As the COVID-19 global pandemic has disrupted life, the business world faces a stark new reality. Executives have been forced to make difficult decisions about layoffs and furloughs, investor disclosures, and cybersecurity threats as employees work from home. At the same time, these executives must understand new government programs in the United States and abroad that have been enacted to support businesses, but that raise a host of questions. And many must assess how they will deal with future M&A activity, including unsolicited offers and activist investors drawn to depressed stock prices.
To help our clients better understand this new business and legal landscape, our lawyers have prepared an ongoing series of S&C Memos, Podcasts and Webinars that outline and explain important issues in the fields of Corporate, M&A, Financial Services and Labor and Employment. While the law and regulations continue to evolve, we will keep you updated on the latest developments. Partner Contacts: Nicolas Bourtin, Catherine M. Clarkin, Jared M. Fishman, Julia M. Jordan, Marc Treviño and Benjamin H. Weiner
RECENT CLIENT GUIDANCE
OSHA Updates Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace to Reflect CDC Mask Guidance for Fully Vaccinated IndividualsAugust 13, 2021 Update – On August 13, 2021, the Occupational Safety and Health Administration (“OSHA”) updated its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace (the “Guidance”). Among other things, the updated Guidance reflects the Centers for Disease Control and Prevention’s (“CDC”) Interim Recommendations for Fully Vaccinated People, which recommends that fully vaccinated people wear a mask in public indoor settings if they are in an area of substantial or high transmission. Our blog post on the CDC Recommendations for Fully Vaccinated People can be found here. A detailed discussion of the Guidance follows.
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OSHA Updates Guidance on Mitigating and Preventing the Spread of COVID-19 in the WorkplaceAugust 13, 2021 Update – On August 13, 2021, the Occupational Safety and Health Administration (“OSHA”) updated its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace (the “Guidance”). Among other things, the updated Guidance reflects the Centers for Disease Control and Prevention (“CDC”) recommendation that fully vaccinated people wear a mask in public indoor settings if they are in an area of substantial or high transmission. Our blog post on the updated Guidance is available here.
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Certain State and Local Governments Are Currently Reevaluating Their Guidance in Light of the CDC’s New COVID-19 Mask Guidance for Fully Vaccinated IndividualsAugust 4, 2021 Update – On August 2, 2021, the Centers for Disease Control and Prevention (“CDC”) revised its testing guidance, recommending that “[f]ully vaccinated people who have a known exposure to someone with suspected or confirmed COVID-19 should get tested 3–5 days after exposure and are to wear a mask in public indoor settings for 14 days or until they receive a negative test result . . . , unless they live in an area of high transmission.” For areas with “substantial or high transmission” of COVID-19, the CDC’s July 27, 2021 mask guidance (discussed below) recommends that vaccinated individuals wear masks in public indoor settings regardless of whether the individual has been exposed to someone with suspected or confirmed COVID-19. This new guidance changes the guidance that had been issued by the CDC on or about March 2, 2021, which stated that “[f]ully vaccinated people with no COVID-like symptoms do not need to quarantine or be tested following an exposure to someone with suspected or confirmed COVID-19.”
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| S&C Webinar – European M&A: Lessons from a Time of Turmoil July 26, 2021 – S&C partners, Garth Bray, Vanessa Blackmore, Richard Pollack, Konstantin Technau and Olivier de Vilmorin spoke at a webinar hosted by S&C titled “European M&A Practice in a Changing Environment – Lessons Learned from the COVID-19 Outbreak”. Watch here |
New York HERO Act Requires Employers to Implement New Infectious Disease PlanJuly 13, 2021 Update – On June 14, 2021, New York amended the Health and Essential Rights Act (“HERO Act”) to, among other things, provide additional time for the New York Department of Labor (“DOL”) to establish model safety standards to govern employers’ airborne infectious disease exposure plans and to provide employers with additional time to comply with those standards once published. The amendments also made other changes to the law, including limiting the scope of the private right of action created by the HERO Act.
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OSHA Issues Guidance on Mitigating and Preventing the Spread of COVID-19 in the WorkplaceJune 16, 2021 Update – On June 10, 2021, the Occupational Safety and Health Administration (“OSHA”) updated its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace (the “Guidance”). Among other things, the updated Guidance provides that, unless otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure. Our blog post on the updated guidance is available here.
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COVID-19: New York Office Reopening GuidanceJune 15, 2021 Update – The New York office reopening guidance became optional, because 70 percent of New Yorkers aged 18 or older have received the first dose of their COVID-19 vaccination series.
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The EEOC Issues Guidance Clarifying Mandatory COVID-19 Vaccinations Are Permitted Under Federal Law, Subject to “Reasonable Accommodations” and “Direct Threat” Assessments, and Allowing Employers to Provide Employees with Incentives for Vaccinations
June 4, 2021 – On May 28, 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its guidance on What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (the “guidance”). The guidance provides that federal equal employment opportunity laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII of the Civil Rights Act (“Title VII”) and the Americans with Disabilities Act (“ADA”) and other equal employment opportunity considerations. These principles apply regardless of where an employee gets the vaccine (i.e., in the community or from the employer). The guidance also states that employers may offer incentives to employees who voluntarily demonstrate that they received the COVID-19 vaccination.
New York Imposes Employer Obligations to Provide Leave for COVID-19 Vaccinations
June 2, 2021 Update – The New York State Department of Labor recently issued guidance on the use of paid sick leave for COVID-19 vaccine recovery time. According to this guidance, employees may use accrued sick leave available to them under the New York State Sick Leave law (“NYSSL”) for the recovery of any side effects of the COVID-19 vaccination and employers are obligated to permit employees to do so. The NYSSL is in addition to New York State COVID-19 emergency paid sick time and COVID-19 vaccination leave protections.
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District of Columbia Issues Phase Two Guidance for Business Operations
May 26, 2021 Update – On May 21, 2021, the District of Columbia issued guidance on Business Operations, which states that, effective immediately, businesses are no longer required to implement restrictions to reduce the spread of COVID-19. The new guidance replaces all previous sector-specific guidance. The new guidance also describes best practices that businesses can follow to help reduce the risk of COVID-19 transmission, including, among other things, implementing flexible leave policies, encouraging workers to get vaccinated, and educating employees on COVID-19.
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Delaware M&A Opinion Rejects MAE Claim of COVID-19 Effects
May 21, 2021 Update – On April 30, 2021, the Delaware Court of Chancery ordered specific performance of a private equity purchaser’s obligation to purchase a business. The Court held that COVID-19 was not reasonably expected to cause a material adverse effect, noting that, although the business sustained an initial drop in sales, the sales rebounded immediately prior to termination and the business was not projected to face a sustained drop in performance.
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June 2, 2021 Update – The New York State Department of Labor recently issued guidance on the use of paid sick leave for COVID-19 vaccine recovery time. According to this guidance, employees may use accrued sick leave available to them under the New York State Sick Leave law (“NYSSL”) for the recovery of any side effects of the COVID-19 vaccination and employers are obligated to permit employees to do so. The NYSSL is in addition to New York State COVID-19 emergency paid sick time and COVID-19 vaccination leave protections.
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District of Columbia Issues Phase Two Guidance for Business Operations
May 26, 2021 Update – On May 21, 2021, the District of Columbia issued guidance on Business Operations, which states that, effective immediately, businesses are no longer required to implement restrictions to reduce the spread of COVID-19. The new guidance replaces all previous sector-specific guidance. The new guidance also describes best practices that businesses can follow to help reduce the risk of COVID-19 transmission, including, among other things, implementing flexible leave policies, encouraging workers to get vaccinated, and educating employees on COVID-19.
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Delaware M&A Opinion Rejects MAE Claim of COVID-19 EffectsMay 21, 2021 Update – On April 30, 2021, the Delaware Court of Chancery ordered specific performance of a private equity purchaser’s obligation to purchase a business. The Court held that COVID-19 was not reasonably expected to cause a material adverse effect, noting that, although the business sustained an initial drop in sales, the sales rebounded immediately prior to termination and the business was not projected to face a sustained drop in performance.
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OSHA Issues Revised Enforcement Guidance on Reporting COVID-19 CasesMay 20, 2021 Update – On or around May 19, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) updated its COVID-19 Frequently Asked Questions webpage to provide guidance on when employers are required to record an employee’s adverse reaction to a COVID-19 vaccine. This additional guidance has been incorporated into this updated post.
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U.S. Department of Labor Issues New COVID-19 Guidance on FLSA, FMLA, and FFCRA LeaveMay 6, 2021 – On April 26, 2021, the U.S. Department of Labor (“DOL”) announced the Essential Workers, Essential Protections initiative (the “Initiative”) to provide workers who have been deemed “essential” during the COVID-19 pandemic additional information about applicable wage and hour laws that protect them and resources for contacting the DOL. Specifically, the Initiative is designed to educate workers on the Fair Labor Standards Act (“FLSA”) and the Family and Medical Leave Act (“FMLA”).
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U.S. Department of Labor Launches the Essential Workers, Essential Protections Initiative During the COVID-19 PandemicMay 6, 2021 – On April 26, 2021, the U.S. Department of Labor’s Wage and Hour Division (“DOL”) announced the Essential Workers, Essential Protections initiative (the “Initiative”) to provide workers who have been deemed “essential” during the COVID-19 pandemic additional information about applicable wage and hour laws that protect them and resources for contacting the DOL. Specifically, the Initiative is designed to educate workers on the Fair Labor Standards Act and the Family and Medical Leave Act.
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CDC Updates COVID-19 Guidance for Fully Vaccinated PeopleApril 30, 2021 Update – On April 27, 2021, the Centers for Disease Control and Prevention (“CDC”) issued updated guidance for fully vaccinated people in non-healthcare settings, which, among other things, provides that fully vaccinated workers no longer need to be restricted from work following an exposure to COVID-19 if they are asymptomatic. People are considered fully vaccinated two weeks after a single-dose vaccine, or two weeks after the second dose of a two-dose series vaccine.
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| S&C Critical Insights – Private Securities Litigation: Trends and Emerging Issues April 16, 2021 – In this episode of S&C’s Critical Insights podcast, Steve Peikin, head of the Firm’s Securities & Commodities Investigations & Enforcement Practice and former co-director of the SEC’s Enforcement Division, and Jeffrey Scott and Julia Malkina, co-leads of the Firm’s Securities Litigation Practice, discuss recent trends in private securities litigation. They explore how the COVID-19 pandemic, an influx of SPAC-driven IPOs, state court proceedings post-Cyan and ESG disclosures are driving emerging issues in this field. Listen to Our Podcast |
Frank Aquila Talks to The American Lawyer onDealmaking During the PandemicApril 8, 2021 – Frank Aquila, Global Head of M&A, spoke to The American Lawyer for an article on how the COVID-19 pandemic has changed the way deals get done, and which of these changes might become permanent.
Frank expects virtual meetings with clients will continue to be the norm even after the crisis subsides. “When you're on Zoom, or you're on a conference call, and not sitting around a conference table, the dynamics are just different; there's more focus on efficiency and getting it done,” he said. He also said clients will likely continue to prefer remote dealmaking as a cost-effective and streamlined alternative to in-person negotiations—and noted that such meetings also better facilitate confidentiality. Read the Article
S&C Litigators Author Bloomberg Article on Employee Communications Practices During COVIDApril 6, 2021 – Alex Willscher, Anthony Lewis and John Sarlitto authored an article for Bloomberg Law examining COVID-19’s impact on how businesses craft sound compliance and legal strategies to anticipate government investigations related to employee communication.
“There is no universal playbook to managing the difficulties posed by shifting employee communications practices during a period when the very idea of a workplace has been redefined,” the authors write. “There are, however, themes to aid companies and their legal advisors seeking to put themselves in the best possible position going forward to respond to and resolve government investigations.” The article suggests companies should consider how company policies and technical capabilities map onto their employees’ communications behavior.
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California Expands COVID-19 Supplemental Paid Sick Leave Through September 30, 2021March 23, 2021 – On March 19, 2021, Governor Newsom signed Senate Bill 95, which requires employers in California with more than 25 employees to provide COVID-19 supplemental paid sick leave to covered employees. The bill takes effect immediately and employers have until March 29, 2021 to ensure compliance with the new requirements, at which time the requirements will apply retroactively to January 1, 2021. California’s previous supplemental paid leave (covered here) expired on December 31, 2021. SB 95 broadens the circumstances under which an employer is required to provide leave, and will remain in effect until September 30, 2021.
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CDC Issues COVID-19 Workplace Vaccination Program GuidanceMarch 23, 2021 – On March 16, 2021, the Centers for Disease Control and Prevention (“CDC”) issued updated guidance on workplace vaccination programs to “help employers prepare for vaccination either at the workplace or when vaccine becomes available in the community.”
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The American Rescue Plan Act—Key Employer TakeawaysMarch 22, 2021 Update – On March 11, 2021, President Biden signed the American Rescue Plan Act, which extends COVID-19-related unemployment benefits and payroll tax credits for voluntary provided leave under the FFCRA, and creates new COBRA subsidy and notice requirements for employers. This memorandum synthesizes the important aspects of the legislation.
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French Government Renews Measures Regarding Shareholder and Board Meetings in the Context of the COVID-19 PandemicMarch 15, 2021 Update – The French Government has renewed and amended the temporary measures initially adopted in March 2020 to alleviate certain legal and administrative constraints applicable to French listed companies that cannot be complied with during the COVID-19 pandemic.
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U.S. Department of Labor Issues Guidance on Unemployment ProvisionsMarch 1, 2021 Update – On February 25, 2021, the U.S. Department of Labor (“DOL”) issued a change to Unemployment Insurance Program Letter (“UIPL”) No. 16-20 that, among other things, expands the criteria under which workers may be eligible to receive Pandemic Unemployment Assistance.
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OSHA Issues Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace
February 3, 2021 Update – On January 29, 2021, OSHA issued guidance to employers and workers in most workplace settings (excluding healthcare) to help them (1) identify risks of being exposed to and/or contracting COVID-19 at work, and (2) determine appropriate control measures to implement the Guidance.