By Debbie Gregory.

The DPA is a powerful tool to be employed to protect the nation.  Now that the nation’s industries are responding to the crisis, the best use of the DPA is as surgical tool for specific issues and as leverage to prompt best behavior and information sharing.

Elected members of the House and Senate now speak of the act daily. It’s also very much in the media.

The Defense Production Act first came into being in 1950 as the Truman administration realized it needed more authorities to mobilize the industrial base to fight the Korean War. The act has been re-authorized by Congress some 50 times since then, undergoing significant revision along the way.

The revisions made took basic two forms. Authorities no longer needed such as those dealing with requisitioning, rationing, wage and price-fixing, and labor disputes—were dropped.

Other revisions have broadened the original narrow definition of national defense.  It now extends to such things as energy security, space security and national disasters.

Of the seven original titles in the DPA, three remain—Titles I, III, and VII.  Here is a quick description to help understand what is taking place today with the COVID-19 crisis.

• Title I broadly contains the priorities and allocation authorities. The priorityauthority allows the federal government to ensure the timely availability of critical materials and services produced in the private market in the interest of national defense, and to receive items through contracts before any other competing interest. The allocation authority gives the president the power to allocate or control the general distribution of materials, services, and facilities.

The Department of Defense is the most frequent user of Title I, using it to insert priority clauses into its contracts. These provisions requiring contractors to give the Pentagon preference over all other customers in delivering goods or services.

In 2018 the department did this over 300,000 times. The Pentagon used its highest rating to prioritize the delivery of Mine Resistant-Ambush Protected (MRAP) vehicles for the Iraq War, as well as to obtain body armor for troops. The other federal departments use priority ratings much less. The Department of Homeland Security (DHS) used DPA-rated contracts only about 2,000 times in 2018, mostly for hurricane response.

The President has delegated his DPA authorities to the appropriate cabinet secretaries. On March 18, he signed Executive Order 13909 delegating his priorities authority to the Secretary of Health and Human Services (HHS).  This marked what the President and the media referred to as “invoking the Defense Production Act.”

Five days later, President Trump signed Executive Order 13910 giving HHS the allocations authority under Title I to stop hoarding and price gouging for medical equipment and supplies.  This authority has already been used in at least one instance to seize hoarded masks and protective equipment.

In the following week, the White House started to get specific about how to wield these authorities. On March 27, the president issued a memorandum telling HHS Secretary Alex Azar to direct General Motors to accept and prioritize contracts for ventilator production. Then, on April 2, the President signed two additional memorandums: the first directing 3M Company to ramp up N95 mask production; the other directing Azar to speed up delivery of component parts to the big manufacturers of ventilators.

• Now, let us look at Title III. It allows the President to provide grants and loans to develop, maintain, and expand domestic production capacity for resources needed for national defense.

Again, the Pentagon has been the most frequent user of these authorities, using them to provide money—typically in amounts less than $50 million—to companies to help shore up a recognized deficiency in the defense industrial base.  In the last year or two, the Defense Department has used Title III authority to help assure access to rare earths, explosives, and lithium seawater batteries.

In a typical year, the Pentagon asks for about $30 million for the Title III DPA Fund.  In 2020 it sought $34 million.

In terms of recent activity using Title III authorities, the newly-enacted CARES Act appropriates an unprecedented $1 billion to the DPA.  It is anticipated that most of that funding will go to medical manufacturing, including for vaccines and therapeutics. The CARES act also eliminates certain limits on DPA funding and reporting requirements.

The President also delegated his Title III authorities to his HHS and DHS secretaries. (DHS is involved because it controls FEMA, the Federal Emergency Management Agency.) Now, both departments can make direct investments in U.S. corporations to increase their capacity to manufacture medical supplies and equipment.

• The final section of the DPA, Title VII, contains a grab bag of authorities. The one most pertinent today is probably the authority for the government to enter voluntary arrangements with private companies.  Arrangements which, in normal circumstances, might look like sole-source contract awards, are thus permissible using Title VII.

For example, companies have approached the White House offering to make goods such as N95 respirators. Normally such transactions must be openly competed and competitively awarded. Title VII authorities provide for exceptions.

So, that is the DPA in a nutshell: Title I—priorities and allocation authorities; Title III—direct investments, and Title VII—voluntary agreements.

It’s likely that every one of the thousands of contracts being issued by the Defense Department and FEMA to fight the COVID-19 emergency have a DPA Title I rating.. And now that the federal government has developed a better understanding of the situation, General Motors has been directed to produce ventilators, 3M to make respirators, and ventilator parts suppliers to make more. Additional use of DPA authorities is likely in the coming weeks.

Over the last two weeks, we have seen may private like Ford and Toyota volunteer to partner with medical companies to make ventilators; Honeywell, 3M, Hanes, and others to make millions of N95 masks; and Anheuser Busch, Baccardi, and scores of boutique distillers to make hand sanitizer.

The DPA is a powerful tool to be employed to protect the nation.

SHARING FROM THE U.S. Department of Labor / Published April 21, 2020

During these challenging times, our nation’s Guardsmen and Reservists are answering the call to duty to protect the health and well-being of all Americans. We owe a duty to them to ensure full compliance with the employment and reemployment rights of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)

The Veteran’s Employment and Training Service (VETS) interprets and provides guidance on USERRA and investigates complaints filed under this law. VETS offers the following frequently asked questions and answers:

Does this fact sheet create new USERRA rights and obligations in light of COVID-19?

No. The statute and regulations still govern USERRA rights and obligations. This factsheet addresses some scenarios that might arise from the application of USERRA in the context of this pandemic.

Does a member of the National Guard or Reserves who is called to active duty in response to the COVID-19 emergency have employment and reemployment protections under USERRA?

• Yes, if called to duty under federal authority. National Guard or Reserve duty under federal authority (such as Title 10 or Title 32) is covered by USERRA.
  • National Guard duty under state authority, commonly referred to as State Active Duty, is not covered under USERRA. However, members of the National Guard serving on State Active Duty may have similar employment protections under state law and should contact the appropriate state office for assistance.
  • Note that the authority under which orders are issued can change, even in the course of a service member’s performance of service.

Can a service member be furloughed or laid off upon return from uniformed service?

• Yes, if it is reasonably certain that he or she would have been furloughed or laid off had he or she not been absent for uniformed service.

May an employer delay a service member’s reemployment out of concern that the service member’s service in a COVID-19 affected area may have exposed him or her to COVID-19?

• No. If the employee satisfies the prerequisites to reemployment, the employee should be promptly reemployed in the job position that he or she would have attained with reasonable certainty if not for the absence due to uniformed service.
  • Promptness generally depends on the length of time an individual was away, ranging from the next day after returning from duty, if the deployment was relatively short, to up to fourteen days in the case of a multi-year deployment.
  • When reemploying a service member who might have been exposed to COVID-19, an employer must make reasonable efforts in order to qualify the returning employee for his or her proper reemployment position. This can include temporarily providing paid leave, remote work, or another position during a period of quarantine for an exposed reemployed service member or COVID-19 infected reemployed service member, before reemploying the individual into his or her proper reemployment position.

Where to Obtain Additional Information:

Important USERRA-related resources and compliance assistance materials for employees and employers are available through the Veterans’ Employment and Training Service website at www.dol.gov/agencies/vets/programs/userra, which contains a USERRA elaws Advisor, FAQs, fact sheets, and links to the statute and implementing regulations. Our toll-free information and helpline, available 8:00 a.m. – 8:00 p.m. Eastern Time, is 1-866-4-USA-DOL (1-866-487-2365). The Department of Defense’s Employer Support of the Guard and Reserve also provides resources available at www.esgr.mil.

U.S. Department of Labor                             1-866-4-USA-DOL
200 Constitution Ave NW                              TTY: 1-877-TTY-5627
Washington, DC 20210

/Portals/13/USERRA-COVID-19-Impact.pdf

As a business owner, you’ve seen the headlines about financial relief that may be available to some companies through the Small Business Administration (SBA). But you’ve also heard about scammers who extract a grain of truth from the news and distort it in an effort to cheat small businesses. Now more than ever it’s critical for small business owners to go straight to the source for accurate information about what’s happening at the SBA. And that source, of course, is the Small Business Administration’s dedicated page, sba.gov/coronavirus.

The SBA’s Coronavirus Small Business Guidance & Loan Resources page offers the latest information about the Paycheck Protection Program, Economic Injury Disaster Loans and Loan Advances, SBA Debt Relief, and SBA Express Bridge Loans. Yes, there are legitimate business groups and financial institutions sharing information, too. But given the number of fraudsters out to make a quick buck with bogus websites and phony email, your safest best it to go straight to the SBA by carefully typing the URL sba.gov/coronavirus into the address bar at the top of your browser.

Here are more tips to help you avoid scams targeting small businesses:

• Scammers often mimic the look and feel of legitimate email.You’ve been warning your employees for years about email phishing attempts. Fraudsters have upped their game in response. They’ve been known to copy logos of financial institutions and government agencies, including the SBA, and use wording that sounds familiar. They also manipulate email addresses so that a message looks to be from a legitimate source – but isn’t. That’s why it’s dangerous to respond to those emails. Instead go directly to the SBA site.
• Don’t click on links.Say you get an email that says it’s from your bank or a government agency. Don’t click on any links. It could load malware onto your computer. If you think you may need to respond, pick up the phone and call the office directly, but don’t use a number listed in the email. That could be fake, too. Instead, search online for a genuine telephone number or call your banker using the number you’ve always used. Yes, now is a good time to keep in close contact with your financial institution, but employ the same established lines of communication you used before COVID-19 became a concern.
• Be suspicious of unsolicited phone calls.Some scammers may try the personal approach by calling you and impersonating someone from a financial institution or government agency. Don’t engage in conversation. If you think you may need to respond, call using a number you know is legit.
• Watch out for application scams.Some small businesses report they’ve received unsolicited calls or email from people claiming to have an inside track to expedite financial relief. The people contacting them may charge upfront fees or ask for sensitive financial information – account numbers, tax IDs, Social Security numbers, and the like. Don’t take the bait. It’s a scam. Applying for a loan was a step-by-step process before the Coronavirus crisis and it’s a step-by-step process now. That’s why the SBA’s gov/coronavirus site is the safest place for you to start.
• Alert your employees to Coronavirus relief check scams.Most people have read the news about Coronavirus relief checks that many Americans may receive. The FTC Consumer Blog has advice about spotting relief check scams. Share the tips with your staffers, family, and social networks.

If you spot a potential Coronavirus-related scam, report it to the FTC at ftc.gov/complaint.

The current COVID-19 pandemic is changing how our world works, educates, and socializes. We are all learning how to keep healthy, sane, and connected to each other during this difficult time. To that end, this month I won’t be writing about technology so much as sending out a few tips to help you keep connected and safe right now.

Get Out:

With stress and anxiety at an all time high, a dose of fresh air and sunshine can go a long way! Make sure to get out and get some sun every day. Simple short walks around the block can help you feel rejuvenated and generally happier.

Connect:

Just because we all need to stay at home and away from others right now doesn’t mean that we cannot connect with each other. How can this be done?

• Social media – If you don’t have any social accounts, now is a good time to set one up. Contact your loved ones and see which they are active on and create one yourself.
• Email – Take a few minutes to write short notes to friends and family to say hello, touch base, and even request assistance if you need it.
• Phone – Give people a call!
• Text – Same with calls and emails, texting is a great way to keep in touch with quick statements.
• Video – Now is a great time to learn to use Skype or Facetime to chat with loved ones and actually be able to see them.

Order Online:

• Lots of small businesses are going to need your support through this pandemic if they are to survive. Most of us eat out at least once a week but currently we cannot go to restaurants, consider ordering take out or delivery from your favorite local places.
• Most grocery stores offer delivery or pick-up services for orders.
• Other places like Amazon, Costco, Target, Walmart, etc are still shipping orders from their warehouses – if you need toiletries or other items consider ordering instead of heading into a physical store.

A few general health tips:

• Stay home as much as possible.
• Call your doctor if you have respiratory symptoms (coughing, sneezing, or shortness of breath) and/or a temperature above 100.4 F.
• Shield all coughs and sneezes with a tissue, elbow, or your shoulder (not your hands).
• Wash your hands often with soap and warm water for at least 20 seconds. If you cannot wash, use an alcohol-based hand sanitizer that contain at least 60% alcohol.

Let’s all remember to be considerate of other people and help slow the spread of this awful virus. Our best course of action is to slow how quickly the virus spreads by staying home and away from others. You can review the CDC’s guidance for more information on how you can do your part.

We are all in this together. We hope you and your loved ones are safe and healthy and remain that way.

-Kim Ralph, TeCHS

www.ezdigitallife.com