Washington State Governor Jay Inslee has issued a new Proclamation that extends until 11:59 p.m. on August 1, 2020, the job protections in place for “high-risk” Washington employees. The job protections were to expire at 11:59 p.m. on June 12, 2020, under the previous Proclamation.

High-risk employees are (1) any individual 65 years or older, (2) anyone living in a nursing home or long-term care facility, and (3) those with “certain chronic underlying health conditions.”

For details of the protections, see our article, Washington: Proclamation Extending Job Protections to High-Risk Employees during COVID-19 Crisis.

If you have questions or need assistance, please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our COVID-19 team.

Journalists and airlines are the two latest groups affected by the deterioration in the relationship between China and the United States.

Since the “tariff wars” and the onset of COVID-19, the relationship between China and the United States has become ever more complicated.

In early May, the Trump Administration changed the I visa rules for Chinese journalists working in the United States for non-U.S. media outlets. I visas are specifically for members of the foreign media. In the past, these visas were open-ended in terms of the time frame. Now, for Chinese journalists, they will be limited to 90 days, with the possibility of 90-day extensions. This change was in part a response to China’s expulsion in March of American journalists from major U.S. newspapers. That expulsion came after the State Department cut the number of Chinese citizens who could be in the United States working for Chinese state-controlled news agencies from 160 to 100. Prior to that, China had been granting shorter duration visas to resident foreign journalists.

In early June, the Trump Administration announced that as of June 16 (and possibly sooner), it would block Chinese airlines from flying into the U.S. because China has essentially prohibited U.S. airlines from flying to China. The dispute started in March, when China limited the number of flights available to foreign airlines based on their flight schedules from earlier in the month. Because U.S. carriers had stopped flying to China at that time due to COVID-19, they were cut out of the market. In the meantime, four Chinese airlines have been operating on the China-to-U.S. route. Two U.S. carriers hoped to restart China flights on June 1, 2020, and appealed to the Chinese Civil Aviation Authority for relief. They did not receive a response at that time. After the U.S. Administration announced its ban, the Chinese Civil Aviation Authority said it would allow U.S. carriers back on a limited schedule. While the Administration attempts to negotiate a way for China and the U.S. to “exercise their bilateral rights,” they agreed to a reciprocal approach. Chinese carriers will be able to have as many flights to the U.S. as U.S. carriers have flights to China.

Reacting to China’s newly announced controls over Hong Kong, President Donald Trump has issued a Presidential Proclamation banning the entry of Chinese nationals on F or J visas who wish to do graduate study or post-graduate research that would advance China’s military capabilities as security risks. He also has stated that “he would revoke Hong Kong’s preferential treatment as a separate customs and travel territory from China.”

Jackson Lewis will continue to follow these issues and provide updates as they become available.

As the COVID-19 pandemic continues to spread across the country, doctors, dentists, therapists and other healthcare providers have turned to telehealth use with their patients by way of videoconferencing applications such as Zoom, Skype and WebEx. The Office of Civil Rights and the Department of Health and Human Services (“OCR”) defines telehealth as “the use of electronic information and telecommunications technologies to support long-distance clinical health care, patient and professional health-related education, public health and health administration. Technologies include videoconferencing, the internet, store-and-forward imaging, streaming media, and terrestrial and wireless communications.”

There are a number of privacy concerns healthcare providers should consider when utilizing telehealth technology. Generally, healthcare providers providing telehealth services are subject to the Health Insurance Portability and Accountability Act of 1996 (HIPAA). However, not every videoconferencing application is HIPAA-compliant. HIPAA requires that a healthcare provider who utilizes a vendor to transmit or maintain protected health information, or who utilizes a vendor who has routine access to protected health information (PHI), must have a Business Associate Agreement (BAA) with each vendor.

In light of COVID-19, the OCR recently relaxed its enforcement of HIPAA’s privacy and security rules and issued a notification stating that it will practice “enforcement discretion” regarding HIPAA’s privacy and security rules. The OCR will not impose penalties for noncompliance with HIPAA for healthcare providers’ “good faith provision of telehealth using such non-public facing audio or video communication products during the COVID-19 nationwide public health emergency”, whether the telehealth services are related to a COVID-19 diagnosis and treatment or not, including for example, “a sprained ankle, dental consultation or psychological evaluation, or other conditions.”

The OCR advises healthcare providers to use public facing videoconferencing applications including Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, Zoom, or Skype, to provide telehealth without the risk that the OCR will issue penalties for non-compliance with HIPAA. However, the OCR also specifically disallows the use of certain other public facing video apps such as TikTok, Facebook live, and Twitch to provide telehealth services.

Notwithstanding the OCR’s practice of enforcement discretion, healthcare providers should continue to engage in best practices to safeguard patient data. For example:

1. Consent. Before using video conferencing for medical consultations, request permission from the patient to do so and document their approval in their medical record.

2. BAA. Despite the fact that the OCR will not impose penalties against covered health care providers for the lack of a BAA, the OCR encourages healthcare providers to enter into a BAA with any vendor that provides videoconferencing services, and in its notification provides a list of vendors which represent that they are HIPAA-compliant video conferencing applications that will enter into a HIPAA BAA, including:

  • Skype for Business / Microsoft Teams
  • Updox
  • VSee
  • Zoom for Healthcare
  • Doxy.me
  • Google G Suite Hangouts Meet
  • Cisco Webex Meetings / Webex Teams
  • Amazon Chime
  • GoToMeeting
  • Spruce Health Care Messenger

3. Encryption. Healthcare providers should enable all available encryption and privacy modes when using the videoconferencing technology.

4. Password Protection. Healthcare providers should create a unique meeting ID and a strong password to access a virtual consultation.

5. Monitor. Healthcare providers should monitor all communications containing PHI. Additionally, healthcare providers should check that both employees and patients are accessing via a secure network connection prior to consultations.

According to analysts at Forrester Research, the adoption of telehealth services has increased dramatically, with virtual healthcare interactions projected to exceed 1 billion by year’s end. While the OCR’s relaxed enforcement of HIPAA during COVID-19 likely will end when the pandemic is brought under control, it appears telehealth services may become the “new normal” for healthcare providers.

The Trump Administration has talked about reforming the F-1 Optional Practical Training (OPT) program for years. It first appeared on the 2017 DHS Regulatory Agenda as a proposed new rule. The stated purpose of the rule was to increase protections for U.S. workers through additional oversight and to reduce fraud and abuse of immigration programs. The rule has never been finalized.

With the unemployment rate at an historic high, the Administration is refocusing on “measures appropriate to stimulate the United States economy and ensure the prioritization, hiring, and employment of United States workers.” In the “Proclamation to Suspend Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak,” issued on April 22, 2020, President Donald Trump stated that within 30 days he would be reviewing non-immigrant programs to further the stated objectives.

Many expect new rules regarding non-immigrant visas and the OPT program would be forthcoming. Senator Charles Grassley (R-Iowa) has bolstered this expectation by expressing his continuing concerns regarding fraud and abuse in F-1 student visa programs. Grassley has been raising concerns about the program since 2018. On May 21, 2020, he sent a letter to Acting Secretary of the Department of Homeland Security, Chad Wolf, seeking answers to questions regarding DHS oversight of the OPT program. Particularly, he is concerned about “visa mills” masquerading as educational institutions that “serve as defacto employment agencies that provide the necessary approval for aliens who seek to enter the U.S. under F-1 visas and work in this country.” He is also concerned that these “mills” work with fake companies that ostensibly hire F-1 students to work through the F-1 OPT and STEM OPT programs.

Grassley is expecting responses regarding DHS insights, oversight, and enforcement actions for both large and small organizations and institutions. For example, he wants to know the steps DHS takes to validate companies involved in the OPT program, DHS policies regarding site visits, the steps DHS takes to investigate whether educational institutions are complicit in fraud, and how many companies have been identified as being engaged in fraud. The answers he receives may well color the Administration’s new rules and recommendations.

Colleges and universities worry about how limits on OPT could affect their programs, their bottom lines, and the economy in general. The Chronicle of Higher Education reports that the OPT program “drives year-to-year enrollment increases of students from foreign countries.” The F-1 OPT program has historically been an important incentive for foreign students to come to the U.S. (especially those in STEM programs). Given the current immigration landscape and the COVID-19 pandemic, anything that encourages foreign student enrollment is welcome. As the American Council on Education pointed out, “Part of the global leadership of U.S. higher education has involved attracting the best and the brightest.” It also said the OPT program is a substantial attraction. The Business Roundtable has found that cutting the OPT program would actually result in job losses for U.S. workers, and that “immigrants can help the United States achieve its full economic potential, to the benefit of all Americans.”

Jackson Lewis attorneys will continue to follow developments regarding possible restrictions on non-immigrant visas and the F-1 OPT program.

As a result of the COVID-19 pandemic, fully remote depositions have become necessary and employment lawyers are quickly adjusting. Below are some areas to consider when taking a remote deposition.

Technology

Court reporting services use various audio-video technologies, including Zoom, Cisco Webex, and other platforms, to connect participants in a remote deposition. Being comfortable on a platform may depend on prior experience. Verify the security to ensure there are no surprise “crashers” in a deposition. Whatever the format, a web-camera and possibly a microphone may be needed. Many computers have built-in webcams and microphones. Some court reporters advise connecting to the audio feed by telephone, rather than computer audio, to avoid disturbances by internet bandwidth issues.

Deposition Notice, Stipulations

Consider including language in the notice of deposition stating the deposition will be conducted remotely with the deponent, parties, attorneys, and court reporter participating from different locations. The notice should advise that the court reporter will administer the witness’s oath remotely. Email in advance to all participants the link to connect and any other information they needed to join the deposition. Provide to all parties the contact information of the court reporting service and advise them to test their connection in advance, and suggest that they may contact the reporter to do a test session. Some court reporting services can provide a template remote deposition notice. Also, consider formal written stipulations of the ground rules for handling exhibits and related concerns that can arise on or off the screen.

Exhibits

Showing exhibits to the deponent is the most unique element of a remote deposition, and needs extensive planning. There are many ways to handle exhibits and the method you choose will depend on whether the element of surprise regarding which exhibits you will show the witness is important, how many exhibits you intend to use, and how proficient you are with technology.

If appropriate, one can share exhibits in advance with the deponent and opposing counsel. Exhibits can be marked and shared in advance with the deponent, counsel, and court reporter. You simply can instruct the deponent, on the record, to refer to hard copy exhibits already in their possession and proceed to question the witness.

If you do not want to share exhibits in advance, there are two methods to show exhibits using technology. One is to mark exhibits in advance, scan and save them on your computer, and share your screen through the video platform employed by the court reporter. When you want to show an exhibit to the deponent, you share your screen with the participants and display the document on your screen. All participants will see on their screens exactly what is displayed on your screen. Alternatively, counsel can use an exhibit-sharing platform that many court reporting agencies are using. Many exhibit-sharing programs automatically affix exhibits with electronic exhibit stickers and allow a witness and counsel to electronically “mark up” an exhibit, as may be done during an in-person deposition with a physical pen or marker. In addition, each participant can independently scroll through the document at their pace; the deposing attorney does not need to scroll down to show the deponent subsequent pages of an exhibit, as is necessary when employing the share-your-screen method.

Finally, if you are not comfortable sharing your screen or using an exhibit-sharing technology, but you do not want to tip your hand on which documents you will utilize, you can provide hard copy exhibits to the deponent, court reporter, and opposing counsel in advance in a sealed package, with explicit instructions that: (1) the package may not be opened prior to the deposition; and (2) the parties will be instructed to break the seal and open the package for the first time on camera and on record during the deposition.

While a fully remote deposition likely will be a new experience for most attorneys, if you are prepared, the deposition should run smoothly.

In what may be the beginning of a wave of post-COVID-19 lawsuits, a former Assistant Director of Nursing filed a whistleblower complaint against her employer, a long-term care facility. The lawsuit claims termination for raising concerns about alleged health and safety issues relating to, inter alia, staffing levels and the use of effective personal protective equipment.   Retaliation claims are asserted under state law, which will vary in scope and remedies across the country.

The Internal Revenue Service has relaxed spousal notarization and plan representative witness requirements in 2020 for retirement plan elections in IRS Notice 2020-42. The notice addresses the physical presence requirement for notarization or witnessing of certain plan elections and provides temporary relief permitting remote notarization and witnessing subject to certain requirements.

For the period from January 1, 2020, through December 31, 2020, IRS Notice 2020-42 provides temporary relief from the physical presence requirement for any “participant election” witnessed by (i) a notary public of a state that permits remote electronic notarization, or (ii) a plan representative. A “participant election” includes any consent, election, request, agreement or communication made by or from a participant, beneficiary, alternate payee, or beneficiary.

However, this relief has particular requirements that must be met.

For an election required to be witnessed by a notary public, the physical presence requirement is deemed satisfied for an electronic system that uses remote notarization if executed via live-audio technology, provided that the system complies with state law requirements for notary publics.

For an election required to be witnessed by a retirement plan representative, the physical presence requirement is deemed satisfied for an electronic system if live audio-video technology is used that satisfies the following requirements:

  1. The individual signing the election must present a valid photo ID to the plan representative during the live audio-video conference. The transmission of a copy of the photo ID before or after the witnessing is not sufficient.
  2. The live audio-video conference must allow for direct interaction between the signing individual and the plan representative. A pre-recorded video of the person signing is not sufficient.
  3. The signing individual must transmit by fax or email a legible copy of the signed document directly to the plan representative on the same date it was signed.
  4. After receiving the signed document, the plan representative must (i) acknowledge that he or she has witnessed the signature under the requirements of this notice and (ii) transmit the signed document, including the acknowledgment, back to the individual under a system that satisfies the applicable notice requirements under Treasury Regulation § 1.401(a)-21(c) (which provides a safe harbor for electronic notices).

This relief from the personal presence requirement is temporary. It applies to elections such as COVID-19 distributions, spousal consent to distribution from a plan subject to qualified joint and survivor annuity (QJSA) requirements, retirement plan loan applications. The relief applies only to qualified retirement plan elections, and not to other types of benefits such as health and welfare plans.

We are available to help plan administrators understand and implement this relief and its’ requirements.  Please contact a team member or the Jackson Lewis attorney with whom you regularly work if you have questions or need assistance.

The Occupational Safety and Health Administration (OSHA) has issued guidance for construction industry employers to prevent spread of COVID-19.

In addition to measures the agency suggests for all employers, the guidance includes a variety of preventive measures at construction sites, such as:

  • Using Environmental Protection Agency-approved cleaning chemicals from List N or that have label claims against COVID-19 for cleaning frequently touched surfaces like tools, handles, and machines;
  • Using physical barriers (such as walls, closed doors, or plastic sheeting) to separate workers from individuals experiencing signs or symptoms consistent with COVID-19;
  • Keeping in-person meetings (such as toolbox talks and safety meetings) as short as possible, limiting the number of workers in attendance, and using social distancing practices;
  • Screening calls when scheduling indoor construction work to assess potential exposures and circumstances in the work environment before worker entry; and
  • Staggering work schedules (such as alternating workdays or extra shifts) to reduce the total number of employees on a job site at any given time and to ensure physical distancing.

Specifically for construction work in home environments or occupied buildings, the guidance directs employers to implement standard operating procedures and employee training to ensure that workers:

  • Request that any residents at the worksite who have been diagnosed with or are experiencing signs or symptoms of COVID-19 remain physically separated from and communicate remotely with workers;
  • Ask others in the workplace to wear a cloth or other face covering, if available, and to cover coughs and sneezes; and
  • Request that shared spaces in the construction area have good air flow, such as by turning on an air conditioner or opening windows, weather permitting, consistent with CDC recommended precautions for people in households.

If you have questions or need assistance, please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our COVID-19 Team.

At the beginning of May, California implemented a staged reopening for businesses closed due to the shelter in place orders resulting from the COVID-19 pandemic. This plan, referred to as the “Resilience Roadmap” allowed for counties to apply for a variance if certain criteria set by the state public health officer are met. The variances allow counties to proceed with reopening certain businesses not permitted under the overall state plan.

To date, a majority of counties have been granted variances that permit dine-in restaurants, hair salons, and barbershops to reopen pursuant to specific guidance, in particular, pertaining to conducting work at these businesses.

As businesses prepare to reopen, they should remember that the state mandates all facilities that reopen must:

  1. Perform a detailed risk assessment and implement a site-specific protection plan
  2. Train employees on how to limit the spread of COVID-19, including how to screen themselves for symptoms and stay home if they have them
  3. Implement individual control measures and screenings
  4. Implement disinfecting protocols
  5. Implement physical distancing guidelines

In addition to the State requirements, the individual counties have their own health orders which at times include additional requirements along with state mandates. Many counties require businesses to post social distancing protocols at the worksite. For example, the County of Los Angeles has developed several protocols for businesses such as retail stores, hair salons, and restaurants.

Along with social distancing and similar protocols, many counties are including other requirements as businesses bring employees back to work. San Diego County, one of the first more populace counties to be granted a variance, mandates temperature checks for employees in certain industries. Sonoma County has deployed a cell phone application that employers are required to use (unless they can provide the county with the same information by an alternative means) which verifies that employees are symptom and fever-free.

As employers move toward bringing more employees back to work, they should review state and county orders to ensure they are complying with location-specific requirements. Employers will also need to continue to monitor changes as some counties have suggested that reopening may be rolled back as necessary due to COVID-19 spikes.

Jackson Lewis is monitoring reopening orders throughout California and employers can keep up to date with the firm’s COVID19 Advisor Resources that track state and county orders. Jackson Lewis attorneys can also help develop compliant safety and social distancing protocols for your business.

As many California counties move into Stage 2 of the statewide reopening plan following the state’s stay-at-home order, San Francisco has developed its own phased plan for reopening businesses.

Currently, under San Francisco’s plan, essential business, curbside retail, some supply chain businesses, and outdoor businesses are permitted to open.

San Francisco businesses may verify that they may open under San Francisco’s criteria on the county website.  The website also provides information on the counties’ specific protocols for essential businesses including safety requirements and physical distancing rules for work locations.

All businesses operating in San Francisco must:

  • Allow working from home if possible.
  • Follow industry-specific guidance where applicable
  • Prepare a social distancing protocol
  • Prevent large crowds from gathering
  • Require face coverings
  • Prevent unnecessary contact between people
  • Protect employee health

In protecting employee health, San Francisco mandates that employers:

  • Ensure employees do not come to work sick
  • Have employees check their health before starting work
  • Ensure physical distance of at least 6 feet between employee work areas
  • Clean break rooms, bathrooms, and other common areas frequently
  • Make cleaning supplies, hand sanitizer, soap and water with tissues easily available

San Francisco will likely release additional guidance as it moves toward the next phase of its reopening plans.

Jackson Lewis will continue to monitor local and state-wide guidance and developments regarding business reopening. If you have questions regarding developing reopening protocols for your employees contact a Jackson Lewis attorney to discuss.