Publications Archive

The Department of Health and Human Services (“HHS”) provided an update on their website regarding reporting requirements related to Provider Relief Fund payments and included additional details about the reporting system. It is key to watch for more detailed instructions with are forthcoming.

October 5, 2017, less than 3 years ago, the world read about the rape and sexual harassment allegations against Harvey Weinstein, bringing the Me Too movement to the forefront of American life. Since then, businesses across the United States have been addressing internal issues related to sexual harassment and discrimination that have long gone unnoticed or ignored.

Just a reminder that federal contractors must incorporate the updated Voluntary Self-Identification of Disability Form (CC-305) (the “Form”) into their applicant and human resource processes by August 4, 2020. The Form is used by federal contractors to monitor their progress towards hiring individuals with disabilities and is completely confidential. The Form is officially approved by the Office of Management and Budget and may not be substantially modified.

The Court of Justice of the European Union issued a landmark ruling on Thursday, July 16 that could immediately affect businesses in the United States by challenging data transfer arrangements that are currently in place for cross-border sharing of information between U.S. and EU companies.

The COVID-19 pandemic is causing financial distress across industries worldwide, impacting businesses large and small. According to the American Bankruptcy Institute, in May of 2020, total commercial chapter 11 bankruptcy filings increased 48% from May 2019.

The U.S. Small Business Administration (“SBA”) will soon be releasing the names of all recipients of loans in excess of $150,000. According to at least one news report, this could come as soon as Thursday, July 2, 2020.

The SECURE Act took effect January 1, 2020 and made significant changes to retirement benefits. Because of these changes, individuals who own retirement accounts should review their retirement account beneficiary designations and estate plans to determine if changes are advisable. In this article, Alex Wolf and Nick O'Brien answer a series of questions designed to help you regarding designation of beneficiaries under the Act.

When an employee contracts COVID-19, one question employers are grappling with is whether the employee’s COVID-19 diagnosis will be a compensable workers’ compensation claim. The answer to that question will depend on the workers’ compensation laws in the state where the employee is located.

The Fair Labor Standards Act allows employers in retail and service establishments to exempt certain employees paid primarily on a commission basis from overtime. Recently, the Department of Labor issued a final rule clarifying the application of this exemption. 

On June 22, 2020, President Donald Trump signed a Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak. The June Proclamation extended the previously announced restrictions to immigrant visas as set forth in Proclamation 10014 of April 2020 and also expanded restrictions to various nonimmigrant visa categories as summarized in this article.

For a number of years, there has been a question as to whether federal employment laws protected individuals from discrimination on the basis of their sexual orientation or gender identity. This question has been increasingly prevalent following the legalization of gay marriage nationally in 2015.

On June 5, 2020, the Paycheck Protection Program Flexibility Act of 2020 (the “Flex Act”) was signed into law. The Flex Act provides several amendments to the Paycheck Protection Program (“PPP”).

Now more than ever, businesses need help to protect their data. In this article, Data Privacy and Security attorney Maureen Fulton addresses (1) tips to help businesses prepare for and prevent data breaches; and (2) advice for the moments, hours, and days after a security incident occurs.

On May 19, 2020, the U.S. Department of Agriculture (“USDA”) released the final regulations for the Coronavirus Food Assistance Program (“CFAP”) and provided additional guidance on direct payment aid to agricultural producers affected by the coronavirus pandemic.

A resource for your company's planning - we share the presentation that was put together for our employees regarding the process and procedures that we will be following as we allow people back in the office.

On Friday, May 15th, the SBA released its PPP loan forgiveness application. The SBA’s stated intent with this forgiveness application is to reduce the compliance burden and simplify the forgiveness application process for borrowers. The press release accompanying the release of the application indicates that the SBA will “soon” be issuing additional regulations and guidance on the forgiveness of PPP loans. 

On May 13, 2020, the SBA issued SBA FAQ # 46 that addresses the required good-faith certification by Paycheck Protection Program (“PPP”) applicants concerning the necessity of the applicant’s loan request.

As a reminder, the Families First Coronavirus Response Act (the “FFCRA”) became effective April 2, 2020. Accordingly, private employers with fewer than 500 employees must currently be complying with the FFCRA, and providing Emergency Paid Sick Leave and Emergency Family Medical Leave Act (“FMLA”) Leave to qualified employees, absent the small business or health care provider exemptions previously discussed in Koley Jessen News Flashes.

Many employers continue to grapple with the interaction between the new federal leave laws, newly enacted state and local laws, and other paid sick leave policies employers may have had in place prior to the pandemic. As a recap, the Families First Coronavirus Response Act (the “FFCRA”) went into effect on April 2, 2020.

On April 21, 2020, the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers jointly published a final rule changing the definition of “waters of the United States” (WOTUS). The Navigable Waters Protection Rule will reduce the number and type of water bodies subject to jurisdiction of the federal Clean Water Act (Act). The rule will take effect on June 22, 2020 unless legal challenges halt or delay it.

On April 30, 2020, the Internal Revenue Service published Notice 2020-32 that announces that otherwise deductible business expenses funded by proceeds from a forgiven PPP loan are not deductible for federal income tax purposes.

To provide some relief in regards to decisions affecting benefits during the COVID-19 outbreak, the Department of Labor, Treasury Department and the Internal Revenue Service published a joint notice on April 28, 2020 (the “Notice”) announcing an extension to several key deadlines under the Employee Retirement Income Security Act (ERISA). See Disaster Relief Notice 2020-01.

For many companies, cyber attacks and data breaches have become an inevitable part of owning and operating a business. Although a data breach response plan is always recommended for businesses to have in place, the importance is heightened because of the additional challenges and obstacles that the COVID-19 pandemic has placed on businesses.

As businesses begin to consider reopening their operations and returning employees to their locations and places of business, there are many things that employers must consider and pitfalls that employers will have to take care to avoid. Provided below are some important questions and answers to assist employers in reopening their operations and returning employees. 

During this uncertain time, many employers are facing the need to make decisions regarding their workforce in order to mitigate the impact of the COVID-19 coronavirus pandemic. Employers who require telework or choose to furlough, layoff, or otherwise alter the work status of their workforce must be particularly mindful of the implications of these decisions with respect to H-1B workers.

On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security (CARES) Act, a $2 trillion dollar economic recovery package that offers relief to state and local governments, small and large businesses, and individuals affected by the 2019 novel coronavirus (COVID-19) pandemic. In particular, the CARES Act provides for the issuance of one-time payments called recovery rebates to assist individuals recover from the economic impacts of the COVID-19 pandemic.

Last week, health care providers that participated in Medicare during 2019 should have received an automatic deposit to the bank account that the provider uses to receive payments from Medicare. The deposit description would have been “HHSPAYMENT US HHS Stimulus.” These deposits are part of an initial $30B in CARES Act stimulus funds directed at the health care industry in response to the COVID-19 national public emergency.

The CARES Act allows employers to defer the deposit and payment of the employer's share of Social Security taxes. On April 10, the IRS published updated guidance addressing FAQs related to the payroll tax deferral. 

We address the special rules for use of retirement funds and the temporary waiver of required minimum distributions which were included in the CARES Act.

On April 9, 2020, the Federal Reserve announced the preliminary details of the Main Street Lending Program enacted through the CARES Act. The program will be available to borrowers with fewer than 10,000 employees or less than $2.5 billion in revenue. Lenders will be able to originate new loans (the “Main Street New Loan Facility”) or utilize the program to increase existing loans with borrowers (the “Main Street Expanded Loan Facility”).

We have identified ten items that small businesses already approved for loans under the Paycheck Protection Program (the “PPP”) should consider to help maximize the benefits of the program. 

On April 10, 2020, HHS announced that it will begin immediately delivering an initial $30B from the Fund as rapid relief distributions to health care providers that are currently enrolled in Medicare. These distributions are considered payments, not loans, and do not need to be repaid (subject to certain terms and conditions).

As we adapt to the ongoing challenges posed by COVID-19, we hope you and your families are safe and healthy. The current public health crisis raises the issue of how prepared each of us is for an emergency. It also highlights the importance of having the proper legal documents in place to manage your assets during incapacity, direct who receives your property when you pass away, and set forth your wishes for your medical care.

On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) which, among other things, provides additional unemployment benefits to employees who have been affected by the COVID-19 virus.

This article addresses some of the common questions on the new $350 billion SBA loan program (the “Paycheck Protection Program”) included in the CARES Act. 

The outbreak of the novel Coronavirus known as COVID-19 has had a profound impact on nearly all businesses worldwide. Businesses are trying to identify and address a variety of internal and external challenges posed by the spread of COVID-19.

On March 27, 2020, the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) was signed into law. The CARES Act is the third piece of Federal legislation designed to respond to the COVID-19 outbreak caused by the novel coronavirus.

This article provides an overview of especially pertinent points in the DOL’s latest guidance. As a reminder, the Paid Sick Leave and Emergency FMLA Leave becomes effective April 1, 2020.

The IRS is halting some collection and audit activities until July 15 as the coronavirus pandemic spreads. The IRS has already taken some steps to ease enforcement, including suspending most notices and all levies issued by the automated collection system (ACS).

The U.S. Department of Labor recently published their model notice for employers, pursuant to the Families First Coronavirus Response Act (FFCRA). According to the DOL, notice of the FFCRA's requirements must be posted, in a conspicuous place on it premises, by each covered employer by April 1, 2020.  

The Families First Coronavirus Response Act provides two new refundable payroll tax credits for covered employers to help reimburse them for providing leave to their employees. On March 20, 2020, the U.S. Treasury Department, Internal Revenue Service, and U.S. Department of Labor announced plans to implement Coronavirus-related paid leave for workers and tax credits for covered employers to recover the cost of providing Coronavirus-related leave.

This update includes information on the CMS Extension of MIPS, MSSP, and other Quality Reporting Programs deadlines and waiver of penalties by the DHHS Office for Civil Rights  for HIPAA violations in connection with telehealth. 

This article discusses the impact of COVID-19 on loan and credit agreements and discusses the provisions in your loan documents that should be reviewed to determine if a borrower’s access to credit could be limited by the the COVID-19 crisis. Also included is a a brief overview of the current governmental response to COVID-19 as it specifically pertains to matters related to finance. 

Telecommuting—also known as working from home, working remotely, or telework—is a work arrangement in which the employee works outside of the office. With the COVID-19 outbreak spreading across the United States and a number of states issuing “stay home” or “shelter in place” orders, many employers have effectively been forced to transition to temporary telecommuting arrangements with their workforce in order to continue operations. 

President Trump signed the Families First Coronavirus Response Act (“HR 6201”) into law on March 18, 2020. Accordingly, Covered Employers (those with fewer than 500 employees) will be responsible for providing employees additional FMLA leave and paid sick leave beginning April 2, 2020. Related questions also answered here.

The ongoing spread of the COVID-19 coronavirus is continuing to cause hardship and concern for many employees and employers as organizations work to mitigate the damage the virus is causing to their workplace and business. In an effort to reduce the burden on employees and employers, Governor Ricketts signed Executive Order No. 20-04, Corona Virus – Emergency Unemployment Insurance Benefit Relief, on March 17, 2020.

There are many business issues to consider surrounding COVID-19 Coronavirus outside of the general employment issues that arise. We have put together a list of top 10 non-employment related things a business should do.

On March 14, 2020, the U.S. House of Representatives passed the Families First Coronavirus Response Act (“HR 6201”). HR 6201, expected to be approved and signed into law, currently awaits Senate approval.

In order to achieve social distancing during the COVID-19 coronavirus outbreak, millions of employees in the United States are either already working from home, or businesses are sprinting to prepare for their employees to work remotely. As everyone settles in for what could be weeks or months of remote work, it is important to ensure that companies, and their workers, are aware of heightened cybersecurity risks facing them and follow best practices when it comes to keeping company systems and data secure.

The spread of the COVID-19 coronavirus in recent weeks has caused growing concerns for many individuals and employers as organizations prepare to manage their operations in the event the virus impacts the workforce. Koley Jessen has been in regular contact with our clients to address the many issues facing employers and workers in the current climate.