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

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

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

SCOTUS Slashes Scope of Cybercrime Statute

The Supreme Court handed down a decision significantly narrowing the scope of the Computer Fraud and Abuse Act (“CFAA”), a federal statute that can impose both criminal and civil liability on anyone who “intentionally accesses a computer without authorization or exceeds authorized access”, in its first-ever decision addressing this law.

In a 6-3 opinion in Van Buren v. United States, No. 19-783, authored by Justice Barrett, the Court reversed the Eleventh Circuit’s decision to uphold the conviction of a former police officer who was charged under the CFAA for searching a license plate in a law enforcement database for unofficial purposes.  His conviction concerned a provision of the statute that made it illegal “to access a computer with authorization and to use such access to obtain . . . . information in the computer that the accesser is not entitled so to obtain”.  The officer appealed, claiming that the CFAA did not cover unauthorized use of a database that he was otherwise authorized to access as part of his job.

Recall that the CFAA, which was passed in 1986, is considered to be the primary anti-hacking law and prosecutorial tool against outside actors who are accused of breaking into computer networks (although the statute has also been litigated recently in the commercial context, including in relation to data scraping).  It forbids individuals from intentionally accessing a computer without authorization or “exceed[ing] authorized access.”  The Supreme Court granted certiorari to resolve a split in authority among the Courts of Appeal regarding the scope of liability under the CFAA’s “exceeds authorized access” clause.

The majority opinion closely parsed the language of the CFAA and examined the types of activities that constituted “exceed[ing] authorized access.”  Ultimately, the Court concluded that the provision that Plaintiff had been convicted under “covers those who obtain information from particular areas in the computer—such as files, folders, or databases—to which their computer access does not extend.  It does not cover those who, like [Petitioner], have improper motives for obtaining information that is otherwise available to them.”  Op. at 1 (emphasis supplied).  Justice Barrett’s opinion also focused on the statute’s scope, noting that the government’s broad interpretation would criminalize a “breathtaking amount of commonplace computer activity,” including mundane activities such as using a work computer for personal purposes.

This case is a game changer for pending and future cases brought under the CFAA.  As CPW readers will remember, the hiQ/LinkedIn data-scraping saga ongoing in California federal court had been paused pending a ruling from SCOTUS in Van Buren.  All eyes will be back on that case now, in light of the circumscribed interpretation of the statute adopted by SCOTUS.

© Copyright 2021 Squire Patton Boggs (US) LLP

ARTICLE BY John A. Burlingame,  Kristin L. Bryan and Christina Lamoureux of Squire Patton Boggs (US) LLP
For more articles on SCOTUS, visit the NLR Litigation section.

White House to Business: “Take Ransomware Crime Seriously”

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

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

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

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

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

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

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

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

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

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

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

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

Cultural Artifacts Returned to Thailand

After a three-year investigation by Homeland Security Investigations (HSI), two hand-carved lintels from ancient temples in Thailand were returned to the Thai government during a joyous ceremony including dancers and prayers at the Royal Thai Consulate-General in Los Angeles.

HSI is the principal investigative arm of the Department of Homeland Security. With a workforce of over 10,000 employees, HSI has Special Agents across the United States and in 53 countries. This presence abroad is “one of the largest international footprints in U.S. law enforcement.” HSI’s Cultural Property, Art and Antiquities Smuggling arm has, since 2007, returned more than 11,000 artifacts to over 30 countries.

The lintels are religious artifacts made of sandstone in the 9th and 10th centuries and are identified as being from the Nong Hong Temple and the Khao Lon Temple in northeastern Thailand – both protected sites. The sandstone lintels weigh about 1,500 pounds each. They were exported from Thailand more than 50 years ago, allegedly in violation of Thai law. They were donated to the Asian Art Museum in San Francisco.

In 2016, the Thai consul general saw the lintels displayed at the museum and asked to have them returned to Thailand. HSI negotiated their return for close to four years. The full provenance is not clear, but the lintels, donated to the museum, are valued at approximately $700,000.

Acknowledging that there is a continuing black market in Thai artifacts, the Thai ambassador to the U.S., Manasvi Srisodapol, hoped that the publicity surrounding the return would raise public awareness and help to stem the removal of cultural patrimony. Ambassador Srisodapol called the repatriation ceremony the beginning of the lintels’ “sacred journey back home.”

Jackson Lewis P.C. © 2021
For more articles on immigration, visit the NLRImmigration section.

The Elements of Your COVID-19 Voluntary Vaccine Policy

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

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

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

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

Education:

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

Voluntary Policy:

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

Incentives:

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

Legal Compliance: 

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

Additional Elements: 

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

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

© 2021 Foley & Lardner LLP

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

Lending Options for Law Firms Even More Relevant During a Crisis: A Q&A with Esquire Bank’s Ari Kornhaber

Plaintiffs’ law firms take cases on a contingency basis and frequently face defendants with deep pockets who can afford to wait their cases out. The COVID-19 crisis has added even more uncertainty to the litigation process and cash flow for law firms.

Large amounts, often in the hundreds of thousands of dollars can come due for plaintiffs’ law firms incurring expenses during drawn-out cases, especially for cases with multiple plaintiffs and cases where expert testimony is required.

For contingency cases, the large sums of law firm capital that are tied up in case costs for many years can limit law firms’ ability to utilize that capital for business expansion or to invest in other fee-generating cases.

Unlike traditional businesses, law firms cannot simply raise capital for operating expenses. Current legal ethics rules prohibit non-attorneys from taking ownership interests in law firms, which eliminates the use of securities as a funding option and while attorneys can borrow funds, it often must be from a non-traditional lender because a potential litigation victory generally falls outside the scope of what is considered acceptable collateral.

This often leads law firm management to pursue alternative lending options from non-traditional lenders like litigation financers or specialty lenders, who emphasize their core differentiator is that they can use a law firm’s case inventory as collateral – however, this often comes with a less-competitive interest rate than traditional banks.

Ari Kornhaber, Esq., Founder, Executive Vice President and Head of Corporate Development at Esquire Bank provides insight on financing options for plaintiffs’ firms and how to ensure your law firm approaches it the right way.

NLR: How have you seen contingency fee law firms maintain their businesses throughout the pandemic?

Kornhaber: The pandemic has forced many trial lawyers to take an honest look at themselves and often rethink their business models. Decisions that made sense pre-pandemic may not make sense now, especially in today’s low-interest-rate environment. As a result, contingency fee law firms are examining whether their current approach to law firm capitalization makes sense. Many lawyers that I speak to are taking a more proactive approach to how they run their business.

NLR: As we emerge from the pandemic, what are plaintiff’s firms worrying about most?

Kornhaber: Now more than ever, lawyers who run contingency fee law firms are concerned about the future. There is a general feeling out there that their businesses haven’t fully felt the effects of the pandemic yet, due to the nature of the business. Cases that are signed up today won’t generate revenue for months or years. The decline in intakes months ago, won’t truly be felt for months, a year, or more. This has self-financed law firms particularly concerned, as their nature is to be debt-adverse. For these self-financed firms, the combination of intakes being down and cases taking longer to settle means they will have to dig deeper into their own pockets. Meanwhile, other law firms with access to capital are using this time to move their businesses forward by investing in new legal technology, infrastructure, and talent.

NLR: What are some key takeaways self-financed law firms should know about their borrowing options?

Kornhaber: The current economy has created a low-interest-rate environment. Going to your bank and asking them what they can do for you is the first thing self-financed firms should do. It is important to note that banks covet law firms as customers because they come with low-cost deposits. Also, trial law is an industry that is classified as ‘recession proof’. Banks and lenders are trying to put their best foot forward for new law firm clients – so there is no better time than right now to speak to a bank to see how they can help.

The catch, however, with speaking to a traditional bank is that they rarely use the value of your case inventory as collateral for lending purposes. This means they will look at your previous financial performance to come up with how much they can lend you – ignoring the revenue your law firm will generate via the cases that are in your inventory today and tomorrow. The final amount of credit offered is often not enough for many lawyers.

NLR: What about specialty litigation finance companies?

Kornhaber: Specialty finance companies play an important role in the equation, as they can often lend to law firms that the traditional banks often ignore. Specialty legal finance companies are more likely to take on these ‘riskier’ clients, but usually at much higher interest rates and fees as compared to banks to compensate for the additional risk.

Higher risk law firm clients frequently have exhausted their options with the ‘mega banks’ and are struggling to fit into the box suited for other types of businesses. A next step after traditional lenders is law firms often speak with finance companies and lawyers are often surprised at the interest rates, fees, and terms they are offered. Often by the time they get to a lender like Esquire Bank, the first question that’s asked out of exhaustion and frustration is – what kind of interest rate can you give me? Although our interest rates are some of the lowest in the industry, there’s a lot more to the conversation. There is real value to working with a financial business partner that has a deep understanding of the business of law and the unique financial challenges faced by contingency fee law firms.

NLR: What factors should be considered when assessing case-cost financing?

Kornhaber: First, project your firm’s cash flow for the next 12, 24, and 36 months. Take into consideration the reduction of new case intakes and possible court delays to figure out what your financial position is going to look like over the next few years. Ask yourself what you need to survive, then what you need to thrive and invest during a ‘down market’ to come out on top. Being realistic is extremely important.

Understand how much money you have out on the street today in your case costs, then figure out how much more money you’ll need to spend on case costs over the next 12 months. This helps you to understand what you will need to commit from your self-financed ‘piggy bank’ to continue your winning record for your clients.

Then, figure out what your average balances are in your depository accounts. If you take this information to your lender, they may try to help you in a meaningful way, especially if you’ve been with them for many years.

Finally, ask yourself if you really need to pay for your clients’ case costs using your firms’ after-tax dollars and whether you could instead, use that money more effectively in other activities that will help your law firm grow. Law firms that leverage case-cost financing often report that they achieve better results for their clients because they have the financial backing to go toe-to-toe with their deep-pocketed adversaries without having to think twice about bringing in the best, most expensive experts. That leads to the greatest results and ultimately justice and maximum compensation for their clients.

  • Ari Kornhaber is the Executive Vice President & Head of Corporate Development at Esquire Bank. Join Ari and a panel of experts at Esquire’s upcoming complimentary webinar, ‘Bold Moves: Growing your Contingency Fee Law Firm Post-Pandemic’ on June 15: Save your spot.

Copyright ©2021 National Law Forum, LLC

ARTICLE BY Tracey Goldvarg of The National Law Review / The National Law Forum LLC
For more articles on plaintiff firm financing, visit the NLR Law Office Management section.

As Local Mask Mandates Expire, How Should Employers Respond?

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

Recap of the CDC’s guidance

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

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

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

WHAT DOES IT MEAN TO BE FULLY VACCINATED?

According to the CDC, individuals are considered fully vaccinated:

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

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

Expiring local orders

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

Three common approaches to changing workplace mask policies

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

1. WAIVING MASK REQUIREMENTS FOR FULLY VACCINATED EMPLOYEES

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

2. RETAINING MASK REQUIREMENTS REGARDLESS OF VACCINATION STATUS

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

3. ELIMINATING THE MASK REQUIREMENT ALTOGETHER

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

Communicate any changes and be clear that unmasking is optional

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

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

Copyright © 2021 Godfrey & Kahn S.C.

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

IRS Guidance Clarifies “Involuntary Termination” for the COBRA Subsidy

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

Background

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

What is an involuntary termination of employment?

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

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

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

What are some examples of an involuntary termination of employment?

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

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

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

© 2021 Bradley Arant Boult Cummings LLP

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

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

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

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

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

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

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

©2021 Strassburger McKenna Gutnick & Gefsky

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

Brain Interfaces Bring Us Closer to a Life of the Mind

As we learn more about the human brain, we can begin to wonder if the rest of the body is necessary. Improved brain-machine interfaces are showing us how much can be accomplished by tapping directly into our thoughts.

While brainwaves can be read and interpreted through electrodes placed on the scalp, this method lacks the spatial detail of implanted electrodes. The recent action in practical thought-to-action science has taken place with direct physical connections.

For example, last summer brain researchers in Australia and the U.S. showed promising results by mounting electrodes on an expandable stent and threading it through blood vessels that lead to the brain. The sensors in the stent could sense when people’s brains signaled an intention to move, the sensors wirelessly sent this information to a computer which interpreted the signals. The interface allowed ALS patients to combine use of an eye tracker to move a cursor plus a thought-controlled click, making their communication faster and easier without surgery to implant electrodes.

Electrode-based therapy is still the gold standard, and Elon Musk’s company Neuralink has announced testing of a wireless implant that could provide a broadly useful direct interface between human brains and computers. Neuralink’s small implants include more than 1000 electrodes designed to send wireless signals to anything digital, like prosthetic hands or automotive controls.  According to a story in Wired last year, “The reason that excites neuroscientists is that right now their tools are relatively crude. The standard is the “Utah array,” a single chip with 64 electrodes on it. Just putting it in or taking it out can damage the tissue around it, and it’s not good at isolating single neurons or covering a large area … At the Neuralink presentation, Musk said that his prototype included sensors for motion, temperature, and pressure and 1,024 thin, flexible wires to pick up the electrical signals neurons put out while they’re neuron-ing.” Currently, this array can be wirelessly connected to a computer to learn to associate outbound signals with specific intentions.

Computer-aided brain-driven prosthetics have been improving by adding an element of touch feedback to the process.  Until recently, a person using a brain-computer interface would use visual cues to pick up objects with prosthetic arms. However, according to this week’s Ars Technica, researchers working with people paralyzed from the neck down added tactile feedback to the systems, allowing the test participants to drastically improve performance. The biggest improvements involved tasks requiring grasping an object. “While we may not always be consciously aware of them, touch and pressure play a major role in everything we do with our hands. By targeting the right area of the brain, the implant takes advantage of the systems the brain already has for managing this kind of sensory input.” As we understand more about these regions of the brain, the Brain/computer/ prosthetic interaction becomes easier and more efficient.

One of the most impressive recent achievements arrives this month out of Stanford and Brown Universities allowing a paralyzed person to type out about 90 characters per minute by imagining that he was writing the characters out by hand. This drastically beats the efficiency of earlier efforts that involve virtual keyboards and cursors. As noted by Wired, “there are other possible routes to getting characters out of the brain and onto the page. Somewhere in our writing thought process, we form the intention of using a specific character, and using an implant to track this intention could potentially work. . . Downstream of that intention, a decision is transmitted to the motor cortex, where it’s translated into actions. Again, there’s an intent stage, where the motor cortex determines it will form the letter (by typing or writing, for example), which is then translated into the specific muscle motions required to perform the action. These processes are much better understood, and they’re what the research team targeted for their new work.”

By placing implants in the premotor cortex, researchers were able to capture the base intentions of the thinker at an earlier, clearer stage than simply the intentions of movement to effectuate the underlying ideas. Conceptually, this is an interesting advance. We had been focused on tapping into the same neurons that allow a person to type a message, but we are finding that, if we can catch the thought before the brain has converted it into a specific physical action, then we can skip a step in the brain’s process and make the brain-computer interface much more efficient. It makes one wonder whether stripping the process back even further, capturing thoughts of entire words, rather than letters, would create further efficiencies.  Right now we can turn intentions toward physical action into the actions themselves.  But this is an advance toward capturing the initial desire before it can be processed further by the action portions of the brain.

As the Wired article stated, “the system shows a very significant speed boost compared to previous implant-driven systems, and the accuracy is quite good. The system also has the potential to be similar to touch-typing, in that a user doesn’t have to actually visually focus on letter production, allowing more normal interactions with the user’s surroundings.” So we proceed closer to the holy grail of brain-computer interface: allowing a person’s brain to drive direct actions without involving the rest of the body at all.

This would be a clear victory for those with bodily impairments, but it also would be an excellent step toward systems that allowed us to manage all parts of our world without needed a body to manipulate our environment.  We could speak to our home temperature control system or direct our automobile without touching anything. Arriving in the midst of a pandemic, the possibility of touchless control of our environments has a special allure. Maybe someday in the not-so-distant future, all we will need is an operational brain to be a fully functioning human.

Copyright © 2021 Womble Bond Dickinson (US) LLP All Rights Reserved.

ARTICLE BY Theodore F. Claypoole of Womble Bond Dickinson (US) LLP

For more articles on the human brain, visit the NLRBiotech, Food, Drug section

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