Gibbons Law Alert

Gibbons Law Alert Blog

EEOC Injects Guidance on COVID-19 Vaccine Practices in the Workplace

by Susan L. Nardone and Cassandra J. Neugold

Posted in Disability / Discrimination / Policies and Handbooks

On December 23, 2020

In the wake of the Food and Drug Administration’s Emergency Use Authorization of the Pfizer and Moderna COVID-19 vaccines, the Equal Employment Opportunity Commission (EEOC) addressed a question weighing heavily on the minds of businesses and their employees: can an employer require its employees to get vaccinated? The EEOC’s December 16, 2020 guidance answered that question in the affirmative, but, as with most pronouncements during the pandemic, the issue is far from simple, and employers must pay close attention to what the guidance says, and what it does not say, when crafting their COVID-19 vaccination policies. The EEOC Guidance characterizes an employer-mandated vaccine as an Americans with Disabilities Act (ADA)-permitted, safety-based qualification standard, akin to “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” Employers can require employees to get a COVID-19 vaccine, but must allow for exceptions where employees are unable to receive the vaccine because of either disabilities or sincerely held religious beliefs. Employees with Disabilities: Where a mandatory vaccination policy would screen out an individual with a disability, the employer must show that the unvaccinated employee would pose a direct threat in the workplace due to a “significant risk of substantial harm to the health or safety of the individual or...

Pushing the Limit: The District of Oregon Concludes that the Attorney-Client Privilege May Apply to Communications Not Involving Attorneys

by Gibbons P.C.

Posted in General Litigation

On December 22, 2020

In Ozgur v. Daimler Trucks N. Am. LLC, Judge Mosman, from the United States District Court for the District of Oregon, found that certain emails in the possession of Daimler Trucks North America LLC (“Daimler”) and that were sought by plaintiff were protected by the attorney-client privilege, as the communications were made for the purpose of obtaining legal advice, despite some of the emails not including an attorney as an author or recipient. In this action, plaintiff filed suit against Daimler for age discrimination in connection with his unsuccessful job application for a position opening posted by Daimler. The position that Daimler posted was already held by a foreign national whom Daimler sought to sponsor for a H1B1 visa so that he could remain in his position. In order to sponsor its employee, Daimler had to advertise the position and establish that there were no U.S. citizens who were willing and able to perform the position, then submit such proof to the Department of Labor. To assist in complying with the Department of Labor and immigration laws, Daimler retained outside immigration counsel. The emails disputed in this proceeding were communications involving outside counsel and Daimler employees, including a recruiting manager and a hiring manager. In determining whether the disputed emails were privileged, the court stated...

Congress Reaches Agreement on Additional COVID-19 Relief

by Michael D. DeLoreto

Posted in Federal Legislation

On December 21, 2020

On Sunday, December 20, 2020, Congressional leaders announced an agreement on a fourth major COVID-19 response bill. Although the legislative language is being finalized, statements from the parties involved in negotiations indicate the agreement includes focused relief for businesses, individuals, and families. For businesses: Expansion of the Paycheck Protection Program (PPP). The proposal includes more than $284 billion for first and second forgivable PPP loans. PPP will now be accessible to nonprofits, local newspapers, TV, and radio broadcasters. Dedicated PPP set-aside for small businesses and lending through community-based lenders like Community Development Financial Institutions (and Minority Depository Institutions). $15 billion in dedicated funding for live venues, independent movie theaters, and cultural institutions. $20 billion for additional grants under the Economic Injury Disaster Loan Program. Provision of a tax credit to support employers offering paid sick leave. Extension and improvement of the Employee Retention Tax Credit. $82 billion in funding for colleges and schools, including support for HVAC repair and replacement to mitigate virus transmission and reopen classrooms. For individuals and families: A new round of direct payments worth up to $600 per adult and child. $25 billion in rental assistance for families and an extension of the eviction moratorium. Enhancement of the Low Income Housing Tax Credit to increase affordable housing construction and provide greater...

District Court Denies Protective Order in Putative Class Action: Production of Relevant ESI May Be Time Consuming and Expensive, But Not Unduly Burdensome

by Gibbons P.C.

Posted in General Litigation

On December 17, 2020

The District Court for the Eastern District of California recently denied a defendant’s motion for a protective order in a putative class action, finding that the information requested by plaintiff was relevant and subject to pre-certification discovery, and that defendant did not show that the electronically stored information (ESI) was inaccessible due to undue burden or cost, pursuant to Rule 26(b)(2)(C). Additionally, the court determined that even if defendant could show that the ESI was “inaccessible,” plaintiff demonstrated “good cause” to order production of the ESI notwithstanding the potential burden and cost. In Sung Gon Kang v. Credit Bureau Connection Inc., plaintiff, a consumer, filed a putative class action alleging that defendant provided businesses with inaccurate consumer credit information, including that plaintiff and the proposed class of consumers were included on the United States Treasury Department’s Office of Foreign Assets Control (OFAC) list. A consumer is ineligible for credit in the United States if he or she is included on the list. Plaintiff sought to “represent classes consisting of individuals ‘about whom Defendant … sold a consumer report to a third party’ that included an OFAC Hit.” The discovery dispute centered on defendant’s objections to plaintiff’s first set of written discovery requests. Specifically, defendant objected to requests seeking the identities of individuals who had an...

USEPA Provides Draft Guidance on Application of “Functional Equivalent” Analysis for Clean Water Act Permitting Program

by Gibbons P.C.

Posted in Environmental and Green Issues

On December 16, 2020

The United States Environmental Protection Agency (USEPA) issued a Draft Guidance Memorandum regarding how to apply the Supreme Court’s most recent Clean Water Act decision in County of Maui v. Hawaii Wildlife Fund from earlier this year. In that case (which we previously wrote about here and here), the Court held that the Clean Water Act Section 402 National Pollutant Discharge Elimination System (NPDES) program requires a permit where there is a “functional equivalent of a direct discharge” from a “point source” into “navigable waters.” As the USEPA draft guidance notes, the Court’s decision outlines “seven non-exclusive factors that regulators and the regulated community may consider in determining whether a “functional equivalent of a direct discharge” exists in a particular circumstance. The draft guidance aims to place the functional equivalent standard “into context within existing NPDES permitting framework.” Additionally, the draft guidance “identifies an additional factor” relevant to the analysis. The draft guidance emphasizes that the County of Maui decision did not modify the two threshold conditions that trigger the requirements for a permit. These conditions are that there must be an actual discharge of a pollutant to a water of the United States, and that that discharge must be from a point source. “Instead, Maui clarified that an NPDES permit is required for only...

Roll-Out of COVID-19 Vaccines in New Jersey

by Gibbons P.C.

Posted in State Legislation

On December 15, 2020

Pharmaceutical innovation has positioned the world to witness the beginning of the largest vaccination effort that humankind has ever seen. Vaccine doses for COVID-19 are arriving in New Jersey this week, and the first doses will be injected in the arms of frontline healthcare workers and seniors by the close of business today in Newark’s largest hospital. More important than today’s historic event, the current New Jersey plan to vaccinate 70 percent of the Garden State’s current eligible population is worth reviewing. As the COVID-19 vaccines roll out, New Jersey plans to follow the Phased Approach framework crafted by the Centers for Disease Control and Prevention (CDC). Under the CDC’s framework, the initial wave of vaccines will be administered first to healthcare personnel. More specifically, Phase 1A of New Jersey’s COVID-19 vaccination plan will include “any paid or unpaid persons serving in healthcare settings who have the potential for direct or indirect exposure to patients or infectious materials and are unable to work from home.” Examples of workers within healthcare settings who are eligible to receive COVID-19 vaccinations during Phase 1A include, but are not limited to: Licensed healthcare professionals, such as doctors, nurses, pharmacists, and dentists; Healthcare staff, including receptionists, janitors, clergy, mortuary services, and laboratory technicians; Consultants and per diem contractors who are...

Federal Preemption of ‘Structure/Function’ Claims on Dietary Supplements

by Michael R. McDonald

Posted in Class Action Defense

On December 14, 2020

Congress amended the Federal Food, Drug, and Cosmetic Act (FDCA) with the Nutrition Labeling and Education Act (NLEA) in 1990 and, in 1994, with the Dietary Supplement Health and Education Act (DSHEA), which provided the Food and Drug Administration (FDA) with regulatory authority over dietary supplements and specifically established “standards with respect to dietary supplements.” Together, the NLEA and DSHEA established “a new category of food products—specifically, dietary supplements—that have unique safety, labeling, manufacturing, and other related standards.” Kroessler v. CVS Health Corp., 977 F.3d 803, 808 (9th Cir. 2020). With Congress finding consumers “should be empowered to make choices” about potential benefits of dietary supplements, DSHEA implemented major shifts in dietary supplement regulation, including exempting “dietary supplements” from FDA drug approval and FDA food additive approval, 21 U.S.C. §321(g)(1), and expressly permitting dietary supplement labels to make “structure/function claims.” 21 U.S.C. §343(r)(6)(A). By definition, a structure/function claim “describes the role of a nutrient or dietary ingredient intended to affect the structure or function in humans [or] characterizes the documented mechanism by which a nutrient or dietary ingredient acts to maintain such structure or function.” Id. at §343(r)(6). Federal law allows such label claims, provided: (1) the manufacturer “has substantiation that such statement is truthful and not misleading”; (2) the label contains a prominent disclaimer that the statement...

Cooperation Is Key: E.D.N.Y. Decision Illustrates the Risk of Refusing to Cooperate in Discovery

by Kevin H. Gilmore

Posted in General Litigation

On December 11, 2020

While litigation is inherently adversarial, counsel and litigants would be well-served to recognize that “zealous advocacy” and cooperation need not be mutually exclusive, especially in cases with significant amounts of electronically stored information (ESI). A recent decision from the District Court for the Eastern District of New York illustrates the risk a party and/or counsel takes in refusing to engage in the meet and confer process. This decision also reaffirms the fact that, when parties are working on crafting ESI search terms, it is the parties, not the court, who are in the best position to resolve such discovery disputes through the meet and confer process required under FRCP 26. Cooperation during the discovery process is not only economical in avoiding potential costly disputes, but also required by the Federal Rules of Civil Procedure. In particular, Rule 1 instructs the parties must help the court to “secure the just, speedy, and inexpensive determination of every action and proceeding.” To effectuate that goal, Rule 26(f) requires cooperation by the parties in formulating a discovery plan and meaningfully meeting and conferring in the event a discovery dispute arises. In the event the parties fail to cooperate, Rule 37 provides the court the ability to sanction a party for failing “to cooperate in discovery.” Additionally, many times, the...

Section 230: What Is It and Why Is Everyone Talking About It?

by Gibbons P.C.

Posted in Federal Legislation

On December 10, 2020

Section 230 of the Communications Decency Act of 1996 (“Section 230”), 47 U.S.C. § 230(c), has garnered significant attention in the media in recent months. But what is Section 230 and why are both President Trump and President-Elect Biden talking about its repeal? Section 230 is commonly referred to as the 26 words that created the internet. It ensures that an online platform can host and transmit third-party content without the liability that attaches to a publisher or speaker under defamation law, and encourages self-regulation by allowing online platforms to remove offensive content in good faith from their platforms. 47 U.S.C. §§ 230(c)(1)-(2). Yelp, Facebook, Twitter, and Wikipedia have flourished in part because of the simultaneous protection from liability for defamatory statements posted by third-party users and from the removal of harmful or discriminatory content. Some believe that repealing Section 230 is long overdue, because what started out as a law meant to reward online platforms that remove harmful content in good faith has transformed into a broad liability shield. In one circumstance, that protection extended even to an online platform that recommended terrorist content to a user based on that user’s preferences. See Force v. Facebook, Inc., 934 F.3d 53 (2d Cir. 2019). Others argue that the repeal of Section 230 would have many...

New Jersey’s Patent Filings Place It Fifth in the Nation for Innovation

by Christine A. Gaddis

Posted in Patent / USPTO

On December 8, 2020

NJBIZ recently reported on a study from CommericalCafe that named New Jersey the fifth most innovative state based on the number of patents filed and granted in New Jersey from 1975 through 2019. Of those patents, New Jersey’s top sections were: (1) Chemistry and Metallurgy, (2) Electricity, (3) Human Necessities, (4) Physics, and (5) Emerging Cross-Sectional Technologies. New Jersey’s standing is not limited to the acquisition of patent rights, but includes the enforcement and protection of those rights as well. This year, the Administrative Office of the U.S. Courts reported that the United States District Court for the District of New Jersey ranks seventh in the nation for the number of intellectual property cases filed in the 12-month period ending on March 31, 2020. Given the importance of development and enforcement of intellectual property rights in New Jersey, Gibbons P.C.’s Intellectual Property Department, headquartered in Newark, New Jersey, is routinely called on to represent its New Jersey clients in handling both patent prosecution and litigation across a vast number of industries.