Tag: COVID-19

Just When I Thought I Was Out: Omicron Variant and the Return of Regional COVID-19 Travel Bans

Following its November 8, 2021 move to remove and replace all regional COVID-19 Travel bans with a blanket vaccination requirement, the Biden administration announced a new COVID-19 travel ban on those seeking to enter the U.S. from various African nations.  The new Proclamation bars most non-U.S. citizens who have been physically present in the following countries during the 14-day period prior to attempting to enter the United States:

  • Republic of Botswana

  • The Kingdom of Eswatini (formerly Swaziland)

  • The Kingdom of Lesotho

  • The Republic of Malawi

  • The Republic of Mozambique

  • The Republic of Namibia

  • The Republic of South Africa

  • The Republic of Zimbabwe

Who is covered?

The Proclamation includes several important qualifiers and exemptions. It only applies to “noncitizens” of the United States, but it includes both immigrants (those coming to stay indefinitely) and nonimmigrants (those coming temporarily).

The Proclamation bars entry for noncitizens who have been physically present in the listed countries during the 14 days prior to attempting to enter the U.S., not because of their citizenship. In other words, a South African coming to the U.S. directly from South Africa is barred, but a South African coming directly to the U.S. after 14+ days in Australia is free to enter. Importantly, the Proclamation applies in addition to the blanket vaccination requirement, so anyone seeking an exemption from the new Proclamation must also either be properly vaccinated or qualify under the extremely limited exceptions to the Vaccination requirement.

The new Proclamation does not apply to the following classes:

  • Lawful permanent residents (aka green card holders). The Proclamation does apply to immigrants, meaning it would bar those seeking to enter on immigrant visas to become lawful permanent residents.

  • The spouse of a U.S. citizen or lawful permanent resident.

  • The parent or legal guardian of a U.S. citizen or lawful permanent resident, as long as the U.S. citizen or lawful permanent resident is unmarried and under 21.

  • The sibling of a U.S. citizen or lawful permanent resident as long as both are unmarried and under 21.

  • Noncitizen nationals of the United States.

  • The children, foster children, or wards of a U.S. citizen or lawful permanent resident and certain prospective adoptees.

  • Those invited by the U.S. government to fight the Corona virus.

  • Those traveling on certain crewman and transit nonimmigrant visas.

  • Nonimmigrants in most diplomatic statuses.

  • U.S. Armed Forces members and their spouses and children.

  • Those whose entry would not pose a “significant risk” of spreading the virus as determined by HHS and CDC.

  • Those whose entry would “further important law enforcement objectives” as determined by named agencies.

  • Those whose entry would be in the U.S. national interest, as determined by named agencies. National interest exception (NIE) procedures are still unclear and should be addressed in the near future, including whether prior NIE approvals will be honored.

In addition, the new Proclamation should not affect any applicant for asylum and other related humanitarian relief such as Withholding of Removal or protections under the Convention Against Torture.

How Long Will it Last and are More Travel Bans Coming?

The Proclamation’s ban began on November 29, 2021 and will remain until terminated by the President. On-the-ground case numbers in each country will determine the White House’s willingness to lift travel restrictions, but an increase in numbers in other countries could see an expansion and return to regional travel bans.

The duration of the new Proclamation and its potential expansion to other countries will likely depend on the effectiveness of vaccines against the Omicron variant and any new variants that arise in the coming months. If existing or newly created vaccines are able to combat new variants, the White House will likely rely on its blanket vaccination requirement and not fall back to the Trump-era country-specific regional bans.

© Copyright 2021 Squire Patton Boggs (US) LLP
For more COVID-19 travel updates, visit the NLR Coronavirus News section.

US to Expand Vaccination Requirement for Foreign National Travelers to Include All Land Border Crossers from Canada and Mexico in January

Starting Jan. 22, 2022, the Biden administration will require foreign national travelers engaged in essential travel to be fully vaccinated when crossing U.S. land borders or ferry terminals. Essential travel includes travel for work or study in the United States, emergency response, and public health. The new rules apply to foreign nationals; U.S. citizens and permanent residents may still enter the United States regardless of their vaccination status but are subject to additional testing requirements.

The new rules for essential travelers are in line with those that took effect Nov. 8, 2021, when the Biden administration lifted travel restrictions to allow fully vaccinated travelers engaged in non-essential (leisure) travel to enter the United States.

While much cross-border traffic was shut down in the early days of the COVID-19 pandemic, essential travelers have been able to travel unimpeded via land borders or ferry terminals. Starting Jan. 22, 2022, however, all foreign national travelers crossing U.S. land borders or ferry terminals – traveling for essential and non-essential reasons – must be fully vaccinated for COVID-19 and provide related proof of vaccination. Any exceptions to the vaccination requirement available to travelers at U.S. land borders are expected to be limited, just as exceptions currently available for air travel have been limited. See CDC guidance for details.

©2021 Greenberg Traurig, LLP. All rights reserved.
For more on vaccine requirements, visit the NLR Coronavirus News section.

Given Deadlines Set by Sixth Circuit, ETS Likely Stayed Until At Least December 10, 2021

Earlier this month, the Occupational Safety and Health Administration (“OSHA”) issued its “COVID-19 Vaccination and Testing; Emergency Temporary Standard” (the “ETS”) requiring employers of 100 or more employees to implement policies requiring employee vaccination or enhanced safety measures for unvaccinated employees (including wearing face coverings and weekly COVID-19 testing). Our alert on the ETS is here. The ETS was subject to over 30 petitions for review in the federal circuit courts and was quickly stayed by the United States Court of Appeals for the Fifth Circuit.

Although the petitions for review were consolidated before the United States Court of Appeals for the Sixth Circuit, the Fifth Circuit’s stay remains in place. While OSHA has publically stated that it will comply with the stay, its position has been – and continues to be – that employers should prepare to comply with the ETS and that OSHA will succeed in litigation challenging the ETS. Yesterday, OSHA filed an emergency motion to immediately lift the stay.

With the stay in place, covered employers have been in the difficult position of trying to determine how much preparation to do to comply with the ETS’s requirements, many of which are scheduled to be effective on December 6, 2021. The question has been whether the stay will continue beyond the initial deadlines and, if not, whether deadlines will be extended to account for the period during which the ETS was stayed.

The deadlines set out in the Sixth Circuit’s Scheduling Order, which is available here, provide some insight into the timing of the requirements of the ETS.  The Scheduling Order sets the following briefing deadlines:

  • Tuesday, November 30, 2021 – motions to join OSHA’s emergency motion or to modify, revoke, or extend the stay.
  • Tuesday, December 7, 2021 – responses to motions regarding the stay.
  • Friday, December 10, 2021 – replies to responsive motions.

Given these deadlines, it is likely that the ETS will continue to be stayed until at least December 10th (past the December 6, 2021 deadline) while the Sixth Circuit considers briefing.  However, it is possible that, before December 10th, the Sixth Circuit lifts the stay. If the stay is lifted, the ETS requirements could become effective on the date of the court’s order or on a later date set by the Sixth Circuit.

While the briefing schedule does not provide definitive answers to employers on the potential deadlines for ETS compliance, it suggests that the ETS’s December 6, 2021, deadlines may be extended for at least a few days while the Sixth Circuit considers briefing.

© 2021 Bracewell LLP
For more on OSHA COVID-19 updates, visit the NLR Coronavirus News section.

More Circuits Added to the OSHA ETS Lottery

Lawsuits challenging the COVID-19 Vaccination and Testing (the “ETS”) issued by the Occupational Safety and Health Administration (“OSHA”) were filed in three additional U.S. Circuit Courts of Appeals on Wednesday, November 10, 2021. Labor unions filed lawsuits in the U.S. Circuit Court of Appeals for the Second, Fourth, and Ninth Circuits. As a result, there are now ETS-related lawsuits pending in the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Eleventh, and D.C. Circuit Courts.

According to federal rules, the legal challenges to the OSHA ETS will be consolidated and heard by a single U.S. Circuit Court of Appeals. The Judicial Panel on Multidistrict Litigation will conduct a lottery, expected on November 16, to select which U.S. Circuit Court of Appeals will hear the consolidated litigation. The court to hear the litigation will be drawn “from a drum containing an entry for each circuit wherein a constituent petition for review is pending.” Each court only gets one entry, despite the number of petitions pending before each court. Until the Judicial Panel selects the U.S. Circuit Court of Appeals to hear the litigation via the lottery, all the U.S. Circuit Courts of Appeals can proceed with rulings, as the Fifth Circuit did this past weekend.

The labor unions’ move may be a move reflective of an intent by some to increase the odds that the OSHA ETS is upheld. The First, Second, and Fourth circuits all have a majority of Democratic-appointed judges. But it is difficult to predict the future of the OSHA ETS as the panel of judges to hear the case is also selected randomly.

© Polsinelli PC, Polsinelli LLP in California
For more updates on COVID-19, visit the NLR Coronavirus News section.

CMS Requires COVID-19 Vaccine for Health Care Workers at all Facilities Participating in Medicare and Medicaid

On Nov. 4, 2021, the Centers for Medicare and Medicaid (CMS) released a new Interim Final Rule (IFR) regarding staff vaccination at facilities that participate in the Medicare and Medicaid programs. The IFR requires covered employers to ensure that staff receive their first dose no later than Dec. 5, 2021 and achieve full vaccination no later than Jan. 4, 2022.

The vaccine rule that was also released on Nov. 4, 2021 by the Occupational Safety and Health Administration (OSHA) does not apply to employees of health care entities who are covered under the CMS IFR. However, employees of health care providers who are not subject to the CMS IFR may be subject to the OSHA vaccine rule if the facility has more than 100 employees. For more information on the OSHA vaccine rule, please click here.

Justification for the Rule

CMS cited a number of reasons for the IFR, including the risk unvaccinated staff pose to patients, reports of individuals foregoing health care due to concerns of contracting COVID-19 from health facility staff, disrupted health care operations due to infected staff, and low vaccination rates among health care staff.

Scope of Coverage

The requirements of the IFR apply to health care facilities that participate in Medicare and Medicaid and that are subject to Conditions or Requirements of Participation, including but not limited to:

  • Ambulatory surgical centers;
  • Hospices;
  • Hospitals, such as acute care hospitals, psychiatric hospitals, hospital swing beds, long-term care hospitals, and children’s hospitals;
  • Long-term care facilities;
  • Home health agencies;
  • Comprehensive outpatient rehabilitation facilities;
  • Critical access hospitals;
  • Home infusion therapy suppliers; and
  • Rural health clinics/federally qualified health centers.

While the IFR does not directly apply to physician offices, which are not regulated by CMS Conditions or Requirements of Participation, physicians may nevertheless be required to vaccinate as a result of their relationships with other health care entities. For example, the IFR requires hospitals to implement policies and procedures to ensure “individuals who provide care, treatment, or other services under contract or by other arrangement” are fully vaccinated.

Covered Personnel

The IFR requires vaccinations for staff who routinely perform care for patients and clients inside and outside of the facility, such as home health, home infusion therapy, hospice, and therapy staff. CMS’s vaccination requirement also extends to all staff who interact with other staff, patients, residents, or clients, at any location, and not just those who enter facilities. However, staff who provide services 100% remotely—that is, staff who never come into contact with other staff, patients, residents, or clients—are not subject to the IFR vaccination requirements. Additionally, providers and suppliers are not required to ensure IFR vaccination compliance of one-off vendors, volunteers, or professionals, such as (a) those who provide infrequent ad hoc non-health care services (e.g. annual elevator inspectors), (b) those who perform exclusively off-site services (e.g. accounting services), or (c) delivery and repair personnel.

Definition of Full Vaccination

CMS considers “full vaccination” as 14 days after receipt of either a single-dose vaccine (such as the Johnson & Johnson vaccine) or 14 days after the second dose of a two-dose primary vaccination series (such as the Pfizer or Moderna vaccines). At this time, CMS is not requiring the additional (third) dose of mRNA vaccine for moderately/severely immunosuppressed persons or the “booster dose” in order for staff to be considered “fully vaccinated.” Additionally, CMS considers individuals receiving heterologous vaccines—doses of different vaccines—as satisfying the “fully vaccinated” definition so long as they have received any combination of two doses. In order to gauge compliance, CMS is requiring that providers and suppliers track and securely document the vaccination status of each staff member as well as vaccine exemption requests and outcome. The IFR does not specify that weekly testing, masking, and social distancing are an alternative to vaccination, meaning employers must ensure all employees are either (1) fully vaccinated or (2) exempted under a permissible exemption.

Exemptions

The IFR explicitly provides that employers must continue to comply with anti-discrimination laws and civil rights protections which allow employees to request and receive exemption from vaccination due to a disability, medical condition, or sincerely held religious belief or practice. Exemptions should be provided to staff with recognized medical conditions for which a vaccine is contraindicated as a reasonable accommodation under the Americans with Disabilities Act. For exemptions for a sincerely held religious belief or practice, CMS encourages health care entities to refer to the Equal Employment Opportunity Commission’s Compliance Manual on Religious Discrimination. Despite the ability to provide an exemption, CMS states that exemptions may be provided to staff only to the extent required by law, and that requests for exemption should not be provided to those who seek solely to evade vaccination. CMS also notes at length that the Food and Drug Administration considers approved vaccines safe. Accordingly, CMS will likely be unwilling to excuse provider and supplier noncompliance due to employees refusing vaccination based on fears about safety.

Penalties

Although the IFR does not identify specific penalties for non-compliance, CMS is expected to use enforcement tools such as civil money penalties, denial of payment for new admissions, or termination of the Medicare/Medicaid provider agreement. CMS will utilize State Survey Agencies to review compliance with the IFR through standard recertification surveys and complaint surveys. Noncompliance with the IFR will be addressed through established classification channels of “Immediate Jeopardy,” “Condition,” or “Standard” deficiencies.

Preemption

While CMS recognizes that some states and localities have established laws to prevent mandatory compliance with vaccine mandates, CMS ultimately considers the Supremacy Clause of the United States Constitution as preempting inconsistent state and local laws as applied to Medicare- and Medicaid-certified providers and suppliers.

© 2021 Dinsmore & Shohl LLP. All rights reserved.
For more updates on COVID-19, visit the NLR Coronavirus News section.

Immigration and Compliance Briefing: Fall Travel & COVID-19 Policy Update

On October 25, 2021, the Biden Administration issued a Presidential Proclamation to lift the travel bans which currently restrict entry into the U.S. directly from specific geographic areas (for a full list of restricted countries, see our prior client alert here), to be effective November 8, 2021. Instead of banning entry from specific locations abroad, the U.S. will utilize vaccine status-based restrictions for incoming travelers entering the country as noncitizen nonimmigrants (i.e., temporary visa holders or visa-free travelers). Once the new rules go into effect, most travelers will be required to provide proof of being fully vaccinated for COVID-19 prior to boarding an airplane, regardless of recent travel history (“fully vaccinated” refers to individuals who received the final dose of the COVID-19 vaccine more than 14 days prior).

Currently, the list of acceptable vaccines approved/authorized by the U.S. Food and Drug Administration (FDA) and World Health Organization (WHO), are as follows:

  • Pfizer-BioNTech

  • Moderna

  • Johnson & Johnson

  • Oxford-AstraZeneca/Covishield

  • Sinopharm

  • Sinovac

  • Mixed doses comprising of any two authorized/approved vaccines

As additional vaccines receive authorization/approval by either the FDA or WHO, it is anticipated that they will be added to the list of acceptable vaccines. In addition, the U.S. Centers for Disease Control will implement contact-tracing protocols. Mask mandates for airlines and airports, as well as the pre-travel negative COVID-19 test requirements, will remain in place until at least mid-January.

Exceptions include, but are not limited to, the following types of noncitizen nonimmigrants:

  • Certain noncitizen nonimmigrants traveling in an official capacity (i.e., foreign government officials and their family, individuals entering pursuant to a NATO visa classification, or individuals traveling pursuant to the United Nations Headquarters Agreement)

  • Children under the age of eighteen (18) years

  • Individuals participating in COVID-19 clinical trials*

  • Individuals unable to receive the vaccine due to a medical contraindication, as determined by the CDC

  • Individuals unable to receive the vaccine due to unavailability in their country of residence who are seeking to enter the U.S. on a nonimmigrant visa except B-1/B-2

  • Members of the U.S. Armed Forces

  • Sea crew members

  • Individuals whose entry is in the national interest

  • Individuals granted exceptions for humanitarian or emergency reasons

*The CDC will determine the qualifying criteria for individuals seeking to enter under this exception.

In addition to the restrictions above, all unvaccinated travelers traveling to the U.S. must show proof of a negative COVID-19 test taken within one day of travel. This requirement includes unvaccinated U.S. citizens and Lawful Permanent Residents (“green card” holders).

Vaccinated U.S. citizens and Green Card holders must show proof of a negative COVID-19 test within three days of travel.

Finally, additional measures may be required for certain types of travelers, including self-quarantine and vaccination within sixty (60) days of entry.

This policy will remain in place for an initial period of sixty (60) days and may be renewed on a monthly basis after that.

U.S. Land Border Updates

The Department of Homeland Security (DHS) announced that it will lift travel restrictions for land and ferry border crossings from Canada and Mexico in two phases, beginning November 8, 2021. Instead of keeping the land borders closed to nonessential travel, the Biden administration will implement the same policy as for air travel. Beginning November 8, nonessential travel will be permitted for fully vaccinated individuals, as described above. Nonessential travel will continue to be permitted regardless of vaccination status. However, beginning in early January 2022, all individuals entering the U.S. via the land border or ferry will be required to be fully vaccinated. This decision will permit nonessential travel via the land border between Canada and Mexico for the first time since March 21, 2020.

Vaccine Requirement for Individuals Seeking Permanent Immigrant Status

Effective October 1, 2021, applicants for immigrant status (i.e., a “green card”) in the U.S. who are subject to submitting Form I-693, Report of Medical Examination and Vaccination Record must be fully vaccinated as described above against COVID-19, before a civil surgeon designated by the Immigration Service can complete and sign the Form I-693 medical exam.

Waivers may be granted in certain circumstances, including where the COVID-19 vaccine is:

  • Not age appropriate;

  • Contraindicated due to a medical condition;

  • Not routinely available where the civil surgeon practices; or

  • Limited in supply and would cause significant delay for the applicant to receive the vaccination.

    © 1998-2021 Wiggin and Dana LLP

For more articles on COVID-19 Immigration, visit the NLR Immigration 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.

Legal Marketing in the Post COVID-19 Work Environment with Jaffe PR [PODCAST]

In this inaugural episode of the Legal News Reach podcast, Rachel and Jessica discuss marketing in the post-COVID work environment with Melanie Trudeau, Director of New Business & Digital Strategies with Jaffe PR.

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.