How Virginia’s new COVID-19 rules affect your workplace

By Jonathan R. Mook

The nature of the COVID-19 outbreak continues to shift, with the so-called fourth wave straining healthcare systems in many communities. Recognizing the changes, Virginia’s Department of Labor and Industry (DOLI) has imposed new coronavirus workplace requirements affecting all employers within the Commonwealth. Building on its existing standard for infectious disease prevention, first put into action in January 2021, the Virginia Safety and Health Codes Board recently issued amendments, which Governor Ralph Northam approved and which became effective in September 2021.

New requirements

In some ways, the new COVID-19 requirements have simplified the safety measures you must follow by establishing one set of rules applicable to all workplaces, with expanded mandates only for healthcare facilities and those deemed to be “higher-risk” workplaces. And the amendments make clear that by following current guidance and recommendations from the U.S. Centers for Disease Control and Prevention (CDC), you will be considered as acting in compliance with the Virginia standard.

In addition to simplifying some previous safety requirements for Virginia employers, the amended standard does impose some important new rules you need to follow.

Masking. The amended standard takes into account the delta variant’s more contagious nature by requiring every employer located in CDC-designated areas of substantial or high community transmission to have all employees (whether vaccinated or not) wear face masks. The only exceptions allowed are when:

  • An employee is alone in a room or actively eating or drinking (with unvaccinated individuals keeping at least six feet away);
  • Seeing someone’s mouth is important (such as communicating with a hearing-impaired person);
  • Because of a disability, an employee can’t wear a mask; or
  • Wearing a mask would pose a work hazard.

At the present time, every Virginia county or city is designated as being located in an area of substantial or high community transmission. Accordingly, the masking requirements presently apply statewide.

Vaccination surveys. Although the amended standard doesn’t impose any mandatory vaccination or testing requirements, you still should survey the COVID-19 vaccination status of your employees and take additional precautions to protect individuals who aren’t fully vaccinated. In responding to the survey, your employees need not present proof of vaccination. A written affirmation about vaccine status should be sufficient.

Protecting unvaccinated workers. For employees who report they aren’t fully vaccinated, you must take steps to ensure they are able to maintain physical distancing. Thus, you should post signs or display other visual cues to remind them of the need to physical distance. You also should decrease workplace density by limiting the number of employees in areas of the worksite.

Handling COVID-19 cases. All Virginia employers must institute policies and procedures to ensure employees with confirmed or suspected COVID-19 infections don’t enter the workplace and remain out according to the CDC guidelines. If there’s a confirmed COVID-19 case, you must notify other potentially exposed individuals, while keeping the employee’s identity confidential.

Confidentiality. An employee’s vaccination status as well as a positive COVID-19 diagnosis must be treated as a confidential medical record and shouldn’t be shared with anyone who doesn’t need to know.

Policies and procedures. All Virginia employers need to put in place new policies and procedures that conform to the amended standard. The policy must include a method to receive and resolve anonymous complaints of policy violations. It also must specifically require employees to report if they are experiencing symptoms consistent with COVID-19 or have been diagnosed with COVID-19 so you may take the appropriate steps to ensure the safety of all your employees.

Reporting. If you have two or more positive cases in the same workplace within a 14-day period, you must report it to the Virginia Department of Health and the DOLI.

“Higher risk” workplaces. If you have (1) nonvaccinated employees, (2) locations in areas of substantial or high community transmission, or (3) otherwise at risk employees (such as those with compromised immune systems), you will be deemed to have a “higher risk” workplace. The amended standard requires employers with 11 or more unvaccinated employees to prepare a written infectious disease preparedness and response plan and to train employees on the plan by November 7, 2021. (Fully vaccinated employees may be provided written information in lieu of training on the amended standard as well as site-specific procedures that will be followed in conformity with the standard’s requirements.)

Bottom line

The amended standard imposes significant new requirements on all Virginia employees to curb the spread of COVID-19. Therefore, you should take steps now to implement the new rules and, where appropriate, update your current policies and procedure.

To ensure you are in compliance, it’s always advisable to consult with experienced employment counsel who can assist you in implementing the new requirements and, additionally, help you to respond to COVID-19 issues as they arise. The last thing you want to deal with in these difficult times is a DOLI enforcement action for failure to maintain a safe workplace.

Jonathan R. Mook is a partner with DiMuroGinsberg, P.C., in Alexandria, Virginia. For more information about Virginia’s amended standard and best practices in developing policies and effective procedures to ensure compliance with the state’s COVID-19 workplace safety requirements, please contact jmook@dimuro.com.

What to Do When COVID-19 Long-Haulers Seek Exemptions from Vaccine Mandates

By Allen Smith, J.D. September 20, 2021

COVID-19 long-haulers—those experiencing long-term effects of COVID-19—who seek disability-related exemptions from mandatory vaccination policies are straining employers’ accommodation processes.

The Occupational Safety and Health Administration’s (OSHA’s) anticipated emergency temporary standard—which will mandate employees of businesses with at least 100 workers get vaccinated or submit to weekly testing—will result in more employers requiring vaccines. OSHA’s rule will almost certainly affirm that employers must accommodate employees who refuse to be vaccinated based on a medical exemption or sincerely held religious belief, said Paula Ketcham, an attorney with Schiff Hardin in Chicago. With the rise of the delta variant, more small employers also are starting to mandate vaccinations.

What if an employer believes that a COVID-19 long-hauler is requesting an exemption simply because the person is opposed to vaccinations rather than having a medical condition that would put that person at risk if he or she was vaccinated?

“Employers should always balance empathy for its staff with the safety of its overall workforce,” said David Epstein, SHRM-SCP, director of domestic human resources at Doctors Without Borders in New York City.

“Those who ask for an exemption from the vaccine should be afforded a pathway to apply for an exemption for medical reasons, and the required interactive dialogue should take place as is required” by the Americans with Disabilities Act (ADA), Epstein noted. “After that dialogue takes place, there are two options: a reasonable accommodation, which could include working remotely, or termination of employment if your company requires the vaccine and working remotely causes an undue hardship under the ADA.”

Featured Resource Center COVID-19 Vaccination Resources

Collect Information

The interactive process allows employers to collect information to make an intelligent and informed decision on an accommodation request, said Peter Petesch, an attorney with Littler in Washington, D.C.

If long-term effects of COVID-19, also known as “long COVID,” are not already known or obvious, the employer may request medical documentation to determine if the condition is an ADA disability and, if so, if there is a reasonable accommodation, said Christine Walters, J.D., SHRM-SCP, an independent consultant with FiveL Co. in Westminster, Md. Long COVID-19 can rise to the level of an ADA disability.

“No two situations are necessarily identical,” Petesch said. “Everything will depend on the medical information that an employee furnishes through their health care provider in connection with a request.”

Employers should not play doctor, cautioned Jonathan Mook, an attorney with DiMuroGinsberg in Alexandria, Va. “Although some studies indicate that vaccination may actually assist in mitigating the symptoms of long COVID-19, rather than causing any harm, the assessment of a long-hauler’s request to be exempted from vaccination should be done by a medical professional—not the employer,” he said.

“Ask the employee to provide medical documentation from his or her physician that the employee would be put at risk by being vaccinated,” Mook continued. “If an employee does this and an employer still has a question as to the legitimacy of the request, I usually recommend that the employer retain a physician knowledgeable in the field to act as a consultant to assess the documentation of the employee’s doctor.”

If, as a result of that assessment, the medical expert indicates that additional information is needed, the employer has a basis to request further medical information from the employee. “This entire process should be documented, as the initial stage in the ADA interactive process,” he said.

If the employee can’t provide any information as to why the medical condition prevents him or her from receiving the vaccine and instead can articulate only a generalized fear of the vaccine, that is not sufficient to trigger an employer’s obligation to provide an accommodation under the ADA, said Amanda Van Hoose Garofalo, an attorney with BakerHostetler in New York City.

Employers may have difficulty determining what is reasonable medical care for an underlying condition, she noted. “Further, it is certainly possible that individuals with the same condition will receive different advice from their health care providers,” Garofalo said.

Long COVID-19 manifests in a variety of ways, so some people may have it severe enough to qualify as a disability and some may have a less severe version, she added. “As a result of these variances, some individuals with long COVID may request exemptions, while others receive the vaccine,” Garofalo said.

Accommodation Options

“If the medical documentation is sufficient, then an employer should engage with the employee about how the employee can perform his or her job without putting the employee or others at risk due to the unvaccinated status of the long-hauler,” Mook said.

Options include:

  • Wearing a mask at work with testing on a periodic basis.
  • Working in an area where the employee will not come in close contact with other employees.
  • Remote work.

“Changing or limiting an employee’s location or interaction with others must be done with care,” he said. “You do not want to single out or stigmatize an employee who is being accommodated.”

Many employers are relying on regular testing as an option, noted Jesse Dill, an attorney with Ogletree Deakins in Milwaukee. But an employer may incur significant costs to provide regular testing, and monitoring can result in administrative headaches.

“With respect to a mandatory vaccination policy, it seems there would be little room for unpaid leave as an accommodation that the employer must provide,” Dill added. Leave is an accommodation of last resort. “There is not a certain end date to the pandemic, which makes a request for leave as an accommodation to a mandatory vaccination policy as seeking indefinite or long-term leave,” which the ADA doesn’t require.

In addition, COVID-19 long-haulers who claim they should have an accommodation because they have natural immunity due to already being infected may be out of luck. A claim of natural immunity does not seem likely to meet the definition of an ADA disability, Dill said.

DiMuroGinsberg Partner Presents Webinar on Emerging ADA/COVID-19 Issues

The “ADA at Thirty: 2020 Recap and What to Expect in 2021” was the subject of a webinar presented by DiMuroGinsberg partner, Jonathan Mook, to the members of the International Municipal Lawyers Association on January 5, 2021.  Jonathan’s presentation gave an overview of significant ADA developments that occurred in the past year, particularly as they concern the COVID-19 pandemic.  In particular, Jonathan addressed whether infection with COVID-19 may constitute an ADA disability, the EEOC’s relaxed standards for COVID-19 testing, and the applicability of the ADA’s direct threat defense in barring from the workplace employees with COVID-19 symptoms or who test positive for COVID-19.

Jonathan also offered a preview of emerging ADA issues that employers can expect to face in 2021, including the impact of the EEOC’s recent guidance on mandatory COVID-19 vaccinations for employees returning to the workplace as well as a possible expansion of telework as an ADA reasonable accommodation.

If you would like to obtain a copy of Jonathan’s power point for his presentation to the IMLA, please contact Jonathan at jmook@dimuro.com

DiMuroGinsberg Partner Discusses the Impact of the Continued COVID Pandemic

“2021 Trends: Dealing with the Impact of the Continued Pandemic Emergency in a Legally Compliant Manner,” was the subject of a presentation by DiMuroGinsberg partner, Jonathan R. Mook, for a January 20, 2021 webinar sponsored by Simplify Compliance. As part of his presentation, Jonathan addressed the legal ramifications stemming from the increased reporting by employees of symptoms of anxiety and stress and how those symptoms may be indicia of a disability under the Americans with Disabilities Act (“ADA”). According to the Centers for Disease Control, the number of persons with symptoms of anxiety disorders tripled in 2020 compared to 2019. That increase is likely to continue into 2021, Jonathan predicted.

As a result, Jonathan cautioned employers to carefully consider the concerns of employees who report episodes of anxiety and stress and to make an assessment as to whether they may have a legal basis to claim coverage under the ADA. Jonathan discussed the common types of accommodations that an employer may need to provide to accommodate employees with mental disabilities exacerbated by the pandemic. These accommodations include telework, modified work schedules, medical leave, and the elimination of stressful, nonessential job functions.

Jonathan’s presentation also addressed the ways in which employers can facilitate the return of employees to the workplace. In doing so, Jonathan emphasized the obligation of employers to ensure the safety of those returning to work, which may include instituting social distancing policies, mask mandates, and more intensive cleaning and disinfection protocols. Additionally, Jonathan discussed the EEOC’s recent guidance pertaining to the pandemic, including allowing employers to institute health screenings and COVID-19 testing of employees returning to the workplace. The EEOC’s recent guidance allowing employers to mandate COVID vaccinations also was discussed. Jonathan advised, however, that employers should proceed with care in imposing a vaccination mandate, especially in light of an employer’s obligation to reasonably accommodate disabled employees who for health reasons should not be vaccinated, as well as to accommodate other employees whose religious belief opposes vaccinations.

If you would like to receive a copy of the PowerPoint for Jonathan’s presentation, you may contact him at jmook@dimuro.com.

Virginia Enacts Permanent COVID-19 Workplace Standard

By: Jonathan R. Mook

Last summer, Virginia became the first state in the nation to adopt mandatory workplace safety rules to prevent the spread of COVID-19 by approving an Emergency Temporary Standard for Infectious Disease Prevention (“ETS”).  Recently, the state adopted a Permanent Standard covering most private employers in the Commonwealth, as well as state agencies and local governments.  The Permanent Standard mandates appropriate personal protective equipment, sanitation, social distancing, infectious disease preparedness and response plans, record keeping, training, and hazard communications protocols.

The Permanent Standard aligns closely with the ETS and is intended to slow the transmission of COVID-19 and protect Virginia workers as the pandemic drags on.  The workplace safety requirements will remain in place throughout the pandemic.

New Requirements

Although the Permanent Standard basically adopts the ETS requirements, there are some notable exceptions of which employers should be aware:

  • Return to work. No longer may employers require a negative COVID-19 test as a condition of a symptomatic employee returning to work, as previously allowed under the ETS.  Instead, employees may physically return to work after (i) the employee is fever-free for at least 24 hours, (ii) respiratory symptoms have improved, and (iii) at least 10 days have passed since symptoms first appeared.
  • Reporting obligation. Employers must report to the Virginia Department of Health when two or more employees test positive for COVID-19 within a 14-day period.  This loosens the ETS requirement that you report each time an employee tests positive for COVID-19.
  • Face coverings. Acceptable “face coverings” for employees who interact with others is more strictly defined under the Permanent Standard as “two or more layers of washable, breathable fabric that fits snugly against the sides of the face without any gaps, completely covering the nose and mouth and fitting securely under the chin.”  Exhalation vales or vents are prohibited.

One omission from the Permanent Standard is any guidance or requirements with respect to vaccination of employees.  Importantly, that employees have been vaccinated does not eliminate or modify your obligation to comply with the Permanent Standard.

Enforcement

The Virginia Department of Labor and Industry will enforce the Permanent Standard.  Should a complaint raise serious concerns about your compliance, the Department may initiate a formal investigation and pursue enforcement action.  The Department already has received over 15,000 complaints about workplace safety due to COVID-19, so it is important that employers follow the Permanent Standard to avoid being the subject of citations and fines, which may amount to over $12,000 for serious violations and over $125,000 for willful ones.

Bottom LineAll Virginia employers who are covered by the new Permanent Standard should familiarize themselves with the requirements and ensure that they are followed.  Employers have only until March 26, 2021 to update their infectious disease preparedness and response plans and to complete any necessary training as mandated by the Permanent Standard.

If you would like to obtain a copy of the Permanent Standard, or if you have any questions as to your obligations under the Standard and what you must do to comply, please contact DiMuroGinsberg partner, Jonathan Mook, at jmook@dimuro.com.

For further information about Virginia’s COVID-19 requirements for workplaces, please see the article, entitled “Virginia Enacts Standards to Protect Workers from COVID-19 Exposure” by DiMuroGinsberg attorney, Jayna Genti, which is found in the October, 2020 issue of the Mid-Atlantic Employment Law Letter.

Virginia Enacts Standards to Protect Workers from COVID-19 Exposure

By:  Jayna Genti

Virginia is now the first state in the nation to enact mandatory workplace safety rules to prevent the spread of COVID-19.  The Emergency Temporary Standard (“ETS”) for Infectious Disease Prevention took effect July 27, 2020.  The new standard covers most private employers in Virginia, as well as all state and local employees, and will be enforced by Virginia Occupational Safety and Health (“VOSH”). Employers that fail to comply with the new rules face fines of up to $13,494 for a “serious” violation and up to $134,937 for a “repeat” or “willful” violation.

Scope and Approach of the New Rules

The new temporary standards mandate that workers be provided with personal protective equipment and sets parameters for businesses to sanitize their worksites, enforce social distancing protocols, and implement infectious disease preparedness and response plans.

“Workers should not have to sacrifice their health and safety to earn a living, especially during an ongoing global pandemic,” Gov. Ralph Northam said. “In the face of federal inaction, Virginia has stepped up to protect workers from COVID-19, creating the nation’s first enforceable workplace safety requirements. Keeping Virginians safe at work is not only a critical part of stopping the spread of this virus, it’s key to our economic recovery and it’s the right thing to do.”

The ETS takes a layered approach to employee protection depending on each job’s exposure risk level and includes:

  • Minimum requirements that apply to all employers;
  • Enhanced requirements for employees in “medium” exposure risk jobs, such as commercial transportation, daycare, restaurants and bars, grocery stores, factories, construction, retail, salons, dentist offices, and gyms; and
  • Enhanced requirements for employees in “very high” or “high” exposure risk jobs, such as in laboratory or medical settings involving known or suspected COVID-19 patients or employees who provide healthcare or first responder services involving known or suspected COVID-19 patients.

Office Environments

Most office work environments will fall under the category of “lower” exposure risk since employees can avoid contact within six feet of persons known or suspected of having COVID-19.   In such an environment, employees should be able to achieve minimal contact by, for example, telecommuting, staggered work shifts, remote service delivery, floor-to-ceiling physical barriers (such as clear plastic walls at convenience stores behind which only one employee is working at any one time), or other forms of mandatory physical distancing of employees.

Face coverings are required when it is necessary for an employee to have brief contact with others inside the six feet distance, but face coverings are not a substitute for the other means of achieving minimal occupational contact.

Mandatory Requirements for All Virginia Employers

All employers now are required to take precautions to prevent the spread of COVID-19.

These include:

  • Assessing hazard levels of all job tasks and classifying each according to the standards outlined above from “very high” to “lower” exposure risk.
  • Providing information to employees on the hazards and characteristics of COVID-19 and the measures to minimize exposure and self-monitor for symptoms. (The Department of Labor and Industry is developing an information sheet that employers may use.)
  • Requiring social distancing or, when not possible, the wearing of face masks.
  • Closing common areas and breakrooms, or, if not possible, tightly controlling access to these areas to ensure physical distancing and requiring employees to disinfect the immediate area in which they were located prior to leaving or at regular intervals throughout the day.
  • Cleaning and disinfecting commonly used areas and equipment and providing frequent access to hand washing or hand sanitizer.
  • Ensuring that sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies.
  • Establishing a system to receive reports of positive COVID-19 tests by any employee or contractor present at the work site within 14 days from the date of the positive test. Within 24 hours of when a positive test report is received, employers must notify (while keeping identities confidential) all employees who may have been exposed; other employers whose employees may have been exposed; the building or facility owner (so that it may sanitize the common areas and notify tenants of the location of the case); and the Virginia Department of Health.  Employers are not required to conduct contact tracing, however.
  • Notifying VOSH of three or more positive COVID-19 tests within a two-week period.
  • Prohibiting employees who are known or suspected to be positive for COVID-19 from remaining at or returning to work or a customer or client location for at least 10 days after symptom onset and three days after symptoms pass, or after the employee receives two consecutive negative tests at least 24 hours apart, provided they are not antibody tests, which are considered less reliable.

Higher Risk Jobs

            Additional requirements apply to jobs classified as medium exposure risks and high or very high exposure risks.  The requirements include prescreening of employees and contractors for COVID-19 symptoms before entering the worksite, telework, staggered shifts, physical barriers, and air handling system requirements where appropriate.  In addition, these employers must provide training on the hazards and characteristics of the COVID-19 disease to all employees working at the place of employment regardless of employee risk classification.

With job tasks classified as high or very high (or as medium with 11 or more employees), employers further must develop and implement a written infectious disease preparedness and response plan.

Effective Dates and Expiration

The ETS took effect on July 27, 2020.  Employers, however, have an additional 30 or 60-day window to implement some of the training and planning requirements.  There is a 30-day window to implemented most of the employee training requirements, and a 60-day window for certain workplaces to establish written infectious disease preparedness and response plans and undertake training related to such plans.

The ETS will remain in place for six months or until the Governor’s COVID-19 State of Emergency expires or the temporary standards are replaced by the enactment of permanent standards, whichever occurs first.

What Else Employers Should Know

Finally, the ETS gives legal protections to workers who raise reasonable concerns about infection control to their employer, the employer’s agent, other employees, a government agency, or to the public such as through print, online, social or any other media.  The ETS also prohibits employers from discharging or discriminating against a worker because the employee exercised rights under the standard or “blew the whistle” on violations of the standard.

Employers must allow employees to wear their own personal protective equipment, including a respirator, face shield, gloves, or face covering if the equipment is not already provided by the employer and it does not create a greater hazard to the employee or create a serious hazard for other employees. Additionally, nothing in the standard limits an employee from refusing to perform work or to enter a location that the employee feels is unsafe.

*  *  *  *

Virginia employers who are unsure about compliance with these new rules should consult with experienced Virginia employment counsel to learn how to best conform their business practices to the new standard.  Should you have any questions about these new requirements for Virginia employers, DiMuroGinsberg’s employment law attorneys are here to help.

The Criminal Justice System During COVID-19 — An Interview with Nina Ginsberg

By Corey Pray
DiMuroGinsberg, PC

The COVID-19 crisis has substantially impacted the criminal justice system, creating new challenges for both criminal defendants and criminal defense attorneys. From the safety of inmates held in prisons, to delays in criminal dockets, to new technologies for attorney-client communications, the criminal justice system is facing a “new normal.” Nina Ginsberg, a founding partner at DimuroGinsberg, P.C. and current president of the National Association of Criminal Defense Lawyers (NACDL), reflected on some of these challenges and the efforts of organizations such as NACDL to address them.

The biggest and most visible impact of COVID-19 on the criminal justice system is the health and safety of the prison population. The Bureau of Prisons (BOP) reported that as of April 19, 2020, 495 federal inmates and 309 BOP staff have tested positive for COVID-19, and 22 federal inmates have died from the virus.1 “The most important thing for authorities to do immediately is to get inmates who have committed low-risk offenses or technical violations out of prison,” said Ginsberg. “Parole, supervised release, and home confinement are viable alternatives that should be used as an alternative to incarceration. The time to release certain categories of inmates is now, while they are still safe. If more aggressive action is not taken, large portions of the prison population will remain at risk,” she continued.

While some inmates must remain in prison, releasing those who can be released significantly improves the ability of prison authorities to implement better precautions. “The more measures authorities take to remove low-risk offenders from prison, the more feasible it is to implement social distancing measures,” said Ginsberg. Some prison systems have already decreased population sizes and have implemented protocols that every new arrestee or anyone who might have been exposed to COVID-19 gets placed in an isolated part of the jail. Ginsberg believes that these rigorous protocols “have a reasonable chance of keeping COVID-19 out of jails and should be implemented nationwide.”

Ginsberg also believes that these efforts could result in positive, permanent changes. She explained, “releasing low-risk inmates and successfully implementing alternatives to incarceration may cause some prosecutors and judges to see that this can be done safely. As a result, higher numbers of individuals accused of less serious violations could be released on bond or given lesser sentences. We may see assumptions change about how punitive sentences should be and how much incarceration is necessary.”

The COVID-19 crisis is likely to have other long-term impacts on the criminal justice system. Ginsberg said she is particularly concerned with the financial impact of shutdowns on courts and the practice of law. “Most people charged with crimes are represented by public defenders or court-appointed lawyers. Many public defender offices are already under-resourced and under-paid, and many of these offices are funded by state crime commissions or county budgets. State and local budgets will be badly hit by COVID-19. Many criminal lawyers, who are mostly sole practitioners or from small firms, may have trouble resuming their practices,” said Ginsberg.

Many criminal defense organizations are taking actions to address some of these novel challenges. For example, NACDL has set up a Coronavirus Resources page on its website in an effort to aggregate resources from around the country, including pleadings, motions, rulings, and other court papers related to COVID-19. Speaking about these efforts, Ginsberg said, “We’ve encouraged our members to contact prosecutors and judges about facilitating compassionate release and early release. We’ve already seen some success from these efforts, as many courts have directed sheriff’s departments to release low-risk inmates who have short periods left in sentences or have been arrested for minor infractions. NACDL is also working closely with Families Against Mandatory Minimum to identify inmates in the Bureau of Prisons who qualify as candidates for compassionate release under the First Step Act of 2018. Finally, NACDL is preparing a group to assist lawyers who may need to respond to speedy trial issues that are likely to result from delays caused by COVID-19.”

NACDL’s Coronavirus Resources page can be accessed at https://www.nacdl.org/content/coronavirusresources.


1 Federal Bureau of Prisons, COVID-19 Cases, https://www.bop.gov/coronavirus/ (last visited Apr. 20, 2020).

The Families First Coronavirus Response Act: What You Need to Know

On Thursday, May 5, DiMuroGinsberg presented a webinar to assist you in understanding the new paid leave requirements. “The Families First Coronavirus Response Act: What you Need to Know” led by employment attorney Jonathan Mook included a wealth of information that we share with this audio and presentation.

Covid-19 Healthcare Fraud

By Jarrad Wright
DiMuroGinsberg, PC

In this time of crisis, the federal government, state government and private industry are working on multiple fronts to respond to COVID-19 and to provide essential medical equipment and services to hospitals and those in need. While the pandemic has brought out the best in the vast majority of people, there will always be some that will see the crisis as an opportunity to profit at the expense of others. At present the Department of Justice’s focus has been on responding to the immediate need to prevent hoarding of medical supplies and price gauging. However, in the weeks and months ahead the focus is likely to shift to those that are violating the healthcare statutes through overbilling or fraudulent billing related to COVID-19. This is particularly true if the federal government begins reimbursing or paying the medical expenses of everyone not insured by COVID-19, as the administration has implied.

In recent years, the Justice Department has spent significant resources prosecuting healthcare fraud cases against physicians, hospitals, and the general public related to fraudulent healthcare claims. For example, in December 2019, the District of Kentucky charged ten former National Football League players for allegedly submitting false claims for reimbursement for false medical expenses to the NFL’s health reimbursement account. Similarly, prosecutors have charged a number of doctors and hospitals in recent years with a variety of fraudulent schemes including receiving kickbacks for prescribed medicines, prescribing medicines that were not needed in order to receive increased disbursements, and submitting claims under improper billing codes to increase payments. There are significant criminal and civil penalties at issue in such cases.

On the civil side, the False Claims Act is the primary statute used to collect monies from those that defraud the federal government. Under the Act, persons are liable if they submit a false claim for payment to the federal government and this includes government run or supported healthcare programs such as Medicare, Medicaid and Tricare. The consequences of the False Claims Act are significant and includes paying treble the amount of the government’s damages plus thousands of dollars of penalties per claim. Under the False Claims Act, those who submit fraudulent claims to the government are subject to a civil penalty of between $5,000 and $10,000 for each claim. However, because the Act allows for inflationary adjustments, as of 2016, violators now face penalties of between $10,781.40 and $21,562.80 per claim. Because the penalties are assessed per claim, a scheme over even a short period of time can amount to enormous sums of monies. This is on top of having to pay the governments’ costs for bringing the suit, and for healthcare providers, losing the ability to care for patients on government insurance programs.

On the criminal side, there are a wide variety of criminal healthcare statutes that can apply including the anti-kickback statute, general healthcare fraud laws, wire fraud, and money laundering. The Department of Justice has expended significant resources in recent years in having teams of prosecutors and F.B.I. agents specialize in such cases. The criminal penalties range from reimbursing loses to lengthy prison sentences and criminal forfeitures.

Once the immediate crisis subsides, it is likely that the government’s focus will shift back to whether or not it has been defrauded. DiMuroGinsberg has years of experience involving complex criminal and civil litigation. This includes defending people accused of healthcare fraud and pursuing False Claims Act cases. DiMuroGinsberg stands ready to assist whether one is accused or aware of such fraudulent claims.

Copyright and Remote Learning: A Primer for Remote Learning Instructors

By Cecil Key
DiMuroGinsberg, PC

As we all know, the Covid-19 virus has placed us in unprecedented circumstances. One such circumstance is that many non-educators are finding themselves thrust into the role of teaching students who would normally be gathered in a designated classroom via remote learning, often with no two students – or the instructor – in the same location. Fortunately, the technology available to us in the 21st Century allows this remote learning to be possible at all levels. High-speed internet and videoconferencing platforms provide the means to continue educational activities even as the institutions have been made unavailable. But there is a catch. This 21st Century technology is still subject to the limitations of 20th Century intellectual property laws.

For example, you may have heard that famed author J.K. Rowlings granted permission to allow her renowned Harry Potter books to be read in a remote learning environment without fear of running afoul of her copyrights in the books. To some, this might seem unnecessary – why should copyright law prevent the reading to children when our local and state governments are requiring us to teach remotely? Also, should the copyright laws apply when we’re simply reading as we normally would, just to students in remote locations, or when what we’re reading is a textbook, rather than a novel?

The truth is there are circumstances where the copyright laws may not be an impediment. However, it is complicated, and here’s why.

Copyrights are an exclusive right, meaning that the author of the work has the right to prohibit others from using the work. 17 U.S.C. § 106. The right to exclude extends to copying, displaying and performing the copyrighted work and derivatives of the work “either directly or with the aid of a machine or device.” 17 U.S.C. §§ 102, 106. There are exceptions. For example, by statute, the performance or display of original works cannot be copyright infringement if done so “in the course of face-to-face teaching activities of a nonprofit educational institution.” 17 U.S.C. § 110(1). The same is true for the performance or display of nondramatic literature or music that is transmitted outside the classroom, provided the performance or display is “made by, at the direction of, or under the supervision of an instructor as an integral part of a class session offered as a regular part of the systematic mediated instructional activities of a governmental body or an accredited nonprofit educational institution.” 17 U.S.C. § 110(2).

The reading of materials to a class of students as part of a remote learning session is the “performance and display” in the course of teaching activities and, at first blush, appears to be exempt from copyright infringement under these provisions. Consider, however, what is likely to be a common scenario in the current Covid-19 world where the instructor is not a professional educator, the reading of the work is done from the instructor’s home, and each student is in a different physical space, such as his/her home.

Under these circumstances, the remote session is probably not a “classroom or similar place devoted to instruction.” It is also probably not face-to-face. In fact, the entire reason for the remote learning is so that we do not have to be face-to-face. It is also unlikely to be in a place devoted to instruction. This creates a paradox. The remote session is being conducted because the classroom is not available, but the copyright exception arguably does not apply precisely because the session is not in a classroom.

The exemption for transmission outside the classroom, which would solve the conundrum resulting from the classroom being unavailable, probably would not apply either. The exemption is limited to nondramatic literary or musical works. So, Harry Potter would not count. And the performance or display must be (1) by or at the direction of a professional instructor, (2) part of a class session offered as a regular part of systematic mediated instructional activities and (3) offered by a governmental body or accredited nonprofit educational institution. Again, in the scenario above, the instruction is being offered by those who are not normally instructors and is not part of a regular systematic mediated instructional activity offered by an established educational institution. In fact, the remote session is likely being conducted precisely because the regular instructors and established educational institutions are not available. And it’s probably fair to say that this environment is a distinct departure from the regular and systematic educational activity.

Unfortunately, the fact that the remote teaching sessions are the direct result of state and local government orders does not override these results. This very question has been the subject of litigation over the years, and the courts have to date provided no clear answer. This may all seem arcane and Draconian, but the laws are designed to protect an author from having her works distributed without permission from or compensation to her. That is the fundamental purpose of a right to exclude.

There is, however, no need to panic. The copyright statute also has a provision that exempts from copyright infringement activities such as use of the work for “teaching” and “classroom use.” Thus, a remote learning session that is clearly for the purpose of continuing the children’s education while the regular classroom is unavailable, and not for a commercial purpose, would weigh in favor of statutorily exempted “fair use.” See 17 U.S.C. § 107. The reading or display of a factual work would also favor exempting the use as fair use. See id.

What is the difference? The general fair use exceptions are determined according to all the facts and circumstances, meaning establishing fair use can require significant factual development. The specific education exceptions, however, are more straightforward so long as the specific requirements are met.

The best course of action is to try to let the regular teacher or instructor copy, perform or display the copyrighted work to the extent possible. It could also help if a particular spot (e.g., a designated room) is dedicated to the providing and receiving of instruction until the students are allowed to return to the educational institution, and if as little of the work as is possible is copied, performed or displayed, especially if the work is a highly creative one such as a novel or musical work. Finally, the performance or display can be limited to a “normal circle” of family and acquaintances, which is expressly permitted by the copyright statute. See 17 U.S.C. § 101.

For those involved in remote learning, these steps will help minimize copyright concerns as well all do our part to flatten the Covid-19 curve.