Many employers are considering implementing a mandatory vaccination policy. Can you? Yes. Should you? It depends on your business, and consideration of the following issues:
Accommodating Certain Employees—Your company can implement a mandatory vaccination policy requiring all employees to be vaccinated before returning to the office. However, the policy must recognize that the company may need to make accommodations, if feasible, for certain employees who oppose getting vaccinated for religious or medical reasons.
Using Third Party to Administer Vaccine—If your company retains someone to give the vaccine on-site, it must ensure that no confidential medical information is obtained in the process. When using a third party to administer the vaccine, the company can require proof from that third party that the vaccine was administered. But again, the company should not have access to the employee’s confidential medical information.
Employees that Refuse Vaccine—Your company must be prepared for employees who refuse to get the vaccine for medical, religious or other reasons. If an employee refuses to get the vaccine, your company would have to engage in an interactive process to determine whether that employee being in the workplace without being vaccinated would pose a direct threat to other employees. In assessing that direct threat, your company would need to engage in an individualized assessment and consider the following four factors as to the unvaccinated employee:
(1) duration of the risk;
(2) nature and severity of the harm;
(3) likelihood of the harm; and
(4) imminence of the harm.
A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite. If an employer concludes an employee is a direct threat, the employer might have grounds to terminate the employee, but only after considering whether the employer is able to accommodate the employee working remotely. Read More
The Paycheck Protection Program (PPP) provided much needed assistance to small businesses affected by COVID-19. While the PPP is a small business loan program within Section 7(a) of the Small Business Act, PPP loans are subject to payment deferral and immediate forgiveness if the borrower uses the funds in an authorized manner. As loan forgiveness is the highlight of the program for most small businesses, it is important to understand the requirements for forgiveness. Here are answers to seven of the most asked questions regarding loan forgiveness.
I received a loan under a Small Business Administration (SBA) Program in response to COVID-19. Will it be subject to forgiveness?
Not necessarily. Only PPP loans are subject to forgiveness. Other SBA loans, including an Economic Injury Disaster Loan (EIDL), are generally not subject to forgiveness even if used in response to COVID-19. However, there may be an exception for certain portions of EIDL funds or if you received an EIDL and then later refinanced those proceeds into a PPP loan.
How must the business use the PPP funds to be eligible for forgiveness?
A PPP loan may be forgiven if the borrower used those funds to maintain employment and salary levels during the eight to twenty-four weeks (the “Covered Period”) after receipt of funds. A borrower may also use PPP funds for limited non-payroll expenses such as rent payment or utilities. However, a borrower cannot use more than 40% of its loan funds for non-payroll expenses.
When can I apply for forgiveness?
A borrower can apply for forgiveness once they have used all loan proceeds for which they are requesting forgiveness. A borrower cannot request forgiveness on proceeds not yet used. Under the terms of the PPP, a borrower may request forgiveness at any point prior to the maturity date of the loan. Read More
Within the last year millions of employees find themselves working from home for the first time. With the sudden shift to working from home, companies are facing new and unique challenges in order to protect trade secrets and confidential information.
Trade secrets can include formulas, drawings, patterns, compilations including customer lists, programs, devices, methods, techniques, and processes. There are several ways you can protect your valuable trade secrets while your employees work from home. Here’s how to do it.
The value of trade secrets lies in the competitive advantage they provide your company. Today, information is more easily shared, putting trade secrets more at risk than ever before. The risk of failing to protect a company’s trade secrets in the context of remote work has markedly increased. Employees and the devices on which trade secrets are stored and viewed may be under less direct corporate supervision. The penalty in lost intellectual property and company investment can be significant, if not catastrophic.
The law requires that a company take “reasonable measures” to protect its trade secrets. What are “reasonable measures” when most of a company’s work force is working remote?
We recommend the following steps in order to protect trade secrets in a remote work environment. These initiatives will require company-wide coordination among different departments, including IT, HR, legal, and management.
Clearly identify for employees what specific information your company considers to be trade secrets. Mark the documents with a stamp or watermark that says, “TRADE SECRET”. Don’t stamp something as a trade secret unless it is a trade secret. By claiming an overly broad swath of information to be trade secrets, a company risks confusing its employees. Remind remote employees periodically that the protection of trade secrets is a corporate priority. Pop-ups can reiterate the importance of security each time a trade secret is accessed via electronic device. Read More
Qui Tam/False Claims Act partner Pamela Coyle Brecht will be presenting at the Pennsylvania Bar Institute’s Health Law Institute 2021 virtual event. The live webcast will be held on Tuesday, March 16, 2021.
Ms. Brecht will be speaking on the “False Claims Act Update” with fellow panelists Gregory David and Matthew Hogan.
For more information about the program, including to register, please visit the PBI program website.
For more information about Pamela Coyle Brecht or the firm’s nationally-recognized False Claims Act practice, we invite you to visit our False Claims Act Resource Center. Read More
In today’s international marketplace, it is critical to keep in mind the reach of American federal statutes which have significant impact on foreign jurisdictions. The Foreign Corrupt Practices Act (“FCPA”), enacted in 1977, contains two key provisions: (1) a prohibition on bribery of foreign officials, and (2) accounting and reporting provisions for companies registered with the Securities and Exchange Commission (“SEC”). 15 U.S.C. §§ 78dd-1-3. The Department of Justice has increasingly made headlines using this powerful law. In 2014 alone, the United States prosecuted seven corporate FCPA enforcement actions. In just those seven cases, the Department of Justice collected $1.25 billion in criminal fines – an all-time record.
The anti-bribery provision of the FCPA criminalizes the “offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift, promise to give, or authorization of the giving of anything of value” to foreign officials for the purpose of obtaining or retaining business. Id. at § 78dd-1(a). There is an exception for payments or gifts made “to expedite or secure the performance of a routine governmental action.” Id. at §78dd-1(b). The statute also provides two interesting affirmative defenses. Defendants may be excused from liability if (1) the payment was legal under the written laws of the recipient’s country; or (2) the payment was a “reasonable and bona fide expenditure” toward specific, enumerated ends. Id. at § 78dd-1(c).
A Helpful Checklist
If your company operates overseas, it is time and money well spent to review the following aspects of your business:
(1) Identify the nature of your business and all sectors in which you operate;
(2) Identify all nations in which you operate and/or engage in commerce;
(3) Research the Corruptions Perception Index published by Transparency International (a global coalition with the mission to stop corruption and promote transparency, accountability and integrity at all levels and across all sectors of society) for each nation in which you operate and/or engage in commerce (available at www.transparency.org); Read More
On May 13, 2019 the Supreme Court of the United States, in a unanimous decision, delivered an important victory for qui tam whistleblowers in United States ex rel. Hunt v. Cochise Consultancy, Inc., (Hunt).[1] The decision, authored by Justice Clarence Thomas, held that private qui tam whistleblowers are entitled to the extended statute of limitations period in the federal False Claims Act (FCA) that many federal courts had previously reserved only for FCA lawsuits filed by the government. This decision is important because: (1) it affords whistleblowers the same amount of time as the government to file a claim against those who defraud taxpayer-funded programs; and (2) it resolves a split in the lower federal courts as to how to interpret the statute of limitations provisions in the FCA.
The Supreme Court’s decision resolves the application of the FCA’s statute of limitations provisions, which provide:
(b) A civil action under section 3730 may not be brought— (1) more than 6 years after the date on which the violation of section 3729 is committed, or (2) more than 3 years after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances, but in no event more than 10 years after the date on which the violation is committed, whichever occurs last.[2]
Although federal courts have unanimously applied the six-year statute of limitations to qui tam lawsuits, there was a split between lower federal courts as to whether Section 3731(b)(2)’s three-year limitations period also applied to qui tam lawsuits. In particular, the Circuit Courts of Appeal were split along the following lines:
The Fourth and Tenth Circuit Courts of Appeal had ruled that Section 3731(b)(2) did not apply to a relator-initiated action in which the government elects not to intervene.[3] Read More
Pietragallo’s Marc. S. Raspanti will speak once again at the ABA’s award winning False Claims Act Trial Institute on June 19th, in New York, at Fordham University.
The award winning False Claims Act Trial Institute will feature a two-day mock False Claims Act jury trial, in which Marc S. Raspanti and other lawyers from the government, relators’ and defense bar will try a health care fraud case to a jury. A hallmark of this innovative program is the televised jury deliberations. As the number of False Claims Act cases filed continues to rise, the number of cases that are tried also increases. The Institute will focus on the unique, and often little understood, discovery, evidentiary and trial challenges that the parties must negotiate to successfully litigate and try a False Claims Act case.
For more information and to register for the event, please visit:
https://www.americanbar.org/events-cle/mtg/inperson/349697737/ Read More
Pietragallo’s Doug Rosenblum rode his bicycle this weekend for the American Cancer Society’s Bike-A-Thon from Philadelphia to Atlantic City, New Jersey. Doug rode as a part of Team Jefferson Health. The American Cancer Society’s “Bike-A-Thon” is a fund-raising event featuring four start-points with six route options and each rider is encouraged to raise at least $200.
Doug raised $2,058 and rode 67.5 miles in honor of his Dad who is a physician at Jefferson Health. The entire amount raised by Team Jefferson Health was $26,212.01 (which was double their team goal).
For more information about Doug Rosenblum or this particular event, please visit
Here (Doug Rosenblum) and Here (American Cancer Society Bika-A-Thon) Read More
Michael A. Morse will present at the Pennsylvania Institute of Certified Public Accountants on June 11, 2019 in Malvern, PA. His presentation, “Do your Ethics Policies address Fraud, Waste and Abuse?” will address CPA’s Ethical Obligations, Elements of an Effective Healthcare FWA Program, Federal/State Health Care Fraud Statutes, and more.
For more information and to register for this event, please visit here:
https://www.picpa.org/attend-cpe-events/conferences/picpa-health-care-conference Read More
Earlier this year in a case of first impression, the Superior Court of Pennsylvania found corporate “no-hire” policies void against public policy.
Pittsburgh Logistics Sys., Inc. v. BeeMac Trucking, LLC, 2019 PA Super 13 (Jan. 11, 2019) involved a service contract entered between Pittsburgh Logistics Systems, Inc. (“PLS”) and BeeMac Trucking LLC. (“BeeMac”). PLS, a third-party logistics provider, assists clients in shipping materials through proper avenues at the best price. PLS contracted with BeeMac to coordinate a materials shipment from BeeMac. The contract included a provision prohibiting BeeMac from directly or indirectly hiring any employee of PLS during the life of the contract and for two years afterwards. While the agreement was still in force, four PLS employees left PLS to join BeeMac. PLS sought a preliminary injunction based on the no-hire provision.
In an en banc opinion, the Superior Court voided the “no-hire” provision as against public policy. The PLS employees did not know about the provision and were not provided any additional consideration in exchange for this restraint. The Superior Court reasoned that the “no-hire” provision was, in effect, a backdoor restrictive covenant prohibiting the free movement of PLS employees. Two judges dissented, arguing that conflating BeeMac’s corporate agreement to not hire employees with individual non-compete agreements was incorrect as a matter of law and that the “no-hire” provision was not against public policy.
There are two immediate takeaways. First, the decision demonstrates that a court will restrict freedom of contract between sophisticated commercial employers if it finds that the contract derogates the interests of employees. Second, this holding dampens one potential method for a company to shield confidential business information. Accordingly, businesses should place greater emphasis on strong confidentiality agreements with key employees.
The analysis of Pittsburgh Logistics Sys., Inc. v. BeeMac Trucking, LLC may not be complete. Read More
