MSLaw Blog

Last week, the U.S. Equal Employment Opportunity Commission (EEOC) released additional information within its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” guidance. In March 2020, the EEOC began periodically releasing frequently asked questions and corresponding answers about the intersection of the laws it enforces and COVID-19. As the enforcer of workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA), the Rehabilitation Act, Title VII of the Civil Rights Act (“Title

In a seminal 6–3 decision for LGBTQ rights on Monday, June 15, 2020, the Supreme Court of the United States held plainly: An employer who fires an individual merely for being gay or transgender defies the law. The Opinion by Justice Gorsuch, issued more than eight months after the Supreme Court heard oral arguments in the three consolidated cases at the center of this action, provides that an employer who intentionally treats a person worse because of sex—such as by

In my last post, “Real Estate Alphabet Soup: N Is for Notice” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter “O.” O is for “Option”.  In both the sale and leasing of real estate there may be an “option” involved. An “option” contract is a binding agreement or contract between the parties in which the property owner agrees that a party shall have the privilege to purchase the

With the onset of COVID-19, there is increased attention on force majeure clauses – what they are, when they can be invoked, how they operate, and how they might change in the future. This is especially true in construction matters, where many projects have been delayed, often due to some combination of the following: government regulations and executive orders implementing quarantines, stay-at-home orders, or other restrictions; decreased workforce due to illness; unavailability of goods and materials; loss of access to

You don’t need a legal blog to tell you that the country is in a state of extreme unrest regarding the killings of George Floyd, Ahmaud Arbery, Breonna Taylor and so many other Black people, at the hands of police and in other racially charged incidents. People in the United States and abroad have engaged in protests about issues related to race in America, including police brutality and institutional racism. In addition to people protesting in the streets, millions more

The U.S. Department of Justice (“DOJ”) is scrutinizing borrowers who have applied for loans through the Small Business Administration’s Paycheck Protection Program (“PPP”), established by the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). To date, the DOJ has filed charges in seven separate cases against defendants accused of fraud in connection with PPP loans, and the number of charges continue to grow. These charges demonstrate the Government’s strong intent to claw back any loan proceeds which were obtained

On May 28, 2020, the U.S. House of Representatives near-unanimously passed the Paycheck Protection Program Flexibility Act of 2020, H.R. 7010 (the “PPP Flex Act” or the “Flex Act”) as national leaders look to provide additional, more expansive support to small businesses impacted by COVID-19. The Senate passed the PPP Flex Act on June 3, and President Trump signed it into law on June 5.  This bill follows multiple rounds of guidance released by the Small Business Administration (the “SBA”),

On May 7, 2020, in accordance with Article II, Section 16(c) of the Maryland Constitution, Governor Hogan allowed hundreds of Maryland bills to become law without his signature. Many of these laws will have direct implications on the workplace that employers should be aware of. A summary of these employment-related laws is provided below. All will become effective on October 1, 2020. Expansion of Employers’ Notification and Reporting Obligations for Workforce Layoffs S.B. 780, referred to as “Maryland’s Mini-WARN Act” (a state

On May 28, 2020, The Secretary of Commerce opened a new investigation to determine the effects on national security from imports of vanadium, pursuant to its authority under Section 232 of the Trade Expansion Act of 1962.  Interested parties are invited to submit written comments, data, analyses, or information pertinent to the investigation, no later than July 20, 2020.  A party potentially impacted in any way – directly or indirectly - by vanadium tariffs should consider submitting comments. Section 232 is

Businesses required by the Occupational Safety and Health Administration (OSHA) to maintain a log of work-related injuries and illnesses—referred to as an “OSHA 300 Log”—must now pay additional attention to whether employee cases of COVID-19 are “work-related” and therefore recordable. As of May 26, 2020, OSHA has announced that its earlier enforcement guidance— exempting employers (except for those in certain high-risk industries) from recording cases of COVID-19 absent obvious indications of “work-relatedness”—will be rescinded and replaced with a revised enforcement

U.S. Citizenship and Immigration Services (USCIS) today announced that it will resume premium processing for Form I-129 and Form I-140 petitions in phases over the next month. On March 20, USCIS announced the temporary suspension of premium processing for all Form I-129 and I-140 petitions due to the coronavirus (COVID-19). Effective June 1, 2020, USCIS will accept Form I-907, Request for Premium Processing Service, for all eligible Form I-140 petitions. Effective June 8, USCIS will accept premium processing requests for: H-1B petitions filed

As MGT Construction 1 executives start pleading guilty to conspiracy to commit wire fraud and bank fraud, every construction company executive should reflect on the duties of disclosure owed to their bonding companies. Inadequate disclosures carry a range of legal risks. The legal risk of securing a performance bond without disclosing material facts typically arises through a claim by the bonding company for concealment of material facts. In such claims, the bonding company could request that sufficient collateral be provided to cover the

On May 8, 2020, the Office of Federal Contract Compliance Programs (“OFCCP”) announced the issuance of a new form that federal contractors must use to ask job applicants and employees to self-identify as disabled. This is the first revision to the form since March 2014, when the regulations implementing Section 503 of the Rehabilitation Act of 1973 were revised, and contractors were required to perform data collection regarding applicants and employees with disabilities. The 2014 regulations require federal contractors subject

On April 11, 2020, Virginia Governor Ralph Northam signed into law the Virginia Values Act (VVA), which will subject employers with more than five employees to state claims for discrimination with increased damages.  The new law, which goes into effect July 1, 2020, also adds gender identity and sexual orientation to the list of classes protected under the Virginia Human Rights Act (VHRA). Prior to the passage of the VVA, the VHRA only applied to employers with more than 5 and

With COVID-19 holding the global economy captive, Congress is attempting to head off what they predict will be an economic tidal wave of evictions, foreclosures and civil judgments by introducing The Small Business and Consumer Debt Collection Emergency Relief Act of 2020 (the “Bill”). Per its Senate sponsors, the Bill would modify and expand the Fair Debt Collections Practices Act or FDCPA (the “Act”)—the federal statute that regulates consumer debt collection practices—to better protect individuals during national emergencies and also

Governor Larry Hogan allowed Senate Bill 780 to become law without his signature on May 7, 2020. The law will become effective on October 1, 2020. This new law significantly revised the existing Economic Stabilization Act (MD Code, Labor and Employment §11-301 – §11-304)(“Act”) and will drastically change Maryland employers’ notification and reporting obligations regarding workforce layoffs. Previously, the Act provided voluntary guidelines for employers who intended to lay off employees regarding the provision of notice to those employees. Under the

On May 13, 2020, the U.S. Small Business Administration (SBA), in consultation with the U.S. Department of the Treasury, provided the following critical guidance on the good-faith certification requirement for Payroll Protection Program (PPP) borrowers (updated FAQ): Any borrower who, together with its affiliates, received PPP loans with an original principal amount of less than $2,000,000 will be deemed to have made the necessity certification in good faith. Borrowers with PPP loans at or above $2,000,000 may still be deemed to have

The COVID-19 emergency has impacted businesses throughout the country, from placing restrictions on reopening to dealing with the nuances of the CARES Act. Another workplace issue that will rise out of this national emergency is how the workers’ compensation system will deal with COVID-19 claims. Workers’ compensation is usually the exclusive remedy for employees injured at work. The system benefits employees by providing injured employees the prospect of swift and sure compensation, without having to prove their employer was at fault.

As shutdown orders expire and businesses reopen, questions arise on the possible liabilities created and the ability to mitigate them. Standards are emerging; some will be second-guessed. Previous modes of operation may continue or be rapidly changed. Trust and loyalty of customers and employees will soon be tested. Rules and recommendations will vary widely based on the nature of the business, its workspace footprints, exposure to the public and availability of necessary resources. What can be offered are not stringent

In a decision some believe may generate more trademark infringement litigation, the U.S. Supreme Court recently ruled that a trademark owner does not have to prove a defendant acted willfully to receive a profits remedy in some cases. On April 23, 2020, on appeal from the Second Circuit Court of Appeals, the Court decided Romag Fasteners, Inc., v. Fossil, Inc.  Under an agreement between Romag and Fossil, Romag made magnetic fasteners used on Fossil’s handbags and other products.  Romag learned, however,

On April 15, 2020, we provided an industry alert giving a summary of the initial structure of the Main Street Lending Program (MSLP). Since that date, the Board of Governors of the Federal Reserve System (the “Board”) has posted Term Sheets and Frequently Asked Questions dated April 30, providing additional clarity on the three facilities comprising the MSLP. This piece provides an overview of the MSLP in light of the additional guidance. MSLP is distinguished from the Payroll Protection Plan

Last month, Virginia’s General Assembly enacted a new law that makes contractors on large construction projects liable for unpaid wages owed to their subcontractors’ employees.  Senate Bill 838, codified at Virginia Code § 11-4.6 and § 40.1-29 has four major effects: It makes the general contractor—and all tiers of subcontractors working on the project—contractually liable to pay their subcontractor’s (at any tier) employees’ wages;  It requires that such payments equal or exceed those required by applicable statutes, such as Virginia’s Minimum Wage

In my last post, “Real Estate Alphabet Soup: M Is for Force Majeure” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter “N.” N is for “Notice.”  Every real estate contract or lease should include a paragraph containing “notice” provisions. Notice provisions typically will include the name, address and contact information for where and how any notice should be provided when required under the terms of the contract

On Sunday, May 3, 2020, the Centers for Disease Control and Prevention (CDC) updated their Frequently Asked Questions for General Business and released guidance for Symptom-Based Strategy to Discontinue Isolation for Persons with COVID-19. The new guidance is targeted at assisting employers as they try to navigate the landscape of reopening businesses during the COVID-19 outbreak. When returning individuals to work, the employer should take proactive measures to prevent the spread of the virus in the workplace, including limiting social interaction,

On April 30, 2020, the Internal Revenue Service (IRS) issued Notice 2020-32 (the “Notice”) to address the deductibility of loan amounts received under the Paycheck Protection Program (PPP) of the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). In summary, the IRS stated no tax deduction will be allowed for expenses paid with PPP loan proceeds to the extent such amounts are forgiven under the terms of the CARES Act. This alert outlines the PPP loan forgiveness provision

Until recently, employers had largely ignored unemployment claims other than to contest an occasional claim. Now, however, as employers consider different options to address the impact of the COVID-19 pandemic on their business, they find themselves struggling to understand the system and the impact it may have on their operations. While unemployment rules and regulations will vary on a state-by-state basis, there are some general principles that employers should understand to help them develop the best business plan for their

Governor Larry Hogan, the Maryland Department of Health (MDH) and the state’s long-term care provider community continue to take aggressive steps to combat COVID-19 in nursing homes and other long-term care settings. Most recently, on April 29, 2020, Governor Hogan issued Executive Order Number 20-04-29-01, which amended and restated all previous orders for nursing homes and other senior facilities and imposed new strict compliance requirements. The MDH published a new accompanying Directive and Order further clarifying the requirements from the Governor’s Executive

As indicated in an earlier Miles & Stockbridge Government Contracts blog post, contractor reimbursement language in Section 3610 of the CARES Act raised numerous questions that contractors attempted to answer in the early weeks since the CARES Act’s enactment. Section 3610 permits agencies to provide many federal contractors struggling to stay afloat during the COVID-19 pandemic with financial relief by reimbursing certain paid leave costs, including sick leave. Since enactment, several individual agencies have taken steps to answer many of

One of 2019’s most significant construction cases underscores the importance of strictly adhering to a contract’s written terms.  The case resulted from the FBI’s award to a general contractor a construction contract for a large FBI facility.  Part of the project involved fabricating and installing precast concrete panels on an existing parking garage structure.  The general contractor hired a subcontractor to fabricate and install the precast concrete panels. The FBI required the general contractor to verify and accept the existing parking

On April 22, 2020, President Trump issued a proclamation suspending the entry of certain immigrants for 60 days. The proclamation applies only to a limited group of new immigrants who are currently outside the United States and does not impact foreign nationals who are in the U.S. or who are seeking to enter on temporary visas. However, the proclamation does leave the door open for future restrictions, which may impact those in temporary work visa status such as H-1B, TN

On April 17, 2020, the Centers for Medicare and Medicaid Services (CMS) issued an MLN Matters Special Edition Article with additional guidance for rural health clinics (RHCs) and federally qualified health centers (FQHCs) during the COVID-19 public health emergency (COVID-19 PHE). The Coronavirus Aid, Relief, and Economic Security Act (CARES Act), which was signed into law on March 27, 2020, permits RHCs and FQHCs to furnish distant site telehealth services to Medicare beneficiaries during the COVID-19 PHE. Prior to the CARES

On April 17, 2020, the EEOC updated its guidance initially published on March 17, 2020, entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” to address additional employment concerns in the wake of the COVID-19 pandemic. Notable new topics addressed by the guidance, including issues related to temporary accommodations, undue hardship and returning to work, are discussed below. For a summary of the topics previously addressed by the EEOC in this guidance,

On Thursday, April 23, 2020, the U.S. Small Business Administration (SBA), in consultation with the U.S. Department of the Treasury, added new guidance to their Paycheck Protection Program (PPP) FAQ document, located here, which addresses certain questions regarding PPP loans under the CARES Act. This guidance was issued as Congress passed legislation that adds an additional $310 billion to the PPP. Most critically, SBA addressed the requirement that PPP borrowers certify that “[c]urrent economic uncertainty makes this loan request necessary

CMS continues to issue revised guidance to health care providers to assist them with dealing with the COVID-19 crisis, including blanket waivers of CMS’s conditions of participation (“CoPs”). New guidance published from CMS’s Center for Clinical Standards and Quality/Quality, Safety and Oversight Group expands these waivers to licensed independent freestanding emergency departments by allowing them to enroll as a Medicare/Medicaid-certified hospital and bill for both inpatient and outpatient services. Freestanding emergency departments (IFEDs) are state-licensed emergency departments that are unaffiliated with hospitals.

Atlantic Coast Pipeline, LLC (“Atlantic”) recently won another battle in its quest to construct an interstate natural gas pipeline across West Virginia, Virginia, and North Carolina.  Twenty-seven of its planned 604 miles traversed Nelson County, Virginia.  Nelson County’s zoning ordinance required a facility used to “transport” hazardous materials across a Special Flood Hazard Area obtain a discretionary variance from the Nelson County Board of Zoning Appeals.  Not wanting the pipeline and contending it would adversely impact its floodplain, the Nelson

The coronavirus has had an adverse impact on many businesses and affected their ability to meet financial obligations. To relieve financial strain, business owners have various options to discharge debt, modify loans and transfer property to their lenders. Below are some of the tax issues a business should consider when assessing debt relief options. Note this list is not exhaustive, and the options available will vary depending on a business’s particular situation. Transferring Property to Lender. The tax treatment of a

Effective immediately, U.S. Customs and Border Protection (CBP) is amending the CBP regulations to permit importers to temporarily postpone the deposit of certain estimated duties, taxes and fees. Ordinarily, those estimated duties, taxes and fees must be paid by importers for their merchandise as of the date of its entry, or its withdrawal from warehouse, for consumption. However, for certain merchandise entered in March or April 2020, qualified importers may postpone payment for a period of 90 days from the

Employees concerned about the coronavirus and its impact on their health and that of their family members have been speaking out in the workplace, on social media and in the press. Employees have been raising issues such as social distancing in the workplace, available safety equipment and disinfecting their workspaces. There have been a number of recent articles concerning discipline issued to employees for raising those concerns. Employees’ concerns and discussions about those concerns are likely to increase as businesses

As businesses continue to wait for curves to begin to flatten, there is little doubt that there will be increased pressure to resume operations as quickly as possible. Businesses should begin to consider now how they will comply with best practices to safeguard employees and avoid situations that put their employees at risk. Jeff Johnson’s March 26 blog post touched on OSHA’s emphasis to that date and is a good starting place for professional managers trying to anticipate problems that good

On March 5, 2020, Maryland Governor Larry Hogan proclaimed a state of emergency related to COVID-19. Pursuant to that proclamation, Governor Hogan and the Office of the Comptroller of Maryland (the “Comptroller”) have taken various actions to provide Maryland citizens with tax and reporting relief. Additionally, on March 23, 2020, Governor Hogan authorized $130 million in funding for the Maryland COVID-19 Emergency Relief Fund Programs for Small Businesses (the “Relief Fund”) and $7 million in funding for the COVID-19 Layoff

One of the few good things about a pandemic is that it can trigger the human instinct to share. If you are thinking about adopting or expanding a leave-sharing or PTO donation program, remember to consider the tax consequences to employees. The simplest form of a leave-sharing program is where one employee donates PTO to another employee or an employer-managed PTO bank. The donated PTO can be used by another employee for any reason or for certain reasons specified by the

On April 14, 2020, Maryland Governor Larry Hogan issued Executive Order 20-04-14-02 intended to provide publicly traded Maryland corporations and real estate investment trusts with greater flexibility in holding stockholder meetings by remote communication. Applicable to Maryland corporations and REITs that are subject to the reporting requirements of the ’34 Act, the Executive Order will remain in effect until Maryland’s state of emergency has been terminated and the proclamation of the catastrophic health emergency has been rescinded. The Executive Order will

Last month, the U.S. District Court for the District of Montana granted summary judgment to an environmental group, ruling that the U.S. Army Corps of Engineers violated Section 7(a)(2) of the Endangered Species Act (“ESA”) by failing to formally consult with the U.S. Fish and Wildlife Service or the National Marine Fisheries.  The Court held that the Corps’ re-issuing its Nationwide Permit 12 (“NWP 12”) without complying with the ESA “may affect” protected species or critical habitat. Nationwide permits are available

On April 9, 2020, the IRS issued Notice 2020-23 (the “Notice”), which extends additional tax deadlines to cover individuals, estates, corporations and others. The Notice also provides relief with respect to certain “Specified Time-Sensitive Actions” that are due to be performed on or after April 1, 2020, and before July 15, 2020. For purposes of the Notice, the term “Specified Time-Sensitive Action” includes certain deadlines for taxpayers to identify property and complete a 1031 exchange. It also includes the prescribed

Section 3610 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, enacted on March 27, 2020, provides the possibility of welcome financial relief for many federal contractors struggling to stay afloat during the COVID-19 pandemic. Subject to certain prerequisites and constraints, Section 3610 permits agencies to reimburse, at “the minimum applicable billing rate not to exceed an average of 40 hours per week any paid leave, including sick leave, a contractor provides to keep its employees in a ready

In my last post, “Real Estate Alphabet Soup: L Is for Lease” I continued my primer on the “alphabet soup” of real estate. This post continues to stir the “alphabet soup” with the letter “M.” As I write this blog, we are in the midst of the COVID-19 coronavirus pandemic. So I’m working remotely from home and “social distancing” to do my part and civic duty in helping to “flatten the curve” and slow the spread of the virus. When I first

On April 9, 2020, the IRS issued Notice 2020-23 (the “Notice”), which extends more tax deadlines to cover individuals, estates, corporations and others. The notice expands upon tax relief granted in prior IRS notices that postponed certain tax filing and payment deadlines until July 15, 2020. The Notice provides extensions for a variety of tax form filings and payment obligations that are due between April 1, 2020, and July 15, 2020, including estimated tax payments due June 15 and the

Is COVID-19 a disability under the ADA? To qualify as disabled under the Americans with Disabilities act, an individual must be: A person who has a physical or mental impairment that substantially limits one or more major life activities; A person who has a record of such an impairment; or A person who is regarded as having such an impairment.1 According to recent guidance released by the EEOC in a March 27 webinar, it is unknown whether COVID-19 would itself qualify as a disability under

The COVID-19 pandemic is creating havoc on all business sectors, including the commercial real estate industry. Among many challenges are determining safe and secure mechanisms for documenting business transactions and coordination and transmittal of the information needed to consummate them.  This is an appropriate time to revisit the benefits of blockchain, a transparent and secure method of document and information delivery, which has the added benefit of reducing personal interaction between the participants to the transaction. Blockchain, once known primarily as

The Coronavirus Aid, Relief, and Economic Security (CARES) Act and the Family First Coronavirus Response Act (FFCRA) contain provisions to help employers maintain their workforces. Notably, the relief available to employers under both Acts focuses on payroll and extends to certain nonprofit organizations. Below is a description of the relief available to nonprofit organizations under the CARES Act and FFCRA. Paycheck Protection Program Under the CARES Act, the federal government created the Paycheck Protection Program (PPP) to assist small businesses, including nonprofits,