North America

FDA Confirms That At-Home Collection Kits Are Not Authorized for Use with COVID-19 Tests

On March 16, 2020, FDA finalized its guidance titled Policy for Diagnostic Tests for Coronavirus Disease-2019 during the Public Health Emergency (the “Policy”). The Policy includes information and recommendations to assist laboratories and commercial manufacturers in development of diagnostic tests for the novel coronavirus (“COVID-19”) during the ongoing pandemic.

During the first week of implementation, questions arose regarding the extent to which the Emergency Use Authorization (“EUA”) pathway to market, as described by the Policy, covers at-home tests. The Policy specifically provides that it “does not apply to at home testing” (emphasis added). However, the industry still questioned the FDA’s stance on the use of at-home collection kits, allowing a consumer to self-collect a specimen and mail in a swab or similar collection device to a laboratory running an FDA-approved COVID-19 test.

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Michigan Joins Growing Lists of States Ordering Citizens to Stay Indoors

Joining California, Delaware, Illinois, Louisiana, Massachusetts, New Jersey, New York, Ohio, as well as multiple counties and cities, on March 23, 2020, Michigan’s Governor Gretchen Whitmer issued Executive Order 2020-21 (COVID-19) (“Order”), ordering that all Michigan residents “shelter in place” in response to the novel coronavirus (“COVID-19”), effective 12:01 a.m. on Tuesday, March 24, 2020, and continuing through April 13, 2020, at 11:59 p.m.

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PAID LEAVE –“The Families First Coronavirus Response Act” (H.R. 6201) Effective April 2-December 31, 2020

With Delaware Governor Carney’s order on Sunday, March 22, 2020, which ordered non-essential businesses (that includes public schools) to close “until May 15 or until the public health threat is eliminated,” the new March 18 federal employment law is even more likely to impact a large number of Delaware employees and employers in the coming weeks. Click here to read more about this new law and note that different rules applies to different employers.

If you have questions , feel free to contact Tim Holly at tholly@connollygallagher.com or (302) 252-4217.

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Massachusetts Temporarily Closes All Non-Essential Businesses

On March 23, Governor Baker issued an order requiring all businesses and organizations that do not provide “Covid-19 Essential Services” to close their brick-and-mortar operations at noon Tuesday, March 24 through noon on Tuesday, April 7, though they may continue to operate remotely.

Exhibit A to the Order designates certain production and service sectors as “Covid-19 Essential Services,” with the workforces engaged and working in these sectors designated as “Covid-19 Essential Workforces.”

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Massachusetts Adopts Emergency Regulations for Unemployment Insurance to Address the Impact of COVID-19

Due to the widespread economic impact of COVID-19 on Massachusetts businesses and employees alike, the Massachusetts Department of Unemployment Assistance (DUA) published emergency regulations to address the onslaught of new claims for unemployment insurance (UI) benefits. The purpose of these regulations is to ensure more flexibility in providing prompt financial assistance to employees unable to work due to COVID-19 and to extend the time period during which employers must file reports and remit payments to the DUA. This alert highlights important changes to the UI scheme in Massachusetts during the COVID-19 state of emergency. Read more…

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Businesses May Have Insurance that Could Lessen the Economic Impact of COVID-19

The COVID-19 pandemic has leveled a blow against businesses everywhere.  The Governors of New York, California, Illinois, and Pennsylvania, for example, have ordered all non-essential businesses to close their physical locations and the California Governor has ordered all residents, except those performing essential functions, to stay home.  Governors across the country have issued orders restricting various business activities.  The trend is likely to continue in the coming weeks and to adversely impact the bottom line of many businesses.

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Coronavirus Freezes Most Litigation Filings in New York State Courts, So Look Elsewhere for TROs and Preliminary Injunctions

For any attorney about to rush into New York State court to seek an injunction or temporary relief with regard to a violation of a non-compete or other restrictive covenant, or with regard to misappropriation of trade secrets, think again about venue.

By Administrative Order, dated March 22, 2020, Chief Administrative Judge Lawrence Marks has decreed that until further notice, New York State courts are accepting no filings unless the filings concern an emergency matter (as defined in the Order’s Exhibit A).  Neither restrictive covenant nor trade secret matters count as “emergencies.”

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New Jersey Enacts Anti-Retaliation Protections to Workers Impacted by COVID-19

On March 20, 2020, New Jersey Governor Phil Murphy signed legislation (A3848), which bars employers from taking any adverse employment actions against employees who take, or request, time off due to an infectious disease that could affect others at work based on a written recommendation of a New Jersey licensed medical professional.   It also precludes an employer from refusing to reinstate the employee to the position held when the leave commenced with no reduction in seniority, status, employment benefits, pay or other terms and conditions of employment.  Although enacted in response to the COVID-19 pandemic emergency, the law is not limited to the current public emergency, and does not include a “sunset” provision.

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First Federal COVID-19-Related Enforcement Action Filed as DOJ and FBI Commit to Preventing Fraud in the Nation’s Response to the COVID-19 Pandemic

After U.S. Attorney General, William P. Barr[1] and the Federal Bureau of Investigation issued warnings this week regarding potential fraudulent schemes that are being perpetrated in the nation’s response to the COVID-19 pandemic, on Sunday, March 22, 2020, the U.S. Department of Justice (DOJ) filed its first enforcement action to shut down COVID-19-related fraud.  DOJ attorneys moved in federal court in Austin, Texas for a temporary restraining order against operators of a website, coronavirustestingkit.com, alleged to have engaged in a wire fraud scheme by offering consumers access to “free” World Health Organization (WHO) vaccine kits in exchange for a shipping charge, which required consumers to enter credit card information on the website.[2] The website stated that the kits “only” required water to administer the vaccine and provided testimonials from “recent users.” The government alleged that claims made on the website are false, as the WHO is not offering free vaccine kits and there is not yet a scientifically proven vaccine, and that the intent of the website is to gain access to consumer credit card information.

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NLRB Postpones All Elections Indefinitely and Seriously Limits Other Agency Operations: The Status of NLRB Operations in the Face of COVID-19

The impact of the novel coronavirus has slammed employers across the globe, and federal agencies such as the National Labor Relations Board (“Board”) are no exception.  The Board announced Thursday the unprecedented step that it was suspending all representation elections, including mail ballot elections, for at least two (2) weeks until at least April 3rd.

Just days earlier, the Agency implemented a nationwide telework policy in both its headquarters and regional offices, encouraging employees of the agency to work from home.  While implementing the election freeze, the Agency highlighted that operations would be limited and open regional offices will maintain “minimal staff.”   In a press release, the Agency stated “given the closure of several regional offices and limited operations and significant telework at others, the Board does not believe that it is possible to effectively conduct elections at this time.”

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