While debates in Congress continue regarding extending or providing additional COVID-19 relief legislation, the Small Business Administration (SBA), U.S. Department of Treasury (Treasury), and lenders under the Paycheck Protection Program (PPP) are preparing for the next wave of activity for PPP loans. Specifically, the deadline to obtain a PPP loan is tomorrow, August 8, 2020. In addition, other key milestones related to PPP loan forgiveness are rapidly approaching. The SBA previously announced that it intends to make an electronic portal available on August 10, 2020 to begin processing PPP loan forgiveness applications, and on August 4, 2020 the SBA and Treasury released new FAQs regarding loan forgiveness. The new FAQs largely reiterate prior guidance but include some clarifications that may impact borrowers’ applications for loan forgiveness. Highlights of these developments and key reminders regarding the loan forgiveness process are provided below. Continue Reading New Guidance Issued Regarding PPP Loan Forgiveness in Advance of Opening of the SBA’s Loan Forgiveness Portal
On July 24, 2020, the California Department of Public Health (CDPH) published its 33-page COVID-19 Employer Playbook for a Safe Reopening. The Playbook “provides guidance for employers to help them plan and prepare for reopening their business and to support a safe, clean environment for workers and customers.” The Playbook does not supplant existing employer obligations or employee rights. In preparing and continuing any reopening plans, employers should pay particular attention to the Playbook’s guidance on managing an outbreak of COVID-19 at the workplace, which includes actions employers should take to prevent further spread of the virus in the event a case has been identified. Finally, the Playbook includes helpful resources, including a summary of relevant regulations and guidance for reporting identified COVID-19 cases, leave requirements for affected employees, and information on enforcement and compliance.
Among other helpful tips, the Playbook states that, before reopening, employers must implement a plan that is specific to their workplace:
Before reopening, all facilities must:
- Perform a detailed risk assessment and create a work site-specific COVID-19 prevention plan
- Train workers on how to limit the spread of COVID-19. This includes how to screen themselves for symptoms and when to stay home
- Set up individual control measures and screenings
- Put disinfection protocols in place
- Establish physical distancing guidelines
- Establish universal face covering requirements (with allowed exceptions) in accordance with CDPH guidelines.
Employers should also review the CDPH and Cal/OSHA industry-specific guidance and checklists designed to meet the needs of distinct industry sectors.
Employers with questions about the Playbook or other issues arising out of the pandemic should consult experienced counsel.
On July 24, 2020, the California Department of Fair Employment and Housing (DFEH) updated its DFEH Employment Information on COVID-19 FAQ in accordance with the ever-changing nature of the pandemic. The DFEH guidance is aimed at answering “frequently asked questions about how to keep workplaces safe during the COVID-19 pandemic while also upholding civil rights.” The FAQ addresses a number of issues for employers arising out of the pandemic, including how much information an employer can request from employees who report feeling ill at work and whether an employee who cannot come to work because of illness related to COVID-19 is entitled to a reasonable accommodation. It also provides guidance as to what information employers may reveal if an employee is quarantined, tests positive for COVID-19, or has come in contact with someone who has the virus. In addition, the DFEH encourages employers to adhere to the latest government guidance from the Centers for Disease Control, the California Department of Public Health, and the California Division of Occupational Safety and Health, while continuing to respect state and federal civil rights laws.
Employers with questions about issues arising out of the pandemic should consult experienced counsel.
On July 23, 2020, the CDC issued guidance for K-12 school administrators to safely return to school in the fall of 2020. The CDC update is expressly intended as an aid for these administrators “as they consider how to protect the health, safety, and wellbeing of students, teachers, other school staff, their families and communities.” But the guidance may also highlight important issues that employers may be forced to consider as the fall school season approaches.
While some employees will have more flexibility or availability as school resumes, reopening may not provide the relief some employers have hoped for. Employees with school-aged children may be less occupied with homeschooling or taking care of their children but will likely still face challenges. This may include employees having to care for children who contract COVID-19 (and those children potentially passing it to the employees), or children who become ill with things like the common cold but are forced to remain home from school longer than they would in a pre-pandemic world because of new health and safety protocols. Schools may also open in phases, blocks, or “cohorts,” requiring employees to care for their children at varied hours. And, some schools may opt to be completely “virtual”—meaning that parents will have school-aged children at home, learning via videoconferencing technologies.
Any of these issues may result in some employers needing to offer employees paid time off under the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act. Perkins Coie’s Family First Coronavirus Response Act (FFCRA) Employment Flowcharts are designed to help employers navigate issues arising from the FFCRA. As the CDC points out, “[s]chools play a vital role in the economic health of communities by . . . helping parents, guardians and caregivers work”; however, schools reopening may not offer the immediate or seamless reprieve that some employers may expect. It may be prudent for employers to start planning for contingencies now.
The U.S. Department of Homeland Security (DHS) has announced a further 30-day extension of flexible Form I-9 inspection procedures, through August 19, 2020. As previously detailed, on March 19, 2020, DHS began allowing certain employers to defer the physical presence requirement of I-9 documentation inspection and temporarily allowed electronic or remote I-9 documentation review. These provisions were originally set to expire on May 19 but were extended for an additional 30 days. On June 16, DHS announced a further 30-day extension through July 18. Presumably, the most recent extension is for the full 30 days or until the national emergency expires, whichever comes first.
On July 17, the CDC updated its guidance on when persons with COVID-19, or those who have symptoms of COVID-19, may discontinue home isolation. The updated three-part standard is less restrictive than its previous iteration. A summary of the evidence and rationale for these changes is described here.
|Old Standard||New Standard|
|At least 10 days have passed since symptoms first appeared||At least 10 days have passed since symptoms first appeared|
|At least 72 hours have passed since last fever without the use of fever-reducing medications||At least 24 hours have passed since last fever without the use of fever-reducing medications|
|Respiratory symptoms have improved||Symptoms have improved|
This standard presumes that a person will not be tested again to determine if the person is negative for COVID-19. The CDC did not change its guidance on discontinuing home isolation for persons who tested positive for COVID-19 but did not experience symptoms. In those instances, the person may discontinue home isolation when at least 10 days have passed since the person’s first COVID-19 test that yielded a positive result, so long as the person never showed symptoms of COVID-19.
Immigration and Customs Enforcement (ICE) has reversed its July 6, 2020 announcement that nonimmigrant F-1 and M-1 students attending schools operating entirely online may not remain in the United States if they are taking a full online course load. As noted in our prior blog post, several universities—including Harvard University and the Massachusetts Institute of Technology (MIT)—challenged this directive in court. Other lawsuits soon followed. During a hearing on July 14, in the case filed in the District of Massachusetts by Harvard and MIT, the government agreed to revert to guidance issued in March 2020 that allowed foreign national students to remain in the United States despite attending remote online courses.
The Trump administration has implemented numerous immigration proposals via executive order in response to the COVID-19 pandemic. To date, President Trump has signed the following immigration-related executive orders, all which are currently in effect:
- On January 31, 2020, a proclamation barring individuals from China from entering the United States.
- On February 29, 2020, a proclamation suspending entry of individuals from Iran into the United States.
- On March 11, 2020, a proclamation suspending entry of individuals from the Schengen Area (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland) into the United States.
- On March 14, 2020, a proclamation suspending entry of individuals from the UK and Ireland into the United States.
- On April 22, 2020, another presidential proclamation limiting immigration for individuals outside of the United States seeking U.S. permanent residency. Please see our summary of this proclamation.
- On May 24, 2020, a proclamation barring individuals from Brazil from entering the United States.
- On May 29, 2020, a proclamation restricting the entry of certain Chinese national students and researchers into the United States pursuant to their visas to study or conduct research in the United States. Please see our summary of this proclamation.
- On June 22, 2020, a proclamation temporarily barring certain non-immigrants who were outside of the United States and without valid nonimmigrant visas as of June 24 from entering the United States. Please see our summary of the proclamation.
On July 6, 2020, the Student Exchange Visitor Program of Immigration and Customs Enforcement (ICE) announced that nonimmigrant F-1 and M-1 students attending schools operating entirely online may not remain in the United States if taking a full online course load. Subject to certain restrictions, F-1 students who are attending schools adopting a hybrid model with a mixture of online and in-person classes may remain in the United States if they take more than one class or three credit hours online. F-1 students attending schools operating under normal in-person classes are bound by existing regulations and may only take a maximum of one class or three credit hours online. A number of universities, including Harvard and MIT, are challenging this in court.
Update: The Trump administration has retracted this directive. Please see our summary here.
On June 29, 2020, President Trump issued an amendment to his June 22, 2020, proclamation which temporarily suspended entry of certain nonimmigrant groups into the United States as a result of the COVID-19-related economic crisis. The proclamation originally exempted foreign nationals who, as of June 24, had a valid visa in any category. The amendment narrows the scope of individuals exempt from the ban to foreign nationals who, as of June 24, had a valid visa in the specific nonimmigrant visa categories set forth in the proclamation (H-1B, H-2B, J-visa, L-visa, and family members accompanying or following to join individuals in any of these visa categories). This could affect, for example, a student who was in the United States pursuant to an F-1 visa who then departed the United States and was planning on reentering on an H-1B visa. Under the amendment, such an individual will not be eligible to apply for the new visa until at least after December 31, 2020.
Many issues remain to be resolved with respect to the president’s June 22 proclamation. We continue to monitor developments.