We previously wrote about the Department of Labor’s proposed expansion of its safe harbor for electronic delivery of certain retirement plan disclosures required under ERISA.  The wait is finally over, with publication of the final rule (the “New Rule”) helped along by the DOL’s desire to alleviate some of the “disclosure-related problems being reported by a great many retirement plans” during the COVID-19 pandemic.

Plan administrators have long bemoaned the narrow parameters of the DOL’s current safe harbor for electronic delivery (the “2002 Safe Harbor”), which requires that plan participants have work-related computer access or provide affirmative consent to receive their ERISA disclosures electronically.  This safe harbor rule became effective well before smartphones and tablets made it much easier for plan participants to access email and company intranets—and the benefit plan document that might be posted there—at any time and from anywhere.

The New Rule establishes another voluntary safe harbor for retirement plan administrators who wish to furnish “Covered Documents” to “Covered Individuals” electronically as the default means of delivery.  (Though the New Rule is undoubtedly good news for retirement plan administrators, it is important to point out that the New Rule applies only to retirement plan disclosures, and welfare plan administrators may utilize the 2002 Safe Harbor only until further guidance is issued by the DOL.)

For the New Rule, a “Covered Individual” is a participant, beneficiary, or other individual entitled to Covered Documents who has provided, or has been provided with, an electronic address.  This includes an email address or internet-connected mobile-computing-device (e.g. smartphone) number.  “Covered Documents” include summary plan descriptions, summary of materials modifications, and pension benefit statements or information that the administrator is required to furnish to participants and beneficiaries.

Under the New Rule, electronic delivery can be the default method for distribution of Covered Documents unless a Covered Individual affirmatively opts out. The New Rule permits these two methods for electronic delivery:

  • Website Posting – Plan administrators may post Covered Documents on a website, if certain requirements are met.
  • Email Delivery – Plan administrators may send Covered Documents directly to the email addresses of Covered Individuals. The email must include specific language within the subject line of the email and a statement that briefly describes the content of the Covered Document.

The New Rule also protects Covered Individuals who may wish to opt-out of the electronic disclosures.  Specifically:

  • Covered Individuals can request paper copies of specific Covered Documents or globally opt-out of electronic delivery entirely.
  • Covered Individuals must be furnished with an initial notification (on paper) of the administrator’s switch to electronic delivery.
  • Covered Individuals must be furnished a timely notice of internet availability each time a new Covered Document is made available for review on the internet website. The notice of internet availability may be sent via email or text message. The notice of internet availability must include, among other things, a hyperlink to the Covered Document and statement of the right to receive a paper version instead.

The New Rule is technically effective on July 27, 2020—60 days after its publication.  The DOL, however, will not take enforcement action against plan administrators that rely on the New Rule before the 60-day period has expired.  Administrators may also continue to use and rely on the 2002 Safe Harbor.

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

Premium processing will resume in stages according to USCIS. Cap-subject H-1B petitions will be included only in the last phase.

June 1, 2020: USCIS will accept requests for premium processing for all eligible Form I-140 Immigrant Visa Petitions.  EB1-C Multi-National Manager or Executive and EB2 National Interest Waiver petitions are not eligible for premium processing.

June 8, 2020: USCIS will accept upgrades to premium processing for all I-129 petitions filed before June 8, 2020 except for cap subject H-1B petitions.

June 15, 2020: USCIS will accept concurrent premium processing filings and upgrades to premium processing for cap-exempt H-1B petitions (including Conrad and Interested Government Agency Waivers) filed on or after June 8, 2020.

June 22, 2020: USCIS will resume premium processing for all other Form I-129 petitions (upgrades and concurrent filings) including all cap-subject petitions.

USCIS is attempting to gradually reintroduce premium processing. Even so, the schedule is subject to change. The $1,440 fee for each premium processed case may help USCIS with its current budget shortfall.

Premium processing was suspended on March 20, 2020 due to COVID-19. Petitioners who filed Form I-140 and Form I-129 petitions requesting premium processing before that date but received no action and a refund, may refile their Forms I-907 consistent with the above timeline, barring any changes.

Jackson Lewis attorneys will continue to monitor this timeline.

Following Governor Andrew Cuomo’s announcement that dental practices across New York State may reopen to perform all dental care, the New York State Department of Health (DOH) has issued minimum safety and social distancing standards in its “Interim Guidance for Dentistry During the COVID-19 Public Health Emergency.”

The Interim Guidance applies to all dental care, including both emergency and non-emergency or elective care, and will remain in effect until it is rescinded or amended by DOH. All dentists must implement the standards upon reopening and submit an affirmation to DOH stating that they have reviewed the Standards and will implement them.

The Interim Guidance provides:

No dentistry activities can occur without meeting the … Standards, as well as applicable federal requirements, including but not limited to such minimum standards of the Centers for Disease Control and Prevention (CDC), Environmental Protection Agency (EPA), and United States Department of Labor’s Occupational Safety and Health Administration (OSHA).

Recognizing the dynamic and fluid nature of state and federal guidance on preventing the spread of COVID-19, the Interim Guidance notes that the Standards are based on the “best-known public health practices” and cautions all dental practices to understand that such practices — and presumably the Standards themselves — “change frequently.” Therefore, dentists should regularly monitor the DOH website for any updates to the Interim Guidance.

The Standards include practices that are well known to reduce the spread of COVID-19, such as:

  • Requiring physical distancing of at least six feet in every direction in all waiting areas, reception areas, and elevator entrances and other spaces where individuals tend to congregate;
  • Installing physical barriers when adequate distancing is not possible;
  • Limiting elevator density; and
  • Using signage to reduce bi-directional traffic and to otherwise remind all employees, patients, and visitors to engage in best practices (g., social distancing, face coverings and hand washing) to reduce the spread of the disease.

The Standards further require that providers:

  • Limit gatherings in enclosed spaces (g., restrooms and break rooms);
  • Take measures to reduce interpersonal contact and congregation (g., limiting in-person staff present, adequate time between patients, and limiting the number of patients on the schedule); and
  • Limit on-site interactions (g., require employees to remain near their workstations).

On cleaning and disinfection, the Standards require that dental practices “wait at least 15 minutes” after completion of a dental visit to allow potential contagious droplets to fall from the air prior to disinfecting. Inasmuch as dental practices are required to clean and disinfect between each patient visit, this requirement will limit significantly the capacity to service patients.

According to the Standards, dental practices “must ensure that patients and visitors wear face coverings at all times, except when undergoing a dental procedure,” and require all employees to wear appropriate personal protective equipment when providing care in accordance with OSHA standards. For aerosol-generating procedures, the provider’s personnel must wear a properly fit-tested, NIOSH-certified, disposable N95 or higher rated respirator, as well as eye protection, gloves, and gowns.

On screening and testing, dental practices must implement mandatory health screening practices of employees, patients, and visitors, including through remote (e.g., telephone or text) processes. Dental practices must notify the local health department of confirmed positive cases COVID-19 and be prepared to cooperate with the local health department’s contact tracing efforts.

While dental practices are accustomed to taking precautions, they should become familiar with the added DOH requirements by reviewing the Interim Guidance and continuing to monitor for changes to the Standards.

Reopening orders contain extensive requirements creating compliance issues that can vary significantly depending on the specific state or local jurisdiction. Jackson Lewis attorneys are closely monitoring updates and changes to legal requirements and guidance and are available to help employers weed through the complexities involved with state-specific or multistate-compliant plans.

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.

On May 28, 2020, the Internal Revenue Service (IRS) released an advanced version of Notice 2020-35, which amplifies the relief it had previously provided from deadlines for certain time-sensitive actions.  The relief offered by Notice 2020-35 is provided because of the ongoing COVID-19 pandemic and is in addition to the relief provided by Notice 2020-18, Notice 2020-20, and Notice 2020-23.

Specifically, Notice 2020-35 amplifies the definition of “affected taxpayer” to include the performance of “time-sensitive actions” that are due to be performed on or after March 30, 2020, and before July 15, 2020, concerning:

  • Certain employment taxes;
  • Employee benefit plans (including section 403(b) plans, government section 457(b) plans, SEP plans, or SIMPLE IRA plans);
  • Exempt organizations; and
  • Forms 5498, 5498-SA, or 5498-ESA.

Notice 2020-35 also amplifies the definition of “time-sensitive actions” to include:

  • The correction of employment tax reporting errors using the interest-free adjustment process under the Internal Revenue Code of 1986 (the “Code”);
  • Funding waivers for defined benefit plans that are not multiemployer plans under Code Section 412(c);
  • Actions for multiemployer defined benefit plans;
  • Actions for cooperative and small employer charity pension plans (CSEC plans);
  • Filing Form 5330 and the payment of associated excise taxes;
  • The initial remedial amendment period and plan amendment rules for 403(b) pans;
  • The second remedial amendment period for pre-approved defined benefit plans originally scheduled to end on April 30, 2020;
  • The implementation of corrective actions under the IRS Employee Plans Compliance Resolution System (EPCRS) and compliance statements issued under the Voluntary Correction Program (VCP);
  • Requests for approval of a substitute mortality table under Code Section 430(h)(3)(C);
  • Electronic submissions of exempt organizations’ Form 990-N under Code Section 6033(i) and the time for commencing a suit for declaratory judgment under Code Section 7428; and
  • The due date for filing and furnishing the Forms 5498, 5498ESA and 5498-SA, is postponed to August 31, 2020. Penalties regarding such postponed filings will begin to accrue on September 1, 2020.

Notice 2020-35 also provides a temporary waiver of the requirement that all Certified Professional Employer Organizations (CPEOs) file certain employment tax return filings and accompanying schedules, on magnetic media (including electronic filing).  This temporary waiver applies to Forms 941 (and its accompanying schedules) filed in the second, third, and fourth quarters in 2020 and Forms 943 (and its accompanying schedules) for the 2020 calendar year.

With time-sensitive actions regarding provisions of the Code for which there are parallel provisions in the Employee Retirement Income Security Act of 1974 (ERISA), the relief provided by Notice 2020-35 also applies to the parallel provisions under ERISA.

Contact any Jackson Lewis attorney with questions about how this notice may affect your company or employee benefits.

Chicago’s City Council has passed an ordinance to protect employees from retaliation by their employers if they obey public health orders or orders of a healthcare provider to stay at home because of the COVID-19 pandemic. The ordinance was passed by the City Council on May 20, 2020. Read more.

Over the last few weeks, we have seen significant changes affecting COBRA compliance. Employers should contact their COBRA administrators to discuss the best practices in light of these developments, which include the Department of Labor’s publication of new model COBRA notices and COVID-19 notice and premium payment extensions.  We have a helpful article that discusses agency publications.   This is especially important, given the recent flurry of class action cases involving  COBRA notices.  A recording and a recap of the Jackson Lewis COVID-19 daily briefing episode discussing COBRA class action litigation are also available.  Contact any Jackson Lewis attorney to help you navigate the new agency guidance.

In addition to the  COVID-19-related travel restrictions and consular closures, Chinese graduate students and post-doctoral researchers will now face another hurdle in coming to the U.S. As of noon (EDT) on June 1, 2020, President Donald Trump’s “Proclamation on the Suspension of Entry as Nonimmigrants of Certain Students and Researchers from the People’s Republic of China” became effective.

The Proclamation bans the entry on F or J visas of PRC nationals who wish to study or conduct research if they receive funding from, are currently employed or study at or have in the past conducted research on behalf of an entity in the PRC “that implements or supports the PRC’s ‘military-civil fusion strategy.’” This is defined as “actions by or at the behest of the PRC to acquire and divert foreign technologies, specifically critical and emerging technologies, to incorporate into and advance the PRC’s military capabilities,” i.e., military ties.

The ban expressly exempts Chinese undergraduate students and provides other exemptions, including for spouses of U.S. citizens and legal permanent residents and members of the U.S. Armed Forces and their immediate family members.

It is not clear how broadly the new ban will be interpreted, but the Proclamation states that the covered individuals will be identified by the Department of State based upon recommendations from the Attorney General and the Secretary of Homeland Security.

The Proclamation also calls upon the Secretary of State to consider whether Chinese nationals currently in the U.S. on F or J visas should have those visas revoked to “mitigate the risk posed by the PRC’s acquisition of sensitive United States technologies and intellectual property.”

Reportedly, just days before issuance of the Proclamation, Secretary of State Mike Pompeo was speaking to President Trump about cancelling the visas of some Chinese nationals with ties to China’s military currently in the U.S..

In Congress, Senators Tom Cotton (R-Ark.) and Marsha Blackburn (R-Tenn.) unveiled legislation (SECURE CAMPUS Act) that would codify the Proclamation. Companion legislation will be introduced in the House of Representatives by Congressman David Kustoff (R-Tenn.). The bill, aimed at safeguarding the nation’s security, would prohibit issuance of visas to Chinese nationals who want to do graduate or post-graduate study or research in the U.S. in any STEM fields. It does not include prospective students from Hong Kong or Taiwan.

Colleges and universities are concerned about the effects on international cooperation in education and research, as well as university finances. According to Reuters, “Some 360,000 Chinese nationals who attend U.S. schools annually generate economic activity of about $14 billion, largely from tuitions and other fees.”

Jackson Lewis attorneys are available to assist you with questions about this and other travel restrictions and bans.

To support the Trump Administration’s COVID-19 reopening policies, Chad F. Wolf, the Acting Secretary of Homeland Security, signed an order exempting some foreign professional athletes (and their staff and dependents) who compete in certain leagues, from the COVID-19 travel restrictions that are in place for 30 countries: China, Iran, Ireland, the U.K, and the 26 Schengen Zone countries.

Please find the rest of this article on our Immigration Blog.

As California proceeds through the stages of reopening businesses in the wake of the COVID19 pandemic, the California state legislature is considering various bills to lighten the load for employers as they attempt to recover from the various degrees of business closures. One such bill is Assembly Bill 2457. Though the bill was introduced in February 2020, subsequent amendments were made to address the impact of the COVID19 pandemic and provide partial relief to employers by limiting audits and penalties against businesses that may have misclassified workers as independent contractors.

First, the bill seeks to prohibit an employer from being subject to a fine or penalty for a violation of the Labor Code, Unemployment Insurance Code, or Industrial Welfare Commission (IWC) Wage Orders when an applicant applies for unemployment insurance benefits and has acted as an independent contractor in the previous five years.

Second, the bill would amend the Labor Code Private Attorneys General Act of 2004 (PAGA), which authorizes an aggrieved employee to bring a civil action to recover civil penalties on his or her own behalf and other current or former employees that would otherwise be assessed and collected by the California Labor & Workforce Development Agency. If passed, the PAGA would not apply to an allegedly misclassified employee according to an IWC Wage Order if the employee: (1) has filed for unemployment insurance benefits and (2) the employee’s previous employer hired the employee as an independent contractor before January 1, 2020.

Finally, the California Unemployment Fund as administered by the Employment Development Department (EDD) has established procedures for the filing, determination, and payment of benefit claims. The EDD is also empowered to audit claims, as specified by law. Proposed Assembly Bill 2457 provides that an audit triggered under the federal Coronavirus Aid, Relief, and Economic Security Act (CARES Act) does not authorize the EDD or Labor Commissioner, with respect to a claim for unemployment insurance, to audit a previous determination of worker classification if the applicant designated themselves as an independent contractor or as self-employed during the past five years.

The proposed Assembly Bill 2457 would repeal all three provisions on January 1, 2026.

Other bills currently pending before the California state legislature seek to limit the application of the Labor Code to independent contractors, in relation to the current COVID19 outbreak and otherwise.

Jackson Lewis is monitoring pending legislation pertaining to COVID19 and independent contractors. If you have questions regarding these issues, please reach out to a Jackson Lewis attorney to discuss.

As the COVID-19 pandemic presses on, privacy and security matters continue to be at the forefront for federal and state legislature. We recently reported that Washington D.C. updated its data breach notification law. Now, the Vermont legislature also amended its data breach notification law, with significant overhauls including expansion of its definition of personal information, and the narrowing of permissible circumstances under which substitute notice may be applied. Bill S.110 amending Vermont’s Security Breach Notice Act, V.S.A §§ 2330 & 2335, b23-0215, was signed into law by Governor Phil Scott, and will take effect July 1, 2020.  In addition Bill S.110, creates a new duties and prohibitions with respect to student privacy directed towards educational technology services (similar to a law first enacted in California, and later adopted by over 20 states).

Key updates to Vermont’s Security Breach Notice Act include:

  • Expansion of Personally Identifiable Information (PII)

Following many other states, the new law will add to the data elements that if breached could trigger a notification obligation.  Prior to this amendment, the definition of PII in Vermont was limited to four basic data elements that when unencrypted, a consumer’s first name or first initial and last name in combination with:

    • Social Security number;
    • Driver license or nondriver identification card number; • Financial account number or credit or debit card number, if circumstances exist in which the number could be used without additional identifying information, access codes, or passwords; or
    • Account Passwords, personal identification numbers, or other access codes for a financial account.

The amended law includes these elements, and adds the following when combined with a consumer’s first name or first initial and last name:

    • Individual taxpayer identification number, passport number, military identification card number, or other identification number that originates from a government identification document that is commonly used to verify identity for a commercial transaction;
    • Unique biometric data generated from measurements or technical analysis of human body characteristics used by the owner or licensee of the data to identify or authenticate the consumer, such as a fingerprint, retina or iris image, or other unique physical representation or digital representation of biometric data;
    • Genetic information; and
    • Health records or records of a wellness program or similar program of health promotion or disease prevention; a health care professional’s medical diagnosis or treatment of the consumer; or a health insurance policy number.

The amended law will also include notification requirements for breaches of “login credentials”. The amendment defines “login credentials” as “a consumer’s user name or e-mail address, in combination with a password or an answer to a security question, that together permit access to an online account.” If a breach is limited to “login credentials” (and no other PII), the data collector is only required to notify the Attorney General or Department of Finance, as applicable, if the login credentials were acquired directly from the data collector or its agent.

  • Substitute Notice

Previously, substitute notice was permitted where the cost of Direct Notice via writing or telephone would exceed $5,000, more than 5,000 consumers would be receiving notice, or the data collector does not have sufficient contact information.

Under the amended law, substitute notice is only permitted where the lowest cost of providing Direct Notice via writing, email, or telephone would exceed $10,000, or the data collector does not have sufficient contact information. It is no longer permitted to provide substitute notice where the number of consumers exceed a certain threshold.

Student Privacy Law 

Finally, Bill S.110 also includes the Student Online Personal Information Protection Act, which prohibits an “operator” from sharing student data and using that data for targeted advertising on students for a non-educational purpose. Under the new law, “operator” means the operator of an Internet website, online service, online application, or mobile application used primarily for K-12 purposes, and designed and marketed as such. The passage of this law is particularly relevant during the COVID-19 pandemic, as student use of education technology services has dramatically increased.

Conclusion

This amendment keeps Vermont in line with other states across the nation currently enhancing their data breach notification laws in light of recent large-scale data breaches and heightened public awareness.  Organizations across the United States should be evaluating and enhancing their data breach prevention and response capabilities.