COVID-19 Response Resource Center: Timely Counsel for your Business

As many aspects of our lives return to “normal” after two years in the COVID-19 pandemic, individuals with caregiving responsibilities—for children, grandchildren, parents, partners or other family members—often remain in limbo. Ongoing school and daycare closures, as well as health risks and concerns for those not yet eligible for the COVID-19 vaccine, will likely create ongoing disruption for employees with caregiver responsibilities.

The Equal Employment Opportunity Commission (EEOC) recently released COVID-19-specific guidance on the ways that caregivers ... Read More 

Last month, the U.S. Supreme Court struck down the Occupational Safety and Health Administration’s (“OSHA”) COVID vaccine or test mandate for businesses with at least 100 employees. Thereafter, the Biden Administration officially withdrew the mandate as an Emergency Temporary Standard (“ETS”) but left open the possibility of a permanent standard that would include some or all elements of the ETS. This now leaves many employers wondering what to do. Should they continue with their plans to implement mandatory vaccinations? Should they provide an option for weekly ... Read More 

On Jan. 13, the U.S. Supreme Court issued rulings that impact two important aspects of the Biden Administration’s efforts to combat the COVID-19 pandemic.

OSHA ETS for Employers with 100 or More Employees:

Employers with 100 or more employees have been in limbo, trying to determine if they will be required to track vaccination and/or weekly testing for their employees since the Occupational Safety and Health Administration (OSHA) issued its Emergency Temporary Standard (ETS) on Nov. 5, 2021. Not long after the ETS was issued, the Fifth Circuit Court of Appeals affirmed a stay on the ... Read More 

On Dec. 17, 2021, the Sixth Circuit Court of Appeals lifted a stay on the Occupational Safety and Health Administration’s (OSHA) Vaccination and Testing Emergency Temporary Standard (ETS) for employers with 100 or more employees.

The Fifth Circuit Court of Appeals had previously affirmed a stay on implementation or enforcement of the ETS. The legal challenges to the ETS were consolidated in the Sixth Circuit Court of Appeals through the multidistrict litigation process.

Now that the Sixth Circuit has lifted the stay, OSHA has indicated that it will give covered employers until ... Read More 

The Department of Labor’s Occupational Safety and Health Administration (OSHA) recently issued a COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) for employers with 100+ employees. The new standard focuses on protecting currently unvaccinated workers – those who have a higher risk of severe health outcomes from COVID-19 and are more likely to contract and transmit COVID-19 in the workplace than vaccinated workers.

Employers subject to the COVID-19 Vaccination and Testing ETS should review the new standard with their attorney and immediately begin ... Read More 

On Sept. 9, 2021, President Biden announced a six-part plan to combat COVID-19. In spoken remarks, he described a “pandemic of the unvaccinated,” caused by the fact that nearly 80 million Americans have yet to get a shot. To address the ongoing crisis, the White House is taking steps to substantially increase the number of vaccinated Americans by ensuring vaccine requirements “become dominant in the workplace.”

Among other things, the plan includes vaccination requirements for federal workers, federal contractors and health care workers at Medicare and Medicaid ... Read More 

This week, two different sets of guidance were published that impact employers’ COVID-19 policies.

First, on July 27, 2021, the U.S. Centers for Disease Control and Prevention (CDC) updated its guidance to recommend that all persons, including those who are vaccinated, wear masks in indoor public settings in locales with substantial or high community transmission of COVID-19.

Second, on July 29, 2021, Gov. Roy Cooper issued Executive Order No. 224, which “strongly encourage[s]” employers to follow the CDC guidance and also verify the vaccination status of employees and ... Read More 

The Department of Labor’s Occupational Safety and Health Administration (OSHA) recently issued a COVID-19 Emergency Temporary Standard (ETS) for the healthcare industry. The new standard focuses on protecting healthcare workers who face the greatest coronavirus risks – those working in healthcare settings where suspected or confirmed coronavirus patients are treated.

Employers subject to the ETS should review the new standard and immediately begin taking steps to comply.

Who Must Comply?

The healthcare ETS applies to settings where any employee provides healthcare ... Read More 

Today, Governor Roy Cooper issued a new Executive Order 220 extending certain COVID-19 response measures. Among other things, the new Order extends Executive Order 215, which lifted many COVID-19 restrictions, but left in place some face covering mandates. The new Order, which is effective through July 30, 2021, does not change the lifting of mass gathering and social distancing limits detailed in Order 215.  

What were some notable changes made under Order 215?

• Face covering requirements were lifted in most settings.

• Capacity restrictions were lifted in all settings.

• Social ...

Today, the Department of Labor’s Occupational Safety and Health Administration (OSHA) issued a COVID-19 Emergency Temporary Standard (ETS) for the healthcare industry. This ETS mandates the development and implementation of a COVID-19 plan in workplaces where employees provide healthcare services or healthcare support services. It also sets out detailed requirements in areas such as patient screening and management, personal protective equipment (PPE), physical distancing, physical barriers, cleaning and disinfection, ventilation, health screening ... Read More 

The Equal Employment Opportunity Commission (EEOC) issued updated Question and Answer Guidance on COVID-19 vaccinations today. The new guidance clarifies several issues that were making some employers reluctant to provide incentives to encourage employees to get vaccinated. They also provide some clarification for employers implementing vaccination policies that differentiate among vaccinated and unvaccinated employees. Below are some of the highlights from the new guidance: 

• Employers may require that all employees physically entering the workplace be vaccinated ...

There is no clear guidance on whether employers may treat vaccinated and unvaccinated employees differently. Employers considering changes to their policies that would treat employees differently based on vaccination status, should discuss their particular circumstances with legal counsel. Consulting legal counsel is also important because each work environment may have different factors and unique circumstances to consider when evaluating how to maintain a safe and healthy workplace for employees. Some of the issues to be considered in an employer’s analysis include ... Read More 

This week, Governor Roy Cooper issued a new Executive Order 215 lifting mass gathering and social distancing limits and most mask mandate restrictions imposed due to COVID-19. The new Order is effective on May 14, 2021 at 1:30 p.m. and extends through 5 p.m. on June 11, 2021.

What are some notable changes under the Order?

• Face covering requirements are lifted in most settings.
• Capacity restrictions are lifted in all settings.
• Social distancing requirements have been lifted in most settings.

What remains the same?

• People can continue to wear face coverings, which are recommended ...

This week, Governor Roy Cooper issued a new Executive Order 209 relaxing the outdoor mask mandate and easing the mass gathering limit restrictions imposed due to COVID-19. The new Order is effective on April 30, 2021 at 5 p.m. and extends through 5 p.m. on June 1, 2021.

What are some notable changes under the Order?

• It lifts the requirement that face coverings be worn outdoors anytime that social distancing of at least six feet cannot consistently be maintained from non-household members. Under the Order, face coverings are no longer required in any outdoor setting.
• The indoor mass ...

On March 11, 2021, President Biden signed the American Rescue Plan Act (“ARPA” or the “Act”), another piece of the federal government’s response to the COVID-19 pandemic. Among other things, the Act provides premium assistance for eligible employees and their family members who elect continuation coverage under COBRA or a state’s mini-COBRA law and continue health insurance benefits under those laws. The premium assistance is available for coverage between April 1, 2021 and Sept. 30, 2021. Employees pay nothing for their coverage during this time, and employers are ... Read More 

This week, Governor Roy Cooper issued a new Executive Order 204, which further eased various restrictions imposed due to COVID-19. However, the state’s general mask mandate remains in effect.

Among other things, the Order:

• increases mass gathering limits – the new limit for indoor gatherings is 50 people, and up to 100 people may gather outdoors;

• lifts the restriction on the late-night sale and service of alcoholic beverages on bars, restaurants, and other establishments;

• establishes three general categories of occupancy restrictions – up to 100% capacity ... Read More 

On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 into law. The Act, which builds in part on certain COVID-19 relief measures enacted in 2020, contains several items that could impact employers’ COVID-related leave policies.

In particular, though employers are still not required to continue offering leave under the Emergency Paid Sick Leave Act (EPSLA) or the Emergency Family Medical Leave Expansion Act (EFMLEA) passed in 2020, employers that elect to do so through September 2021 are eligible for tax credits to cover much of the cost.

The American ... Read More 

On March 8, 2021, the U.S. Centers for Disease Control and Prevention (CDC) issued new guidance for people who have been vaccinated for COVID-19. (A person becomes “vaccinated” two weeks after receiving the second shot of the Pfizer-BioNTech or Moderna vaccine or one shot of the Johnson & Johnson vaccine.) The public guidance is based on a contemporaneously issued science brief describing preliminary evidence that the vaccines are effective against a variety of coronavirus strains (except a strain out of South Africa) and a growing body of evidence that vaccinated people may be ... Read More 

This week, Governor Roy Cooper issued a new Executive Order 195 lifting his modified “Stay at Home” Order and loosening various restrictions imposed due to COVID-19. Among other things, the Order increases the number of people that may gather indoors from 10 to 25, changes the curfew on the sale of alcohol for onsite consumption from 9 p.m. to 11 p.m., opens businesses such as bars and amusement parks with occupancy restrictions, and increases indoor and outdoor occupancy for certain businesses, venues, and arenas. The new Order is effective on Feb. 26, 2021 at 5 p.m. and ... Read More 

The Consolidated Appropriations Act of 2021, enacted late last year, includes several tax related changes and incentives affecting businesses.

Congress overruled guidance from the Internal Revenue Service to provide that expenses paid with Payroll Protection Program loans (PPP) will be deductible even if the PPP loans are forgiven. The new law also clarifies how forgiveness works in the context of a partnership or S corporation.

Congress modified the Employee Retention Credit in two important ways. First, businesses that receive PPP loans may now qualify for the employee ... Read More 

This week, Governor Roy Cooper extended four Executive Orders issued previously to address the COVID crisis.

The Orders extended this week are the following:

• EO 189, Modified “Stay at Home,” was extended through Feb. 28. Brooks Pierce Client Alert on the earlier “Stay at Home” Order.
• EO 190, Delivery and Carry Out of Certain Alcoholic Beverages, was extended through March 31.
• EO 191, Evictions and Expedited Unemployment Claims, was extended through March 31.
• EO 192, Transportation Provisions, was extended through Feb. 28.

If you have questions, please contact Alex ... Read More 

Starting Jan. 1, 2021, employers subject to the Families First Coronavirus Response Act (FFCRA) are no longer required to provide employees with COVID-related paid leave, but they may do so in some situations and still receive tax credits for doing so.

The FFCRA, which required that employers provide emergency paid sick leave for COVID-related reasons and emergency paid family leave to employees due to school closures, expires on Dec. 31, 2020. These requirements were not extended as part of the stimulus package passed by Congress on Dec. 21, 2020 and signed into law by the president ... Read More 

On Dec. 16, 2020, the Equal Employment Opportunity Commission (EEOC) released its much-awaited guidance on the COVID-19 vaccine in the workplace. (See section “K. Vaccinations” at this link (for the full guidance.) This guidance provides crucial information to employers who have been weighing whether, and how, to require or implement the COVID-19 vaccines in the workplace. 

As with other moments during the COVID-19 pandemic, employers will need to be nimble in their response to current events, changing circumstances, and evolving scientific and legal guidance. For ... Read More 

This week, Governor Roy Cooper issued a “Modified Stay at Home” order. His new Executive Order 181, among other things, requires people to stay at home between 10 p.m. and 5 a.m. It also requires restaurants, bars, entertainment venues, personal care businesses and some other businesses to close at 10 p.m. Certain activities such as travel to and from work; obtaining food, medical care, fuel or social services; or to take care of a family member, are exempted. The new Order is effective on Dec. 11, 2020 at 5 p.m. and extends through at least Jan. 8, 2021.

What are the major changes ... Read More 

On Dec. 2, 2020, the U.S. Centers for Disease Control and Prevention (CDC) issued new guidance to local health departments regarding their options and choices for shortening the length of quarantine after a person is exposed to the COVID-19 virus or has traveled internationally.

Post-Exposure Quarantine

Prior guidance required that a person quarantine for 14 days from the last exposure to a COVID-positive person, regardless of any negative test. The purpose of the quarantine period is to prevent spread of the virus by people who may be contagious but never develop symptoms, and to ... Read More 

This week, Governor Roy Cooper tightened mask requirements and enforcement and again extended North Carolina’s Phase 3.0 COVID-19 restrictions. His new Executive Order 180 is effective on Nov. 25, 2020 at 5 p.m. and extends Phase 3.0 restrictions (first detailed in Executive Order 169) through 5 p.m. on Dec. 11, 2020.

What are the major changes under this Order?

Under this Order:

• A face covering will now be required in all indoor settings if there are non-household members present, regardless of the distance away.

      o Under previous executive orders, face coverings were ... Read More 

This week, Governor Roy Cooper extended and modified North Carolina’s Phase 3.0 COVID-19 restrictions effective through 5 p.m. on Dec. 4, 2020. His new Executive Order 176 extends and modifies the Phase 3 restrictions that were first detailed in Executive Order 169 and extended in Executive Order 170.

What changes under the new Order?

 • The Phase 3 measures are extended for another three weeks, through Dec. 4, 2020.

• The Mass Gathering Limit for indoor spaces is reduced from 25 to 10 people.

What remains the same under Phase 3?

• The outdoor Mass Gathering limit remains ... Read More 

This week, Governor Roy Cooper extended North Carolina’s Phase 3.0 COVID-19 restrictions through 5 p.m. on Nov. 13, 2020. His new Executive Order 170 extends the Phase 3 restrictions that were first detailed in Executive Order 169.

Highlights of the Phase 3 restrictions that have been extended include:

• Large outdoor venues with seating greater than 10,000 may operate with 7% occupancy for spectators. 
• Smaller outdoor entertainment venues, like arenas or amphitheaters, may operate outdoors at 30% of outdoor capacity, or 100 guests, whichever is less. 
• Movie theaters and ...

This week, Governor Roy Cooper issued Executive Order 169 moving North Carolina to Phase 3.0 COVID-19 restrictions. The new Order is effective Oct. 2, 2020 at 5 p.m. through 5 p.m. on Oct. 23, 2020.

Highlights of the new Order include:

• Large outdoor venues with seating greater than 10,000 may operate with 7% occupancy for spectators. 
• Smaller outdoor entertainment venues, like arenas or amphitheaters, may operate outdoors at 30% of outdoor capacity, or 100 guests, whichever is less. 
• Movie theaters and conference centers may open indoor spaces to 30% of capacity, or 100 guests ...

On Friday, Sept. 11, 2020, the U.S. Department of Labor (DOL) issued revisions to their original regulations on paid leave under the Families First Coronavirus Response Act (FFCRA). These revisions are in response to the Aug. 3, 2020 decision by a federal court in New York that invalidated portions of the original regulations. Most significantly, the revisions provide a new, narrower definition of who qualifies as a “health care provider” for purposes of the FFCRA.

Under the FFCRA, two types of paid leave were made available to employees working for an employer with fewer than 500 ... Read More 

On Aug. 8, 2020, President Trump issued a memorandum calling for the Secretary of Treasury to allow for the deferral of payroll tax withholding on the employee portion of certain payroll taxes. This memorandum is separate from the ability of employers to defer their own payroll tax obligations under the CARES Act and is intended to provide stimulus to the economy by temporarily boosting take-home wages. On Aug. 28, 2020, the Department of Treasury and Internal Revenue Service issued Notice 2020-65, allowing employers to defer payroll tax withholding, but requiring all ... Read More 

This week, Governor Roy Cooper issued Executive Order 163 moving North Carolina to a “Safer at Home” Phase 2.5. The new Order is effective Sept. 4, 2020 at 5 p.m. through 5 p.m. on Oct. 2, 2020.

Highlights of the new Order include:

• Mass gathering limits will increase to 25 people indoors and 50 people outdoors from the current limits of 10 indoors and 25 outdoors.
• Playgrounds may open.
• Museums and aquariums may open at 50% capacity.
• Gyms and indoor exercise facilities, such as yoga studios, martial arts, and rock climbing, as well as skating rinks, bowling alleys, and fitness or ...

The COVID-19 pandemic is impacting every facet of the economy, including commercial construction and real estate. While the depth of some of the impacts may not be known for months, if not years, there are several emerging trends shaping these industries now.

Construction Financing Issues

In the early days of the COVID-19 pandemic this spring, many companies looked at stopping, or at least pausing, construction projects due to the uncertainty about the economy. Many projects remain paused as owners continue to worry about their long-term viability or if there is demand for office or ... Read More 

On Aug. 5, Governor Roy Cooper issued Executive Order 155, which further extends North Carolina’s “Safer At Home” Phase 2 through 5 p.m. on Sept. 11, 2020.

The new Executive Order extends and continues the measures of Executive Order No. 141. Executive Order No. 141 was previously amended by E.O. Nos. 147 (to include face covering requirements), 151 and 152.

As justification for extending Phase 2, which was first entered into on May 22, 2020, and has now been extended through Sept. 11, the governor cited several key metrics which have been trending in a concerning ... Read More 

A federal court in New York has invalidated portions of emergency Department of Labor (DOL) regulations that employers have been using to create their policies and determine whether to grant leave under the Families First Coronavirus Response Act (FFCRA).

Under the FFCRA, there are two leave laws that provide employees the ability to receive pay for certain absences relating to COVID-19. Summaries of these laws are available in our prior alerts: Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA).

The DOL issued regulations ... Read More 

This article is part of a series in which Brooks Pierce highlights clients that are going above and beyond to help combat the effects of the COVID-19 crisis in their communities.

Cintra, a subsidiary of global infrastructure operator Ferrovial, is a key partner in developing the I-77 Express lanes between Charlotte and Mooresville. The company’s work in Mecklenburg County drew its attention to the growing number of families in the community struggling with basic needs like food and housing due to COVID-19. So, the company decided to give back in a number of ways.

In May, Ferrovial ... Read More 

On July 14, 2020, Gov. Roy Cooper outlined a plan for K-12 school openings. Under Plan B, schools are required to follow certain guidelines issued by the North Carolina Department of Health and Human Services (NCDHHS). Schools may also choose to reopen under Plan C—remote learning only—and school districts are encouraged to allow families to opt-in to all-remote learning.

North Carolina issued guidance regarding what Personal Protective Equipment (PPE) school districts will receive from the state through a two-month PPE Starter Pack, as well as what PPE school districts ... Read More 

The one constant in the COVID-19 pandemic is that the guidance keeps changing. We have highlighted it before and we’ll do it again: Part of every employer’s COVID-19 preparedness and response plan needs to include the designation of someone in the company who will periodically review the website for the Center for Disease Control (CDC) and other key organizations such as the Department of Labor and the Department of Health and Human Services for changes to their guidance on COVID-19 precautions.

On Monday, the CDC changed key elements in its recommendation for determining when a ... Read More 

This week, Gov. Roy Cooper outlined a plan for K-12 school openings and extended the “Safer at Home” Phase 2 of the state’s plan to respond to the COVID-19 virus.   

Under the Plan B outlined by the Governor, schools are required to follow key safety measures including:

• Requiring face coverings for all teachers and students
• Limiting the total number of students, staff and visitors within a school building to the extent necessary to maintain six feet of spacing when students/staff will be stationary 
• Conducting symptom screening, including temperature checks 
• Establishing a ...

Governor Roy Cooper this week issued Executive Order 147). The Order extends until 5:00 p.m. on July 17 the “Safer at Home” Phase 2 of the State’s plan to respond to the COVID-19 virus. Cooper cited a number of metrics, including an increase in the number of new virus cases and people hospitalized due to the virus, as reasons to extend Phase 2.

The new Executive Order extends and amends Executive Order 141, which had targeted June 26 for a move to Phase 3. Instead of moving to Phase 3, EO 147 maintains current Phase 2 restrictions on the opening of facilities such as public ... Read More 

Many businesses are anxious to resume operations after closing or scaling back because of COVID-19. However, trends in North Carolina COVID-19 diagnoses and hospitalizations show that the pandemic is still very much an issue. The question becomes: what is the best way to balance these competing concerns?

The Occupational Safety and Health Administration recently issued an updated “Guidance on Returning to Work” to assist employers and workers during the COVID-19 pandemic. The guidance is a supplement to OSHA’s prior “Guidance on Preparing Workplaces for COVID-19” ... Read More 

This article is part of a series in which Brooks Pierce highlights clients that are going above and beyond to help combat the effects of the COVID-19 crisis in their communities.

Biscuitville, a Greensboro, North Carolina-based quick-service restaurant, is known for its scratch-made biscuits and homestyle Southern breakfast food. In the wake of the chaos caused by COVID-19, the restaurant used these core strengths to support multiple philanthropic efforts.

When the world began to change with the onset of the virus, Biscuitville began seeking out local organizations to partner ... Read More 

As doors are re-opening and employees are returning to work, businesses should take measures to protect themselves—including their employees, customers, finances, and brand—as much as possible. Outlined below are a few measures businesses can take now to avoid pitfalls from COVID-19.

What steps should I be taking to protect my business going forward?

Measures to take may include:

• Familiarize yourself with the Families First Coronavirus Response Act (FFCRA). If you employ 500 or fewer individuals, your employees are likely covered by the FFCRA. The FFCRA provides for ...

This article is part of a series in which Brooks Pierce highlights clients that are going above and beyond to help combat the effects of the COVID-19 crisis in their communities.

Lithios, a Raleigh-based mobile application design company, develops creative, cutting-edge apps for companies ranging from local start-ups to Fortune 500 companies. However, when Triad Health Network (THN) approached them in mid-March to develop an app to help streamline COVID-19 communications across its offices, Lithios saw a unique opportunity to use its skills to serve the community.

THN had ... Read More 

The USDA will begin accepting applications for direct payments to farmers Tuesday, May 26. These payments originate from the USDA Coronavirus Relief Fund Program (CFAP) that aims to reimburse farmers who have lost revenue from price declines or market disruptions.

Eligibility

The USDA expanded eligible producer groups to the categories listed below. Additionally, the USDA seeks comment from ineligible producers “who believe they’ve suffered a five percent-or-greater price decline between January and April 2020, and who face additional marketing costs due to ... Read More 

Governor Roy Cooper took additional executive action this week related to North Carolina’s response to the COVID-19 virus. The move transitions North Carolina into the second phase of a plan to gradually ease statewide restrictions designed to slow the spread of the coronavirus.   

The new Executive Order 141 lifts the “Stay at Home” order in Executive Order 138 as of 5 p.m., Friday, May 22, at which time Phase 1 ends and Phase 2 begins. Phase 2 is expected to run through June 26, unless changed or cancelled.

Among other things, the Phase 2 Executive Order does the ... Read More 

Three agencies have provided updated guidance for employers on essential COVID-19 issues:

• The Department of Labor (DOL) addressed how new leave laws apply to these situations:
  
  • Domestic workers;
  • Those working through temporary agencies;
  • Employees who previously were working from home without the need for leave, but now need leave to care for children;
  • Handling employees absent for symptoms of COVID-19; and
  • Leave to care for children as schools close for the summer rather than due to COVID-19.
• The Equal Employment Opportunity Commission (EEOC) clarified how to handle the return of ...

As shelter-in-place orders begin to lift around the country and here in North Carolina, it is time for companies to shift from disaster response—making it through the immediate needs of the COVID-19 crisis and related shutdown—to plans for long-term business operations in the new normal.

Although the details remain murky in many ways, there are steps that business can take now to ensure their best chances at viability in a changed social and economic environment. Business owners will need to keep close tabs on the latest legal requirements and analyze, with the help of counsel and ... Read More 

Brooks Pierce has been honored to have so many North Carolina employers rely on us for up-to-date guidance on personnel matters stemming from the COVID-19 crisis. We will continue to produce, update, and post alerts for employers on our COVID-19 Response Resource Center as promptly as possible. Employers can also expect timely webinars and roundtables from us in the coming weeks, as well as the ability to review past webinars by viewing the recordings on our website.

The following checklist is our latest tool offered to North Carolina employers. It condenses information from ... Read More 

On April 24, 2020, Governor Cooper closed schools for in-person instruction for the remainder of the 2019–2020 school year. On May 4, 2020, the Governor signed into law the COVID-19 Recovery Act (the “Act”), effective immediately, which was passed by both houses of the General Assembly on May 2, 2020. The Act affects public schools, personnel, future educators, and students in myriad ways. The stated purpose of the sections of the Act affecting public education is “to clarify or modify certain requirements in consideration of actions and circumstances related to the ... Read More 

Two bills (S 704, a policy bill, and H 1043, an appropriations bill) to address COVID-19’s impact on North Carolina were enacted over the weekend. Legislators met in a rare Saturday session to pass the bills and Governor Roy Cooper, who made a number of proposals on these matters, signed the bills into law.

Both bills addressed a variety of topics including health care, education, operations of state and local government, regulatory matters, and unemployment compensation.  Highlights from the bills are discussed below.

S 704 (Policy bill)

• Postpones certain income tax payments to ...

On May 4, 2020, the Governor signed into law the COVID-19 Recovery Act (the “Act”), effective immediately, which was passed by both houses of the General Assembly on May 2, 2020. The Act establishes new requirements for public bodies conducting meetings and hearings during a Declaration of Emergency.

Public Meetings

A remote meeting is one where any member of the public body is participating through simultaneous communication, which may include telephone, video, or other electronic means. Public bodies have been and are permitted to conduct meetings electronically so long as ... Read More 

The crisis has not passed, but many employers are reaching out to us about returning their employees to work. In some cases, it’s because employers have received PPP funds and want to make sure they are appropriately managing employee payroll, including headcount, to take advantage of loan forgiveness. In others, employers are preparing for Governor Cooper’s phased approach to lifting restrictions, monitoring North Carolina’s COVID-19 trends.

Whatever the situation, we’ve identified several important things employers should be thinking about as they return ... Read More 

While the United States Patent and Trademark Office (USPTO) remains open for online filings, it has further extended many trademark and patent deadlines due to the COVID-19 outbreak. 

Trademark

Under the authority of the CARES Act, the USPTO announced yesterday evening that if one of the deadlines listed below fell between March 27, 2020 and May 31, 2020, then such a filing is timely if made on or before June 1, 2020. This enlarges by a month the prior range of deadlines subject to the prior COVID-19 extension and generally imposes a fixed deadline by which the filings should be made.

The ... Read More 

On April 20, 2020, North Carolina Governor Roy Cooper issued Executive Order No. 134  permitting employers to provide financial assistance to employees who have been temporarily furloughed for reasons related to COVID-19 without affecting their unemployment insurance benefits. Typically, such financial assistance would reduce, delay, or preclude employees’ unemployment benefits. However, recognizing the unique circumstances presented by the COVID-19 pandemic, Executive Order No. 134 authorizes employers to make “COVID-19 Support Payments” to ... Read More 

The COVID-19 pandemic creates a unique set of circumstances for nonprofits. Many of them are facing similar challenges to for-profit businesses — how to manage employees working remotely, dealing with declining revenue — but without clarity about how the federal stimulus measures will benefit them. In addition, these times have created challenges for nonprofits with respect to governance issues, such as how directors and members of nonprofits can take action while remaining in compliance with the State of North Carolina’s "stay at home" orders.

The good news is, based ... Read More 

The Coronavirus Aid, Relief, and Economic Security Act (CARES) enacted on March 27, 2020 contained several provisions related to the provision of loans by the Small Business Administration (SBA), including loans under the Paycheck Protection Program (PPP) and Economic Injury Disaster Loan Program (EIDL). Unlike traditional SBA loans, which are not available to non-profit entities, faith-based organizations will generally be eligible for loans under these programs.

Requirements

The SBA has issued guidance that any faith-based organization is eligible to receive the PPP and ... Read More 

North Carolina Governor Roy Cooper took additional executive action this week related to the COVID-19 virus and its impact on the state.

On Thursday, April 23, he issued Executive Order 135, which extends until May 8 the statewide “Stay At Home” order first issued in Executive Order 121 on March 27. EO 135 also extends closure of restaurants for dine-in service and bars and closure of other close-contact businesses. 

When releasing the order on Thursday, the Governor outlined a plan, which would have North Carolina gradually re-open over three phases to prevent hot spots of ... Read More 

On Friday, April 17, 2020, USDA introduced the Coronavirus Food Assistance Program (CFAP), which aims to compensate farmers, maintain supply chains, and support food security. At least $19 billion will be distributed to agricultural producers under CFAP through two mechanisms, direct payments and commodity purchases. Note that the Agricultural Marketing Service (AMS) expects to release its solicitation for food box distribution proposals on Friday, April 24, 2020, with applications due by the following Friday, May 1.

Direct Payments: $16 billion

Commodity producers will ... Read More 

When a company’s customers declare bankruptcy, the company faces significant risk. These risks range from the obvious—for example, nonpayment of past-due invoices—to the not-so-obvious—e.g., preferential and voidable transfer actions. Given that multiple industries, including retail and food service, have been sidelined due to COVID-19, businesses will likely find many of their individual and commercial customers in vulnerable situations for the immediate and intermediate future.

However, there are ways to minimize vulnerability by following a reasonable ... Read More 

On April 9, the Equal Employment Opportunity Commission (EEOC) posted additional, updated guidance for employers regarding COVID-19, the ADA, and other EEO laws, and consolidated all its COVID-19 related advice here.

It reiterates why each of the following employer actions are permissible under the current circumstances and reminds employers of important considerations if they are doing any of these:

• Asking employees about symptoms of COVID-19
• Taking body temperature of employees
• Requiring employees with COVID-19 symptoms to stay home
• Requiring doctors' notes ...

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (FFCRA) into law. The FFCRA contains two key provisions for employers – the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA). Both EFMLEA and EPSLA provide paid leave to employees for reasons related to COVID-19. On April 1, 2020, the U.S. Department of Labor (DOL) issued temporary regulations bolstering and clarifying these provisions of the FFCRA. Corrections to these regulations were later published on April 10, 2020. The DOL ... Read More 

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (FFCRA) into law. The FFCRA contains two key provisions for employers – the Emergency Family and Medical Leave Expansion Act (EFMLEA) and the Emergency Paid Sick Leave Act (EPSLA). Both EFMLEA and EPSLA provide paid leave to employees for reasons related to COVID-19. On April 1, 2020, the U.S. Department of Labor (DOL) issued temporary regulations bolstering and clarifying these provisions of the FFCRA. Corrections to these regulations were later published on April 10, 2020. The DOL ... Read More 

An employee may have been exposed to COVID-19. What do you do? 

This question is becoming more common for essential businesses that continue to operate during quarantines. On April 8, the CDC issued a new Interim Guidance explaining how to keep essential employees working following potential exposure to COVID-19. They also provide a printable flyer for the workplace.

The new guidance permits employees with possible exposure to return to work provided they are (1) asymptomatic and (2) take the following additional precautions:

• The employer should measure the employee’s ...

The Coronavirus Aid, Relief, and Economic Security Act (CARES) enacted on March 27, 2020 contained several significant business-related tax changes highlighted below. Many of these changes are limited in the period to which they apply, and several have retroactive application that may require filing an amended tax return in order to claim the full benefit available.

Business Interest Deductions

The amount of a taxpayer’s business income that may be offset by business interest generally is limited to 30%. CARES increases this limit to 50% for 2019 and 2020, subject to special ... Read More 

Much of the focus of the attention generated by the CARES Act has been on the Payroll Protection Program (PPP) through the Small Business Association. Loans through the PPP have the potential to be forgiven on a tax-free basis.  Please see our client alert for a discussion of the PPP. 

The CARES Act also adds relief in the form of employee retention credits and a delay of employer payroll taxes highlighted below.

Employee Retention Credit

The Employee Retention Credit is a fully refundable payroll tax credit that qualifying employers may receive by continuing to fund ... Read More 

This article originally appeared on the North Carolina Bar Association's Blog on April 3, 2020.

I know it is difficult keeping track of all the moving dates and deadlines. For your convenience, here is a chart with all the current extensions. Below the chart is an update about Justice Beasley’s latest order pushing out state trial court proceedings into June.

The United States Patent and Trademark Office (USPTO) remains open for filings.  Currently, as it has been for years, nearly all filings are made online.

Under authority from the CARES Act, the USPTO has extended many trademark and patent deadlines. 

Trademark

The USPTO is extending certain deadlines by 30 days if they fell between March 27, 2020 and April 30, 2020.  When the filing is eventually made, the filing must be accompanied by a statement that the delay in filing/payment was due to the COVID-19 outbreak.  “Due to” means that the practitioner, applicant, registrant or other ... Read More 

This article originally appeared on the North Carolina Bar Association's Blog on April 1, 2020.

With coronavirus infections multiplying exponentially around the globe, countries, states, and localities are taking action to slow the spread. This update does not attempt to recount all that has changed since my last post. In particular, I do not catalogue all the state and local stay-at-home orders that have been enacted—though the North Carolina Judicial Branch’s COVID-19 Resource Page appears to have aggregated them all. Rather, I focus just on recent developments ... Read More 

In the evolving COVID-19 pandemic, businesses are having to re-evaluate their short-term and long-term needs. There are several actions companies can take to avoid business disruption.

The Department of Labor (DOL) shared more insights into the Families First Coronavirus Response Act (FFCRA). These latest additions to the DOL’s guidance include a few surprises, which we’ve highlighted here.

One of the biggest surprises was that the DOL provided two different definitions of the exact same words in the Act—Health Care Providers:

• For purposes of determining who can advise an employee to self-quarantine, a “health care provider” is limited to a licensed doctor of medicine, nurse practitioner, or other health care provider permitted to issue a ...

Yesterday, March 26, the Department of Labor (DOL) issued additional guidance on how the Families First Coronavirus Response Act (FFCRA) will be applied, the latest in a string of expected clarifications leading up to the April 1 effective date. The FFCRA includes the Emergency Family and Medical Leave Expansion Act (EFMLA) and Emergency Paid Sick Leave Act (EPSLA). This guidance provided several important clarifications for employers on the DOL’s enforcement policy.

Here are the highlights:

Implications of Furloughs and Closures

• Furloughed employees, or employees whose ...

The Coronavirus Aid, Relief, and Economic Security Act, or the CARES Act, has been passed by Congress and awaits signature by the President. The CARES Act includes the much anticipated Paycheck Protection Program (PPP), establishing the guidelines for a new category of loans guaranteed by the Small Business Administration (or SBA) that will soon be available to certain eligible businesses. The loans are intended to provide borrowers much-needed liquidity during these uncertain times, and, notably, the principal amounts borrowed under the PPP may be entirely forgiven under ... Read More 

On March 27, 2020, North Carolina Governor Roy Cooper issued Executive Order No. 121, a statewide "Stay at Home" order, which is intended to slow the spread of COVID-19 in our state.

The Order goes into effect at 5 p.m. on Monday, March 30, 2020, and will remain in effect for 30 days, unless revised or rescinded by further action of the Governor. It supplements prior orders, the provisions of which remain in effect, including the prohibition on dining-in at restaurants and other restrictions.

The intent of the Order is to ensure that the maximum number of North Carolina residents ... Read More 

The Golden LEAF Foundation is providing $15 million in funding to launch a rapid recovery loan program in response to economic losses for small businesses related to COVID-19. The program is being launched by a consortium of public, private and non-profit partners who have come together to help stabilize North Carolina’s small business sector during these uncertain times. The program will be managed by the NC Rural Center and is designed to provide a bridge for small businesses needing immediate capital while they are in the process of applying for a Small Business Administration ... Read More 

As companies navigate the COVID-19 pandemic, they should take stock of existing insurance policies that may provide coverage for:

• damages and losses suffered by the company, or
• potential liability of the company.

What Type of Claims Could Arise?

While this pandemic and the government response is unprecedented, your business may encounter several issues giving rise to a claim under one or more types of insurance policies. Examples of these issues and the types of insurance that may provide coverage are:

• Slowdown or stoppage of business   
  • ​Property insurance with business ...

Last night the Department of Labor (DOL) issued its first guidance on how the Families First Coronavirus Response Act (FFCRA) will be applied. A description of the provisions of the two new acts requiring leave under the FCRA: the Emergency Family and Medical Leave Expansion Act (EFMLA), which provides for 12 weeks of leave to care for a child due to school closure, and the Emergency Paid Sick Leave Act (EPSLA), which provides for 80 hours of leave for certain COVID-19 reasons, can be viewed here.

Here are the key takeaways from the new DOL guidance:

• Effective Date: The laws go into effect on ...

On March 25, 2020, the U.S. Department of Labor (DOL) published a workplace notice that covered employers (including certain federal employers and all private employers with fewer than 500 employees) must provide to employees in accordance with the Families First Coronavirus Response Act (FFCRA). Specifically, the notice provides employees with relevant information regarding their rights under the Emergency Family and Medical Leave Expansion Act (EFMLA) and the Emergency Paid Sick Leave Act (EPSLA) portions of the FFCRA. The DOL requires covered employers to post the notice ... Read More 

As a result of the COVID-19 pandemic, companies are facing a wide array of business challenges, many of which would likely not have been contemplated a few weeks ago. These challenges increasingly include government-ordered shutdowns and financial turmoil that may make maintaining existing operations exceedingly difficult. With this uncertainty, many businesses are reviewing their key contracts to see what protections, and potential issues, may exist.

While all contracts are unique and require individual analysis, there are a few key clauses and considerations that all ... Read More 

As COVID-19 has spread throughout the world and within the United States, companies of all sizes have had to make quick decisions about how to implement work-from-home procedures. While many businesses are accustomed to having some of their employees work remotely at any given time, the sudden shift to a majority of the work force being away from controlled office networks and environments presents a unique and heightened set of technical and cybersecurity challenges. Below are a few key considerations that businesses who have made or are trying to make the shift to a work-from-home ... Read More 

Employers are faced with difficult and unpleasant choices in response to the current COVID-19 crisis. Some are closing down or reducing operations. This guidance addresses your rights and obligations concerning salaried employees, and suggests strategies available to you.

The general rule under the federal Fair Labor Standards Act (FLSA) is, if an employee is “salaried” and works any time during a workweek, the full salary for the workweek is due. For these purposes, “salaried” refers to exempt employees subject to “white collar exemptions” under the FLSA ... Read More 

The U.S. Small Business Administration (SBA) is offering low-interest federal disaster loans for working capital for small businesses and private non-profits in North Carolina and other states impacted by COVID-19, commonly known as the coronavirus. The SBA is encouraging all small businesses and private non-profits impacted by COVID-19 in affected states to apply now, with hopes of getting the money in the hands of those who need it in just a few weeks. Here are the highlights of the SBA Economic Injury Disaster Loan Program (SBA EIDLP).

Who is eligible? All small businesses and ... Read More 

This article originally appeared on the North Carolina Bar Association's Blog on March 19, 2020.

North Carolina’s courts have taken further steps to address the impact of COVID-19 on the court system.

North Carolina Supreme Court

The Supreme Court will not be holding travel sessions in April or May. Cases previously scheduled for April or May may still be heard, at the litigants’ option:

1. Via WebEx the week of May 4 at a specific date and time set by the Court,
2. At a later date, or
3. The matter may be decided on the briefs

North Carolina State Trial Courts

Today, Chief Justice Beasley ... Read More 

To our valued clients and friends of the firm:

It is now self-evident that all of us have been impacted by COVID-19. The statement that “we are all in this together” has never been more applicable than now. We hope that you and your family, friends, and colleagues are safe and well, and we are certain that with shared commitment to one another and the needs of our community we will get through this extraordinary time.

Like so many of you, Brooks Pierce has been closely monitoring the rapidly evolving situation with COVID-19. As part of our community, we want you to know that we have taken ... Read More 

Update: President Trump signed these Acts into law on March 18. They are expected to take effect no later than April 2.

Much has been made of the cost to employers of the leave required by the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act, which have now been passed by Congress and await the President’s signature. Under these new laws, if a non-governmental employer is required to pay wages to employees as a result of either Act, they are entitled to substantial tax relief.

Emergency Paid Sick Leave Act Relief

Under the Emergency Paid Sick Leave ... Read More 

The Equal Employment Opportunity Commission has posted guidance for employers regarding medical examinations and inquiries during the COVID-19 pandemic, linked here.

The guidance explains why each of the following employer actions are permissible under the current circumstances and reminds employers of important considerations if they are doing any of these:

• Asking about symptoms of COVID-19
• Taking body temperature of employees
• Requiring employees with COVID-19 symptoms to stay home
• Requiring doctors' notes certifying fitness for duty to return to work

Brooks ... Read More 

On March 17, 2020, North Carolina Governor Roy Cooper issued Executive Order No. 118 expanding the availability of unemployment insurance benefits to workers who have been affected by COVID-19 (commonly referred to as the coronavirus). The changes announced by Governor Cooper are consistent with U.S. Department of Labor guidance issued last week recommending that states utilize unemployment insurance benefits to lessen the financial burden caused by the coronavirus. Additionally, legislation currently pending before the U.S. Senate contains provisions that ... Read More 

Update: President Trump signed these Acts into law on March 18. They are expected to take effect no later than April 2.

Today the U.S. Senate voted to adopt House Bill 6201 with some corrections and clarifications. These changes make the bill much narrower than the earlier version. The President is expected to sign the bill into law. Additional legislation is in the works to address concerns about how employers are to meet the immediate cash flow obligation of paying for leave under this bill. 

The main provisions of the adopted bill are summarized below, but one of the most important ... Read More 

Updated March 27, 2020

In light of CDC recommendations regarding COVID-19, on March 15, 2020, North Carolina Gov. Cooper issued an executive order closing all public schools in North Carolina for two weeks, beginning Monday, March 16, 2020, through March 30, 2020.  On March 23, 2020, Gov. Cooper extended the closure to May 15, 2020.

North Carolina State Board of Education and Department of Public Instruction is providing North Carolina-specific guidance regarding what local boards of education and school districts are to do while schools are not in session and when ... Read More 

This article originally appeared on the North Carolina Bar Association's Blog on March 13, 2020.

Criminal Justice Section members should pay close attention to rapidly developing guidance from state and federal courts concerning COVID-19. The most recent guidance is summarized below, and the relevant orders are linked. Please also check with your local courts to track developments affecting you and your clients; as of 11:00 a.m. Monday, March 16, 2020, 16 counties were reporting court closings and/or advisories.

NC State Courts

Chief Justice Beasley entered an order on ... Read More 

House Bill 6201 was passed by the U.S. House of Representatives with bipartisan support. It creates an obligation for employers with fewer than 500 employees to provide job-protected leave and paid sick leave to employees for absences related to COVID-19. The Senate is expected to take up the bill today, and the President has expressed his support for it. While things could change, as everything has been recently, here’s what we know about the bill now:

Emergency Family and Medical Leave Expansion Act:

• What do you mean expansion? There would be a new reason that leave may be ...

U.S. employers recognize that COVID-19 (commonly referred to as the coronavirus) presents a potential hazard to the well-being of their employees, and many have already taken practical steps to reduce the risk of transmitting the disease in the workplace. All employers are encouraged to review guidelines recently published by the Centers for Disease Control and Prevention (CDC) (available here) for employer-specific strategies to combat the coronavirus.

While physically preparing workplaces and instructing employees about best practices is vitally important, employers ... Read More