COVID-19 Vaccinations: Thoughts for Employers

Dick Glovsky_106x126Williams_Kimberly_106x126by Richard D. Glovsky and Kimberly F. Williams

Practice Tips

As the COVID-19 vaccination becomes more readily available, many employers are considering whether to require that employees be vaccinated.  In December 2020, the Equal Employment Opportunity Commission (“EEOC”) issued guidance addressing questions related to the administration of the COVID-19 vaccination. Under this guidance, employers may implement a mandatory vaccination program or policy. However, before implementing such a policy, employers should give careful consideration to the legal issues that mandatory vaccination raises.

Legal Considerations for A Mandatory Vaccination Policy

If an employer decides to implement a mandatory vaccination policy or program, the following legal considerations should be evaluated.

First, an employer should determine whether to provide the vaccine to its employees itself or through a contracted third party or to require its employees to receive the vaccine from an independent third party such as a pharmacy or health care provider. Employers or their contracted third parties who provide the vaccine to their employers may only ask pre-screening questions that are “job-related and consistent with business necessity.” Employers should look to health care officials to determine the necessary pre-screening questions and delve no deeper than what the medical community advises is necessary. An employer whose pre-screening questions exceed the bounds of what is “job related and consistent with business necessity,” runs the risk of violating the Americans with Disabilities Act’s (“ADA”) prohibition against inquiries that elicit disability-related information. 

In contrast, if an employee receives the employer-required vaccine from an independent third party, the ADA’s “job related and consistent with business necessity restriction” will not apply. 

Second, under the EEOC guidance, an employer who requires vaccinations must allow for disability and religious exemptions. The guidance, consistent with the ADA, requires that employers exempt from mandatory vaccination requirements an employee whose disability (i.e. a physical or mental impairment that substantially limits a major life activity) prevents the employee from safely receiving the vaccine. If an employee claims they cannot safely receive the vaccine due to a disability, the employer must engage in a good-faith interactive process to determine whether the purported disability entitles the employee to an exemption or other accommodation such as working remotely, wearing a face mask, or limiting the employee’s contact with the public. 

Similarly, the guidance, in accordance with Title VII of the Civil Rights ‎Act of 1964 (“Title VII”), requires employers to provide an exemption or other accommodation if receiving the vaccine would implicate an employee’s “sincerely held religious ‎belief.” Proving a “sincerely held religious belief” is a relatively low bar.

In each of these instances, an employer does not need to provide an accommodation if doing so would pose “an undue hardship” on it. Undue hardship may include financial as well as accommodations that are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the employer’s business. 

Third, an employer who is considering mandating vaccinations should consider liability issues. The current vaccinations have only received Emergency Use Authorization, meaning that individuals who have the opportunity to receive the vaccination also have the right to refuse it. This sets up an inherent conflict between an employer’s mandatory policy and an individual’s right to refuse the vaccine as well as potential liability if the employee should be injured or harmed as a result of receiving the employer-mandated vaccine. Whether Workers’ Compensation laws will cover such injuries remains an open question.

Pros and Cons of a Mandatory Vaccination Policy

In considering whether to implement a mandatory vaccination policy, employers should recognize the pros and cons. One obvious pro is that a vaccinated workforce may be a safer one. It may also help bring employees back to the workplace. Working in the office or other business locations may help increase productivity and profitability and provide more certainty to workforce availability. It may also allow employers to avoid certain COVID-related risks and liabilities.

On the other hand, many people are unwilling or hesitant to receive the vaccine. Thus, a mandatory vaccination policy could be met with resistance from employees, leading to morale and retention issues. Additionally, vaccine availability and eligibility should be considered.  It may not make practical sense to require that employees be vaccinated if certain employees are not yet eligible to receive the vaccine or the vaccine is in short supply.    

Pros and Cons of a Discretionary Vaccination Policy

Nothing compels employers to mandate vaccinations. Many employers have adopted policies and programs to entice employees to be vaccinated. This “carrot” approach has included paid time off (“PTO”) for time taken to be vaccinated and for absences due to the side effects of a vaccine or for assisting family members to be vaccinated, gift cards, free Lyft rides to vaccination centers, and cash awards. As of the writing of this article, the EEOC is considering providing parameters for such incentives.

Further, a discretionary vaccine policy may result in a more content workforce and avoids ADA and Title VII issues. It also eliminates the specter of liability from an adverse reaction to a vaccine or its withdrawal from the marketplace, and it diminishes the administrative burdens necessitated by a mandatory policy, especially if the employer is administering its own vaccine program.

On the other hand, a discretionary policy may create a less safe work environment and may result in lesser emphasis placed on employee presence in the workplace.

What Employers Should Do  

First and foremost, all employers should vigilantly follow guidance from the Centers for Disease Control, EEOC, and other federal, state, and local agencies. They should continue to comply with and reinforce all existing safe workplace protocols.

Employers who decide to require vaccinations should develop, adopt, and provide to their employees the policies and protocols that will govern. They should provide a reasonable period for employees to be vaccinated, keeping eligibility and other factors in mind. At the end of the period by which vaccinations are required, employers should require written evidence of vaccinations having been administered and engage in the interactive process with those employees claiming a disability or religious exemption. Employers will also need to decide whether to terminate all non-vaccinated, non-exempt employees or allow those who refuse to be vaccinated to work (or continue to work) remotely.

Additionally, any employer who is considering a mandatory vaccination program and who contracts with a third-party vendor should consider inserting indemnity and hold harmless clauses into such contracts. Under the Public Readiness and Emergency Preparedness Act, employers are insulated from federal and state tort liability if they are “program planners” of a vaccination program. Program planners include employers who refer the administration of vaccines to third party vendors.

Finally, because not everyone will be vaccinated, and the length of the efficacy of vaccinations is unknown, COVID and its mutations most likely will be with us for quite some time.  Consequently, employers will need to consider these issues for the foreseeable future.

Richard D. Glovsky, Co-Chair of Locke Lord’s Labor and Employment Practice Group, is a Partner in the Firm’s Boston office. He handles significant employment-related litigation, including class actions, wage and hour issues, and discrimination and retaliation claims, and is a trusted adviser and general counsel to various companies and their senior executives.

Kimberly Williams is a Partner in Locke Lord’s Dallas office with experience representing employers in matters involving claims of discrimination, harassment, retaliation and wrongful discharge. She provides employment counseling and advice to clients on matters including hiring, firing, and other disciplinary action, wage and hour issues, leave issues and compliance with federal and state laws and regulations.


Our Steadfast Commitment to Justice

by Martin Murphy

President’s Page

For lawyers—indeed, for anyone who values the rule of law, cares deeply about civil rights, and envisions our legal system as a force to protect the most vulnerable among us—September 2020 was an extraordinarily cruel month. On September 14, we were shocked and deeply saddened to learn of the sudden death of Supreme Judicial Court Chief Justice Ralph D. Gants. And only four days later, Supreme Court Associate Justice Ruth Bader Ginsburg, finally lost her long battle with pancreatic cancer.

The next issue of the Boston Bar Journal will be dedicated to Chief Justice Gants and his legacy. I’ll have much more to say there about his loss, which so many of our members felt deeply and personally.

But as I write this—less than two weeks after Election Day, and only a few days after the BBA’s 2020 Annual Meeting—my thoughts turn to a New Yorker essay paying tribute to Justice Ginsburg, written by our Annual Meeting keynote speaker, Harvard history professor Jill Lepore. Professor Lepore summed up Justice Ginsburg’s life this way: “Aside from Thurgood Marshall, no single American has so wholly advanced the cause of equality under the law.” One example: Justice Ginsburg’s dissent in Shelby County v. Holder , criticizing the Court’s decision to read the critical pre-clearance provisions of the Voting Rights Act of 1965 out of the statute. “Throwing out pre-clearance when it has worked and is continuing to work,” Justice Ginsburg wrote, “is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Justice Ginsburg’s opinion quoted Martin Luther King’s familiar statement: “the arc of the moral universe is long, but it bends toward justice.” But, as Professor Lepore pointed out, when Justice Ginsburg read her dissent in open court, she added her own coda: “The arc of the moral universe is long,” she said, “but it bends toward justice if there is a steadfast commitment to see the task through to completion.” (You can hear Justice Ginsburg read her dissent here).

A “steadfast commitment to see the task through to completion” has long been part of the BBA’s DNA. Living up to that commitment remains as important now as ever.

At the end of May, we watched in horror as George Floyd called out “I can’t breathe” over and over and over. In the weeks and months that followed, we saw the possibility of a national reckoning on the question of race—and the prospect that here in Massachusetts we might take concrete steps to ensure that all police officers protect and serve everyone, including Black men and women and other people of color. The BBA’s Task Force on Police Accountability—chaired by former Suffolk County District Attorney Ralph Martin, now General Counsel of Northeastern, and Natashia Tidwell, a partner at Saul Ewing and the Court-appointed monitor in the Ferguson case—is hard at work on this issue, and we believe the BBA can make a meaningful contribution to public debate.

As the election approached, the BBA sponsored programs that trained dozens of volunteers to protect voters’ rights as we prepared for what we expected—for good reason—would be one of the most contentious elections in our lifetimes.

BBA programs also trained dozens more to represent the many tenants affected when the eviction moratorium was lifted in October, and we are assisting the Governor’s Office and legal-services stakeholders in their Eviction Diversion Initiative—all to try to prevent a tsunami of evictions and resulting surge in homelessness.

And at our Annual Meeting last week, I was honored to present the BBA President’s Award to the many lawyers who put aside the personal challenges we all faced when the pandemic hit to think, not of themselves, but about the more than 14,000 individuals detained at Houses of Correction and prisons—thousands of whom had not yet been convicted of any offense. Their work changed the standard for release of non-violent offenders (something the BBA has long advocated), secured mandatory COVID-19 testing for individuals detained on civil immigration charges at the Bristol County House of Correction, and led to the release of thousands of individuals.

But, as recent COVID-19 outbreaks in the Essex County jail and at the MCI-Norfolk state prison remind us, much work remains to be done on this issue. So too does much work remain on the BBA’s other priorities: ensuring police accountability, addressing the school to prison pipeline, supporting civil legal aid (particularly following the end of the eviction moratorium), protecting the rule of law, among others. And, most of all, much more work remains if we are to be serious about dismantling the system of structural racism that that has worked itself so deeply into the fabric of our country and its laws.

I know I speak for my predecessors, for the BBA’s volunteer leaders, and for its extraordinary staff, when I say that I am optimistic—indeed, confident–that our members will meet Justice Ginsburg’s challenge and continue to prove their steadfast commitments to each of these tasks.  

Marty is a partner at Foley Hoag LLP where he represents individuals, companies, educational institutions, non-profits, and law firms in complex civil litigation, criminal investigations, and regulatory proceedings. He is President of the BBA and has chaired a number of BBA Committees, including the COVID-19 Response Working Group, Immigration Working Group, Working Group on Criminal Justice Reform, Death Penalty Working Group and the Task Force to Prevent Wrongful Convictions.


Beyond Shelter: Sustaining Public Housing Communities During and After a Pandemic

by Kate Bennett and Joel Wool

Viewpoint

For nearly a century, through economic boom and bust, social progress and upheaval, and across many administrations, the Boston Housing Authority (“BHA”) has steadfastly provided “deeply affordable housing” for the City’s low-income residents. Established in 1935, the BHA currently ensures housing affordability for 58,000 residents in and around Boston. As the country continues to reckon with the COVID-19 emergency, the BHA’s mission to connect vulnerable residents to opportunities through housing has never been more urgent. This article highlights some of BHA’s efforts to support our public housing communities through the pandemic and beyond.

The challenges faced by low-income households cannot be overstated. Even before COVID-19, BHA residents—many of whom are elderly, disabled, people of color, and children—faced disproportionate levels of unemployment, food insecurity, and health risks, all of which have been amplified during the pandemic by a digital divide that threatens to isolate them from essential services, critical resources, and necessary systems of support. While local, state, and national governments grapple with the racial and economic disparities laid bare by COVID-19, BHA and other affordable housing providers have been tasked to expand their role through more front-line advocacy and direct assistance to better shelter our vulnerable residents from the impact of the global pandemic.

COVID-19 EMERGENCY RESPONSE

In March 2020, BHA responded swiftly to the public health crisis to safeguard our residents, employees, and the general public from the twin public health and economic crises:

  • Because housing authorities lack the authority to cancel rent payments even during a national pandemic causing crisis rates of unemployment, to ensure that tenants can remain safely in place without fear of becoming homeless, on March12, 2020, the BHA announced its immediate suspension of all “non-essential” (i.e., not critical to public health and safety) evictions for the duration of the Massachusetts state of emergency, and later extended the agency’s moratorium to at least through the end of 2020. The BHA, in concert with Mayor Walsh and other city partners, also urged the Housing Court’s cooperation in suspending all pending and new non-essential eviction cases in light of the significant health and safety risks exposed to all during court proceedings.
  • Consistent with evolving guidance, BHA implemented preventative measures to encourage social distancing and frequent cleaning and decontamination, including temporary closure of certain indoor common spaces, limitations on visitors in elderly housing, and postponement of inspections to reduce exposure and transmission risks in our vulnerable housing communities.
  • Working with the U.S. Housing and Urban Development and the state Department of Housing and Community Development, BHA shifted mission-critical operations to remote and electronic platforms with streamlined and flexible documentation requirements and extended deadlines, including the processing of applications, admissions, issuance of vouchers, transfer requests, annual and interim examinations, and even housing quality inspections.
  • BHA adapted interactions with residents, encouraging open lines of communication via telephone, fax, and e-mail; establishing an on-line rent payment option; providing secure drop-boxes for submission of rent and documents for households without internet access; limiting in-person transactions to locations with appropriate ventilation and space for social distancing; and ensuring important notices and information are disseminated in a manner accessible to persons with communication-related barriers including disabilities, language needs, and technology challenges.

CARES ACT SUPPORTIVE INITIATIVES

In April 2020, BHA modified many of its policies and procedures under the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act to better address the escalating loss of income due to COVID-19. For example, the BHA encouraged prompt reports of job loss and requests for minimum rent hardship exemptions, allowed unlimited, retroactive interim rent reductions for loss of income, and continued to limit out-of-court rent repayment agreements to 40% of the household’s adjusted monthly income, inclusive of the tenant’s regular rent share.

In May 2020, with COVID-19 exacerbating health issues, driving up household expenses, and worsening transportation-related barriers to accessing food and other necessities, our residents clearly needed more help. Consequently, BHA prioritized the use of its CARES Act funds not only to maintain existing operations but also to implement new initiatives to support the health, safety, and quality of life of our residents, including:

  • a multi-million dollar food contract with local minority- and women- owned businesses to ensure the reliable and safe delivery of sufficient fresh foods to BHA families and seniors facing food insecurity and barriers to safe access to grocery stores.
  • economic incentives to encourage landlord participation in a new homeless voucher program for families with children in Boston Public Schools.
  • distribution of free laptops and tablets for residents and technology upgrades to improve connectivity to improve remote access to education, jobs, and other opportunities and resources, and to reduce social isolation.
  • reconfiguring community rooms and other common spaces for the continued safe use by residents and to facilitate safe interaction within the housing community.
  • direct efforts to reach and support residents, from staff distribution of food, masks, and cleaning supplies to safe and socially-distanced support of youth engagement programs, such as a multi-media project where young BHA residents filmed their experiences of the pandemic within their family and community.
  • support of resident empowerment, leadership and participation in BHA policy development and planning activities through regular, facilitated virtual meetings with tenant organizations, including providing technical training, free tablets, and interpretation services.

PRESERVING AND CREATING AFFORDABLE HOUSING

Pandemic notwithstanding, the BHA has forged ahead with its plans for the renovation of all of its affordable housing facilities and pursuit of opportunities to create additional affordable housing units in the City. For example:

  • Through the summer and fall of 2020, BHA has used virtual platforms to advance the permitting process for the redevelopment of its 1,100-unit Bunker Hill federal public housing site into a mixed-income community through a public-private partnership, leveraging rents from additional, new market-rent units to support the 1-for-1 replacement and conversion of the existing deteriorated public housing units. Similar initiatives are underway throughout Boston to rehabilitate and preserve the affordability of BHA’s aging public housing stock, including at Mildred Hailey in Jamaica Plain, and Mary Ellen McCormack in South Boston.
  • BHA also launched “Generations BHA,” a plan to renovate and modernize BHA’s entire 3,600-unit federal elderly/disabled portfolio, including accessibility improvements, energy efficiency measures, plumbing, electrical, and fire protection. All Generations BHA units will remain under sole public ownership but convert from a public housing to a Section 8 Project-Based Voucher (“PBV”) subsidy platform.
  • BHA and City of Boston recently announced the preservation of 48 “expiring-use” units at the Mercantile Wharf in the North End using Section 8 PBVs.
  • A new Boston-funded municipal voucher program is anticipated to stabilize the housing of additional low-income Bostonians through a mix of project- and tenant-based rental assistance.

FUTURE DIRECTION

Even before the pandemic, the BHA provided the City’s low-income residents with much more than shelter. Today, when COVID-19 exposed a dangerous widening of historic disparities in income and access to safe and stable housing, and unprecedented levels of social isolation among low-income and elderly residents, BHA is redoubling its efforts to provide our residents with vital connections to achieve economic self-sufficiency and housing mobility, and to build a more just and equitable 21st-century society in which all families are able to meet their basic needs.

Kate Bennett is the Administrator and CEO of the Boston Housing Authority.  She oversees public housing and housing choice voucher programs that provide affordable housing for more than 50,000 people in and around the City of Boston. 

Joel Wool is Special Advisor for Policy and Planning for the Boston Housing Authority. Joel has supported BHA in directing state and federal COVID relief funds to critical initiatives and social equity measures. He is project lead on the new municipally- funded voucher program.

 


The Brief but Complicated Life of the Medical Parole Statute

by Jessica Conklin

Legal Analysis

In April 2018, the Massachusetts legislature passed the Criminal Justice Reform Act (the “Act”). In addition to enacting sweeping changes in the areas of bail, juvenile justice, diversion from prosecution, and reentry services, the Act established a statutory right to medical parole for all eligible inmates. The medical parole statute, codified at G.L. c. 127, §119A, provides terminally ill and permanently incapacitated prisoners who do not pose a public safety risk the right to be released from custody, regardless of the crime of conviction or the time remaining on their sentence. Until the Act was passed, Massachusetts was one of only a handful of states without this remedy.  

Medical Parole Basics

Under the Act, petitioning prisoners who meet the qualifying criteria “shall be released on medical parole.” G.L. c. 127 §119(e) (emphasis added). All inmates, including those sentenced to life without the possibility of parole, have a right to medical parole if they qualify. To be eligible for release, a prisoner must meet three conditions: (i) the prisoner must be terminally ill or permanently incapacitated; (ii) the prisoner must be able to live and remain at liberty without violating the law; and (iii) the prisoner’s release must not be incompatible with the welfare of society.   

As to the first condition, the Act defines “terminal illness” and “permanent incapacity,” but does not list specific qualifying illnesses or incapacities. Terminal illness is defined as “a condition that appears incurable, as determined by a licensed physician, that will likely cause the death of the prisoner in not more than 18 months and that is so debilitating that the prisoner does not pose a public safety risk.” Permanent incapacitation is defined as “a physical or cognitive incapacitation that appears irreversible, as determined by a licensed physician, and that is so debilitating that the prisoner does not pose a public safety risk.” The Act does not provide guidance on the second and third conditions; that is, it does not list factors to evaluate an inmate’s ability to live at liberty without violating the law or circumstances that might render an inmate’s release incompatible with the welfare of society.

Procedurally, the prisoner, an attorney, the prisoner’s relative, a medical provider of a correctional facility, or a Department of Correction (“DOC”) staff member may petition the superintendent or sheriff of the facility where the inmate is being held for medical parole on behalf of the inmate. The Act does not prescribe a particular form for the petition. The Act requires expeditious review and a timely decision of medical parole petitions by setting specific deadlines after receipt of the petition. Within 21 days of a superintendent’s or sheriff’s receipt of a medical parole petition, the superintendent or sheriff must provide to the DOC Commissioner (“the Commissioner”): (i) a recommendation regarding release; (ii) a medical parole plan;[1] (iii) a written diagnosis by a licensed physician; and (iv) an assessment of the risk for violence that the prisoner poses to society. G.L. 127, §119A(c)(1). The Commissioner, who is the administrative decision maker, then has 45 days to issue a written decision granting or denying medical parole. If a prisoner’s petition is denied, there is no internal DOC appeals process. The Act allows for judicial review through a petition for certiorari under G.L. c. 249, §4. G.L. c. 127, §119A(g).[2]

2019 Medical Parole Regulations

The Act tasks the secretary of the Executive Office of Public Safety and Security (“EOPSS”) with promulgating rules for administering the medical parole process. G.L. c. 127, §119A(h). EOPSS promulgated regulations in July 2019 (the “2019 Regulations”).

EOPSS took a restrictive view of the scope of the right to medical parole. The 2019 Regulations required the petitioner to develop a medical parole plan and authorized the superintendent or sheriff to reject petitions as incomplete. Under the 2019 Regulations, a complete petition included: (1) an adequate medical parole plan; (2) a written diagnosis by a licensed physician; (3) a release allowing disclosure of the petition and all supporting documents to other criminal justice agencies, the appropriate district attorney, and registered victims or victims’ family members; and (4) a release allowing DOC and the parole board to assess the inmate’s medical parole plan. 501 CMR §§ 17.03(3), 17.03(5). Incomplete petitions required no further action by the superintendent or sheriff. These initial regulations, however, did not stay on the books for long.

The Supreme Judicial Court Weighs In

In early 2020, the SJC invalidated several of the 2019 Regulations as contrary to the plain language of the Act and the legislative intent.[3] Buckman v. Comm’r of Correction, 484 Mass. 14 (2020).

In January 2019, inmates Peter Cruz and Joseph Buckman each submitted a petition for medical parole which was rejected as incomplete by their respective superintendents. Both Cruz and Buckman challenged the decision, arguing that the superintendent must consider a petition regardless of his or her view of completeness or adequacy. When Cruz died in custody during the pendency of the appeal, the case continued with Buckman as the sole plaintiff.  

Buckman’s appeal raised three important questions: (1) whether a superintendent must consider a petition for medical parole regardless of the superintendent’s view of the completeness or adequacy of the petition; (2) which party bears the burden of preparing a  medical parole plan, obtaining a written diagnosis by a licensed physician, and preparing an assessment regarding the risk for violence the prisoner poses to society; and (3) whether the Commissioner must provide the prisoner with notice of the superintendent’s recommendation, a copy of the recommendation, and any supporting or related materials. Buckman, 484 Mass. at 15-16. 

In answering the first question, the court held that a superintendent or sheriff must consider a petition for medical parole regardless of the petition’s completeness. The court noted that the medical parole plan, the written diagnosis by a licensed physician, and medical record releases are documents separate from the petition. As such, those documents are not required to initiate the petition process and trigger the statutory deadlines imposed on the superintendent and the Commissioner. Id. at 25 n.23. The separate nature of these documents is evidenced by the requirement that the superintendent or sheriff – not the petitioner – is required to transmit the medical parole plan, diagnosis, and the risk assessment to the Commissioner with the petition. Id. at 24; G.L. c. 127, §119A (c)(1) and (d)(1). To trigger the Act’s deadlines, the petitioner need not do more than submit a “written” petition. Id. at 26. 

On the second question, the SJC ruled that the superintendent or sheriff bears the burden of creating a medical parole plan and obtaining a written diagnosis from a licensed physician. The court reasoned that the Legislature could not have intended to place the burden of expeditiously producing documents on a terminally ill or incapacitated prisoner because the Act only requires the submission of the written petition to trigger the 21-day countdown. Furthermore, because the Act placed the burden of creating the risk assessment on the superintendent, one could infer that the Legislature intended to place the concomitant burden on the superintendent to create the medical parole plan and obtain a diagnosis from a licensed physician. Id. at 25-29.

Finally, the court held that the prisoner must receive all supporting documents submitted by the superintendent except the superintendent’s recommendation to the Commissioner. While nothing in the Act prohibits restricting a petitioner’s right to a superintendent’s recommendation, the court found it fundamentally unfair to prohibit the petitioner from receiving documents that the district attorney could access upon request. In fact, the 2019 Regulations themselves anticipated that the petitioner would have access to the medical parole plan and medical diagnosis because the burden of producing these documents was placed (albeit erroneously) on the petitioner. Id. at 30-32.

Proposed 2020 Regulations

After Buckman, EOPSS began the process of amending its medical parole regulations. The proposed regulations, accessible here, blend new provisions with surviving sections of the 2019 Regulations. At a public hearing on September 16, 2020, lawmakers and advocates criticized the proposed regulations for ignoring the court’s guidance in Buckman, narrowing the population eligible for medical parole, and placing unnecessary roadblocks that delay and frustrate the purposes of the medical parole law. 

Some issues flagged by advocates include defining the term “prisoner” to exclude pretrial detainees and individuals who have been civilly committed, construing “permanent disability” to require a higher level of disability than the Act requires, and requiring, as part of the petition, two signed releases on specific DOC issued forms. Although the proposed regulations have not been formally adopted, cases relevant to the proposed regulations are currently before the SJC.

Recent Appellate Litigation

On October 5, 2020, the SJC heard argument in three cases related to the medical parole statute:  Racine v. Comm’r of Dep’t of Correction (“Racine”), SJC-12895; Harmon v. Comm’r of Dep’t of Correction (“Harmon”), SJC-12876; and Malloy et. al. v. Dep’t of Correction (“Malloy”), SJC-12961.[4] These cases may answer a number of issues related to the 2019 Regulations, the proposed regulations, and the practical difficulties litigating medical parole cases.

In Harmon and Racine, which were argued jointly, the parties addressed: (1) whether a prisoner’s death renders moot a certiorari action for review of denial of medical parole; (2) whether the EOPSS regulation giving a prisoner the right to reconsideration upon a material decline in health precludes a prisoner from submitting a new petition for medical parole; (3) whether the Act applies only to committed offenders or includes pre-trial detainees; and (4) whether a reviewing court has authority to grant medical parole. The court requested amicus briefing on the first three issues.   

On the first question, DOC took the position that death generally renders a case moot. Petitioners argued an inmate’s death (or release) should not moot a case when the issues in the plaintiff’s case are capable of repetition and will otherwise evade review. Petitioners emphasized that the lengthy process to litigate a certiorari action after denial of a medical parole petition will frequently result in plaintiffs dying before their day in court. 

On the second question, both the 2019 Regulations and the proposed regulations contain a provision stating that “[n]o subsequent petitions may be submitted following the Commissioner’s denial of medical parole, unless the prisoner experiences a significant and material decline in medical condition.” 501 CMR § 17.14. Petitioners’ counsel took the position that the Act requires the superintendent to review every petition and does not restrict an inmate’s right to file a subsequent petition. DOC argued the Act does not address subsequent medical parole petitions and that EOPSS has the authority to regulate the matter.

On the third question, petitioners argued that the regulations’ exclusion of pre-trial detainees impermissibly narrows the scope of the Act. DOC contends that extending medical parole to pretrial detainees violates the separation of powers.

Finally, in deciding these cases, the SJC also may address the question of whether, on certiorari review, a reviewing court has authority to order medical parole. On this issue, DOC argued judges are limited to remanding a case to the Commissioner for further consideration, while the petitioners argued, among other things, that the certiorari remedy necessarily includes the power to order the medical parole the Commissioner improperly denied.[5]

In Malloy, the court was asked to consider whether a prisoner may continue to be held in custody after the Commissioner has granted medical parole. In that case, two inmates were each granted medical parole without a medical parole plan in place and continued to be detained for weeks while DOC attempted to find a suitable placement. Both the 2019 Regulations and the proposed regulations give the Commissioner the authority to set conditions that must be met prior to the prisoner’s release, a process which may create delay. 501 CMR § 17.11.  

Petitioner’s counsel took the position that continuing to hold an inmate in custody after he has been granted medical parole is improper; that the superintendent or sheriff is required to create a comprehensive medical parole plan, including contingency options, within the 66-day window afforded by the Act; and where suitable placement has not been found prisoners should be released to a Department of Public Health facility rather than remaining incarcerated. In contrast, DOC argued the Act does not require immediate release and does not limit the period during which DOC may hold an inmate after medical parole has been granted. Regardless of the outcome, the Court’s decision in Malloy is likely to clarify the timing of an inmate’s right to release under the Act once the Commissioner has decided to grant medical parole. 

Conclusion

With inmates facing increased vulnerability during the COVID-19 pandemic, the medical parole statute is particularly important, yet release under the Act has been rare. At the time DOC filed its brief in Malloy, 337 inmates had submitted petitions for medical parole, of which 34 had been granted. Of the 34 inmates granted medical parole, 30 had been released from custody. Three inmates were still awaiting release and one had died after being granted medical parole, but before being released from custody.[6]   

Medical parole in Massachusetts is still in its infancy. Its scope, and the procedural mechanisms that govern review of medical parole petitions, will continue to be tested and refined over the coming year.

[1] The Act defines a medical parole plan as: “a comprehensive written medical and psychosocial care plan specific to a prisoner and including, but not limited to: (i) the proposed course of treatment; (ii) the proposed site for treatment and post-treatment care; (iii) documentation that medical providers qualified to provide the medical services identified in the medical parole plan are prepared to provide such services; and (iv) the financial program in place to cover the cost of the plan for the duration of the medical parole, which shall include eligibility for enrollment in commercial insurance, Medicare or Medicaid or access to other adequate financial resources for the duration of the medical parole.” G.L. c. 127 §119A(a). 

[2] Because affected prisoners are frequently infirm, subject to quick health changes, and usually nearing the end of life, expediting certiorari review is often important. See, e.g., G.L. c. 249, §4 (certiorari petitions must be filed within 60 days); Superior Court Standing Order 1-96(2) (administrative record must be filed within 90 days), Superior Court Standing Order 1-96(4) (certiorari action must be resolved through a motion for judgment on the pleadings served within 30 days of the filing of the administrative record).  

[3] As stated in Buckman, the Legislature enacted the medical parole statute to save money on expensive end of life medical care and for reasons of compassion. 484 Mass. at 21-22.

[4] Superior Court judges have also tackled issues related to the Act. See Adrey v. Dep’t of Correction, Suffolk Superior Civil No. 19-3786-H, 2020 WL 4347617 (Mass. Super. June 19, 2020); Mahdi v. Dep’t of Correction, Norfolk Superior Civil No. 19-1064, Memorandum and Order (Mar. 31, 2020).

[5] G.L. c. 127, §119A(g) states: “A decision by the court affirming or reversing the commissioner’s grant or denial of medical parole shall not affect a prisoner’s eligibility for any other form of release permitted by law.” (Emphasis added).

[6] Brief of Respondent-Appellee Department of Correction, Malloy et. al. v. Dep’t of Correction, SJC-12961. 

Jessica Conklin concentrates her practice in white collar criminal defense, government investigations, and school disciplinary hearings. Jessica works with students and their families who attend several local secondary schools, colleges and universities in connection with disciplinary proceedings and title IX investigations. Jessica is also a member of the board of editors for the Boston Bar Journal.


Practice Tips for Navigating the Investigative Process at the Massachusetts Commission Against Discrimination

by Heather E. Hall

Practice Tips

Introduction

Whether you appear regularly before the Massachusetts Commission Against Discrimination (“MCAD” or “Commission”) or are new to the practice, this article provides a general overview of the Commission’s expectations and suggested best practices during the early stages of the MCAD process, from filing a complaint through the issuance of an investigative disposition by an Investigating Commissioner. This article is not a substitute for reading the MCAD’s regulations, which were substantially revised on January 24, 2020, after a lengthy public hearing process. When practicing before the Commission, attorneys should become familiar with the regulations and also review the MCAD’s website, which is regularly updated with changes to processes and other useful guidance.

COVID-19

At the beginning of 2020, MCAD staff worked in four offices, in Boston, Springfield, Worcester, and New Bedford, and were beginning to acclimate to the updated regulations. Due to the COVID-19 public health crisis, during the week of March 16, MCAD staff began telecommuting. Over the course of the telecommuting period, the Commission adjusted various processes in order to continue the majority of its operations. Where applicable, changes made due to COVID-19 will be discussed herein.

In early June 2020, the MCAD began the process of phasing staff back into the offices.  At the time of this article, most of the employees work at least one day per week in the offices, with administrative staff working in the offices at least two days per week. Attorneys should be mindful of the MCAD’s limited in-office capacity during the pandemic. In this vein, the MCAD encourages the use of email whenever possible.

Investigations Division Overview

The Investigations Division is comprised of nine units with approximately 50 people, including Administrative staff, who assist with document organization and processing; Investigators and Investigative Supervisors, who conduct the investigations; Attorney Advisors, who provide legal guidance and support to the investigative staff; and the Deputy Chief and Chief of Investigations, who manage the personnel and overall operations of the Division. The MCAD processes approximately 3,000 complaints each year. The agency saw an uptick of over 300 more complaints filed in 2019 than in 2018.

Complaints  

Manner of Filing

The 2020 MCAD Procedural Regulations, 804 CMR § 1.04(2), speak to the manner of filing complaints, but processes have been adjusted due to COVID-19. There are currently three ways to file a complaint with the MCAD: (1) via U.S. mail (“mail-in” complaints by attorneys and pro se complainants); (2) via email through the MCAD e-complaint portal (attorneys only); and (3) via phone with an Intake Specialist (pro se complainants only). The MCAD issued its “Guidance for Attorneys and Duly Authorized Representatives During the COVID-19 Public Health Crisis” on April 1, 2020 (“April 2020 Guidance”). (If you would like a copy, please contact the MCAD at: mcad@mass.gov.) As noted in the April 2020 Guidance, if attorneys are unable to obtain the complainant’s signature on the complaint, the complaint must include an email verification from the complainant stating that the complaint is made under the pains and penalties of perjury.

Attorneys are strongly encouraged to file complaints via the online portal at: https://massgov.formstack.com/forms/mcad_ecomplaint_filing_portal. If you choose to file a “mail-in” complaint, please do not also file an e-complaint, as this creates an additional administrative burden. Since the MCAD offices are currently still closed to the public, in-person intake services for pro se complainants have been suspended until further notice. For more information, see our “MCAD COVID-19 Information and Resource Center.”

Statute of Limitations

Pursuant to M.G.L. c. 151B, § 5, and 804 CMR § 1.04(3), a complaint must be filed within 300 days after the alleged discriminatory conduct. Under the April 2020 Guidance, the individual Commissioners will consider extending the filing deadlines on a case-by-case basis in extenuating circumstances.

Information in Complaints 

When filing, attorneys must: (1) provide the complainant’s and respondent’s full contact information, including address, phone numbers, and email addresses, if available; (2) identify applicable protected classes to which the complainant belongs and cite to the appropriate statutory authorities; and (3) provide specifics regarding dates, names, and positions of the persons alleged to have committed unlawful discriminatory acts.

Key Tip:  Before submitting a complaint to the MCAD, conduct a full interview with the complainant and an investigation of the facts of the complaint, to ensure compliance with the regulations.

Pseudonym Complaints

An Investigating Commissioner may allow a pseudonym complaint to proceed “when a specific overriding reason for confidentiality unique to complainant and substantial safety or privacy interests are demonstrated.” 804 CMR § 1.04(7). If an attorney wishes to file a pseudonym complaint, the complaint itself “shall not include the identity of the complainant” and the attorney must simultaneously file a motion to allow the use of a pseudonym. 804 CMR §§ 1.04(7)(a) and (b).

Withdrawal of a Complaint

Complainants may request to withdraw a complaint filed at the Commission. 804 CMR § 1.04(12). A required withdrawal form is available on the MCAD’s website.

Answers/Position Statements

Respondents must file an answer to the complaint in the form of a position statement. 804 CMR § 1.05(8).   The revised regulations have strict deadlines with respect to extensions for filing position statements. The deadline for filing a position statement regarding employment, public accommodation, education, or non-HUD housing complaints, is “within 21 days of receipt” of the complaint. 804 CMR § 1.05(8)(a)1. With respect to extensions, the regulations provide, “Upon written request by the respondent, and for good cause shown, the Commission may grant an extension… not to exceed 21 days absent exceptional circumstances.” 804 CMR § 1.05(8)(a)1. The deadline for position statements in HUD housing complaints is within 14 days of receipt of the complaint. 804 CMR § 1.05(8)(a)2.a. Requests for extensions in HUD complaints are “strongly discouraged” due to the timelines set by HUD. 804 CMR § 1.05(8)(a)2.b.

Position Statement Contents

Full and complete position statements are essential to the MCAD’s investigative process.  Position statements should include responses to all the allegations in the complaint. Respondents must also provide evidence and supporting documentation for all defenses, including but not limited to, comparators, internal investigations, policies cited, and performance records, where applicable. Supply the dates of the incident(s). If the respondent does not know the specific date(s), be as specific as possible and give a time frame. Do not wait until an investigative conference or a request from the Investigator to submit this information.

Key Tip: Remember to affirm the position statement in compliance with 804 CMR § 1.05(8)(d)1, which requires each named respondent to sign the position statement “under the pains and penalties of perjury.”

Rebuttals

“Rebuttals to the position statement are not required, but are strongly encouraged…”   804 CMR § 1.05(9)(a). While the regulations allow for pro se complainants to submit verbal rebuttals, attorneys must submit rebuttals in writing. 804 CMR § 1.05(9)(b)1.

Key Tip:  Use the rebuttal to clarify and amplify the facts of the complaint and present cogent legal arguments.  Do not simply reiterate the facts in the complaint.

Mediation 

The MCAD offers mediation services free of charge. 804 CMR § 1.06(1). The MCAD encourages parties to engage in productive communications regarding early resolution in their cases. In most cases, however, a Position Statement must be submitted prior to the mediation. This allows mediators to get a full picture of the parties’ arguments and makes the mediation process more effective. In the wake of COVID-19, the Commission suspended in-person mediation services and is currently conducting them via video, or telephonically if a party’s available technology is limited to telephone conferencing.

Key Tip: Do not come to a mediation without a command of the facts, a proposal, and authority to settle.

Investigative Conferences

Pursuant to 804 CMR § 1.05(10)(a), “[t]he Commission may convene an investigative conference for the purpose of obtaining evidence, identifying issues in dispute, ascertaining the positions of the parties, and exploring the possibility of settlement.” Although the MCAD does not conduct investigative conferences in every case, they can be a valuable investigative tool. The complainant’s and respondent’s attendance at the investigative conference is mandatory.  804 CMR § 1.05(10)(e). The Investigator conducting the conference may question the parties about issues under investigation and may permit the parties to make a brief statement. 804 CMR § 1.05(10)(d). The MCAD is currently conducting investigative conferences telephonically. The Investigator will contact the parties regarding the logistics for the teleconference.

Key Tips: Remember that the investigative conference is a tool for the investigation and not a forum for adversarial posturing. Use the opportunity wisely to present relevant facts and evidence, and listen closely to the information the Investigator is seeking. If parties have questions about their obligation to provide materials to the other party, they should ask the Investigator for guidance. Further, attorneys should be mindful of their obligation to “refrain from including” or “partially redact” personal data identifiers from “all filings and exhibits submitted to the Commission.” 804 CMR § 1.21(4).

Investigative Dispositions

Upon conclusion of the investigation, the Investigating Commissioner issues an investigative disposition. 804 CMR § 1.08. Dispositions are generally served via U.S. mail. During the COVID telecommuting period, however, the Commission is also serving dispositions via email.

The types of investigative dispositions include: credit granted to another forum’s investigation; dismissal based on withdrawal of the complaint, lack of jurisdiction, settlement, or the public interest; and post-investigation substantive dispositions, also referred to as causal determinations. 804 CMR § 1.08(1)(a)-(f).

Causal determinations include, probable cause (“PC”), where the “Investigating Commissioner concludes…that there is sufficient evidence upon which a fact-finder could form a reasonable belief that it is more probable than not that respondent committed an unlawful practice”; lack of probable cause (“LOPC”), where the Investigating Commissioner finds that “there is insufficient evidence to support a determination of probable cause to credit the allegations in the complaint…” and the complaint is dismissed; and split PC and LOPC decisions. 804 CMR § 1.08(f)1.-3.

Appeals and Motions to Reconsider 

If the Investigating Commissioner issues an LOPC determination, the complainant may appeal to the Investigating Commissioner “by filing a written request for a preliminary hearing with the Clerk’s Office within ten days after receipt of the notice of investigative disposition or dismissal.” 804 CMR § 1.08(b). A determination on an appeal of an LOPC finding may not be appealed to the Commission or to the Superior Court under G. L. c. 30A. 804 CMR § 1.08(4)(b)3.

In the event of a PC determination, a respondent may move for reconsideration in writing for “good cause at any time prior to the certification conference…or within 45 days of certification to public hearing… if no certification conference is held.” 804 CMR § 1.08(4)(a)1. If the Investigating Commissioner reverses or modifies a PC determination, the decision too is not appealable. 804 CMR § 1.08(4)(a)6.

The MCAD is currently conducting hearings on appeals telephonically.

Key Tip: Do not simply reiterate the facts, evidence and law presented in the course of the investigation. Use the appeal hearing and motions for reconsideration as an opportunity to present new facts or evidence unknown or unavailable during the investigation and/or material errors of fact or law.

Conciliation

If a PC determination is upheld, the next step in the process is a mandatory conciliation conference held with an Investigating Commissioner or designee. For more information on the post PC phases of the MCAD’s processes, see 804 CMR § 1.09 et seq.

Conclusion

We are facing challenging times that can create stress and uncertainty. While the MCAD understands the difficulties presented by COVID-19, we ask that attorneys comply with the regulations and keep informed of any COVID-19 related changes in the MCAD’s processes to ensure that their clients’ rights are well served.  Finally, maintaining collegiality and patience with your fellow members of the bar and the Commission’s staff goes a long way in helping us all weather these unchartered waters.

Heather Hall has served as the Chief of Investigations for the MCAD since 2018. Previously, she served as the Deputy Chief Legal Counsel, then Director of Internal Investigations at the Middlesex Sheriff’s Office. She also served as an attorney in the legal offices of two other public safety agencies, an appellate Assistant District Attorney, and a law clerk. She extends special thanks to her colleagues Geraldine A. Fasnacht, Esq., Supervisor, Attorney Advisors Unit, and Nicole L. Leger, Esq., Supervisor, Unit 1, for their input on this article.


Protecting Trade Secrets During (and After) a Global Pandemic: Practical Tips for Employers

by Russell Beck and Hannah Joseph

Practice Tips

 

The evolution toward a cloud economy has made it easy and often profitable for employees to misappropriate valuable data from their employers. Indeed, pre-pandemic estimates suggested that over 50 percent of employees take – and most of them are willing to use – their employer’s information when leaving a company.[1]

Against this backdrop, COVID-19 unexpectedly caused the world to shut down in early 2020, resulting in mass layoffs, the highest unemployment rates since the Great Depression, and a fundamental and perhaps permanent shift toward a predominately remote workforce.

Together, these factors have created a precarious environment for trade secrets, as well as customer relationships and other legitimate business interests. Employees working from home have more opportunity to convert company information and customers, and some, particularly those facing involuntary unemployment, may feel driven to do so. Moreover, the ongoing crisis has made preliminary injunctive relief (the judicial remedy most often used to protect trade secrets and other legitimate business interests) more elusive, as courts are typically less willing to restrain employees from competitive employment during economic downturns. See, e.g., All Stainless, Inc. v. Colby, 364 Mass. 773, 781 n.2 (1974).

Whether during or after the pandemic, it is vital for companies to have strong measures in place for protecting their trade secrets and other legitimate business interests, rather than to solely rely on after-the-fact litigation. Below are some practical tips for how to do so.

Tips for protecting trade secrets and other legitimate business interests during and after a global pandemic

Know your trade secrets. A remote workforce means that employees are developing, accessing, and using their employer’s trade secrets from home (and elsewhere). Accordingly, understanding the categories, sources, and life cycles of the company’s trade secrets, and the risks of exposure to which such information is most susceptible, is necessary for establishing and implementing policies and practices that are best suited to protect that information during and after the pandemic. Depending on the organization, the analysis will likely need to involve management, human resources, legal, corporate governance, sales, information technology, information management, research and development, manufacturing, and other relevant stakeholders.

Firm up policies and procedures. Once a company has categorized its trade secrets, both existing and under development, it must ensure that its policies and procedures are appropriately designed to protect the information against likely sources of risk. Such policies and procedures, which should be reviewed on a regular basis, are also critical to protecting other legitimate business interests, such as customer goodwill.

Among other things, employers should have policies that establish clear criteria, protocols, and expectations for the access, use, and disclosure of confidential information, including third-party information; working from home; the use of the employer’s devices, systems, and accounts (and, if applicable, the employer’s policies concerning monitoring such devices, systems, and accounts); the use of personal devices; the use of social media accounts, including as they relate to client communications; the use and protection of passwords; and the post-employment return of information and property. In addition, employers should have a policy that instructs employees to report incidents of unauthorized access, use, or disclosure of confidential information, and provides clear instructions for how to make such a report. This list is not comprehensive, and policies are not one-size-fits-all; they must be tailored to meet the unique needs of the employer and be reasonable in the context of the company’s needs, capabilities, and culture.[2]

Employers should also work closely with their remote employees to ensure that the employees’ at-home work environments are secured against both external threats and inadvertent disclosure. For example: home Wi-Fi routers should be secured with strong passwords; passwords, non-guessable meeting IDs, and other security settings should be used for video conference solutions like Zoom; confidential information should not be reviewed where others in the household may see or overhear it; and confidential information should not be left out in the open when the workspace is unattended. Employers should be prepared to run through a comprehensive checklist with their employees to make sure that employees are taking necessary precautions to protect their workspaces.

Finally, the unfortunate reality of increased furloughs and layoffs during the pandemic dictates that employers have a system in place for off-boarding employees remotely. The system should include, at the least, a mechanism for terminating exiting employees’ access to the employer’s information and information systems (including the remote wiping of company data from devices in the employee’s possession), for securing the full return of all equipment and confidential information, and for the employee to acknowledge their obligation to return (and not retain, use, or disclose) the employer’s confidential information (as well as to comply with their other post-employment contractual obligations).

Educate your employees. Policies and procedures are worthless, and can hurt more than help, if they are not disseminated, understood, and followed. This means that employers must, on an ongoing basis, educate their employees about company policies and practices. While in-person trainings are ill-advised in the era of social distancing, they may be easily replaced by online trainings, whether live or pre-recorded. Processes should be in place that require employees to not only read the policies and procedures, but also to acknowledge that they understand and agree to abide by them. Policies and procedures should provide an avenue for employees to ask questions and obtain answers that will be consistent throughout the company, either through legal or other channels. Employers are well-served by maintaining accurate records of policies and procedures and any amendments thereto, training dates, and employee acknowledgments. While training and acknowledgments will not necessarily prevent all willful misconduct, they may serve as a deterrent, help to limit incidents of inadvertent disclosure (or unauthorized solicitation) and, if litigation becomes necessary, help to establish the company’s reasonable efforts to protect its trade secrets and other legitimate business interests.

Monitor your workforce. Trade secret misappropriation and other forms of employee misconduct do not usually happen in a vacuum. Oftentimes, there will be warning signs that an employee is unhappy (e.g., a lack of engagement, an attitude shift or sudden change in behavior, increased activity on LinkedIn[3]). Moreover, employees who take their employer’s information with the intention of using it at their next place of employment frequently commit multiple acts of taking in the days and weeks leading up to their termination. Similarly, employees who plan to solicit customers may begin well before termination. For those reasons, employers should consider monitoring their employees’ email activity as well as their activity on other information systems to determine whether the employees are accessing information that they do not have a business need to know or are accessing appropriate information, but with unusual frequency. Periodic monitoring may enable an employer to detect and address internal threats earlier, thereby obviating the need for judicial intervention. Before engaging in any kind of monitoring, employers should disseminate policies that put employees on notice that the employers’ devices, systems, and accounts belong solely to the employer and may be monitored on a periodic or ongoing basis.

Conclusion

While these steps are intended to help employers protect their legitimate business interests, they are not comprehensive and are not guaranteed to protect against every threat of disclosure and other forms of misconduct. When implemented correctly, however, they should substantially reduce overall risk. In addition, where litigation is necessary, an employer that has implemented the above steps will have ample evidence to show that it both identified its legitimate business interests to its employees and notified them of their legal obligations to protect such interests. This can dramatically improve an employer’s chances of prevailing in court.

[1] SeeWhat’s Yours is Mine: How Employees are Putting Your Intellectual Property at Risk,” White Paper by the Ponemon Institute and Symantec Corporation (2013), available at https://www.ciosummits.com/media/solution_spotlight/OnlineAssett_Symantec_WhatsYoursIsMine.pdf.

[2] For a comprehensive checklist of steps employers can take, see “A primer and checklist for protecting trade secrets and other legitimate business interests before, during, and after lockdown and stay-at-home orders,” available at https://www.faircompetitionlaw.com/2020/05/17/a-primer-and-checklist-for-protecting-trade-secrets-and-other-legitimate-business-interests-before-during-and-after-lockdown-and-stay-at-home-orders/.

[3] See, e.g., “13 Signs That Someone Is About to Quit, According to Research,” by Timothy M. Gardner and Peter W. Hom, Harvard Business Review (Oct. 20, 2016), available at https://hbr.org/2016/10/13-signs-that-someone-is-about-to-quit-according-to-research.

 

Russell Beck is a founding partner of Beck Reed Riden LLP. He has authored books on trade secrets and restrictive covenants, assisted the Obama Administration on a Call to Action on noncompetes and trade secrets, drafted much of the Massachusetts Noncompetition Agreement Act, and revised the Massachusetts Uniform Trade Secrets Act. Russell teaches Trade Secrets and Restrictive Covenants at the Boston University School of Law and is President Elect of the Boston Bar Foundation.

Hannah Joseph is senior counsel at Beck Reed Riden LLP and focuses her practice on trade secrets and restrictive covenants law. Hannah regularly publishes and speaks on the topics of intellectual property law and restrictive covenants, including at the American Intellectual Property Law Association, Boston Bar Association, and Practising Law Institute. In addition, Hannah co-teaches the course Trade Secrets and Restrictive Covenants at Boston University School of Law.


BBA Volunteers Support Our Mission in Challenging Times

by Christine M. Netski

President’s Page

As new and unprecedented personal and professional challenges continue to unfold amid the COVID-19 pandemic, I continue to be inspired by the way our legal community has come together to respond quickly, effectively and compassionately to so many impacts the crisis is having on access to justice and our profession. I have also been humbled by our members’ unwavering support and deep engagement during such difficult and uncertain times. Your dedication has allowed the BBA to continue to fulfill its mission to advance the highest standards of excellence for the legal profession, facilitate access to justice, foster a diverse and inclusive professional community, and serve the community at large in a virtual environment.

As we look ahead, although we don’t know when we’ll be able to gather again at 16 Beacon Street, we do know that we’ll continue to serve our members’ needs and support our profession as we move through new phases of this crisis. I want to share some of our efforts that are currently underway.

Expansion of Virtual Education Resources

Educational programs are our most significant member benefit. Our members rely on our programs to help them adjust to changes in our profession, learn new skills, and enhance their practices.

We launched our first webinar on March 25 and, since then, we have hosted 50 webinars viewed live by over 2,000 attendees.

Soon after the crisis began to escalate in the Commonwealth and rapid changes in the law began to accumulate, a number of Sections, including Labor and Employment, Criminal Law, and Trust and Estates, sprang into action to host programs addressing the latest legal developments in their practice areas. Others, including the Life Sciences Industry Group and the Privacy, Cybersecurity, and Digital Law Section, convened roundtable discussions where experts shared insights into the current and anticipated impacts of the crisis.

In addition to covering the rapidly-developing changes in the law, our webinars have also provided members with critical information and advice about how best to practice remotely. These programs have offered guidance on topics like handling remote proceedings, conducting virtual depositions, and practicing ethically under these unusual circumstances. Some have offered our members the chance to hear directly from our courts, including through a virtual version of the annual Bankruptcy Bench Meets Bar program and a webinar on the current state of civil litigation in Superior Court during the pandemic.

This summer we will continue to build on the foundation of our successful virtual programming. We plan to take steps to improve the virtual member experience by refining and expanding our educational offerings to include CLE-accredited programs and virtual conferences. Looking ahead to the fall, we are asking our Sections, Forums, and Industry Groups to keep up their excellent work and plan for a robust slate of educational programs, with the hope that we can again convene in-person, but with the agility to proceed virtually if necessary.

Supporting the Profession

In addition to supporting continuing legal education for our members, we’re proud to be able to offer opportunities to help attorneys stay connected and well. Earlier this month, we participated in Lawyer Well-Being Week, which included a program on practical mindfulness for attorneys and a series of round tables – one targeted to legal aid attorneys and another to solo and small firm practitioners – where attendees could share their current challenges and learn about effective self-care strategies.

We’ve also been pleased to be able to assist our affinity bar partners in staying connected and reaching their membership by hosting a series of virtual roundtables and happy hours over the last few months. We look forward to continuing to offer these types of opportunities and to continuing to explore new ways of supporting wellness in the months ahead.

Graduating law students and new lawyers are entering the profession at an especially challenging time, and we are and will continue to take steps to bolster their professional growth. Our popular Friday Fundamentals series has moved on-line, and our members are continually adding more offerings to help law students and new lawyers gain the basic legal skills necessary to succeed in their practice areas.

We are also looking to meet the unique needs of graduating law students, as well as those new to practice, by expanding our Bar Coaching Program. The expanded program will offer mentorship and study support for both first time and repeat test takers as they prepare to sit for the bar exam during this time of heightened stress. The program will also now offer mentorship and guidance for new attorneys who are adjusting to the intricacies of practice from home, in an uncertain economy and without the typical in-person mentorship they would receive in their workplaces.

Finally, we know the profession will evolve and our members’ needs will change over the coming weeks and months. We remain committed to responding to those needs and helping our members adapt their practices to continue to best serve the evolving needs of their clients.

Thank you for your commitment to our mission and we look forward to continuing to serve you and all our members as we work together to meet the challenges that lie ahead.

Christine M. Netski is the President of the Boston Bar Association. She is also a managing partner and a member of the executive committee at Sugarman, Rogers, Barshak & Cohen, P.C.


Life Raft or Quicksand?: Emergency Assistance’s Role in Greater Boston’s Homelessness Crisis

by Laticia Walker-Simpson

Viewpoint

Homelessness in Greater Boston was rising even before the economic fallout from the COVID-19 pandemic. From 2008 to 2018, the region experienced a 26.7% increase in homeless families and a 42.5% increase in homeless individuals. As rents skyrocketed and the shortage of affordable housing worsened, the state’s Emergency Assistance (“EA”) shelter program has strained to meet the need of the growing number of eligible households. The public health emergency has laid bare the structural problems with the state’s housing safety net program all too familiar to those working directly with the vulnerable population.

To meet the statutory mandate to provide Shelter to impoverished households, the Commonwealth must substantially increase funding for the EA program, implement measures to create more housing affordable for extremely low income residents, and adopt initiatives to address the displacement crisis, such as right to counsel in eviction cases and rent control.

“Right to Shelter”

In 1983, Massachusetts enacted a “Right to Shelter” law, Chapter 450 of the Acts of 1983, and established the state’s first publicly-funded homeless Shelter for families while they search for more stable housing. Although referred to as a “right to Shelter” jurisdiction, the Commonwealth imposes strict threshold eligibility requirements for applicants to be eligible for EA Shelter: families must be Massachusetts residents; at least one person must have qualifying immigration status; the family must have a qualifying child under age 21, and the overall household income must be at or below 115% of the federal poverty level.

Additionally, the family’s homelessness must have been caused by one of four qualifying reasons: (1) domestic violence; (2) fire, flood, or natural disaster not caused by a household member; (3) a health and safety risk that is likely to result in harm; or, (4) eviction due to certain circumstances that are generally beyond the control of the tenant household, such as medical situations.

A household will be barred from EA Shelter for a variety of reasons, including “intentionally reducing” income to become eligible for benefits (i.e., EA shelter or a housing subsidy); receiving EA Shelter benefits in the last year; abandoning public or subsidized housing without good cause; or being evicted due to criminal activity, destruction of property, or non-payment of rent for public/subsidized housing.

Once admitted to an EA Shelter, the household must meet certain mandatory participation requirements, such as saving 30% of their income, spending 20 hours per week in housing search, job search, or in education or training programs like financial literacy classes. Participants are also required to complete chores in the Shelter, including cleaning the facilities’ kitchens and bathrooms.

A Perverse Cycle

The Commonwealth’s shortage of affordable housing for low and extremely low income families is driving the need for EA Shelter. At least three in ten low-income people in Massachusetts are either homeless or must pay over half of their income in rent.

Since 2013, the average length of stay in EA Shelters across the state is 267 days. Only 12% of families exit the EA program within one month, 28% exit within three months, and 27% stay for more than a year and up to 5.6 years. Compared to an average of 247 days in 2008, in 2013 homeless families spent an average of 300 days in EA Shelters. The duration has been about 150 days longer in the Boston and Central regions than in the Southern and Western regions. This disparity is not surprising given the higher cost of housing in Boston where, for example, the rent for a two-bedroom leapt from $1,237 in 2010 to $1,758 in 2019.

With the lengthening duration of stay in EA Shelters due to lack of permanent affordable alternatives, more families are placed farther away from their home communities and face limited transportation options to their original places of employment, child care, medical care, education, and important networks of support. And case workers assigned to each EA family face increased caseloads, reducing the time they can spend assisting each family with housing search and accessing other resources necessary to transition out of homelessness.

The budget for the EA program has not kept pace with the expanded need for EA Shelter and increased cost of temporary EA housing. In fiscal year 2013, 39,436 homeless families were served by the EA budget of roughly $156.5M (adjusted for inflation). In fiscal year 2019, 43,392 families were served by the allocated EA budget of roughly $179.8M (exclusive of any supplemental budget).

To meet the increased demand, the EA program has placed many families in inexpensive private apartments. These private market EA placements have resulted in the unintended, albeit foreseeable, consequence of further shrinking the supply of “naturally occurring affordable housing” (“NOAH”) available as permanent housing options, including for EA participants. That is, by competing in the private rental market for EA temporary placements, the state’s efforts have had the perverse effect of further decreasing the supply of NOAHs available to low-income families, thereby pushing more vulnerable households into homelessness, and exacerbating the supply barriers to permanent housing for EA participants, thereby extending their time until exit from the EA program. It is a pernicious and inefficient cycle.

The related trends of longer EA stays and shrinking permanent affordable options has transformed the EA program from its original purpose as a short-term measure to help families get on their feet into a long-term housing placement system for those with limited prospects for transitioning to stable, affordable housing. This dynamic is unsustainable at current levels of EA appropriations.

The COVID-19 pandemic has also underscored the public health costs of a system operating beyond capacity. EA Shelters are primarily comprised of congregate housing, where each family has a private room but shares a kitchen, bathroom, and living space with other families. Congregate physical facilities make social distancing impossible and contributes to the spread of the virus. The reduction in on-site staffing due to the public health emergency also means cleaning and maintenance also has come under increased strain.

Needed Reforms 

Creativity and determination are necessary, but not sufficient, to disrupt the current inefficient patterns and cycles in the operation of the EA Shelter system. A substantial increase in EA Shelter appropriations will also be necessary, along with expansion of staff trained to develop resources, capacity, and resilience within homeless families, and more systemic efforts to preserve NOAHs as permanent affordable housing options.

The most effective, preventative response to the homelessness crisis would be a form of rent control. A more immediately needed response in the face of the tsunami of evictions expected at the end of the temporary eviction and foreclosure moratorium, Chapter 65 of the Acts of 2020, is a Right to Counsel legislation that would reduce the number of low-income residents who are evicted and need EA shelter by providing attorneys to low-income tenants, the majority of whom presently go unrepresented.

The pandemic has exposed the need for systemic reform for the EA program to operate effectively to mitigate the traumatic human, medical, and social costs associated with homelessness and to transform the “Right to Shelter” from a paper promise into a sustainable reality for our Commonwealth’s neediest families.

 

Laticia Walker-Simpson is a Staff Attorney focusing on EA Family Shelter in the Housing Unit at Greater Boston Legal Services. She co-chairs the Mentor project at GBLS and is part of the Massachusetts Right to Counsel Coalition. She is an avid baker.


Massachusetts (Temporarily!) Allows Remote Notarization

by Rebecca Tunney, Kerry E. Spindler, and Sara Goldman Curley

Heads Up

On April 27, 2020, Massachusetts became the latest state to enact remote notarization and witnessing through “an Act providing for virtual notarization to address the circumstances related to COVID-19” (the “Act”). The Act temporarily authorizes the affirmation, acknowledgment or other notarial acts of documents utilizing electronic video conferencing in real time. The Act will be in effect until 3 business days after the termination of Governor Baker’s declared state of emergency. See Executive Order 591.

Under M.G.L. c 222 §16, “a notary public shall not perform a notarial act if… the principal is not in the notary public’s presence at the time of notarization.” The outbreak of the novel coronavirus (also known as COVID-19), and Governor Baker’s resulting declaration of a state of emergency in Massachusetts on March 10, 2020, have made it difficult to execute documents “in the presence of” a notary public (“notary”). This has caused problems for those who need to sign documents that require notarization, either by statute or pursuant to best practice, including many estate planning and real estate documents.

Requirements for Remote Notarizations

The Act provides a critical alternative to in-person notarizations during this period of required physical distancing. The Act also permits remote witnessing if the witness’s signature is notarized, noting that the signature of any witness who participates in the remote notarization will be valid as if the witness had been present to sign in person (i.e., witnesses under a will must still qualify under M.G.L. c 190B § 2-505). The Act still requires “wet” signatures and does not authorize electronic signatures.

Under Section 3(a) of the Act, any notarial act performed by a notary appointed pursuant to M.G.L. c 222 § 1A utilizing electronic video conferencing (“remote notarization”) will be valid and effective if:

(i) The notary and each principal are physically located within Massachusetts. “Principal” is defined as any person whose signature is being notarized, including witnesses;

(ii) The notary creates an audio and video recording of the notarial act and obtains the verbal assent of each principal to do so;

(iii) The notary observes each principal’s execution of a document;

(iv) Each principal who is not personally known to the notary visually displays federal or state issued identification bearing a photograph and signature of the principal (or a passport or other government-issued identification that evidences the principal’s nationality or residence if the principal is not a US citizen) during the electronic videoconference, and transmits a copy of the identification to the notary. With respect to any document requiring notarization and executed in the course of closing a transaction involving a mortgage or other conveyance of title to real estate (hereinafter, “Closing Documents”), Section 6(b) provides that any principal who is not personally known to the notary must also display a second form of identification containing the principal’s name (specific examples of forms of identification are set forth in Section 6(b));

(v) Each principal makes the necessary acknowledgment, affirmation or other act to the notary. In addition, each principal (a) swears or affirms under the penalties of perjury that the principal is physically located in Massachusetts, (b) discloses any other person present in the room, and (c) makes such person viewable to the notary; and

(vi) Each principal causes the original executed document to be physically delivered to the notary in accordance with the notary’s instructions.

Except for Closing Documents, the notary may sign and stamp the document upon satisfaction of the preceding (i) through (vi), at which point Section 3(b) of the Act provides that the notarial act shall be complete. Since one of the requirements for completion is the delivery of the executed document to the notary, some practitioners recommend that the notary sign the document twice: first during the videoconference after the principal signs, and again when the notary receives and collates the original documents. The notary should affix his or her seal only once, on receipt of the original documents.

Upon receipt of executed Closing Documents, the notary and each principal must engage in a second recorded video conference during which each principal verifies that the document received by the notary is the same document executed during the first video conference. See Section 3(a)(vi). The principal must again affirm to being physically located in Massachusetts, disclose any person also present in the room, and make such persons viewable to the notary. Id. Having all the originals in hand, the notary signs and stamps the Closing Document during this second video conference. Id.

In each case, the notary block must recite (i) that the document was notarized remotely pursuant to the Act, (ii) the county in which the notary was located when the notarial act was completed, and (iii) the date the notarial act was completed. See Section 3(c). To avoid confusion, the notary block may include both the date and county in which the notary was located when the principal was remotely before the notary, and the date and county in which the notary was located when the notary signed and stamped the executed originals. Id.

The notary must also execute an affidavit confirming that the notary (i) visually inspected each principal’s identification during the video conference and received a copy thereof (if a principal is not personally known to the notary), (ii) obtained consent from each principal to record the proceeding, (iii) received affirmation that each principal is physically in Massachusetts; and (iv) was informed of any person present in the room, and such person’s  relationship to each principal is listed on the affidavit. See Section 3(d). With respect to Closing Documents, the affidavit must address both video conferences.

Any will, nomination of guardian or conservator, caregiver authorization affidavit, trust, durable power of attorney, health care proxy or other authorization under the federal Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) (hereinafter, collectively “Estate Planning Documents”) is considered complete when all original counterparts and the notary’s affidavit are compiled. See Section 3(e).

Retention Requirements

The notary must retain for 10 years a copy of (i) each principal’s evidence of identity (although there is no requirement to retain a copy of a second form of identification with respect to Closing Documents), (ii) the affidavit executed by the notary, and (iii) the audio and video recording of the remote notarization. See Sections 3(a)(iii), 3(d), 3(f).

Restrictions on Who Can Notarize

Only notaries who are licensed to practice law in Massachusetts or a paralegal under the direct supervision of such an attorney may use remote notarization for Estate Planning Documents and Closing Documents. If the notary is a paralegal (which is not a defined term in the Act), the supervising attorney must retain the required documents and recordings for 10 years. Other documents may be notarized by any Massachusetts notary. See Section 6(a).

Conclusion

The Act is the product of several weeks of analysis and negotiation, beginning almost immediately after the state of emergency was declared, among representatives from a number of bar organizations, attorneys from multiple practice areas, private industry, government agencies and Massachusetts legislators.  While there was ultimately broad support for the Act in the face of the current public health crisis, many practitioners remain wary of making such a procedure permanent given the potential for abuse.

 

Rebecca Tunney is an associate at Goulston & Storrs, P.C. She assists individuals and families with complex estate plans involving estate, gift and generation-skipping transfer tax planning, estate and trust administration, international tax planning, charitable giving and business succession planning.

Kerry L. Spindler is a Director in the Private Client & Trust practice group at Goulston & Storrs PC, where she focuses on estate, tax, wealth transfer and charitable planning, as well as estate and trust administration. She currently serves as co-chair of the Trusts & Estates Section of the Boston Bar Association.

Sara Goldman Curley is a partner and deputy chair of the Private Client Department at Nutter McClennen & Fish, LLP, where she assists clients on a broad range of estate planning, estate administration and trust administration matters. She currently serves as co-chair of the Trusts & Estates Section of the Boston Bar Association.