100 registrations 50 people showed up. So now you’re gonna have to have a strategy for those people that showed up, you should have a strategy for the people that didn’t show up. And what you want to do is you want to stay top of mind, so that when the timing is right, when they actually have the need, they’re going to be like, Oh, yes, this firm, that they continue to email me about this topic, they certainly know what they’re doing. Let me reach out to them. Right. So that is, that is definitely one of the ways to do that. The other thing is, you need to be able to repurpose your content, right? There is a process called cope, which talks about create once publish everywhere, right? What that means is for every piece of content you create, you should find a way to repurpose it. So if we’re doing this podcast right now, maybe we can take the transcript of the podcast and create a blog post. And maybe since we’re doing a podcast and a video, now we can chop up this video into little segments. And maybe out of that you can have, you know, 2030 different social media posts. So again, it’s really about how you’re investing in the content creation, find a way to repurpose it, because the other thing is, everyone likes to consume content in a different way. Some people like to read, some people like to listen to podcasts, other people like to watch videos, other people like to look at infographics. So you should be able to repurpose that content in as many different ways as possible, so that people can consume it in whatever way they choose to consume.

The follow up part seems to be just like an industry thing. I think they’re trying to pump out as much content, especially being new to webinars, I’m sure they’re just cranking those out doing a webinar series and not thinking about, well, how do we stay on people’s minds, the content is valuable, right, because the people go to the webinar to gain insight on that topic that they’re interested in. But once they leave, that has now no longer occupies the brain at that point,

Right, or they’ll make the mistake while they’re doing a webinar, but they don’t record it the right. And so just because you had 100 people show up, there’s a lot of value to that webinar. So you should take that webinar, you should post it to your website, you should email about it. I mean, again, it’s not just a one time thing. Every time you build content, it’s another asset that you can build on. So that eventually people will find you and hire you.

Jess

When these law firms that are having all these issues with their budgets, when they come to you guys and ask for your help to any firm that may listen to this episode with you guys on it, what do you want to tell them? like three things that your expertise, you know, is a tried and true? What would you want to say to them?

Guy

So that’s a really great question. You know, one of the things that we’re really different about other agencies and other companies like us, is we don’t take a cookie cutter approach to any of our clients, right? I have a lot of times prospective clients will call call me and say, okay, we need to, we need to do some SEO on our website, or we need to create a podcast, or we need to redesign our website. And I said, Okay, well tell me more about that. What Why do you want to do that? What are your what is the business objective, right? So just because they think of something that might not necessarily be the best way to accomplish what they’re trying to accomplish. So we start off with every one of our prospective clients, we start off by having them fill out a questionnaire, and then we do an audit of their digital properties to kind of see where they’re at, where their competitors are at, and what their business objectives are, and we don’t charge for that. That’s something that we do. And once we do that, then I have another conversation and I say, Okay, this is what we saw, this is what you told me, based upon that on that this is what we would like to do. And then we come up with a very specific strategy for them. That would enable them to accomplish their goals. And sometimes this gets frustrating for some clients or prospective clients are like, well, I just want to quote How much does it cost? And I’m like, I’m sorry, you I’m not just going to give you a call.  I need to understand more about what you’re trying to do, what your competitors are doing and where you’re at today. And, you know, that’s worked really well for us. So the one thing I would say is, if you come to us, you’re going to be treated as a unique, very distinct client. And we’re gonna develop a unique and intuitive strategy, just for you, that is going to be different from any other clients.

Jess

I think that’s definitely the biggest part of marketing. If you want to be different, you can’t do the same old tried and true, or maybe what used to work, you know, even with this post COVID environment, you got to change it up. And yeah, I’m glad you mentioned that every client’s needs are very specific. And budgeting is one of them. And I’m sure that changes how you approach marketing for them. So it’s interesting that you will look at all those metrics for free. And then you also have your own podcast, which is free for legal marketing, the legal marketing, 2.0 podcast. So you guys offer a lot of valuable insight for people. And that’s why we wanted to have you on this podcast so that if our clients or anybody else who listens knows that this is an option out there that they can use, because I think marketing is such a big thing, digitally, especially right now probably forever at this point.

Guy

Yeah, we’re big believers in in providing valuable information for free. You know, we publish a blog post every day, we do a weekly podcast, we do monthly webinars. We do other things. We publish free ebooks all the time. And the reason why is we want to educate our audience as much as possible, so that when they need someone, they may know a little bit about how to do it. But if they really want to do it, well, they’ll think of us first. And if they don’t, at least they get that really good information. And eventually that ends up helping them down the road to help sauce.

Rachel

So one thing that I was curious to get your point of view on is sort of the through line that we’re trying to focus our inaugural season our podcast on, which is sort of how legal marketing has both changed because of COVID. And also, where legal marketing is going post COVID are sort of in this weird Limbo state where we’re on the cusp of both things, going back to normal, or people starting to think about going back to normal. Also, things aren’t back to normal yet. So I was just curious, like, what have you seen change over the past year? And how do you see things changing more moving forward?

Guy

So it’s interesting, a couple of things. One is COVID has definitely accelerated the trend towards digital, there’s no question about that. So we were already starting to see that before COVID, more and more firms were investing in digital, you know, sprucing up their website, creating more content, blah, blah, blah. So that has definitely happened. It accelerated it to a point where a lot of CMOS and marketing directors that were complaining because they couldn’t get their attorneys to create content, all of a sudden, they were inundated by huge amounts of content, right? It was like they couldn’t put it out there quickly enough. You know, things settle down a little bit. So you’re starting to see less of that. But there’s still a ton of content that’s being created. And the problem is, you know, just throwing up a bunch of content and see what’s going to stick is really not a great strategy. So what I think is going to happen, what we’ve already started to see happen is firms are going to start to take a step back and say, wait a minute, it’s great that we’re creating content, but what’s the strategy behind it? You know, who do we really want to reach? We can’t market to everyone, right? So you got to really figure out like, what are the strengths of your firm? What are the markets that you really go out want to go after? What is your ideal client profile look like? You know, what are the types of companies that hire you, where you’re really profitable? And then so what they’re gonna start to look at is creating content and strip marketing strategies that focus on their ideal customer profiles, and then measuring everything that you do. So I think that’s really what’s going to ship is a focus on strategy, and narrowing that focus to your best potential client, and then creating strategies around those clients. So, you know, the only thing I would say is, you know, that’s the change into the digital world is, a lot of times I see firms get very stressed out about all these new technologies. And they want to make sure they don’t miss out on anything. And, you know, a few months back, everyone wanted to be on clubhouse/ Well, you know, clubhouse is a good new property, and there’s certainly value to it. But just because it’s out there doesn’t mean that you have to be on it, right. So I think the important thing is to really be measured in how you approach new technology and new channels. But most importantly, I think, if you’re going to improve your marketing, the one thing that I would recommend, is to focus in on your clients, and really gaining an understanding of what it is they really need. Right? That is the most valuable thing. And I don’t think that law firms spend enough time figuring that out, they don’t spend enough time doing research on their clients. Because if you talk to a client, they typically want three things. They want a firm that understands their industry, they want a firm that understands their business, and they want a firm that understands them, that individual that you’re dealing with. And the only way that you can do that is by spending some time doing research. And once you get that information, then you can create the nominal marketing strategies that really have an impact. So I think that’s something that firms are starting to realize. And I think that’s the right way to go. So if you’re a CMO at a firm, or marketing director of a firm, convince your lawyers to spend some time and some budget, really researching your existing clients, so that you can come up with strategies that are really going to make an impact.

Rachel

Great, thank you for giving that great takeaway. I think our listeners will be really interested to sort of really hone down on the direction that they should take their marketing, especially now that everything is going digital online, it’s more important than ever to have a strategy for that. So yeah, thank you for joining us today. That about wraps up our episode on legal marketing budgets, posts COVID-19. And Special thanks to Guy Alvarez with Good2bSocial for joining us.

Guy

Thank you, Jessica. And thank you, Rachel, it’s been a pleasure. And if any of your listeners want more information, go to good2bsocial.com. And check out our blog posts or podcasts, webinars, etc. Thank you.

Rachel

Thank you for listening to the National Law Review’s Legal News Reach podcast. Be sure to follow us on Apple podcasts, Spotify, or wherever you get your podcasts for more episodes. For the latest legal news, or if you’re interested in publishing and advertising with us, visit www.natlawreview.com We’ll be back soon with our next episode.

Copyright ©2021 National Law Forum, LLC

Article By Rachel Popa and Jessica Scheck of The National Law Review / The National Law Forum LLC

Click here for more episodes of Legal News Reach.

Get Poked or Get Canned – Can You Terminate an Employee for Refusing the Vaccine?

The answer is it depends.

Why is the employee refusing the vaccine?

For employers mandating the vaccine, an employee’s refusal to receive it because he or she simply does not want to be vaccinated is likely fair game for termination. Typically, however, an employee will seek a reasonable accommodation that enables him or her not to get the vaccine, raising an objection pursuant to the Americans with Disabilities Act (a medical issue) or Title VII (a sincerely held religious belief). Those scenarios require an employer to entertain the request by engaging in an interactive process to determine, primarily, whether there exists a way to provide the accommodation without creating an undue burden (or hardship) on the employer. The threshold for the hardship analysis is much higher for a medical reason than a religious reason. Keep in mind that you do not have to remove essential functions of a job or create a separate position as a reasonable accommodation.

What if you have a union or a federal contract?

The issue becomes even more complicated if a union is involved or the employer is a federal contractor. With a union, you must make sure you bargain appropriately before imposing a change in working conditions.

On the federal contract side, those employees will fall under a vaccine mandate starting October 15, just like federal employees. In the past months, vaccine requirements have differed from site to site depending on the particular government contracting agent. For example, if the site lets visitors (including contractor/subcontractor employees who perform their duties onsite) enter with masks or a negative test as an alternative to vaccination, the employer will in most cases need to provide the same accommodation. If the site takes a more stringent approach and does not allow masks and negative tests as an alternative, the employer may be able to deny such a request and terminate the employee instead. Before you terminate an employee, make sure to check for any vacancies in which you can provide the accommodation. If no such vacancies exist, the employer should allow the employee to exhaust available sick or PTO time, as well as FMLA leave, if his or her vaccine refusal is based on a medical issue. For a religious issue, the employee would not qualify for sick time, but the employer should allow that employee to exhaust available PTO prior to termination.

What about the OSHA Emergency Temporary Standard?

We expect OSHA to issue its Emergency Temporary Standard (ETS) soon, which will shed light on the analysis, but we do not yet know exactly what that guidance will be. We expect, however, that exceptions based on disability or religious requests for accommodation will be a part of the rules, and the ADA and Title VII analysis will be necessary.

As always, stay tuned for additional guidance after OSHA issues its ETS.

© 2021 Bradley Arant Boult Cummings LLP

Article By Anne Knox Averitt, Chuck Mataya and Anne R. Yuengert of Bradley Arant Boult Cummings LLP

For more articles on mandatory vaccines, visit the NLR Labor & Employment section.

COVID-19: President Biden Targets Private Employers and Federal Employees and Contractors in His “Path Out of the Pandemic”

On 9 September 2021, President Biden announced his comprehensive national strategy for addressing the COVID-19 pandemic including multiple directives and actions targeted at federal, private-sector, and healthcare employers. The strategy includes regulatory action from the Occupational Safety and Health Administration (OSHA) and the Centers for Medicare & Medicaid Services (CMS) in addition to two Executive Orders, all of which include sweeping vaccination and COVID-19 safety mandates. Though the six-pronged action plan includes measures focused on vaccination efforts, protecting already vaccinated individuals, keeping schools safely open, increasing access to testing, safeguarding economic recovery, and improving care for those affected by COVID-19, this alert will address the specific directives affecting employers.

OSHA EMERGENCY TEMPORARY STANDARD FOR LARGE PRIVATE-SECTOR EMPLOYERS

As outlined in the President’s six-pronged strategy, the White House has directed OSHA to issue an emergency temporary standard (ETS) that would require private employers with 100 or more employees to either mandate the COVID-19 vaccine for its workforce or require weekly COVID-19 testing before reporting to a worksite. Though limited details were provided, this ETS would apply to approximately 80 million private-sector workers in the United States. As part of the ETS, covered employers would also be required to provide paid time off for time spent obtaining a COVID-19 vaccine as well as for recovery from post-vaccination symptoms. The ETS is anticipated to be published in the coming weeks.

As background, OSHA is authorized to issue emergency temporary standards under limited conditions, specifically when it has determined that workers may be in grave danger and a new standard is necessary for their protection in the workplace. After initial publication in the Federal Register, the temporary standard follows the usual rulemaking procedure for a permanent standard, though the timeline for a final ruling is within six months of publication. Finally, an ETS may be challenged in the appropriate U.S. Court of Appeals.1

OSHA most recently issued an ETS on 10 June 2021 that was limited to the healthcare industry. Prior to that, OSHA had not issued an emergency temporary standard since November 1983, and that one (related to asbestos) was invalidated by the U.S. Court of Appeals for the Fifth Circuit about four months later. It is reasonable to expect that a new ETS may also face legal challenges, not only in the regular course, but also due to a potential clash with state legislation and executive actions prohibiting certain requirements related to COVID-19 vaccinations.

EXECUTIVE ORDERS DIRECTED AT FEDERAL EXECUTIVE EMPLOYEES AND FEDERAL CONTRACTORS

The President’s plan also includes an Executive Order mandating the vaccine for federal executive branch employees, with exceptions only as permitted by law. Although few details have been provided, the Executive Order directs the Safer Federal Workforce Task Force (Task Force) to issue guidance within seven days as to the specific implementation protocols for affected agencies.

A separate Executive Order requires agencies to include a clause in certain federal contracts providing that contractors must comply with all workplace safety guidelines issued by the Task Force, with the specific protocols and any exceptions to be published by 24 September 2021. By 8 October 2021, the Federal Acquisition Regulatory Council, which is responsible for promulgating the Federal Acquisition Regulation (FAR), is required to (1) begin drafting the FAR clause required by the Executive Order and (2) recommend that agencies use their authority under FAR Subpart 1.4 to deviate from the FAR to include the Executive Order’s requirements in specific types of contracts. Agencies also are required to take steps to ensure that the Executive Order’s requirements are included in contracts and contract-like instruments that are not subject to the FAR, such as other transaction agreements, entered into on or after 15 October 2021. The clause will be included in contracts or contract-like instruments for services, construction, leases, and concessions. It also will be included in contracts and contract-like instruments subject to the Service Contract Act or entered into with the Federal Government in connection with Federal property or lands and related to offering services for Federal employees, their dependents, or the general public. The Executive Order specifically excludes certain types of federal agreements from compliance with the new requirement. Most notably, the Executive Order excludes federal grants, contracts below the simplified acquisition threshold (currently $250,000), and subcontracts solely for the provision of products.

EXPANDED CMS REGULATIONS FOR HEALTHCARE FACILITIES

The President’s plan also expands on the 18 August 2021 CMS emergency regulation requiring vaccination for nursing facility staff, by requiring employees of all healthcare facilities that receive funds from Medicare and Medicaid to be fully vaccinated. The new CMS directive will expand the vaccination mandate to hospitals, home care facilities and dialysis centers in the United States and will apply to nursing home staff as well as staff in hospitals and other CMS-regulated settings, including clinical staff, individuals providing services under arrangements, volunteers, and staff who are not involved in direct patient, resident, or client care. Although some states have begun to adopt vaccination mandates for the healthcare industry, the CMS directive will develop a uniform standard across all covered entities. CMS is in the process of developing an Interim Final Rule with Comment Period that will be issued in October.

PRACTICAL CONSIDERATIONS FOR EMPLOYERS

Given the broad scope of the President’s plan and the pending ETS, employers, including federal contractors, should evaluate coverage under any of the aforementioned mandates and work with counsel to develop and implement a compliance program that complies with federal, state, and local laws. Depending upon the scope of the ETS, there may be additional issues under the National Labor Relations Act and the Fair Labor Standards Act, as well as state wage and hour laws. Unionized employers should be cognizant of how these directives may impact obligations under collective bargaining agreements or whether a vaccine program would be a mandatory subject of bargaining. Finally, employers must address employee and applicant requests for a reasonable accommodation under both the Americans with Disabilities Act and Title VII of the Civil Rights Act if requiring vaccination as a condition of employment.

1 29 U.S. Code §655 (“Any person who may be adversely affected by a standard issued under this section may at any time prior to the sixtieth day after such standard is promulgated file a petition challenging the validity of such standard with the United States court of appeals for the circuit wherein such person resides or has his principal place of business, for a judicial review of such standard. A copy of the petition shall be forthwith transmitted by the clerk of the court to the Secretary.”).

Copyright 2021 K & L Gates
For more articles on mandatory COVID-19 vaccines, visit the NLR Coronavirus News section.

New York HERO Act Alert: COVID-19 Designated as Highly Contagious Communicable Disease

On September 6, 2021, New York State Commissioner of Health Howard A. Zucker designated COVID-19 as “a highly contagious communicable disease that presents a serious risk of harm to the public health in New York State.” As a result of the commissioner’s designation, employers are required to activate their airborne infectious disease exposure prevention plans in accordance with the New York Health and Essential Rights Act (NY HERO Act).

As we previously reported, on July 6, 2021, the New York State Department of Labor (NYS DOL), in consultation with the New York State Department of Health, published the Airborne Infectious Disease Exposure Prevention Standard and Model Airborne Infectious Disease Exposure Prevention Plan. Although the NYS DOL initially published the standard and model plan only in English, the NYS DOL has since furnished the standard and the model plan in Spanish. The industry-specific templates, for “Agriculture,” “Construction,” “Delivery Services,” “Domestic Workers,” “Emergency Response,” “Food Services,” “Manufacturing and Industry,” “Personal Services,” “Private Education,” “Private Transportation,” and “Retail,” are available only in English.

When the standard and the model plan were published, COVID-19 had not received the commissioner’s designation as a highly contagious communicable disease presenting a serious risk of harm to the public health. Now, because of the September 6, 2021, designation, employers with employees in New York may wish to ensure that they are complying with the applicable provisions of the NY HERO Act. Specifically, if not already completed, each employer shall:

  1. Immediately review . . . and update the plan, if necessary, to ensure that it incorporates current information, guidance, and mandatory requirements, issued by federal, state, or local governments related to [COVID-19];

  2. Finalize and promptly activate the . . . plan;

  3. Provide the verbal review [in accordance with the plan];

  4. Provide each employee with a copy of the . . . plan in English or in [Spanish, if identified as the employee’s primary language];

  5. Post a copy of the plan in a visible and prominent location at the worksite (except when the worksite is a vehicle);

  6. Ensure that a copy of the . . . plan is accessible to employees during all work shifts.

Per the act, if an employer has a handbook, the plan must be included in the handbook.

Because Commissioner Zucker’s designation requires activation of the plans, employers may also want to consider that the model plan and industry-specific templates provide that when a plan is activated, training “which will cover all elements” of the plan must be provided. Per the model plan and industry-specific templates, the topics to be covered during training include the following:

  1. The infectious agent and the disease(s) it can cause;

  2. The signs and symptoms of the disease;

  3. How the disease can be spread;

  4. An explanation of [the] … [p]lan;

  5. The activities and locations at [the employer’s] worksite that may involve exposure to the infectious agent;

  6. The use and limitations of exposure controls[;]

  7. A review of the standard, including employee rights provided under [the NY HERO Act].

The model plan and industry-specific templates also provide that the training will be furnished “at no cost to employees and take place during working hours,” or, if training cannot take place during normal work hours, that “employees will be compensated for the training time (with pay or time off).” In addition, the training is required to be “[a]ppropriate in content and vocabulary to [the] educational level, literacy, and preferred language” of each employee and “[v]erbally provided in person or through telephonic, electronic, or other means.”

The commissioner’s designation will remain in effect until September 30, 2021, at which point the commissioner will “determine whether to continue [the] designation.” Accordingly, employers may wish to continue to monitor guidance and information from the New York State Department of Health and the NYS DOL to determine additional or continuing obligations, if any.

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

Article By Simone R.D. Francis of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

For more articles on the NY HERO Act, visit the NLR Labor & Employment section.

CDC Eviction Moratorium: The Final Word

Yesterday, the United States Supreme Court nullified a nationwide residential eviction moratorium that has been in place for nearly a year. Alabama Association of Realtors v. U.S. Department of Health and Human Services, 594 U.S. —- (2021)

Last September, the Centers for Disease Control and Prevention (CDC) ordered this nationwide moratorium, citing authority it said granted sweeping powers to limit the spread of the SARS CoV‑2 virus. 85 Fed. Reg. 55,292. Specifically, the CDC said it could enact the order as a measure it deemed “necessary” to achieve its goal of limiting the spread of the novel coronavirus. See 42 U.S.C. § 264(a) (referred to as § 361(a)). Challengers argued that the order exceeded the scope of authority Congress had vested in the CDC under § 361(a). Nonetheless, this order remained effective until its July 31, 2021 expiration date. Three days after it lapsed, the CDC replaced it with a new one. 86 Fed. Reg. 43,244.

On August 26, 2021, the Supreme Court agreed with the parties challenging the CDC’s orders. Saying that it “strains credibility to believe that this statute grants the CDC the sweeping authority it asserts,” the court found that the CDC’s broad interpretation of its mandate could permit dramatic administrative overreach. To illustrate this, the court posed several hypotheticals: “Could the CDC, for example, mandate free grocery delivery to the homes of the sick or vulnerable? Require manufacturers to provide free computers to enable people to work from home? Order telecommunications companies to provide free high-speed Internet service to facilitate remote work?” To the contrary, the court found that § 361(a)’s second sentence was instructive as to the types of measures the CDC could implement, which focused strictly on “measures [that] directly relate to preventing the interstate spread of disease by identifying, isolating, and destroying the disease itself.” Here, the CDC’s remedy was too attenuated.

“It is up to Congress, not the CDC, to decide whether the public interest merits further action here.” Indeed, “Congress was on notice that a further extension would almost surely require new legislation, yet it failed to act in the several weeks leading up to the moratorium’s expiration.” Even if the CDC was faced with legislative inaction and motivated by “desirable ends,” “our system does not permit agencies to act unlawfully[.]” See also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582, 585-586 (1952).

Given all of this, the court determined that the parties challenging the moratorium “not only have a substantial likelihood of success on the merits—it is difficult to imagine them losing.” Accordingly, the court vacated the stay on the District Court’s decision holding the CDC order invalid.

Critically, this decision is not a blanket nullification of any other moratoria that may be in effect (including state and local moratoria), nor does it affect any practical limitations on the exercise of remedies, such as the inability to hold a public sale necessary to foreclose in certain jurisdictions. It also leaves open the possibility of further congressional action.

© 2021 Miller, Canfield, Paddock and Stone PLC
For more on COVID-19 Evictions, visit the NLR Construction & Real Estate section.

Health Care Settings Subject to New COVID-19 Requirements Issued by New Jersey and OSHA

Health care settings continue to be at the center of testing and treatment for COVID-19 and are the focus of new safety requirements implemented to minimize risks of transmission. Last month, Governor Murphy issued an Executive Order related to vaccination management, COVID-19 testing, and data collection, which mandates “covered health care and high-risk congregate settings” to establish a policy requiring “covered workers” to either submit proof of full vaccination or to submit to weekly COVD-19 testing. This requirement goes into effect on September 7, 2021.

In addition, the Occupational Health and Safety Administration (OSHA) has implemented an emergency temporary standard (ETS) applicable to certain health care settings, which includes extensive safety and health measures. The ETS provides for certain exceptions for coverage, and while the precise definitions are complicated and must be consulted, the focus appears to be on those settings where employees are interacting with patients who are suspected or confirmed for COVID-19. Unlike the Executive Order, the OSHA ETS does not include vaccine or testing requirements; however, certain New Jersey health care providers will be covered by both measures.

Which health care and high-risk congregate settings must comply with the Executive Order?

The scope of this Executive Order is quite broad and will impact most health care settings across New Jersey, both in terms of the covered health care settings and the covered workers to which the vaccine or testing requirements will apply.

The Executive Order defines “health care facility” extremely broadly as including:

acute, pediatric, inpatient rehabilitation, and psychiatric hospitals, including specialty hospitals, and ambulatory surgical centers; long-term care facilities; intermediate care facilities; residential detox, short-term, and long-term residential substance abuse disorder treatment facilities; clinic-based settings like ambulatory care [which would include all private medical offices], urgent care clinics, dialysis centers, Federally Qualified Health Centers, family planning sites, and Opioid Treatment Programs; community-based healthcare settings including Program of All-inclusive Care for the Elderly, pediatric and adult medical day care programs, and licensed home health agencies and registered health care service firms operating within the State.

High-risk congregate settings under the Executive Order include:

State and county correctional facilities; secure care facilities operated by the Juvenile Justice Commission; licensed community residences for individuals with intellectual and developmental disabilities (“IDD”) and traumatic brain injury (“TBI”); licensed community residences for adults with mental illness; and certified day programs for individuals with IDD and TBI.

“Covered workers” is defined to include full and part time employees and independent contractors, as well as individuals with operational, custodial and administrative support roles.

How to Comply and Penalties for Violations

Covered workers are not required to provide proof of having been fully vaccinated under the Executive Order, but those who do not submit proof of full vaccination must submit to COVID-19 testing one to two times per week. The settings covered by this Executive Order may choose to impose more frequent testing as well. A covered worker will not be considered fully vaccinated until two weeks have elapsed since receipt of the second dose of a two-dose series, or a single dose of a one-dose.

Acceptable proof of full vaccination includes: (1) CDC COVID-19 Vaccination Card; (2) Official record from the New Jersey Immunization Information System or other State immunization registry; (3) Record from a health care provider portal/medical record system on official letterhead signed by a physician, nurse practitioner, physician’s assistant, registered nurse or pharmacist; (4) Military immunization or health record from the U.S. Armed Forces; or (5) Docket® mobile phone application record or any state specific application that produces a digital health record. Records of such proofs must be maintained confidentially.

Those employees who do not submit proof of vaccination must submit to weekly testing, which can be either antigen or molecular tests with Emergency Use Authorization from the Food and Drug Administration or operating pursuant to the Laboratory Developed Test requirements by the U.S. Centers for Medicare and Medicaid Services. Covered settings may provide onsite COVID-19 tests, which can be either an antigen or molecular test. Covered settings must have a policy for tracking test results and are required to report results to the local public health department. However, in all other respects, vaccination and testing information must be kept confidential and separate from the employees’ personnel records.

The penalties for violations are stringent. Pursuant to N.J.S.A. 9:49, a violation may be considered a disorderly conduct offense, which can carry a penalty of a fine of up to $1,000 or 6 months imprisonment.

It should be noted that the requirements of the Executive Order with respect to screening and testing of unvaccinated workers do not override any requirement imposed by the covered setting regarding the testing and screening of symptomatic workers or vaccinated workers.

OSHA’s COVID-19 Emergency Temporary Standard (ETS) for Health Care Settings

Published on June 21, 2021[1] and in further effort to ensure the safety of health care workers, the OSHA ETS for health care and related industries provides that, unless an exception applies, in settings where employees provide health care services or health care support services, employers must develop and implement COVID-19 plans.

The analysis to determine whether an exception applies is complicated, and OSHA offers a flowchart to assist with this analysis. Among these exceptions are:

  • Private medical practices, where (i) the office is in a non-hospital setting, (ii) ALL non-employees are screened prior to entry, and (iii) anyone with suspected or confirmed COVID-19 is not permitted to enter the premises.
  • Well-defined hospital ambulatory care settings where all employees are fully vaccinated and all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter those settings.
  • Home health care settings where all employees are fully vaccinated, all non-employees are screened prior to entry, and people with suspected or confirmed COVID-19 are not present.
  • Well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present, the requirements in the ETS for personal protective equipment (PPE), physical distancing, and physical barriers do not apply to employees who are fully vaccinated.

For those covered health care settings with more than 10 employees, the COVID-19 plan must be in writing. It is not practicable to list every requirement in this alert without making it quite lengthy, but the following will highlight some of the notable plan requirements:

  • A designated safety coordinator who understands and is able to identify COVID-19 hazards in the workplace, is knowledgeable in infection control and has the authority to ensure compliance with the COVID-19 plan
  • A workplace hazard assessment (including involvement of non-managerial employees)
  • Policies and procedures to minimize the risk of transmission of COVID-19 to employees, which are extensive and include but are not limited to:
  • Limiting points of entry for patients and screening patients, clients and visitors at entry
  • Social distancing when indoors
  • Physical barriers between fixed work stations in non-patient areas
  • Cleaning and disinfecting surfaces and equipment in patient areas and in high touch areas at least once per day
  • Providing hand sanitizer with a minimum of 60% alcohol or easily accessible handwashing facilities
  • Providing Personal Protective Equipment (PPE) to employees with close contact exposure (within six feet in same room) to a person with suspected of confirmed COVID-19
  • Ensuring HVAC systems are used per manufacturer instructions and utilize Minimum Efficiency Reporting Value of 13 or higher if the system permits
  • Screening employees each workday/shift
  • Employees required to promptly notify employer of positive COVID-19 test, a suspected COVID-19 case or of COVID-19 symptoms

When an employee who has been physically present in the workplace tests positive, that employee must notify a designated employee within 24 hours

Employees should be trained on COVID-19 transmission and informed of their right not be retaliated against for exercising their rights under this ETS. Finally, health care settings with more than 10 employees must retain records of positive COVID-19 cases and all covered health care settings must report any COVID-19 fatalities and in-patient hospitalizations to OSHA.

ETS Requires Employers Pay Employees Forced to Quarantine or Isolate Under Defined Circumstances

Significantly, the ETS requires covered employers with ten or more employees to provide employees with substantial “medical removal protection benefits” if the employee must be removed from the workplace when the employer knows that the employee:

  1. Is COVID-19 positive, meaning that the employee was confirmed positive for or was diagnosed by a licensed health care provider with COVID-19;
  2. Has been told by a health care provider that they are suspected to have COVID-19;
  3. Is experiencing recent loss of taste and/or smell, with no other explanation; or is experiencing both fever (≥100.4° F) and new unexplained cough associated with shortness of breath; or
  4. Is required to be notified by the employer of close contact in the workplace to a person who is COVID-19 positive, UNLESS the employee has been fully vaccinated against COVID-19 (i.e., 2 weeks or more following the final dose), or had COVID-19 and recovered within the past 3 months, AND the employee does not experience the symptoms listed in item 3.

When an employee must quarantine or isolate under the aforementioned circumstances, medical removal benefits entitle the employee to regular pay the employee would have received had the employee not been absent from work, up to $1,400 per week until the employee is able to return to work. After three weeks of this leave, employers with 500 or less employees may reduce the benefits paid to two thirds of the employee’s regular rate of pay (up to $200 per day). If an employee removed from the workplace is too ill to work remotely, OSHA directs the employer to provide the employee with sick leave or other leave in accordance with the employer’s policies and applicable law. The employer’s payment obligation is reduced by the amount of compensation the employee receives from any other source, such as a publicly or employer-funded compensation program. Employers may also be entitled to an American Rescue Plan tax credit if they pay sick and family leave for qualified leave from April 1, 2021, through September 30, 2021. More information on the tax credit is available from the IRS.

Resources for Compliance

OSHA provides a lengthy COVID-19 plan template to assist health care providers, which may be customized for each workplace. There are additional resources available to health care providers including worksite checklists, sample employee screening questionnaires, an employee training presentation on the Health care ETS and a sample COVID-19 log. OSHA also offers an FAQ on the ETS standard.

Enforcement and Penalties

Violations of the OSHA ETS may carry a maximum penalty of $13,653 per serious violation or per day for failure to abate beyond the abatement date. Willful or repeated violations carry a penalty of $136,532 per violation. OSHA will use its discretion to determine whether an entity’s failure to comply with the ETS standard despite its best efforts warrants relaxation of the enforcement penalties. However, the agency expects that most employers should be able to achieve compliance within the stated deadlines. When addressing penalties for violations, the agency will also consider the size of the company and any past violations.

Takeaways

Health care settings continue to be at the frontline as we battle COVID-19. State and Federal guidelines and mandates are evolving, extremely complicated and can be difficult to navigate. As a threshold matter, it is critical to determine which measures apply to the health care setting. Compliance is critical to minimize the risks to patients and employees and to avoid penalties for non-compliance. Clear communication with employees is crucial to ensure that they are familiar with the requirements and expectations, as well as to understand the employer’s efforts to keep them safe.

[1] Covered health care employers must comply with all provisions in the ETS as of July 6, 2021  except those requirements related to ventilation, physical barriers, and training, which had a  compliance deadline of July 21, 2021

© Copyright 2021 Sills Cummis & Gross P.C.

Article By Jill Turner Lever, Stacy L. Landau, Patricia M. Prezioso, and Charles H. Newman with Sills, Cummis & Gross PC.

For more COVID-19 updates, visit the NLR Healthcare Law section.

New Jersey’s Safe Passing Law Aims to Protect Cyclists and Pedestrians on the Road

The COVID-19 pandemic may have halted or reduced travel for many in New Jersey, but the end of the year also came with a surprising and sobering statistic: the number of fatal accidents involving cars in New Jersey rose in 2020 despite the pandemic.

Last year, 587 fatal accidents were reported across the state, up from 558 in 2019. Fatal accidents involving pedestrians have also risen, and so have fatal accidents involving cyclists. Eighteen cyclists lost their lives on New Jersey roads last year, up from only twelve the year before.

In response to these alarming numbers—and the long-term work of certain local bike safety advocacy groups—the New Jersey state legislature recently passed a bipartisan bill to increase the safety of New Jersey’s bikers and pedestrians. This bill, now known as the New Jersey Safe Passing Law, was signed into law by New Jersey Governor Phil Murphy on Thursday, August 5th.

The New Jersey Safe Passing Law

Under the New Jersey Safe Passing Law, drivers who are passing cyclists or pedestrians must move over one lane if it’s safe to do so. If moving over one lane isn’t possible or safe, drivers must allow four feet of space between their vehicle and the pedestrian or cyclist until they’ve safely passed them. In the event that it isn’t possible to safely allow four feet of space, the driver is required to slow their vehicle to 25 miles per hour.

In addition to cyclists and pedestrians, the bill also covers New Jersey residents with mobility issues who are riding electric scooters or in wheelchairs. Drivers who fail to follow the new law may face fines of $100, while drivers who cause bodily injury by failing to comply may face a fine of up to $500 and have two motor vehicle points added to their driving record.

Struck by a car while cycling? Here are a few next steps

While the Safe Passing Law is certainly a significant step toward making the road a safer place for cyclists, negligent drivers can still present a danger on the road.

If you’ve been injured by a vehicle on the road while biking, you may be wondering what recourse you have for paying medical bills and recovering damages.

Once you’ve carefully documented the accident, spoken to any police dispatched to the scene, and gotten any needed medical attention, the following steps can help ensure you receive the proper compensation and help:

  1. Contact an attorney. Having an experienced attorney on your side can be crucial if you need to pursue damages from the party at fault or need help making an insurance claim.
  2. Since New Jersey is a “no fault” insurance state, medical bills should be covered through your own health insurance or through the Personal Injury Protection benefits included in your auto insurance (P.I.P. benefits may be applicable even if you’re injured while riding a bike).
  3. Depending on the specifics of your auto insurance policy, you may also be entitled to pursue additional damages for pain and suffering or non-economic loss. A skilled attorney can guide you through your options for pursuing damages and help to ensure that you receive what you’re entitled to.
COPYRIGHT © 2021, STARK & STARK

Article By Domenic B. Sanginiti, Jr of Stark & Stark

For more articles on state legislation changes, visit the NLR Public Services, Infrastructure, Transportation section.

Never Say Never! CDC Extends Eviction Moratorium Again until October 3, 2021

In June 2021, Rochelle Walensky, Director of the CDC extended the eviction moratorium until July 30, 2021.  At that time, the intention was to allow any further extensions absent an unexpected change in the trajectory of the global pandemic.  Enter stage right the Delta variant which has increased the number of COVID-19 cases across the United States.  As a result, the CDC has extended the moratorium until October 3, 2021 to prevent the further spread of COVID-19.  The CDC Order issued on August 3, 2021 (“Order”) is not a blanket extension of the pre-existing Order.

The Order is limited to those areas experiencing “substantial transmission”.  The Order however states that if landlords are not currently in a “substantial transmission” county but later receive the “substantial transmission” designation then landlords must comply with the mandates of the Order.

So what does that mean for landlords in Pennsylvania?  With 29 counties currently designated “substantial transmission” the moratorium continues for almost half of the state.

Coverage under the CDC Declaration now requires the following criteria:

  • Expect to have income less than $99,000 in 2020 (joint $198,000), or have received a stimulus check, or not have been required to report income to the IRS in 2019;
  • Be unable to pay full rent due to an income loss or “extraordinary” medical bills;
  • Have used best efforts make timely partial rent payments that are as close to the full rent payment as the individual’s circumstances may permit, taking into account other nondiscretionary expenses;
  • Eviction would likely render the individual homeless or force them to “live in close quarters” in a new congregate or shared living setting; and
  • The individual resides in a U.S. County experiencing substantial or high rates of community transition levels as defined by CDC.

With the exception to past litigation challenging the CDC’s authority to issue said Orders, as the moratorium continued landlords have attempted ability to challenge the truthfulness of the tenant’s CDC declaration.  Prior to the Order there were a patchwork of state and local courts that permitted the challenges, but some courts have remained silent on whether it would permit such a challenge.  Some reasoning offered by local courts was that prior CDC orders did not speak to the landlord’s ability to challenge the tenant’s declaration.  The most recent Order now specifically states that nothing in the Order prohibits a landlord from challenging the statements in the CDC Declaration in court, as permitted by state or local law.

With this specific language now inserted in the Order, only time will tell on whether a new area of litigation is ignited because of the CDC’s continued extension of the moratorium.

©2021 Strassburger McKenna Gutnick & Gefsky

For more articles on the CDC eviction moratorium, visit the NLR Real Estate section.