The Consolidated Appropriations Act, 2021, generally provides the annual funding for the federal government and, in almost 5,600 pages, contains several important rules giving further COVID-19 relief, including the expansion of eligibility for the Paycheck Protection Program (PPP) and the Employee Retention Tax Credit.

The Act also relaxes several health, welfare, and retirement plan rules in light of the on-going COVID-19 pandemic and eases the financial impact of other pandemic-caused employment changes.  More

The Consolidated Appropriations Act, 2021 generally provides the annual funding for the federal government and also contains several important rules giving further COVID-19 relief. The comprehensive relief package funds certain hard-hit industries, expands eligibility for the Paycheck Protection Program (PPP), and extends and expands the Employee Retention Tax Credit.

The Act also relaxes several normally rigid health, welfare, and retirement plan rules in light of the on-going COVID-19 pandemic, easing the financial impact of pandemic-caused employment changes, while instituting new rules related to surprise medical billing.

The Act was approved by Congress on December 21, 2020, and signed into law by President Donald Trump on December 27, 2020.  More

The Consolidated Appropriations Act, 2021 (Act) generally provides the annual funding for the federal government and contains several important rules giving further COVID-19 relief. These include, among other things, revisions to the Paycheck Protection Program (PPP), expansion of the employee retention tax credit, and changes to other employer-related tax provisions.

The Act was passed by Congress on December 21, 2020, and signed by President Donald Trump on December 27, 2020.  More

Since it was issued in September 2020, Executive Order 13950 – Combatting Race and Sex Stereotyping has been a source of controversy and criticism.  Speculation as to the fate of the Executive Order in the future Biden/Harris administration has accelerated in recent weeks with talks of rescission and legal challenges.  While we await the ultimate fate of the Order, a federal district court entered a nationwide preliminary injunction stopping the administration from enforcing Executive Order (EO) 13950. Santa Cruz Lesbian and Gay Cmty. Ctr., et al. v. Trump, No. 5:20-cv-07741-BLF (N.D. Cal. Dec. 23, 2020).

As a reminder, EO 13950 prohibits federal contractors and subcontractors from using “any workplace training that inculcates in its employees any form of race or sex stereotyping or any form of race or sex scapegoating,” including a list of “divisive concepts.”  The district court ruled that the EO violates the Free Speech Clause of the First Amendment “because it impermissibly chills the exercise of the Plaintiffs’ constitutionally protected speech, based on the content and viewpoint of their speech.” The court also ruled that parts of the EO are so vague that they violate the Fifth Amendment Due Process Clause because

“it is impossible for Plaintiffs to determine what conduct is prohibited.”

The Office of Federal Contract Compliance Programs (OFCCP) has taken action to enforce the EO through the advent of a hotline to accept complaints and also issued a voluntary information collection.  While the court order is preliminary in nature and may be reversed, for now, OFCCP and other federal government agencies may not enforce the EO.

For more information on this development, check out our Article detailing today’s order.

In April of this year, which seems far longer than eight months ago, we posted about an alert from federal agencies warning that cyber threat actors were exploiting the coronavirus pandemic to fuel phishing and other attacks. Those efforts have continued throughout the year with attackers now retooling their messaging around the COVID-19 vaccine. Criminal threat actors know millions are clamoring for information about the vaccine and are working to meet that demand with false information, largely through phishing attacks.

According to an alert from the New Jersey Cybersecurity & Communications Integration Cell (NJCCIC):

COVID-19 vaccine-themed phishing emails may include subject lines that make reference to vaccine registration, information about vaccine coverage, locations to receive the vaccine, ways to reserve a vaccine, and vaccine requirements.

For business and/or personal reasons, millions are clamoring for vaccination information and may let their guard down when they see it. In the process, they may divulge sensitive or financial information, or open malicious links or attachments. Phishing campaigns may employ brand spoofing and impersonate well-known and trusted entities, such as government agencies playing a central and critical role in the response to COVID-19 and the vaccination rollout. Messages such as the one below, for example, can lure an individual to want to participate and provide helpful information.

Other forms of attack target individuals who want a vaccine with advertisements for supposed “legitimate” vaccines, but which are nothing of the sort.  Organizations such as New Jersey’s Office of Homeland Security and Preparedness are working to get accurate information about COVID-19 to the public, such as through its Rumor Control and Disinformation web page. However, having accurate information available may not do enough to foil these attacks.

Organizations may not be able to prevent all attacks, but there are steps they could take to minimize the chance and impact of a successful attack, and to be prepared to respond. Among those steps is the critical need to maintain a level of security awareness, in addition to training. Annual trainings are a start, but may not be enough to keep up with nimble threat actors who deftly reshape their messaging and methods to improve their chances of success. They take in developments around the world and adapting on a far more frequent basis than annually.

Employees should be trained to recognize phishing attacks and dangerous sites, and instructed not to reveal personal, financial or other confidential information about themselves, other employees, customers, and the company. However, ongoing reminders about the morphing nature of these kinds of attacks can be instrumental in preventing them. Considering the past year and the more recent rise in COVID-19 cases, it is easy to understand how compelling information about a vaccine can be, so much so that it may be easy to forget the warnings given during that annual training on an early Monday morning in February.

On July 15, 2020, Virginia became the first state in the nation to promulgate an Emergency Temporary Standard to address COVID-19 in workplaces. Even with vaccine deliveries on the way, Virginia has proposed a Permanent Standard for consideration by the Virginia Safety and Health Codes Board (which includes author Courtney Malveaux).

To read the article in its entirety, click here.

The Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) have allowed some flexibility due to the COVID-19 pandemic. Here are some of the changes in effect:

  • Virtual Inspection

Since March 2020, employers may inspect Section 2 documents virtually, e.g., over video link, by fax, or by email. This policy applies only to employers with workplaces that are operating remotely and if employees are not physically present at the workplace. Employees who are onboarded virtually must report for in-person verification once the employer’s normal operation resume or the employee is physically present at the work location, whichever is earlier. This policy has been extended until December 31, 2020 – but may be extended further.

  • EAD Approval Notices

Although an employee always may choose which documentation to produce, individuals whose sole work authorization document is an Employment Authorization Document (EAD) must present an unexpired EAD card for I-9 purposes. However, due to the USCIS backlog in  producing the EAD cards and subsequent litigation forcing the government’s hand, certain new employees and those needing to reverify their employment authorization may present Form I-797 approval notices instead of EAD cards if: the Form I-797 Approval Notice Date is between December 1, 2019, and August 20, 2020, and the employee can present (or has previously presented) an acceptable List B identity document. This will be in effect until February 1, 2021. Then the employee will need to present either a List A (such as an EAD card) or a new List C document.

  • TPS Beneficiaries

The DHS has announced automatic extension of work authorization until October 4, 2021, for certain Temporary Protected Status (TPS) beneficiaries due to pending litigation. Beneficiaries from El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan who are covered will need to present their expired EAD card along with the Federal Register notice announcing the automatic extension. For employees whose work authorization must be renewed, Section 2 should be updated. Reverification will not be required until October 5, 2021.

  • Deferred Action for Childhood Arrivals (DACA)

The termination of DACA has been set aside, but DHS did not return to the “status quo ante.” For a brief time, DHS refused to issue EAD cards to DACA beneficiaries for more than one year at a time, instead of the usual two years. Now, due to a court order, DHS must issue two-year renewals. USCIS has stated it will take appropriate steps to provide evidence of the full two-year employment authorization under DACA to individuals who were issued documentation on or after July 28, 2020, with a one-year validity period under the defunct policy.

  • Expired List B Documents

Because of stay-at-home orders and restrictions on some document renewal services, starting on May 1, 2020, USCIS announced that List B identity documents set to expire on or after March 1, 2020, could be treated the same as if the employee presented a valid receipt for an acceptable document for I-9 purposes. There will be a 90-day grace period once this flexibility terminates.

  • H-2B Flexibility

Non-E-Verify employers with properly filed H-2A extension of stay petitions for H-2A workers currently employed by a different company may start employing those employees beginning on or after the date USCIS receives the extension of stay petition, but no earlier than the start date of employment listed on the petition. The extension petition must be filed on or after August 19, 2020, and no later than December 17, 2020. The employee’s unexpired I-94 indicating H-2A status along with their foreign passport qualify as a List A document.

Jackson Lewis attorneys are available to assist in navigating these and other new flexibilities, reviewing I-9 documentation, and helping employers to prepare for post-COVID-19 audits.

Most of California is currently subject to the state’s Regional Stay at Home Order and  COVID-19 cases surging around the state. Meanwhile, federal and state supplemental paid sick leave benefits available to employees in California will soon expire.

The Families First Coronavirus Response Act (“FFCRA”), which includes paid sick leave obligations for employers with less than 500 employees, is set to expire on December 31, 2020. California’s recently enacted statewide supplemental paid sick leave law will also expire on  December 31. As of now, neither has been extended beyond the current expiration date.

Some local governments, however, have taken steps to continue their local supplemental sick leave ordinances into the coming year:

Other localities, such as the City of Los Angeles and the City of Long Beach, have ordinances that already continue into 2021.

Jackson Lewis continues to monitor local, state, and federal legislation pertaining to COVID-19. If you have questions about supplemental paid sick leave or other employment concerns related to COVID-19, contact a Jackson Lewis attorney to discuss.

At the beginning of December, the CDC issued new guidance regarding the length of quarantine. Although the new CDC guidance was not definitive in shortening the quarantine period, it did provide options to local health departments to shorten the quarantine period, if they determined it appropriate.

On December 14th, the California Department of Public Health (CDPH) released its own COVID-19 Quarantine Guidance. The CDPH follows suggestions from the CDC in reducing the length of quarantine for asymptomatic individuals who have been in close contact with an infected person (within 6 feet for a cumulative total of 15 minutes or more). These individuals may discontinue quarantine after Day 10 with or without testing. Governor Newsom has also issued an Executive Order, N-84-20, which limits required quarantine periods under Cal OSHA’s COVID-19 Emergency Temporary Standard to either the CDPH guidance or local public health standards, whichever is longer.

Under the CDPH guidance, individuals who have been exposed must still wear face coverings at all times, maintain social distance of at least 6 feet from others, and practice other safety measures beyond the shortened quarantine period.

The CDPH guidance includes a special exception for healthcare, emergency response, and social service workers who work in child welfare or assisted living facilities in cases of “critical staffing shortages” – a term not defined in the guidance.  In those circumstances, asymptomatic employees who have tested negative after being tested on the fifth day after exposure may return to work after quarantining or seven days.  These employees should use surgical face masks at all times during work and continue to use face coverings when outside their home through Day 14 of the last exposure.

Although the state standards now allow for shorter quarantine periods, not all local jurisdictions have followed suit. While some, such as the County of Santa Clara, have also reduced the length of recommended quarantine periods, others continue to require 14 days of quarantine after exposure. In those jurisdictions, the longer quarantine requirement will apply for Cal OSHA purposes, as well.

The new CDPH guidelines do not change the travel advisory it issued in November. That advisory recommends that all persons, including California residents, who arrive in or return to California after out-of-state travel should quarantine for 14 days, whether or not they have been exposed to COVID-19.

Jackson Lewis continues to monitor issues pertaining to COVID-19 and employers. If you have questions about state or local guidance pertaining to COVID-19 contact a Jackson Lewis attorney to discuss.

Virginia Governor Ralph Northam has issued Executive Order Number Seventy-Two, expanding face covering requirements, reducing allowable social gatherings, and directing Virginians to remain at home after midnight. The Order also states that individuals who decline to wear a face covering due to a medical condition are not required to produce medical documentation verifying their stated condition(s) or identify their precise underlying medical condition(s). The Order took effect at 12:01 a.m. on December 14, 2020.

To view the article in its entirety, please click here.