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Force majeure clauses and COVID-19

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on September 17, 2020.


By Phillips Murrah Attorney Kendra M. Norman

Kendra Norman Web

Kendra M. Norman represents individuals and businesses in a broad range of transactional matters.

Force majeure clauses are common clauses in contracts that allocate risk between parties and release a party from liability or obligations during unforeseeable or unpredictable events that are out of the party’s reasonable control.

These events can generally be referred to as acts of God or can be specifically listed in the agreement, often including events like war, strikes, riots or government actions. However, it should be noted that there is not a specific set of events that come under the definition of “acts of God” – this often depends on the context of the contract and the jurisdiction.

Force majeure clauses are ever-evolving and the language used has been influenced by events around us. Before 9/11, most force majeure clauses didn’t include terrorism as a force majeure event. This spurred litigation between parties regarding whether terrorism was an act of God that should be covered by the force majeure clause to excuse performance. Now, terrorism and terrorist attacks are often specifically set forth in force majeure clauses.

The conversation about force majeure clauses now revolves around whether the COVID-19 pandemic qualifies as an act of God and how this will affect contracts. As always, this depends on the type of contract, the language set forth in the contract, the context of the contract, the intent of the parties, and the governing law of the contract. Therefore, this determination is highly fact-specific and depends on several factors.

It is possible that COVID-19 could be considered an act of God in some contracts, or it could fall under force majeure clauses that contain specific references to disasters, national emergencies, government regulations or generally acts beyond the control of the parties. With the extraordinary potential consequences from COVID-19 yet to be determined, businesses should begin ascertaining whether their material contracts contain force majeure provisions and how such provisions may affect their rights and responsibilities going forward. However, given the widespread impact of COVID-19, it is possible that parties may be more likely to negotiate amendments to agreements that have been impacted by COVID-19 rather than forcing parties to rely on and litigate force majeure clauses.

Nevertheless, going forward, those entering into contracts should consider whether adding more specific terms such as epidemic, pandemic or infectious disease as force majeure events will be advantageous for them in the future.

Kendra Norman is an attorney with the law firm of Phillips Murrah.


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Breaking News: IRS issues guidance on Trump’s payroll tax deferral order

On Friday, August 28, 2020, the IRS and Treasury issued guidance implementing President Trump’s order to defer collection of some payroll taxes amid the coronavirus pandemic.

Phillips Murrah attorney Jessica Cory

Jessica N. Cory represents businesses and individuals in a wide range of transactional matters, with an emphasis on tax planning.

On August 8, 2020, President Trump issued a Presidential Memoranda, commonly known as an Executive Order (the “Order”), to defer the withholding, deposit, and payment of certain payroll taxes on wages paid from September 1, 2020 through the end of the calendar year.   The Order applies to any employee whose pretax compensation is less than $4,000 per biweekly pay period (or $104,000 per year, on an annualized basis).  The Order permits the employers of these eligible employees to temporarily suspend the 6.2% Social Security tax typically withheld from employees’ paychecks.

The Order has raised a number of questions for employers and payroll companies considering whether to implement the deferral.  For example, the National Payroll Reporting Consortium (“NPRC”) recently raised concerns about whether sufficient time is available to implement a deferral option by September 1, given the substantial programming changes that such an option would require. Because payroll systems are typically designed to use a single Social Security tax rate for the full year, for all employees, it may be challenging to change a reporting system to apply a different tax rate for part of the year, beginning mid-quarter, for only certain employees of certain employers.

In addition to practical challenges relating to implementation, the Order also raises liability concerns for both employees and employers, who are dually liable for unpaid payroll taxes under the Internal Revenue Code. Under Code Section 7508A, the Secretary of the Treasury can delay tax payments for up to a year during a presidentially-declared disaster, but no authority exists to authorize forgiveness of those deferred amounts. Accordingly, employees, employers, or both could be held liable for any deferred payroll taxes after the deferral period ends. This could represent a substantial burden. For example, for an employee earning $50,000 per year, the deferral would allow the employee to take home an additional $119 per paycheck during the deferral period. But, without Congressional action to authorize forgiveness of the deferred taxes, that employee—or his or her employer—would be facing a $1,073 tax liability in January.

Based on guidance released today from the Treasury Department in Notice 2020-65, employers who opt into the deferral program will be required to collect the deferred taxes ratably from their employees during a four month repayment period beginning on January 1, 2021, through increased withholding. Accordingly, during the repayment period, employers will be required to withhold 12.4% from their employees’ paychecks, rather than the normal 6.2%, to repay the payroll tax liability accumulated from September to December. The guidance does not indicate how an employer should collect the deferred taxes from an employee who terminates his or her employment prior to the end of the repayment period but indicates that employers may make other “arrangements … to collect the total [deferred tax amount] from the employee,” if necessary.

The guidance offered on Friday indicates that the Treasury intends to put the onus of repayment on the employer, with the employer potentially subject to interest, penalties, and additions to tax beginning on May 1, 2021, if the employer is unable to collect the accrued tax liability from its employees. Accordingly, given the voluntary nature of the deferral, the potential liability involved, and the costs and complexity associated with upgrading their payroll systems to accommodate the deferral, employers have a strong incentive to opt out and continue withholding for now.

To the extent an employer does want to participate in the tax deferral, the employer should consider establishing a procedure to allow eligible employees to opt in to the deferral. This procedure should require any employee opting in to provide the employer with a written and signed statement that:

  1. Acknowledges that any deferred taxes will come due in 2021.
  2. Authorizes the employer to withhold tax at a double rate, consistent with the guidance provided in Treasury Notice 2020-65, for those pay periods falling in the four-month repayment period.
  3. Agrees that in the event the employee’s employment is terminated prior to the end of the repayment period, for any reason, the employer can set off any remaining amount owed to the employee by the amount of outstanding deferred taxes, that the employee will be liable for any remaining amount, and the employee will reimburse the employer for any associated liability, including penalties and interest, as necessary.

Employers who decide to establish such an opt-in procedure should consult with counsel to ensure compliance with state labor laws.


For more information on this alert and its impact on your business, please call 405.552.2472 or email me.

Keep up with our ongoing COVID-19 resources, guidance and updates at our RESOURCE CENTER.

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U.S. Dept. of Labor releases paid leave guidance for employees with children returning to school

Janet Hendrick

Janet Hendrick is an experienced employment litigator who tackles each of her client’s problems with a tailored, results-oriented approach.

The U.S. Department of Labor issued additional guidance on Thursday, Aug. 28 regarding employees taking paid leave under the FFCRA. This update from the DOL comes soon after the United States District Court for the Southern District of New York issued an opinion invalidating four DOL regulations interpreting the FFCRA: (1) the “work-availability” requirement; (2) the definition of a “health care provider”; (3) the intermittent leave regulation; and (4) the documentation requirements.[1] Thus, the new guidance indicates that the DOL will follow and has adopted the New York Federal Court’s opinion.

For employees who have children returning or who have returned to school, DOL added the following three Families First Coronavirus Response Act Questions and Answers to help employers and employees understand under which circumstances employees may take paid leave of work.

  • My child’s school is operating on an alternate day (or other hybrid-attendance) basis. The school is open each day, but students alternate between days attending school in person and days participating in remote learning. They are permitted to attend  school only on their allotted in-person attendance days. May I take paid leave under the FFCRA in these circumstances? (added 08/27/2020)

Yes, you are eligible to take paid leave under the FFCRA on days when your child is not permitted to attend school in person and must instead engage in remote learning, as long as you need the leave to actually care for your child during that time and only if no other suitable person is available to do so. For purposes of the FFCRA and its implementing regulations, the school is effectively “closed” to your child on days that he or she cannot attend in person. You may take paid leave under the FFCRA on each of your child’s remote-learning days.

  • My child’s school is giving me a choice between having my child attend in person or participate in a remote learning program for the fall. I signed up for the remote learning alternative because, for example, I worry that my child might contract COVID-19 and bring it home to the family. Since my child will be at home, may I take paid leave under the FFCRA in these circumstances? (added 08/27/2020)

No, you are not eligible to take paid leave under the FFCRA because your child’s school is not “closed” due to COVID–19 related reasons; it is open for your child to attend. FFCRA leave is not available to take care of a child whose school is open for in-person attendance. If your child is home not because his or her school is closed, but because you have chosen for the child to remain home, you are not entitled to FFCRA paid leave. However, if, because of COVID-19, your child is under a quarantine order or has been advised by a health care provider to self-isolate or self-quarantine, you may be eligible to take paid leave to care for him or her. See FAQ 63.

Also, as explained more fully in FAQ 98, if your child’s school is operating on an alternate day (or other hybrid-attendance) basis, you may be eligible to take paid leave under the FFCRA on each of your child’s remote-learning days because the school is effectively “closed” to your child on those days.

  • My child’s school is beginning the school year under a remote learning program out of concern for COVID-19, but has announced it will continue to evaluate local circumstances and make a decision about reopening for in-person attendance later in the school year. May I take paid leave under the FFCRA in these circumstances? (added 08/27/2020)

Yes, you are eligible to take paid leave under the FFCRA while your child’s school remains closed. If your child’s school reopens, the availability of paid leave under the FFCRA will depend on the particulars of the school’s operations. See FAQ 98 and 99.

These changes show that employer compliance with the New York Federal Court opinion is crucial – even for employers outside of that jurisdiction. The DOL could continue to release new guidance based on other Federal Court decisions examining FFCRA regulations.

[1] State of New York v. United States Dep’t of Labor, 20-CV-3020 (S.D.N.Y. 2020). A copy of the opinion is located at: https://www.fmlainsights.com/wp-content/uploads/sites/813/2020/08/State-of-NY-v.-USDOL.pdf.


For more information on this article and its impact on your business, please call 214.615.6391 or email Janet A. Hendrick.

Phillips Murrah’s labor and employment attorneys continue to monitor developments to provide up-to-date advice to our clients during the current COVID-19 pandemic.

Stay informed with COVID-19 resources, guidance and updates at our RESOURCE CENTER.

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New York Federal Court invalidates department of labor FFCRA regulations creating potential nationwide ramifications

Courthouse in lower ManhattanBy Phoebe B. Mitchell

On August 3, 2020, the United States District Court for the Southern District of New York invalidated multiple Department of Labor (DOL) regulations interpreting the Families First Coronavirus Response Act (FFCRA), Congress’ response to the COVID-19 pandemic.  The FFCRA provides paid leave to employees unable to work during the coronavirus crisis. Congress charged the DOL with issuing FFCRA regulations, with the final regulations being published on April 1, 2020 (85 Fed. Reg. 19,326) (“Final Rule”). Shortly after, the State of New York sued the DOL, claiming it exceeded its statutory authority and unlawfully denied leave to eligible employees.  The Southern District of New York agreed with the State of New York, voiding four FFRCA regulations:

1) “Work-availability” requirement

2) Definition of “health care provider”

3) Intermittent leave

4) Documentation requirements

“Work-Availability” Requirement

The two major provisions of the FFCRA, the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA), apply to employees who are unable to work due to the COVID-19 pandemic. However, the DOL’s final rule implementing the FFCRA excludes employees who are unable to work because their employers do not have work for them.

The court stated that this limitation is “hugely consequential” for employees whose employers have temporarily shut down due to the pandemic, and thus, have no work for their employees. By invalidating this DOL regulation, the court held the DOL cannot require that employees actually be working in order to take FFCRA leave. In turn, this could subject employers, including employers who were forced to temporarily cease operations due to state or local orders, to claims by furloughed or laid-off employees.

Definition of “Health Care Provider”

Under the FFCRA, an employer may elect to exclude “health care providers” from leave benefits. Thus, the DOL’s definition of “health care provider” could have large ramification for many employers. In its final rule, the DOL defined “health care provider” as:

“anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, Employer, or entity. This includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions”

and

“any individual employed by an entity that contracts with any of these institutions described above to provide services or to maintain the operation of the facility  where that individual’s services support the operation of the facility, [and] anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19 related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments.”

Final Rule at 19,351 (§ 826.25).

The court noted, and the DOL conceded, that this expansive definition, in practice, could include even an English professor, librarian or cafeteria manager at a university with a medical school. Thus, the court held that this definition could not stand. In so deciding, the court reasoned that even employees with “no nexus whatsoever” to healthcare services would be exempt from FFCRA leave.

Intermittent Leave

The DOL’s Final Rule significantly limited intermittent leave under the FFCRA. Intermittent leave means leave taken in separate periods of time, rather than one continuous period. Under the rule, an employee could only use intermittent leave if: (1) the employee and employer agree to the use of intermittent leave; and (2) the use is limited to the employee’s need to care for a child whose school or place of care is closed, or where child care is unavailable.

The court agreed that intermittent leave should not be allowed in situations where the employee is at high risk for spreading the virus to other employees. For example, if an employee is showing symptoms of COVID-19, or caring for a family member showing symptoms of COVID-19, the employee should not be allowed to take intermittent leave, but rather must take continuous paid sick leave until that leave is exhausted or the employee no longer has a reason to be on leave.

However, the court disagreed with the DOL’s interpretation that the employer and employee must agree to the use of intermittent leave. The court held that the regulation “utterly fails to explain why employer consent is required” for an employee to take intermittent leave. Thus, the court ruled that an employer’s consent is not required for an employee to take intermittent leave under the FFCRA.

Documentation Requirement

The DOL’s Final Rule requires employees to submit documentation to their employer prior to taking leave indicating the reason for leave, the duration of the requested leave, and, when applicable, the authority for the isolation or quarantine order qualifying them for leave.

In contrast, the FFCRA states that an employer may require an employee taking leave under the EPSLA to provide reasonable documentation after the employee’s first day of leave. Further, the statute provides that an employee taking leave under EFMLA must provide the employer with notice of leave as is practicable under the circumstances.

The New York court held that, due to the specific notice requirements set out in the statute, the DOL exceeded its authority in requiring that an employee provide documentation before taking leave. Striking down this regulation, however, did not affect the FFCRA’s original notice requirements mandating documentation after an employee takes leave under the statute.

While this decision came from a federal New York court, it could have nationwide ramifications. The decision could prompt the DOL to issue new regulations, which, of course, would be implemented across the United States. Alternatively, the DOL could choose to appeal the decision. Currently, it is unclear if this decision will be applied retroactively. As always, but especially In light of this decision, employers must be vigilant when making decisions regarding employee leave under the FFCRA.

Phillips Murrah’s labor and employment attorneys continue to monitor developments to provide up-to-date advice to our clients during the current COVID-19 pandemic.

Keep up with our ongoing COVID-19 resources, guidance and updates at our RESOURCE CENTER.


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Click to visit Phoebe Mitchell’s profile page.

For more information on this alert and its impact on your business, please call 405.606.4711 or email me.

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What is the status of evictions and foreclosures in Oklahoma amidst the COVID 19 pandemic?

By Gretchen M. Latham

In March 2020, the State Supreme Court entered an Order extending statutory deadlines, which included an extension of any answer deadline on pending civil cases. For foreclosure actions, that means many borrowers were given additional time to reply to a Petition in Foreclosure.

However, even though the State Supreme Court subsequently entered additional COVID 19 related orders, the deadline extension has now expired, and some lenders are resuming the foreclosure process. The same is true for eviction matters, which were not put on hold, but rather, the landlord was required to state whether the action at issue was subject to the CARES Act, which covered certain types of transactions.

Gretchen Latham Web

Gretchen M. Latham’s practice focuses on representing creditors in foreclosure, bankruptcy, collection and replevin cases.

The result of these events is that landlords and lenders are likely to begin resuming both evictions and foreclosures, but they should do so only if allowed under existing law and recent legislation.  The need to check on current status of legislation is becoming even more important, as lawmakers in Washington are looking to extend federal employment benefits and the moratorium on evictions.  The situation is ever-changing, and having a complete knowledge of the law is advisable before beginning any eviction or foreclosure.

This is especially true given the short timeline for evictions in Oklahoma. While many landlords opt to undertake these actions on their own – and are permitted to do so – now more than ever it is critical to be fully aware of the changing legal landscape and the uncertainty of when, or if, COVID 19 will be brought to a manageable level. Landlords are wise to be fully aware of their options when the hard decision to evict must be made.

The same is true for foreclosures, where lenders may be required to include a statement as to whether the mortgage loan in question is subject to the CARES Act and may have to provide the Court with additional information when seeking judgment.  For many loans, foreclosures were placed on hold for a period of time. However, this is not true of all loans and is not in place in every state. The differences between what one state has done vs. the choice of a different state can be confusing to lenders, making it essential for lenders to maintain contact with their attorney regarding the status of foreclosures in any given state.

For Oklahoma, some foreclosures are proceeding on schedule now that the extension of statutory answer deadlines has expired.  For lenders that have not yet resumed foreclosures actions in the Sooner State, the time has come to readjust the lawsuit timeline.

Lenders and landlords are wise to sit down with an attorney to talk over their options when these hard foreclosure and eviction decisions must be made.


To discuss your options, contact Gretchen Latham at the contact information below:

Gretchen M. Latham, Attorney
Phillips Murrah P.C.
EMAIL: gmlatham@phillipsmurrah.com
PHONE: 405.606.4774

Phillips Murrah

Phillips Murrah’s attorneys continue to monitor developments to provide up-to-date advice to our clients during the current COVID-19 pandemic. Keep up with our ongoing COVID-19 resources, guidance and updates at our RESOURCE CENTER.

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Phillips Murrah PPE donation to OU Medicine follow-up

As part of Phillips Murrah’s efforts to assist in the Oklahoma City community’s response to the COVID-19 pandemic, our Firm once again partnered with NPR radio station KGOU. In addition to supporting KGOU’s ongoing work, Phillips Murrah raised $3000 for OU Medicine to assist in acquiring personal protective equipment (PPE) for front-line medical workers, as part of May’s #GivingTuesdayNow pledge drive.

On Wednesday, our Firm presented the donation to Anne Clouse, Chief Development Officer for OU Medicine. Due to COVID-19-related restrictions, Phillips Murrah Director Catherine L. Campbell and Healthcare practice leader Mary Holloway Richard presented a six-foot-wide check, designed with appropriate social distancing in mind.

Phillips Murrah OU Medicine PPF Check Presentation

Phillips Murrah Director Catherine L. Campbell (l) and Healthcare practice leader Mary Holloway Richard (r) presented a six-foot check to OU Medicine, designed with appropriate social distancing in mind.

“We are deeply grateful to Phillips Murrah for their generous gift to support OU Medicine’s COVID-19 response,” said Clouse. “Their donation will help support our healthcare workers taking care of patients on the frontline. What a kind a thoughtful gesture.”

“Phillips Murrah has long had a strong relationship with healthcare facilities and providers throughout our state,” said Richard, who represents institutional and non-institutional providers of health services. “We are proud to support the heroic efforts of OU Medicine and those on the front line ministering to all Oklahomans.”

“There is a certain element of good humor related to this giant, social-distancing presentation check, which Cathy and Mary safely presented to Anne in a parking lot on the downtown OU Medicine complex.” said Dave Rhea, Phillips Murrah Marketing Director. “However, supporting OU Medicine as they battle this virus is a very serious matter, and we are grateful to be able to help.”

#GivingTuesdayNow was a global day of giving and unity as an emergency response to the unprecedented need caused by COVID-19.

Promotional graphic for KGOU GivingTuesNow 2

RELATED LINKS:

#GivingTuesdayNow: Phillips Murrah partners with KGOU to support OU Medicine PPE
Phillips Murrah partners with KGOU and Regional Food Bank to provide 20,000 meals

Keep up with our ongoing COVID-19 resources, guidance and updates at our RESOURCE CENTER.

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SB 1928: Key changes to ABLE laws make curbside sales and delivery of alcohol permanent

By Phillips Murrah Attorneys Ellen K. Spiropoulos and Justin G. Bates

In response to the outbreak of the novel coronavirus, and in keeping with the sweeping changes to modernize Oklahoma’s liquor laws effective in October 2018, the ABLE Commission temporarily authorized curbside and delivery of beer, wine and spirits by liquor stores, beer and wine by grocery and convenience stores, and by restaurants holding the appropriate licenses.

Phillips Murrah attorney Ellen SpiropoulosLauren Hanna

Ellen assists local and national businesses in the restaurant, entertainment and hospitality industries with obtaining applicable operating licenses and permits for food and alcoholic beverage service, as well as any related compliance or enforcement issues.

The passage of Senate Bill 1928 in the last days of the session, which became law this week, effectively made the ABLE Commission’s previous directives about curbside sales and delivery of alcohol permanent. The key changes to the alcohol laws now expand sales for ABLE licensees effective immediately under the following conditions:

  • Liquor stores can sell beer, wine and spirits in sealed, original containers via curbside and delivery.
  • Grocery and convenience stores can sell beer and wine (up to 15% alcohol by volume) in sealed, original containers via curbside and delivery.
  • Restaurants, bars and clubs can sell beer and wine in closed packages via curbside and delivery.
  • Small brewers and small farm wineries may sell curbside-only alcoholic beverages produced by the brewery or winery in sealed, original containers.
  • Payment can be made by cash, check, transportable credit card devices and advance online payment methods.
  • Curbside sales and all deliveries must be made by ABLE-licensed and trained employees of the business.
  • No third-party services can be used for any deliveries.

Some states already permit third-party delivery sales from liquor stores, as well as drive-thru and to-go sales of alcoholic beverages from restaurants. As a result of restaurant dining closures and the need for social distancing, several more states are, at least temporarily, expanding alcohol delivery options and sales of cocktails to-go. The Oklahoma legislature was not willing to go that far.

Nevertheless, the actions taken by the ABLE Commission since March, and the bills passed with overwhelming majorities by the Oklahoma House and Senate this session, are continuing advances in the modernization of Oklahoma’s liquor laws.

It is hard to believe that less than two years ago, Oklahoma still had dry counties and only 3.2 beer in grocery and convenience stores. We have come a long way and there is no telling where the trail will end. Cheers!


For more information on this alert and its impact on your business, please contact:

Ellen Keough Spiropoulos is an Of Counsel attorney at Phillips Murrah who assists local and national businesses in the restaurant, entertainment and hospitality industries with obtaining applicable operating licenses and permits for food and alcoholic beverage service, as well as any related compliance or enforcement issues. Contact her by phone, 405.552.2422 or by email.

Justin G. Bates is a litigation attorney who represents individuals and both privately-held and public companies in a wide range of civil litigation matters. Contact him by phone, 405.552.2471 or by email.

Keep up with our ongoing COVID-19 resources, guidance and updates at our RESOURCE CENTER.

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Governor Signs S.B. 300 Providing Immunity for Physicians, Hospitals and Other Providers

By Phillips Murrah Healthcare Attorney Mary Holloway Richard

Since the first emergency orders signed by Governor Stitt, Oklahoma physicians, hospitals and other healthcare providers have anticipated the emergency granting of some measure of statutory immunity to support care during the COVID-19 pandemic.  On April 20, the Governor amended Emergency Order 2020-13 but stopped short in filling the gap needed to support the healthcare system at this challenging time leaving the task to the legislature upon its return this month.

Oklahoma Opioid Decision by Phillips Murrah healthcare attorney Mary Holloway

Mary Richard is recognized as one of pioneers in health care law in Oklahoma. She has represented institutional and non-institutional providers of health services, as well as patients and their families.

On May 6, the Senate approved S.B. 300 granting limited immunity to providers on the front lines of this epidemic.  The bill provides for civil immunity “…for any loss or harm to a person by an act or omission by the facility or provider that occurs during the COVID-19 public health emergency…” so long as the act or omission did not result from the provider’s or facility’s “willful or wanton misconduct” in providing the services.  The grant of immunity excludes immunity from liability for provision of services to people who do not have suspected or confirmed COVID-19 diagnoses at the time the care was provided.  The grant of immunity expires on October 31, 2020, unless amended by the legislature.

The statute adopts the following definition of Health Care Providers from the Catastrophic Emergency Powers Act 63 O.S. §6104(6):

  • Physicians

  • Dentists

  • Pharmacists

  • Physician Assistants

  • Nurse Practitioners

  • Registered and Other Nurses

  • Paramedics

  • Laboratory Technicians

  • Ambulance and Emergency Medical Workers

The statute also adopts the following expansive definition of Health Care Facilities also from 63 O.S. §6104(5) of the Catastrophic Health Emergency Powers Act:

  • Hospitals

  • Ambulatory Care Facilities

  • Outpatient Facilities

  • Public Health Clinics and Centers

  • Dialysis Centers

  • Intermediate Care Facilities

  • Mental Health Centers

  • Residential Treatment Facilities

  • Skilled Nursing Facilities

  • Special Care Facilities

  • Medical Laboratories

  • Adult Day Care

These facilities, not an exclusive or complete list, may be proprietary or non-proprietary, non-federal buildings.  Further, property used in connection with such facilities may be included such as pharmacies, offices and office buildings for persons engaged in the health care professions, research facilities and laundry facilities.

The statute defines “Health care services” as those provided by a health care facility or provider, or by an individual working under the supervision of such a facility or provider, related to “…the diagnosis, assessment, prevention, treatment, aid, shelter, assistance, or care of illness, disease, injury or condition.”

In summary, the act provides for immunity for civil liability for loss or harm to a person with a suspect at or confirmed COVID-19 diagnoses caused by the provider or facility during the pandemic as long as the act or omission occurred during the course of treatment including decision-making, staffing, capacity of space of equipment in response to the epidemic and as long as the act or omission was not the result of the gross negligence or willful or wanton misconduct of the provider or facility.  The statute do not grant such immunity to providers of services to individuals who do not have suspected or confirmed cases of COVID-19.


For more information on this alert and its impact on your business, please call 405.552.2403 or email me.

Keep up with our ongoing COVID-19 resources, guidance and updates at our RESOURCE CENTER.

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Returning to Work – A Post-Pandemic Workplace Safety Guide

By Phillips Murrah Attorneys Janet Hendrick and Phoebe Mitchell

As stay-at-home orders have begun to expire in recent weeks, more than half of the states – including Oklahoma and Texas – have lifted restrictions on businesses. With many Americans returning to work after months at home due to the COVID-19 virus pandemic, employers should be aware of claims relating to workplace reentry. Employers can anticipate novel causes of action, including lawsuits alleging a failure to provide a safe workplace.

Phillips Murrah Director Janet Hendrick portrait

Janet Hendrick is an experienced employment litigator who tackles each of her client’s problems with a tailored, results-oriented approach.

For example, in New York, nurses’ unions have filed multiple lawsuits against the state, claiming “grossly inadequate” protections against the virus in the workplace. These suits likely mark a trend, as employees may attempt to hold their employers liable for lost work, hospitalizations, and even deaths caused by COVID-19, especially where employees may have contracted the virus in the workplace.

The Occupational Safety and Health Administration (OSHA), the federal agency charged with regulating workplace safety, has not issued new guidance relating to airborne diseases in response to the coronavirus pandemic. Instead, the agency has relied on its “general duty” clause, which mandates that employers provide a place of employment “free from recognized hazards that are causing or likely to cause death or serious physical harm” to their employees.  This simply means that employers have a general duty to provide a safe working environment for their employees.

On April 10, 2020, OSHA did issue new guidance regarding recording cases of COVID-19 in the workplace. Under the Occupational Safety and Health Act, employers must record instances of illnesses contracted in the workplace, or “occupational illnesses.” OSHA’s new guidance provides that COVID-19 is a recordable illness, and employers will be responsible for recording cases of COVID-19 in the workplace if three criteria are met:  (1) the case is a “confirmed case” of COVID-19 as defined by the CDC; (2) the case is “work-related” as defined by 29 C.F.R. § 1904.5; and (3) the case involves one or more of the general recording criteria set forth in 29 C.F.R. § 1904.7.

Phillips Murrah attorney Phoebe B. Mitchell portrait

Phoebe B. Mitchell is a litigation attorney who represents individuals and both privately-held and public companies in a wide range of civil litigation matters.

(1) “Confirmed case”

The CDC defines a confirmed case of COVID-19 as “an individual with at least one respiratory specimen that tested positive for SARS-CoV-2, the virus that causes COVID-19.”

(2) “Work-related”

As defined by OSHA regulations, a case is “work-related” if “an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness.”

(3) General recording criteria

As defined by OSHA regulations, a case meets one or more of the general recording criteria if it results in any of the following: “death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness.” Further, the case also meets the general recording criteria if it “involves a significant injury or illness diagnosed by a physician or other licensed health care professional, even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness.”

Because of community transmission of COVID-19, the guidance states that the only employers who must make the above work-relatedness determinations with relation to cases of COVID-19 in the workplace are the healthcare industry, emergency response organizations (which includes emergency medical, firefighting and law enforcement services), and correctional institutions. OSHA will not require other employers to make these same work-relatedness determinations, unless there is objective evidence that a COVID-19 case may be work-related, and the evidence was readily available to the employer. The guidance is intended to help employers focus on implementation of good hygiene practices and mitigation of COVID-19’s effects in the workplace, rather than forcing employers to make difficult work-relatedness decisions where there has been community spread.

Based on this OSHA guidance and the inevitable surge of litigation in the post-pandemic US, employers should act now to both protect their employees and minimize potential liability.

Before employees return to the workplace, employers should:

1) Create and implement concrete polices and guidelines regarding workplace hygiene, social distancing, face covering usage and reporting of symptoms

2) Monitor employees to ensure compliance with new COVID-19 policies

3) Encourage employees to stay home if they are sick

4) Allow at-risk employees to work from home where possible

5) Allow employees to return to work in phases where possible

6) Close off common areas in the workplace, such as break rooms, in an effort to encourage social distancing

 


For more information on this alert and its impact on your business, please call:

Janet Hendrick is a Shareholder in the Dallas office of Phillips Murrah who specializes in advising and representing employers. (click name for profile page) Contact her by phone, 214.615.6391 or by email.

Phoebe Mitchell is an Associate in the Oklahoma City office of the firm. (click name for profile page) Contact her by phone, 405.606.4711, or by email.

Phillips Murrah’s labor and employment attorneys continue to monitor developments to provide up-to-date advice to our clients during the current COVID-19 pandemic. Keep up with our ongoing COVID-19 resources, guidance and updates at our RESOURCE CENTER.

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CARES Act and independent contractors – How businesses can mitigate risk related to CARES Act unemployment claims

By Phillips Murrah Attorney Martin J. Lopez III 

Below is an expanded version of a Gavel to Gavel column that appeared in The Journal Record on May 14, 2019.

attorney Martin J Lopez III

Martin J. Lopez III is a litigation attorney who represents individuals and both privately-held and public companies in a wide range of civil litigation matters.

Businesses should identify and mitigate risk related to CARES Act independent contractor unemployment claims

In response to the COVID-19 national emergency, Congress has taken the extraordinary measure to allow independent contractors, gig-workers, and self-employed individuals access to unemployment insurance benefits for which they are generally ineligible. This article is geared towards businesses that regularly use independent contractors who may file claims for unemployment insurance benefits—discussing the risks involved and how businesses can mitigate those risks.

Background Regarding Relevant CARES Act Provisions

On March 27, 2020 President Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). Among other provisions, the CARES Act significantly expands the availability of unemployment insurance benefits to include workers affected by the COVID-19 national public health emergency who would not otherwise qualify for such benefits—including independent contractors. This increased accessibility to unemployment insurance benefits theoretically provides an avenue for a state unemployment agency to find an independent contractor applicant to be an employee. Such a finding introduces the risk of the state unemployment agency assessing unpaid employment and payroll taxes for those a business previously treated as independent contractors. Tangentially, such a finding could serve to establish or bolster independent contractors’ claims in wage and hour litigation.

To qualify as a “covered individual” under the Pandemic Unemployment Assistance (“PUA”) provisions of the CARES Act, a self-employed individual must self-certify that she is self-employed, is seeking part-time employment, and does not have sufficient work history or otherwise would not qualify for unemployment benefits under another state unemployment program. Further, the self-employed individual must certify that she is otherwise able to work and is available for work within the meaning of applicable state law, but is “unemployed, partially unemployed or unable or unavailable to work” because of one of the following COVID-19 related reasons:

  • The individual has been diagnosed with COVID-19 and is seeking a medical diagnosis;
  • A member of the individual’s household has been diagnosed with COVID-19;
  • The individual is providing care for a family member or member of the individual’s household who has been diagnosed with COVID-19;
  • A child or other person in the household for which the individual has primary caregiving responsibility is unable to attend school or another facility that is closed as a direct result of the COVID-19 public health emergency and such school or facility care is required for the individual to work;
  • The individual is unable to reach the place of employment because of a quarantine imposed as a direct result of the COVID-19 public health emergency;
  • The individual is unable to reach the place of employment because the individual has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • The individual was scheduled to commence employment and does not have a job as a direct result of the COVID-19 public health emergency;
  • The individual has become the breadwinner or major support for a household has died as a direct result of COVID-19;
  • The individual has to quit his or her job as a direct result of the COVID-19 public health emergency;
  • The individual’s place of employment is closed as a direct result of the COVID-19 public health emergency.

If the individual meets the above criterion, she is a “covered individual” and is eligible for unemployment assistance authorized by the PUA provisions of the CARES Act. Such assistance was available beginning January 27, 2020 and provides for up to thirty-nine (39) weeks of unemployment benefits extending through December 31, 2020. Covered individuals’ unemployment benefits are calculated state-by-state, according to each state’s conventional unemployment compensation system. In addition, under the PUA provisions of the CARES Act, covered individuals may receive an additional $600 for each week of unemployment until July 31, 2020.

What Businesses Can Do to Protect Themselves

To counteract the risks discussed above, I recommend a business implement the following best practices when responding to a claim of unemployment by an independent contractor:

  • respond proactively to unemployment claim notices for independent contractors;
  • state clearly in the response that the relevant individual-claimants were independent contractors and not employees of the business;
  • affirmatively state that each independent contractor claimant was an independent contractor to whom the business occasionally (or routinely) provided work, but that it is unable to provide the same volume (or any) work to the individual at present because of the COVID-19 national emergency;
  • specify in the response that the individual’s eligibility for unemployment benefits must be entirely predicated on the PUA provisions of the CARES Act allowing for independent contractor participation in the program; and
  • provide the claimant’s independent contractor agreement to the state unemployment agency.

In providing this information and documentation to the state unemployment agency, the business will be able to demonstrate its independent contractor relationship with the individual. Together with the fact that these individuals’ eligibility to receive unemployment income rests exclusively on relevant CARES Act provisions, the business should be well-positioned to avoid the typical risks that can result from a successful unemployment claim by an independent contractor.

Martin J. Lopez III is an attorney at the law firm of Phillips Murrah.

[UPDATE] SBA, Treasury extended the safe harbor repayment date for PPP loans

In its most recent update to the list of frequently asked questions (FAQs), the Small Business Administration (SBA) and Treasury Department extended the safe harbor repayment date for loans under the Paycheck Protection Program (PPP) established by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act).

The PPP application form requires borrowers to certify that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.” In an effort to address this vague requirement, the SBA and Treasury issued guidance on April 23, 2020 specifying that, while the CARES Act suspends the requirement that borrowers be unable to obtain credit elsewhere, applicants must still certify in good faith that their PPP loan request is necessary. Specifically, FAQ 31 directs borrowers to consider current business activity and the ability to access other sources of liquidity.

The guidance initially provided a safe harbor provision that a borrower who applied for a loan prior to April 24, 2020 and repays the loan in full by May 7, 2020 will be deemed to have made the certification in good faith. The update issued on May 5, 2020 extends the repayment date for the safe harbor to May 14, 2020. According to FAQ 43, borrowers are not required to apply for the extension. FAQ 43 also states that the SBA will provide additional guidance on how it will review the certification.

Link to FAQs:  https://home.treasury.gov/system/files/136/Paycheck-Protection-Program-Frequently-Asked-Questions.pdf


Phillips Murrah attorney Kara Laster

Kara K. Laster represents individuals and businesses in a broad range of transactional matters including real estate and mergers and acquisitions.

For more information on this alert and its impact on your business, please call 405.606.4762 or email me.

Keep up with our ongoing COVID-19 resources, guidance and updates at our RESOURCE CENTER.

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SBA, Treasury update PPP reg guidance for laid-off employee forgiveness exclusion

The Small Business Administration and Treasury continue to issue guidance regarding the Paycheck Protection Program (PPP) established by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). The most recent update to the list of frequently asked questions (FAQs) addresses whether a borrower’s loan forgiveness amount will be reduced if one of the borrower’s employees turns down an offer to be rehired.

According FAQ 40, laid-off employees will be excluded from the forgiveness reduction calculation so long as the borrower made a good faith, written offer of rehire and the employee’s rejection of the offer is documented. The FAQ specifies that the offer must have been for the same salary/wages and the same number of hours. It also notes that employees who reject offers of re-employment may forfeit eligibility for unemployment compensation.

Link to FAQs:  https://home.treasury.gov/system/files/136/Paycheck-Protection-Program-Frequently-Asked-Questions.pdf


Phillips Murrah attorney Kara Laster

Kara K. Laster represents individuals and businesses in a broad range of transactional matters including real estate and mergers and acquisitions.

For more information on this alert and its impact on your business, please call 405.606.4762 or email me.

Keep up with our ongoing COVID-19 resources, guidance and updates at our RESOURCE CENTER.

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PM Director Kathy Terry featured in article about liability related to workplace reopening

Phillips Murrah Director Kathy Terry is featured as a source in a Journal Record article regarding liability that companies may face as Oklahoma begins to re-open as directed by Governor Stitt.

Kathryn Terry portrait

The emphasis of Kathryn D. Terry’s litigation practice is in the areas of insurance coverage, labor and employment law and civil rights defense. She also represents corporations in complex litigation matters.

From the story:

As thousands of businesses reopen their doors amid the COVID-19 crisis, they’ll be facing a new type of risk that could be even more devastating to them than a pandemic.

Oklahoma businesses could face lawsuits filed by customers claiming they contracted COVID-19 while in their restaurants, bars or showrooms, forcing court cases that could cost tens of thousands of dollars in legal fees.

“We’re going to see the lawsuits. Lots of lawsuits,” said Kathryn Terry, an attorney with Oklahoma City law firm Phillips Murrah.

The issue may be the latest tragic tranche to unfold in the coronavirus saga that has seen more than 60,000 U.S. deaths and millions of people out of work. Some say the legal fallout could continue long after the disease is a distant memory.

Terry said COVID-19 tort claims against businesses are not likely to be successful. Plaintiffs would have to clear a high bar to prove they contracted the virus from a specific business or from a specific person.

For businesses that are following government guidelines and operating safely, an unfavorable judgment is not necessarily the biggest risk. Their main concern is the legal fees they could face trying to defend themselves. For small businesses, the cost could be devastating.

Terry estimates fees in a COVID-19 liability case could range from $35,000 to $50,000.

You may contact Kathy at 405.552.2452 or by email at kdterry@phillipsmurrah.com.

Read the full story here: https://journalrecord.com/2020/04/30/legal-protection-lots-of-lawsuits-loom-as-oklahoma-businesses-prepare-to-reopen/

#GivingTuesdayNow: Phillips Murrah partners with KGOU to support OU Medicine PPE

Promotional graphic for KGOU GivingTuesNow 2

#GivingTuesdayNow is May 5.

It is certainly an understatement to say that the past month and a half has been disruptive to the way of life of so many. As we adapt to this strange new world, we seek out ways to be helpful to those around us.

As part of Phillips Murrah’s efforts to help, our Firm has once again partnered with KGOU – Your NPR Source to support their participation in #GivingTuesdayNow on May 5th. #GivingTuesdayNow is a global day of giving and unity as an emergency response to the unprecedented need caused by COVID-19.

In addition to supporting KGOU’s ongoing work to deliver reliable news and information, Phillips Murrah will give $3000 to OU Medicine as part of a pledge grant.

Promotional graphic for KGOU GivingTuesNow

Click to enlarge.

From KGOU: “We don’t want to take any time away from coverage of this fast-moving crisis, so we are forgoing our traditional pledge drive this spring. But the coronavirus will not stop our commitment to you. KGOU, StateImpact Oklahoma and our network reporters are tracking the latest developments, including economic impact, medical research, impact in other countries, and, most importantly, what you can do to keep you and your loved ones safe.

Your gift to KGOU will have triple the impact, because you’ll be doing something more. The law firm of Phillips Murrah will provide support to OU Medicine for personal protective equipment–masks, gloves, gowns and the like–for workers on the front lines. Phillips Murrah will give $3000–$10 for each of the first 300 donors to KGOU.”

#GivingTuesdayNow is May 5. You can give online now to be counted in this campaign – or call KGOU’s pledge line at (405) 325-5468. Also, you may mail a check to the address below.

KGOU Public Radio
860 Van Vleet Oval, Copeland Hall, Rm 300
Norman, OK 73019

Phillips Murrah presents COVID-related employment law update for Petroleum Alliance

On the morning of April 22, Phillips Murrah Director Kathryn D. Terry presented an in-depth labor and employment videoconference about changes to employment rules resulting from new COVID-19-related federal legislation.

Chairman David Le Norman hosted the broadcast, and Phillips Murrah Director Elizabeth K. Brown, who is also a PAO Director, helped kick off the presentation. This was the forth episode of the The Petroleum Alliance of Oklahoma’s Morning Fuel webinar series.

Topics covered in this presentation

The topics include three new major components of recent changes, which include Emergency Paid Sick Leave (EPSL) and Expanded Medical Family Leave (EFMLA) as related to the Family First Coronavirus Response Act (FFCRA).

Important subtopics that Kathy discusses in this video include:

  • What are EPSL qualifiers?
  • What are EPSL benefits?
  • How should EPSL and EFMLA be documented?
  • How is EFMLA different from FMLA?
  • Other miscellaneous issues and FAQs

To watch, click on the video presentation below:


Kathryn Terry portrait

Kathy Terry is a litigator who practices in the areas of insurance coverage, labor and employment law and civil rights defense. She also represents corporations in complex litigation matters.

For more information on this presentation and its impact on your business, please call or email me:

Kathryn D. Terry
DIRECTOR
405.552.2452
kdterry@phillipsmurrah.com

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UPDATE: Senate approves bill to revive, revise PPP program

By Lauren Barghols Hanna

Phillips Murrah attorney Lauren Hanna

Lauren Barghols Hanna counsels and represents management in all phases of the employment relationship.

On Tuesday, April 21, the Senate approved a $484 billion bill, allocating an additional $310 billion in funds to the Small Business Association’s Paycheck Protection Program, whose original funds were depleted after only one week. The legislation now heads to the House and is scheduled to be taken up Thursday.  If approved by the House, it will be sent to the President for signature.  President Trump has already promised to sign the bill into law.

Of the $310 billion in additional funds to be allocated for the Paycheck Protection Program, $125 billion will be earmarked “exclusively to the unbanked, to the minorities, to the rural areas, and to all of those little mom and pop stores that don’t have a good banking connection and need the help,” Senate Minority Leader Chuck Schumer promised.  The bill also provides $60 billion in additional funds to a separate small-business emergency grant and loan program.

TAKEAWAY

Start working with your bank right now to secure qualifying PPP loans in this second wave before the allocated funds are again depleted. Let us know if you need additional information regarding your eligibility for a PPP loan or other federal/state loan programs that may mitigate the effects of the coronavirus pandemic on your business.


Keep up with our ongoing COVID-19 resources, guidance and updates at our RESOURCE CENTER.

For more information on this alert and its impact on your business, please call 405.606.4732 or email me.

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Business risk related to independent contractor unemployment claims under CARES Act

COVID-19 Contractor benefits header
In response to the COVID-19 national emergency, Congress has taken the extraordinary measure to allow independent contractors, gig-workers, and self-employed individuals access to unemployment insurance benefits for which they are generally ineligible. This article is geared towards businesses that regularly use independent contractors who may file claims for unemployment insurance benefits—discussing the risks involved and how businesses can mitigate those risks.

Martin J. Lopez portrait

Martin J. Lopez III is a litigation attorney who represents individuals and both privately-held and public companies in a wide range of civil litigation matters.

Background Regarding Relevant CARES Act Provisions

On March 27, 2020 President Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). Among other provisions, the CARES Act significantly expands the availability of unemployment insurance benefits to include workers affected by the COVID-19 national public health emergency who would not otherwise qualify for such benefits—including independent contractors. This increased accessibility to unemployment insurance benefits theoretically provides an avenue for a state unemployment agency to find an independent contractor applicant to be an employee. Such a finding introduces the risk of the state unemployment agency assessing unpaid employment and payroll taxes for those a business previously treated as independent contractors. Tangentially, such a finding could serve to establish or bolster independent contractors’ claims in wage and hour litigation.

To qualify as a “covered individual” under the Pandemic Unemployment Assistance (“PUA”) provisions of the CARES Act, a self-employed individual must self-certify that she is self-employed, is seeking part-time employment, and does not have sufficient work history or otherwise would not qualify for unemployment benefits under another state unemployment program. Further, the self-employed individual must certify that she is otherwise able to work and is available for work within the meaning of applicable state law, but is “unemployed, partially unemployed or unable or unavailable to work” because of one of the following COVID-19 related reasons:

  • The individual has been diagnosed with COVID-19 and is seeking a medical diagnosis;
  • A member of the individual’s household has been diagnosed with COVID-19;
  • The individual is providing care for a family member or member of the individual’s household who has been diagnosed with COVID-19;
  • A child or other person in the household for which the individual has primary caregiving responsibility is unable to attend school or another facility that is closed as a direct result of the COVID-19 public health emergency and such school or facility care is required for the individual to work;
  • The individual is unable to reach the place of employment because of a quarantine imposed as a direct result of the COVID-19 public health emergency;
  • The individual is unable to reach the place of employment because the individual has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • The individual was scheduled to commence employment and does not have a job as a direct result of the COVID-19 public health emergency;
  • The individual has become the breadwinner or major support for a household has died as a direct result of COVID-19;
  • The individual has to quit his or her job as a direct result of the COVID-19 public health emergency;
  • The individual’s place of employment is closed as a direct result of the COVID-19 public health emergency.

If the individual meets the above criterion, she is a “covered individual” and is eligible for unemployment assistance authorized by the PUA provisions of the CARES Act. Such assistance was available beginning January 27, 2020 and provides for up to thirty-nine (39) weeks of unemployment benefits extending through December 31, 2020. Covered individuals’ unemployment benefits are calculated state-by-state, according to each state’s conventional unemployment compensation system. In addition, under the PUA provisions of the CARES Act, covered individuals may receive an additional $600 for each week of unemployment until July 31, 2020.

What Businesses Can Do to Protect Themselves

To counteract the risks discussed above, I recommend a business implement the following best practices when responding to a claim of unemployment by an independent contractor:

  • respond proactively to unemployment claim notices for independent contractors;
  • state clearly in the response that the relevant individual-claimants were independent contractors and not employees of the business;
  • affirmatively state that each independent contractor claimant was an independent contractor to whom the business occasionally (or routinely) provided work, but that it is unable to provide the same volume (or any) work to the individual at present because of the COVID-19 national emergency;
  • specify in the response that the individual’s eligibility for unemployment benefits must be entirely predicated on the PUA provisions of the CARES Act allowing for independent contractor participation in the program; and
  • provide the claimant’s independent contractor agreement to the state unemployment agency.

In providing this information and documentation to the state unemployment agency, the business will be able to demonstrate its independent contractor relationship with the individual. Together with the fact that these individuals’ eligibility to receive unemployment income rests exclusively on relevant CARES Act provisions, the business should be well-positioned to avoid the typical risks that can result from a successful unemployment claim by an independent contractor.


For more information on this alert and its impact on your business, please call 405.552.2418 or email me.

Keep up with our ongoing COVID-19 resources, guidance and updates at our RESOURCE CENTER.

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Roth: Utility demand peaks lowered, overall Oklahoma energy industry impact yet to be seen

Director Jim A. Roth is quoted as a source for an article in the Oklahoman newspaper by Jack Money, lending an update on the Oklahoma energy industry and consumer energy use due to COVID-19. This article was originally published on April 16, 2020.


oklahoma energy law attorney Jim Roth Web

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice.

Jim Roth, an attorney who is a past elected corporation commissioner, works on energy-related deals and also is dean of Oklahoma City University’s school of law.

On Tuesday, Roth agreed it will take some time to truly see what impact the ongoing pandemic will have on Oklahoma’s electrical energy industry.

Roth noted independent system operators like the Southwest Power Pool are indeed seeing some reduction in overall demands.

Plus, they are seeing fewer significant demand peaks because of changes in consumer behavior.

Many industrial facilities that used to create those demands are offline. Additionally, traditional spikes in residential demand at the end of each day have all but disappeared, as more and more people work remotely.

Roth observed the SPP’s operations are somewhat insulated compared to grids serving other parts of the nation where the illness’ impact has been more severe.

“The number I saw for electricity demand in March was the lowest the nation had seen for that time period in 16 years,” Roth said.

For customers, Roth said the slowdown in demand is a good thing, given that system operators are able to avoid having to use more-expensive power generators to meet demand spikes when they occur.

For utilities’ bottom lines, Roth doesn’t see much of an impact especially in Oklahoma, given utilities have relied significantly the past decade on purchases of cheaper electricity from renewable energy sources to meet their customers’ needs.

Having that supply of energy available helped them avoid having to go out and build their own plants.

“That makes utilities’ operational costs much more predictable, and should insulate our utilities from the kind of dramatic impact that a general economic slowdown might otherwise have on their bottom lines,” Roth said.

As for the pandemic’s impact on future energy projects in Oklahoma, Roth said he has not yet seen a reluctance from market players to back proposed renewable energy projects here.

He said future plans could be impacted by changes in federal incentives and tax law that might happen, but said developers would have to see what those are before evaluating whether to proceed.

“So far, I think Oklahoma is still a very attractive place to invest, given the value of its solar and wind resources and how those factor in” to a project’s return on investment, Roth observed.

Still, he said unanswered questions about the future remain.

“We do not yet know what the permanent effects of this crisis will be to lives or the economy,” he said. “If there is an economic shift underway that never fully reverses itself back to where we were, that will impact energy consumption in America.

“We just don’t yet know what this crisis will do to change permanent trajectories to the energy industry, but things are going to change, and I don’t think it will ever go back exactly to the way it was before.”

 


For more information on this and its impact on your business, please call 405.235.4100.

Keep up with our ongoing COVID-19 resources, guidance and updates at our RESOURCE CENTER.

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General Contractor Bankruptcy – protect your rights

Given the uncertain economic times and the potential delays for projects, it is more important than ever to protect your rights to payment or to completed, timely projects without additional costs. The shutdown of the economy and, hopefully, the accompanying economic recovery, will not be without its victims.

Unfortunately, the risk of bankruptcy is high.  If you are a subcontractor or owner on a project where the general contractor has declared bankruptcy, you should act quickly to ensure, to the extent possible, that your rights are protected.

Image for general contractor bankruptcyThe key point is to communicate up and down the chain. Owners need to know what claims are outstanding and who was working on the projects so they can protect their rights and move forward with the project. Similarly, and for the same reasons, subcontractors need to let owners and the surety, if applicable, know that they have outstanding unpaid bills and receive guidance on how to proceed.

1) Whether you are a subcontractor or owner:  Examine your contract and realize that termination due to bankruptcy is likely unavailable. Once an individual or corporation files bankruptcy, a provision called the “automatic stay” comes into play, which allows the individual or corporation filing bankruptcy to avoid creditors’ demands while organizing for the coming proceedings. Thus, generally, a contract with a general contractor cannot be terminated unless the bankruptcy court lifts the automatic stay.

2) If you are a subcontractor:  You should contact the surety (if the project is bonded) or the owner (if it is a private, unbonded project) to make sure that the owner or surety has a formal written claim from you that shows what has been paid, what invoices were submitted but not yet paid, and the balance to finish. Make sure that the owner or surety, as the case may be, is also aware of any submitted changed orders that may be going through the approval process. Note that lien rights are unaffected by a general contractor’s bankruptcy, as liens are against the owner and not the general contractor.

3) If you are a subcontractor:  Your automatic reaction may be to stop or slow work. However, simply pulling from the job may not be the best option in all circumstances. General contractors can still enforce their rights for performance under the subcontract, and you do not want to be dealing with a breach claim at the same time as trying to receive payment for work performed but unpaid. However, if a general contractor decides to enforce his or her rights to performance, the general contractor will have to pay you for that work. To ensure payment, joint checks from the owner may need to be negotiated. In either event, slowing work while working with the general contractor, owner, or surety may be the best option to preserve all rights and make sure you do not incur additional costs or obligations.

4) If you are an owner:  If the project is bonded with a performance or payment bond, you will want to make sure you are in close communication with the bonding company. Additionally, you will want to make sure the surety is paying claims so you are not faced with lien claims by unpaid subcontractors or suppliers.

While this article addresses certain considerations after bankruptcy is declared, owners and subcontractors should consider contacting legal counsel to make sure they are protected while moving the project forward and to protect their rights in the bankruptcy proceedings.


A. Michelle Campney portrait

Click to visit Michelle Campney’s attorney profile page.

For more information on this alert and its impact on your business, please call 405.552.2487 or email me.

Keep up with our ongoing COVID-19 resources, guidance and updates at our RESOURCE CENTER.

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Horse Management Facilities: Mitigating risk during COVID-19

On March 25, 2020, Governor Stitt amended the Fourth Amended Executive Order 2020-07 (EO 2020-07) via a memorandum designating horse management facilities as critical infrastructure businesses.   With the critical infrastructure designation, it is imperative that horse management facilities now work to mitigate risks associated with operating during the COVID-19 pandemic.  Facilities must balance public health order compliance, horse owner expectations with safety while taking care of the horses stabled on their property.  The following outlines several proactive steps horse management facilities can take to manage risk while operating during the COVID-19 pandemic.

Mary Westman portrait

Mary Westman is an attorney with Phillips Murrah. She also has an MBA, is a Morgan horse breeder and a registered nurse.  A native of West Virginia, she now lives with her husband, David, in Norman, Oklahoma. Click photo to visit Mary’s profile page.

First, implement best practice strategies designed to assist horse management facilities to continue to care and keep horses during a public health emergency and at the same time, protect the health of horse owners and barn workers.  Horse facilities are accustomed to biosecurity measures implemented to prevent the spread of contagious diseases among the horses on their property, but the COVID-19 outbreak presents unique challenges.  Biosecurity strategies designed to protect horses may not be enough to protect the humans who come onto the property.  To provide much needed direction to address this gap, on March 24, 2020, the Kentucky Department of Agriculture published guidelines for “Farm, Veterinary and Other Equine Activities.”

These guidelines incorporate the White House “Coronavirus Guidelines for America” and urge that the CDC website be monitored frequently for updates on best practices in mitigating the spread of the coronavirus among humans. In addition, the guidance includes best practice strategies for managing the daily care and keep of horses, cleaning equipment and surfaces, as well as managing communication, employees and medical procedures. Lastly, horse facilities should implement a schedule for horse owners to visit the facility with the aim of decreasing the number of people on the property so that proper social distancing can be accomplished.

Second, incorporate best practices for COVID-19 mitigation into barn rules and disseminate them to your clients, vendors and employees.  Utilizing email, social media and other forms of electronic communication will support social distancing efforts and model best practice.  Posting barn rules in prominent locations throughout the facility will also serve to disseminate important health and safety rules.

Next, review and revise your stable liability waiver to include illnesses contracted from communicable disease.  To begin, if you are an equine professional or own an equine facility, it is important to understand that “Oklahoma Livestock Activities Liability Limitation Act” (the Act) does not provide unlimited protection from liability.  The Act can be broken down into three parts.  First, the Act provides liability protection from “injuries” resulting from the “inherent risks of livestock activities.”  Second, the Act provides protection when the equine professional is acting in good faith, and third, the Act provides protection when the equine professional acts consistent with recognized industry standards.  You should understand the Act provides liability protection from “injuries” but does not reference “illness.”  Moreover, the Act specifically does not limit liability from death resulting from the “inherent risks of livestock activities.”

Additionally, reliance on liability insurance policies is a risky approach.  Most homeowner policies will not cover equine related operations absent a care, custody and control rider (CCC rider).  Unfortunately, even a with a CCC rider, or even a separate commercial general liability policy, may be of no use during pandemics.  In fact, such insurance policies generally exclude illnesses contracted from communicable disease. To determine if your liability insurance policy covers illness contracted from communicable disease, contact your insurance agent.

Since we have established the Act does not provide unlimited liability protection and most liability insurance policies exclude illness contracted from communicable disease, do you need a written liability release?  Simply put, yes.  As mentioned above, liability protection is limited, and the Act specifically carves out certain events that would not be protected by the statute.  According to Oklahoma law, parties can agree, in writing, to extend the limitation of liability.

Most equine facilities utilize written liability releases, but will these releases achieve complete protection particularly in the context of a communicable disease such as COVID-19?  Well, it depends.  In a 2012 Oklahoma case, Brown v. Beets, a trial court dismissed a personal injury negligence claim related to an injury from a horse kick because the riding participant had signed a liability release.  However, on appeal, Oklahoma Court of Civil Appeals reversed the trial court decision.  The appeals court found a dispute as to whether or not the trail ride leader had used reasonable effort to determine the ability of the riders and whether or not the trail ride leader had followed industry standards. This case would seem to imply that if an equine professional fails to determine the ability of the potential rider/participant, fails to match to the right horse based on the rider/participant’s ability, and fails to adhere to industry standards, a liability release may not be effective in limiting liability.  In light of this Court decision and with regard to operating during the COVID-19 outbreak, it is critical that horse management facilities implement and adhere to best practices (such as the COVID-19 guidelines referenced above) to ensure that properly drafted stable liability waivers will give maximum liability protection.

Also, because a liability release or waiver is a contract, principles of contract law apply.  Liability releases should be clear and definite.  We also know that Oklahoma law requires the liability release to be in writing, and of course, a minor cannot sign a liability release form.  A parent, ideally both parents, or guardian(s) must sign a liability release when a minor engages in an equine activity.  The question of whether the release should include a helmet requirement is a topic for another article.

The take-a-way here is a stable liability release or waiver is necessary to fill in gaps related to the Act but may not completely release you from liability if you are otherwise negligent or fail to follow industry standards to include the standards related to combating COVID-19.  Liability releases could also prove to be ineffective for other reasons for example lack of specificity or clarity.

In conclusion, as of March 25, 2020, Oklahoma designated horse management facilities as critical infrastructure businesses.  With this designation comes the responsibility to continue to care and keep horses during a public health emergency and at the same time, protect the health of horse owners and barn workers.  Horse management facilities can proactively take steps to manage risk while operating during the COVID-19 pandemic such as implementing best practice guidelines for preventing the spread of COVID-19; communicating barn rules; and implementing stable liability waivers that include a waiver of liability for illnesses contracted from communicable diseases. We will get through this current crisis, but we must learn, adapt and implement best practices for future situations.


For more information on this alert and its impact on your business, please call 405.237.8737 or email me.

Keep up with our ongoing COVID-19 resources, guidance and updates at our RESOURCE CENTER.

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FAQs: Impact of Covid-19 On Commercial Real Estate

2020 Coronavirus Guidance header 2

By Phillips Murrah Directors Sally A. Hasenfratz and Bobby Dolatabadi, and the Real Estate Practice Group 

The impact of COVID-19 on the commercial real estate industry is unprecedented. We have been asked a broad range of questions as a result of the pandemic, some of which include:

What if a tenant cannot pay rent?

Many landlords and tenants are seeking counsel about what happens if a commercial tenant cannot pay rent. Some considerations include:

Are commercial transactions being closed?

  • Many commercial purchase and sale transactions have reached a screeching halt, with buyers terminating agreements and lenders having underwriting concerns. Often buyers are terminating during an inspection period where they are entitled to a return of earnest money. In instances where an inspection period is not available or has expired, buyers are looking for conditions precedent to closing, such as a material adverse change, which would excuse performance. Otherwise, on a unilateral termination, buyers may face a loss of earnest money or trigger a default under the agreement.
  • For some transactions that appear to be moving forward, there remains uncertainty as to whether the County recording offices will be open at the time of closing for the filing of deeds, loan instruments, and other closing documents. Accordingly, parties should consult with their title companies and underwriters in order to determine if and how the title company will facilitate a closing in the event of a shutdown of the recording office.  Also paramount will be issues relating to “gap coverage” as a result of potential delays between closing and recording documents, as well as use of online remote notaries and other logistics for closings.
  • Most purchase and sale agreements contemplate a specific list of closing deliveries for each party, together with a “catch-all” requiring such other documents as are reasonably requested by the other party and/or title company. In light of the uncertainties regarding whether a recording office will be open or shut-down on the closing date, title companies may require new, additional indemnities and covenants from the parties at closing in order to achieve closing, which documents may prohibit, for instance, a seller (whom still may appear in the real estate records as the fee owner) from executing any other conveyances concerning the property. Parties should consider expanding the “catch-all” clause accordingly.
  • For transactions that are teetering, sellers and buyers should consider agreeing to extend the inspection period or the time to close to let the pandemic subside prior to any such closing. Any such extensions should be in writing.
  • In lieu of closing or extending, buyers may move to the sidelines, waiting for values to decline and proceeding after the pandemic is resolved.

How are lenders and borrowers handling the consequences of the pandemic?

  • Bank regulators have provided guidance encouraging financial institutions to cooperate with customers dealing with the adverse economic effects of COVID-19.
  • For borrowers unable to make debt service, we are seeing short-term accommodations, such as interest only or reduced payments for 3 months, with full payments continuing after that time.
  • Should the pandemic prove to have more long-term effects, we would expect to see forbearance agreements, workouts and bankruptcies. Time will tell whether these more drastic measures will be necessary. If so, the tax consequences of these arrangements should not be ignored.
  • Prior to exploring any of these options, it is prudent to thoroughly review all loan documents, with emphasis on restrictions on transfer, default, notice and cure and force majeure provisions.
  • For non-recourse loans, documents should be thoroughly reviewed so as not to inadvertently trigger recourse liability. For example some non-recourse loans have “bad boy” carve-outs which trigger full or partial recourse liability to borrowers and guarantors where a borrower (i) admits in writing the inability to pay its debts as they come due; or (ii) makes a “transfer” which is not permitted by the loan documents. A “transfer” is often broadly defined as including making amendments to lease agreements without the lender’s consent. Accordingly, borrowers should exercise caution in taking actions to renegotiate loan documents or compromise lease obligations, which in certain circumstances, could trigger recourse liability.

Are Force Majeure clauses available to delay or terminate performance obligations?

  • Force Majeure clauses are contractual clauses that extend or in some instances terminate performance obligations when “acts of god” or other named events prevent or delay a party’s ability to perform their obligations. Force Majeure clauses appear in many, but not all, types of real estate contracts and such clauses are limited to the exact language, which may not be standard from agreement-to-agreement and in most cases don’t appear broad enough to include the current pandemic situation. For example, Force Majeure clauses are typically not in short-term agreements such as purchase and sale agreements, but may be included in loan agreements, leases, construction agreements and the like.
  • Each Force Majeure clause should be carefully reviewed to determine whether it applies in this situation and if so, whether any notices need to be given to the parties under the agreement.
  • Use of Force Majeure clauses in the future should be considered, with expressly including references to epidemics, pandemics or other health related crises beyond the control of the parties.

What else should be considered in light of the pandemic?

  • Business interruption insurance policies should be reviewed to determine whether there may be coverage.
  • For property management, responsibility should be evaluated to identify whether there are special duties to maintain health and cleanliness.

For more information on how the COVID-19 pandemic may affect your business, please contact:

Portrait of Sally A. Hasenfratz

 

Sally A. Hasenfratz
Director
405.552.2431
EMAIL

 

 

Portrait of Bobby Dolatabadi

 

Bobby Dolatabadi
Director
405.606.4742
EMAIL

 

 


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Tax Law Q&A: COVID-19 Tax Issues for Businesses

What are some of the recent tax changes designed to help businesses?

As part of the Families First Coronavirus Response Act (the “FFRCA”) and the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, Congress made a number of favorable changes to the Internal Revenue Code that benefit both businesses and individuals.  Specifically with respect to businesses, the following provisions may be extremely helpful during the economic crisis stemming from COVID-19:

    • Credits for paid sick and FMLA leave and for employee retention
    • Delay of payment of employer payroll taxes
    • Relaxation of limits on business losses and business interest
    • Delay of payment for employer payroll taxes
    • No cancellation of indebtedness income for certain government-provided relief loans and grants
Phillips Murrah attorney Jessica Cory

Jessica N. Cory represents businesses and individuals in a wide range of transactional matters, with an emphasis on tax planning.

 What are the new payroll tax credits and how do I qualify for them?

Congress enacted three new payroll credits as part of the FFCRA and the CARES Act.  These three credits are (1) the paid sick leave credit, (2) the paid family leave credit, and (3) the employee retention credit.

 The Paid Sick and Family Leave Credits

The first two credits, for paid sick and family leave, are intended to help businesses provide the paid leave required by the FFCRA.  Under the FFRCA, certain small and medium size employers must now provide workers with approximately two weeks of paid sick leave and 10 weeks of paid family leave.  In exchange, these employers can take a dollar for dollar credit in an amount equal to 100% of the leave wages paid by the employer with respect to a calendar quarter, up to certain limits.

For purposes of the paid sick leave credit, qualifying sick leave wages are wages and compensation paid by an employer, as required by the FFCRA, because the employee (1)  is under a quarantine or isolation order related to COVID-19, (2) has been advised by a health-care provider to self-quarantine due to COVID-19 related concerns, (3) is experiencing symptoms of COVID-19 and is seeking a diagnosis, (4) is caring for an individual who is subject to such a quarantine or isolation order or who has been advised to self-quarantine, or (5) is caring for the employee’s child due to school or child care closures or unavailability stemming from COVID-19 precautions (or a substantially similar situation, to be set out in the Regulations).

For purposes of this credit, an employer can count sick leave wages paid between April 1, 2020 and December 31, 2020, up to $511/day for an employee falling under categories (1) through (3), and up to $200/day for an employee falling into categories (4) or (5), for up to 10 days of work. For purposes of the paid family leave credit, qualifying family leave wages are wages and compensation paid by an employer, as required by the FFCRA, to an employee who is unable to work or telework due to a need to care for a child under 18 whose school or childcare is closed or unavailable due to an officially declared public health emergency with respect to COVID-19.  This type of paid leave is available to an employee for up to 10 weeks but may not exceed $200/day and $10,000 in the aggregate.

The Employee Retention Credit

The third credit, the employee retention credit, is designed to encourage employers to retain employees despite a significant decline in business or closure due to COVID-19.  This credit is available to employers (1) whose business is fully or partially closed during any calendar quarter pursuant to a government order limiting commerce, travel, or group gatherings due to COVID-19, or (2) who have suffered as significant decline of at least 50% in gross receipts as compared to the same calendar quarter in the prior year.  Employers can take a credit equal to 50% of the amount of qualified wages paid to an employee from March 12, 2020 to January 1, 2021, for wages paid up to $10,000.  This provides an employer with a credit equal to $5,000/employee.  However, it is important to note that an employer cannot take advantage of this credit and the new SBA Payroll Protection Program, which provides certain small and medium businesses the ability to borrow funds on extremely favorable terms (including the possibility of tax-free loan forgiveness) to cover costs such as payroll, health care benefits, other compensation, mortgage interest obligations, rent payments, utilities, and certain interest payments.  Accordingly, this credit may be most useful to employers would not qualify for this program, such as large employers with more than 500 employees.

Is there any other relief for current payroll tax obligations?

Yes, in addition to the three new payroll tax credits, there is also a new provision allowing an employer to delay making certain payroll tax payments over two years.  Generally, employers must regularly deposit payroll taxes representing both the amount withheld from employee checks and a portion paid directly by the employers.  Under the CARES Act, employers can now delay payment of the employer-paid portion of these taxes incurred this year.  For employers who choose to defer payroll taxes during 2020, the first 50% of the deferred amount must be paid by December 31, 2021, and the other 50% must be paid by December 31, 2022.  Self-employed individuals can likewise defer up to 50% of the self-employment tax they would otherwise be required to regularly deposit through estimated tax payments.

Do the limitations on business losses and interest expense deductions still apply this year?

Not completely, no.  Under the Tax Cuts and Jobs Act (“TCJA”) enacted by Congress at the end of 2017, certain limitations were imposed on how businesses use losses and the amount businesses could deduct for their interest payments.  The CARES Act relaxes these restrictions, amending the Internal Revenue Code to allow most businesses to carry back losses arising in taxable years beginning after December 31, 2017 and before January 1, 2021 to each of the five taxable years preceding the loss year.  Carrying losses back allows a business to take advantage of a loss sooner, as compared to pre-CARES Act law, which only permitted businesses to carry losses forward.  Likewise, the CARES Act also permits businesses to use losses to offset more than 80% of taxable income, and modifies the limitations on business interest expense deductions.  Under the rules set out in the CARES Act, businesses can now figure their business interest expense by looking at 50% of adjusted taxable income (“ATI”), versus only 30% before, and based on 2019 ATI instead of 2020, given that many taxpayers may have significantly reduced income in 2020.

Should I worry about any unexpected tax if I have an SBA loan forgiven under the new Paycheck Protection Program (“PPP”)?

 No, the debt forgiveness built into the SBA loans covered by the CARES Act will not trigger additional tax.  Normally, when a lender forgives an outstanding debt, the borrower must pay tax on the forgiven portion of the liability, as taxable “cancellation of indebtedness” income.  In this case, however, the CARES Act specifically provides that any forgiveness or cancellation of SBA loans made pursuant to its terms will not be treated as income for federal tax purposes.


For more information on this alert and its impact on your business, please call 405.552.2472 or email me.

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Q&A about SBA Loans related to the newly passed CARES Act

2020 Coronavirus Guidance header 2

By Attorneys Alison J. Cross & Kara K. Laster

CARES Act: SBA Loans Q&A

On March 27, 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). Small business owners, in particular, are anxious to receive relief under the Act. The Small Business Administration (SBA) is implementing regulations regarding the historic legislation. Even though the program is to kick off April 3, some details reportedly remain to be worked out and finalized. Below is a summary of what we know, currently:

What types of SBA loans are available to businesses related to COVID-19?

The CARES Act expanded both the SBA’s existing loan program under Section 7(a) of the Small Business Act, referred to as the Paycheck Protection Program (“PPP Loans”), as well as its Economic Injury Disaster Loan Program (“EIDL Loans”).

Can a business apply for both types of loans?

Yes, but only under very limited circumstances:

  • A recipient of an EIDL Loan made between January 31, 2020 and June 30, 2020 is eligible for a PPP loan during the covered period.
  • The funds from a PPP Loan cannot be used for the same purpose as another SBA loan.

What other relief can a business get under the CARES Act?

Businesses may also receive an Emergency Economic Injury Grant of $10,000 provided within three days of application for an EIDL Loan and no requirement to repay the advance even if the EIDL Loan is ultimately declined.

Paycheck Protection Program

When can I apply for a PPP Loan?

Small businesses and sole proprietorships may apply beginning April 3, 2020, while independent contractors and self-employed individuals may apply beginning April 10, 2020. Businesses should apply as soon as possible because there is a funding cap. The deadline to apply for a loan is June 30, 2020.

Where can I apply?

Any SBA-certified lender can make a loan. Additionally, any federally insured depository institution, federally insured credit union, and Farm Credit System institution that is participating can make a loan.

Who is eligible for a PPP Loan?

Businesses (a) with no more than 500 employees per physical location, (b) that were operational prior to February 15, 2020, and (c) that had employees on payroll and paid wages and payroll taxes are eligible.

How is the loan amount determined?

Businesses may receive the lesser of (a) 2.5 times the average monthly payroll costs during the prior year or (b) $10,000,000.

What line item expenses are included in monthly payroll costs?

Each of the following is a line item expense included in the calculation of payroll:

  • Salaries, wages, commissions, vacation and sick pay (not to exceed $100,000 per employee) and exclusive of qualified sick or family leave
  • Group health insurance
  • Retirement benefit costs
  • State/local taxes on employee compensation
  • Self-employed income (and subcontractors) not to exceed $100,000 per year

How can PPP loan funds be used?

Businesses may use the loans for payroll costs, health care, interest on mortgage payments, rent, utilities, and interest on any other debt.

What do I need to show when I apply?

Businesses must certify that (a) the uncertain economic conditions make the loan necessary to support ongoing operations, (b) the funds will be used to retain workers and maintain payroll, or make mortgage payments, lease payments, and utility payments, (c) the business does not have an application pending for a loan under Section 7(a) for the same purpose, and (d) that the business has not received funds under Section 7(a) between February 15, 2020 and December 31, 2020 that would be duplicative.

What do I need to apply?

Businesses will need to submit a Paycheck Protection Program loan application along with payroll documentation to an approved lender.  The application can be accessed HERE.

 What are the terms of the loan?

  • There are no personal or collateral guarantee requirements, as well as no prepayment penalty. Payment obligations are deferred for six months to one year.
  • There is no requirement that a business try to obtain funds from other sources.
  • Maximum interest rate and term loan to be finalized.

 Can the loans be forgiven?

Yes, but only certain payments made during the first eight weeks of the loan are eligible for forgiveness. The funds must be used for payroll costs, excluding employees who have an annual salary over $100,000. Additionally, funds used for interest on debt obligations and rent and utilities in place before February 15, 2020 may be forgiven. The amount forgiven will decrease in proportion to a reduction in the number of employees as well as a reduction in compensation in excess of 25% for employees making less than $100,000 annually. Lenders must respond to a request for forgiveness within 60 days.

Am I still eligible for forgiveness if I already laid off my employees?

If a business rehires employees who were laid off by June 30, 2020, it still qualifies for forgiveness.

Can a business receive both an employee retention tax credit and a PPP loan? 

No.

Economic Injury Disaster Loan Program

Who is eligible for an EIDL loan? 

Businesses with no more than 500 employees in existence as of January 31, 2020 who have suffered substantial economic injury from COVID-19 are eligible.

How is the loan amount determined?

Businesses may receive up to $2,000,000 with interest rates of 3.75% for small businesses and 2.75% for nonprofits. Loan amounts are based on actual economic injury.

How can EIDL loan funds be used?

Businesses may use the loans for working capital.

Who makes the loans?

Applications for EIDL Loans should be submitted directly to the SBA.

Will someone need to guarantee the loan? 

No, so long as it is made before December 31, 2020 and loan is $200,000 or less.

Mid-Sized Businesses

What if my business has more than 500 employees?

The CARES Act also provides relief to businesses with between 500 and 10,000 employees. These mid-sized businesses are eligible for direct loans under the Emergency Relief and Taxpayer protections part of the CARES Act.

What do I need to show to receive this type of loan?

Businesses must certify that (a) the uncertain economic conditions make the loan necessary to support ongoing operations, (b) the funds will be used to retain at least 90% of the workforce at full compensation and benefits until September 30, 2020, (c) the business will restore not less than 90% of the workforce that existed as of February 1, 2020 with compensation and benefits no later than four months after the termination of the public health emergency, (d) the business has significant operations and employees in the United States, (e) the business is not a debtor in a bankruptcy proceeding, (f) the business is incorporated in the United States, (g) the business will not pay dividends or repurchase any equity security while the loan is outstanding, (h) the business will not outsource jobs for the term of the loan and for two years after repaying the loan, (i) the business will not abrogate existing collective bargaining agreements for the term of the loan and for two years after repaying the loan, and, finally, that (j) the business will remain neutral in any union organizing effort for the term of the loan.

What are the terms of the loan?

The maximum interest rate is 2%. No payments due for at least six months after a direct loan is made.

Can the loans be forgiven?

No. Unlike PPP loans, direct loans under this program may not be forgiven.


For more information on how to navigate the process of obtaining an SBA loan, please contact:

IN DALLAS

Phillips Murrah attorney Alison Cross

 

Alison J. Cross
Director
214.613.0585
ajcross@phillipsmurrah.com

 

IN OKLAHOMA CITY

Phillips Murrah attorney Kara Laster

 

Kara K. Laster
Attorney
405.606.4762
kklaster@phillipsmurrah.com

 


Keep up with our ongoing COVID-19 resources, guidance and updates at our RESOURCE CENTER.

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Employer Essentials Resource Package

 2020 employer essential promotion gfx

ALERT: On April 1, 2020, the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family Medical Leave Expansion Act (EMFLA), both part of the Families First Coronavirus Response Act, went into effect.


At Phillips Murrah, we understand the importance of prompt employer compliance with new requirements provided by the U.S. Department of Labor in reaction to the COVID-19 pandemic. We are also conscious of the added pressures during these extraordinarily difficult times. To meet the challenges of expediency and affordability, we offer the Employer Essentials Resource Package.

Attorneys in our Labor & Employment Practice Group have prepared a package of fundamental items and legal guidance for employers of all sizes. Included are template policies that can be revised to meet a specific employer’s needs, as well as additional documents that address the most relevant issues for covered employers of all sizes.

The package includes:

  • TEMPLATE POLICIES – Our Template Policies help bring employers into compliance with the EPSLA and EFMLA and can be tailored to meet specific needs.
  • FACT SHEETS – Our Fact Sheets provide Employers with a summary of the new law to assist in implementation of the policies in compliance with EPSLA and EFMLA, as well as a list of Dos and Don’ts for employers.
  • NOTICES – We provide Notices that employers are required to give employees under the EFMLA.
  • CERTIFICATIONS – We provide Certifications that employers are required to give employees under the EFMLA.
  • FAQs – We provide a collection of up-to-date answers to some of the more pressing questions regarding enforcement of the EPSLA and the EFMLA.

Attorneys on Phillips Murrah’s Labor and Employment team stand ready to assist employers with compliance regarding these new leave laws. Contact us to find out how we can help your company through this unprecedented time.

For more information, please contact us at 405.235.4100 or employmentlaw@phillipsmurrah.com.

Senate Approves CARES Act: Key Tax Changes

Late Wednesday evening, the Senate passed a third stimulus bill in the wake of the public health crisis and economic fallout stemming from the COVID-19 outbreak.  The new bill, the Coronavirus Aid, Relief, and Economic Security (or “CARES”) Act has not yet been voted on by the House, although a vote is expected by Friday.

As it currently stands, the bill provides both individuals and businesses with robust economic support, including through changes to the federal tax code.

Phillips Murrah attorney Jessica Cory

Jessica N. Cory represents businesses and individuals in a wide range of transactional matters, with an emphasis on tax planning.

Two of the key tax changes include:

  • Recovery Rebates for Individual Taxpayers.  The CARES Act would provide a $1,200 refundable tax credit for individuals (or $2,400 for joint taxpayers), plus an additional $500/child for taxpayers with children.  Taxpayers would not have to include these rebates in taxable income on their 2020 tax returns and the rebate would be refundable for taxpayers with no offsetting tax liability.  To be eligible, an individual must have earned qualifying income on a 2018 or 2019 tax return, which includes both earned income and certain retirement benefits, including Social Security payments.  The credit begins to phase out for individuals with adjusted gross income of at least $75,000 (or $150,000 for joint taxpayers, or $112,500 for heads of household), with the credit reduced by 5% for each additional dollar of income over that amount.  Currently, the credit is intended to be a one-time rebate, although lawmakers may consider additional rebates in the event of a prolonged downturn.
  • Employee Retention Credit for Employers.  Under the CARES Act, employers would be eligible to take a 50% refundable payroll tax credit on up to $10,000 of wages paid during the crisis, for a credit of up to $5,000/employee.  This credit would be available to employers whose business is forced to close, or partially close, due to virus-related shutdown orders, or which has a significant decline in gross receipts, meaning a decrease of 50% or more when compared to the same quarter in the prior year.  Employers with more than 100 employees would qualify for the credit for wages paid to employees retained but not currently working due to the crisis.  Smaller employers would qualify for the credit for all employee wages paid.

The CARES Act also includes a number of other helpful provisions for both individuals and businesses.  For example, certain individuals affected by COVID-19 could take up to $100,000 of early distributions from qualified retirement plans without the normal 10% penalty, with the ability to repay these amounts within three years of withdrawal, or recognize the distribution in taxable income over a three-year period.  In addition, the CARES ACT would also create a new above-the-line charitable contribution for individuals who do not itemize, allow individuals who do itemize to take increased charitable contribution deductions, and permit individuals to exclude up to $5,250 of employer-provided student loan repayment from income.  For businesses, the CARES Act would modify the limits on net operating losses for corporations (and the limitation on losses for taxpayers other than corporations) enacted as part of the 2017 Tax Cuts and Jobs Act (the “TCJA”), modify the TCJA’s limitation on business interest expense deductions, and make other technical amendments.  Finally, both individuals and businesses would be able to delay certain tax payments, including employer-side Social Security taxes and 50% for self-employed individuals’ Social Security tax.


For more information on this alert and its impact on your business, please call 405.552.2472 or email me.

Keep up with our ongoing COVID-19 resources, guidance and updates at our RESOURCE CENTER.

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Senate Approves CARES Act: Important SBA Loan Information

By Phillips Murrah Attorney Kara K. Laster

Late last night, the Senate unanimously approved the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), which is set for a House vote on Friday. The legislation authorizes $349 billion for loans to be distributed under Small Business Administration’s 7(a) program. Some of the important information for small businesses is highlighted below:

Phillips Murrah attorney Kara Laster

Kara K. Laster represents individuals and businesses in a broad range of transactional matters including real estate and mergers and acquisitions.

  • Eligible businesses are those with 500 or fewer employees.
    • To be eligible, businesses must have been operational as of February 15, 2020.
    • Sole proprietors, independent contractors and self-employed individuals are also eligible to apply for the loans.
    • Exceptions apply for industries in which the SBA size standard allows more than 500 employees.
  • Small businesses may receive loans of up to $10 million under the new maximum loan amount.
    • Lenders will determine the proper loan amount by using a formula that takes into account past payroll expenses.
  • In addition to existing allowable uses, businesses may use the money from loans for payroll; paid sick, medical, or family leave; continuation of group health care benefits; mortgage, rent, and utility payments; and other debt.
  • Loan forgiveness is available to businesses that retain workers or rehire workers who were laid off.
    • Businesses will not have to repay loans used for payroll costs, interest payments on mortgages incurred before February 15, 2020, rent under a lease in force before February 15, 2020, and utilities for which service began prior to February 15, 2020.
    • Only payments made during the 8-week period beginning on the date of the origination of the loan will be forgiven.
    • The amount forgiven will decrease in proportion to a reduction in the number of employees.
  • Small businesses will be able to apply through banks, credit unions and other lenders.
    • Approximately 1,800 private lenders are already approved to issue 7(a) loans, and Treasury Secretary Steven Mnuchin stated that new regulations will make it possible for almost all FDIC-insured banks to make SBA loans.
  • Special terms include a maximum interest rate of 4%, no prepayment penalty, no personal or collateral guarantee requirement, and the ability to defer payments for six months to a year. The maximum term of the loan is 10 years.

The CARES Act also includes assistance for mid-sized businesses with between 500 and 10,000 employees. The Secretary of the Treasury will implement a program that provides financing to banks and other lenders that make direct loans to mid-sized businesses. The annual interest rate for these loans will not exceed 2% and no interest payments will be due for at least 6 months after a loan is made. The funds must be used to retain at least 90% of the workforce with full compensation and benefits until September 30, 2020. In addition, businesses seeking loans must not outsource or offshore jobs for the term of the loan plus 2 years after repayment, and may not issue dividends for up to a year after repayment.


For more information on this alert and its impact on your business, please call 405.606.4762 or email me.

Keep up with our ongoing COVID-19 resources, guidance and updates at our RESOURCE CENTER.

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What are considered “essential services” in Oklahoma during COVID-19?

Due to the horrible effects of the COVID-19 global pandemic, Oklahoma Governor Kevin Stitt has ordered that all businesses not identified as being within a critical infrastructure sector to close. Understandably, the order has a lot of Oklahomans wondering who and what falls into the category of being considered as a part of the critical infrastructure sector.

On Mar 25, Oklahoma Governor Kevin Stitt offered clarity on the form of the Executive Department Amended Executive Memorandum 2020-01 in which he outlined “critical infrastructure sectors,” as copied from The Order, below:


Kevin Stitt
Office of the Governor
State of Oklahoma

FILED MAR 25 2020
OKLAHOMA SECRETARY OF STATE
EXECUTIVE DEPARTMENT AMENDED  EXECUTIVE  MEMORANDUM 2020-01

Stitt Amended Exec Order 032420

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On March 25, 2020, the 164th case of a novel coronavirus (“COVID-19”), was confirmed in the State of Oklahoma. As noted in a previous Executive Order, the United States Centers for Disease Control and Prevention has identified the potential public health threat posed by COVID-19 as “high” both globally and in the United States. In addition, on March 14, 2020, the President of the United States declared a national health emergency in the United States as a result of the national spread of COVID-19.

On March 15, 2020, I issued Executive Order 2020-07 declaring an emergency caused by the impending threat of COVID-19 to the people of this State and the public’s peace, health, and safety. And, on March 24, 2020, I issued the Fourth Amended Executive Order 2020-07. Paragraph 20 of the Fourth Amended Executive Order 2020-07 ordered all businesses not identified as being within a critical infrastructure sector as defined by the U.S. Department of Homeland Security (USDHS) and located in a county experiencing community spread of COVID-19, as identified by OSDH on its website, to close.

In addition to those critical infrastructure sectors identified by USDHS, I hereby add the following:

HEALTHCARE/ PUBLIC HEALTH

    • Health care providers (e.g. physicians, dentists, psychologists, mid-level practitioners, nurses and assistants, infection control and quality assurance personnel, pharmacists, physical and occupational therapists and assistants, social workers, speech pathologists and diagnostic and therapeutic technicians and technologists).
    • Manufacturers, technicians, logistics and warehouse operators, and distributors of personal care/hygiene products.
    • Behavioral health workers (including mental and substance use disorder) responsible for coordination, outreach, engagement, and treatment to individuals in need of mental health and/or substance use disorder services.
    • Workers who provide support to vulnerable populations to ensure their health and well-being including family care providers.
    • Medicinal marijuana dispensaries and all licensed medicinal marijuana companies that are in the supply chain for any medicinal marijuana dispensary
    • Workers supporting veterinary hospitals and clinics.

LAW ENFORCEMENT, PUBLIC SAFETY, FIRST RESPONDERS

    • Including front line and management, personnel include emergency management, law enforcement, Emergency Management Systems, fire, and corrections, search and rescue, tactical teams including maritime, aviation, and canine units.
    • Workers at Public Safety Answering Points.
    • Fire mitigation activities.
    • Private security, private fire departments, and private emergency medical services personnel.
    • State and County workers responding to abuse and neglect of children, elders and dependent adults.
    • Animal control officers.

FOOD AND AGRICULTURE

    • Farm supply and hardware stores
    • Groves, greenhouses, nurseries, and vineyards
    • Agriculture, Forestry, Fishing and Hunting
    • Food manufacturing
    • Beverage and tobacco product manufacturing
    • Manufacturing of fiber and forestry products
    • Veterinary services
    • Certified farmers’ markets, farm and produce stands
    • Food cultivation, including farming, livestock and fishing
    • Support of agricultural production including manufacturers, processors, sellers, transporters, and suppliers of livestock, poultry, feed, seed, water, fertilizer, herbicides, or insecticide and those that care for animals, crops, groves, greenhouses, nurseries, vineyards, forests, farms, and ranches
    • Hardware stores, farm stores, and garden centers

ENERGY

Electricity Industry:

    • Acquisition (SCADA) systems, and utility data centers; Cybersecurity engineers, cybersecurity risk management.
    • Power Generation, Transmission
    • Safety and environmental personnel, and those who support and ensure the supply chain and supply chain management
    • These categories of workers applies to all wind, solar, gas, hydroelectric and coal facilities.

Petroleum Workers:

    • Midstream Companies
    • Liquids or produced water/waste storage facilities
    • Petroleum refinery fractionators, blenders
    • Produced water waste facilities, including UIC wells and transportation
    • Brine separation and processing facilities
    • Transportation maintenance and inspection workers
    • Pipeline maintenance and construction workers who may be required to traverse state lines to maintain facilities that cross state lines
    • Workers who maintain supply chain for these facilities
    • Petroleum security operations employees and workers who support emergency response services

Natural and Propane Gas Workers:

    • Other compression facilities
    • Processing, refining, and transporting natural gas liquids, including propane gas, for use as end-use fuels or feedstocks for chemical manufacturing
    • Propane gas storage, transmission, and distribution centers
    • Compressed natural gas, liquefied natural gas, and propane gas retail and non-retail fuel stations, depots, and truck stops, that serve the public as well as private stations that support local and regional transportation companies such as transit authorities, refuse fleets, and freight haulers

WATER AND WASTEWATER

    • Drinking water and wastewater
    • Drinking water plant superintendents, managers, operators and maintenance technicians
    • Drinking water distribution system operators and maintenance technicians
    • Wastewater plant superintendents, managers, operators and maintenance technicians
    • Wastewater collection system operators and maintenance technicians
    • Laboratory certified operators and employees of a government or privately­ owned laboratory that are accredited to analyze routine compliance drinking water or municipal wastewater samples
    • Rural water association staff and technical support staff
    • Rural water districts, including all facilities

TRANSPORTATION AND LOGISTICS

    • Taxis, transportation services including Transportation Network ComTaxis, transportation services including Transportation Network Companies, and delivery services, including Delivery Network Companies.
    • Wholesale trade
    • Transportation and warehousing
    • Postal services and distribution centers

PUBLIC WORKS

    • Solid waste & hazardous waste
    • Utilities
    • Underground damage prevention services
    • Operational staff for solid waste pick-up
    • Operational staff at solid waste transfer and disposal facilities
    • Operational staff at hazardous waste treatment, storage, and disposal facilities, including underground injection control sites

COMMUNICATIONS AND INFORMATION TECHNOLOGY

    • Broadcasting
    • Publishing industries
    • Telecommunications
    • Data processing, hosting, and related services
    • Software publishers
    • All other miscellaneous schools and instruction
    • Computer systems design and related services

OTHER COMMUNITY-BASED GOVERNMENT OPERATIONS AND ESSENTIAL FUNCTIONS

    • Faith-based services that are provided through streaming or other technology.
    • Critical government workers, as defined by the employer and consistent with Continuity of Operations Plans and Continuity of Government plans.
    • Workers supporting public and private childcare establishments, pre-K establishments, K-12 schools, career and technology centers, colleges, and universities for purposes of distance learning, provision of school meals, or care and supervision of minors to support essential workforce across all sectors.
    • County workers responsible for determining eligibility and safety net benefits.
    • The Courts, consistent with guidance released from the Oklahoma Supreme Court and Oklahoma Court of Criminal Appeals.
    • Tag agencies
    • Workers and instructors supporting academies and training facilities and courses for the purpose of graduating students and cadets that comprise the essential workforce for all identified critical sectors.
    • Hotel Workers where hotels are used for COVID-19 mitigation and containment measures, including measures to protect homeless populations.
    • Hotels
    • Construction Workers, including residential and commercial, and workers who support the construction, operation, inspection, and maintenance  of construction sites and construction projects (including housing construction and heavy and civil engineering construction)
    • Businesses and workers that support the supply chain for commercial and/or residential construction and development
    • Workers such as plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, construction material sources, and essential operation  of construction sites and construction projects (including those that support such projects to ensure the availability of needed facilities, transportation, energy and communications; and support to ensure the effective removal, storage, and disposal of solid waste and hazardous waste).
    • Oklahoma One-Call or OKIE 811
    • Commercial Retail Stores, that supply essential sectors, including convenience stores, general merchandise stores, liquor, pet supply stores, auto supplies and repair, hardware and home improvement, and home appliance retailers.
    • Motor vehicle and parts dealers
    • Workers supporting the entertainment industries, studios, and other related establishments, provided they follow covid-19 public health guidance around social distancing.
    • Workers critical to operating Rental Car companies that facilitate continuity of operations for essential workforces, and other essential travel.
    • Workers that provide or determine eligibility for food, shelter, in-home supportive services, child welfare, adult protective services and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals (including family members).
    • Workers at animal care facilities that provide food, shelter, veterinary and/or routine care and other necessities of life for animals.
    • Public and private golf courses, public parks, and workers needed to maintain normal operations.
    • Workers involved with home repair and maintenance including roofing, lawn care, foundation repair, and similar businesses whose work is primarily performed out of doors.
    • Executive, legislative, and other general government support
    • Administration of human resources programs
    • Administration of environmental quality programs
    • Administration of   housing   programs, urban planning, and community development
    • Administration of economic programs

CRITICAL MANUFACTURING

    • Paper manufacturing
    • Printing and related support activities
    • Plastics and rubber products manufacturing
    • Mineral product manufacturing
    • Primary metal manufacturing including equipment

FINANCIAL SERVICES

    • Finance and Insurance
    • Real estate and Leasing services
    • Management of companies
    • Business associations
    • Financial advisory

CHEMICAL

    • Petroleum and coal products manufacturing
    • Chemical manufacturing

COMMERCIAL AND PROFESSIONAL SERVICES

    • Professional (such as legal and accounting), scientific, and technical services
    • Administrative and support services
    • Waste management and remediation services
    • Death care services
    • Dry cleaning and laundry services
    • Repair and maintenance

DEFENSE INDUSTRIAL BASE

    • Explosives manufacturing
    • National security and international affairs

ABLE permits beer and wine sale from licensed restaurants closed to dine-in service due to COVID-19

Oklahoma City and Tulsa, and many other cities in Oklahoma, have closed restaurants to dine-in service and permit only delivery, take-out or curb-side pickup. Beer and wine is still available to consumers from certain restaurants that are closed to dine-in service.

The Oklahoma Alcoholic Beverage Laws Enforcement (ABLE) Commission will permit such restaurants who already have an on-premises beer and wine or mixed beverage license to allow sealed beer and wine (no spirits) sales with food sales and to take-out or curb-side customers only.

Those beer sales can include draft beer in growlers or other sealed containers, but only from kegs that were tapped as of 3/20/20.

No alcohol sales are permitted with deliveries (either by the restaurant directly or through a commercial delivery service such as Door Dash or Postmates) and no take-out or curb-side alcohol sales are permitted by bars at all.


Phillips Murrah attorney Ellen SpiropoulosLauren Hanna

Ellen assists local and national businesses in the restaurant, entertainment and hospitality industries with obtaining applicable operating licenses and permits for food and alcoholic beverage service as well as any related compliance or enforcement issues.

For more information on this alert and its impact on your business, please call 405.552.2422 or email me.

Keep up with our ongoing COVID-19 resources, guidance and updates at our RESOURCE CENTER.

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Oklahoma Department of Commerce to host teleconference series on SBA Economic Injury Disaster Loans

By Phillips Murrah Attorney Kendra M. Norman

For Oklahoma businesses interested in more information about the U.S. Small Business Administration (SBA) Economic Injury Disaster Loan Program, The Oklahoma Department of Commerce is hosting three teleconferences that will cover the application process.

Also, according to their website, Commerce Director of Business Retention and Expansion, Ray Little, and SBA Office of Disaster Assistance Public Information Officer, Susheel Kumar, will be on the calls to provide information and answer questions.

Upcoming Calls will occur on the following three days:

  1. Thursday, March 26 from 2 to 3 p.m.
  2. Tuesday, March 31 from 2 to 3 p.m.
  3. Thursday, April 2 from 2 to 3 p.m.

To register, go to this website: https://www.okcommerce.gov/oklahoma-small-business-teleconference-sba-economic-injury-disaster-loan-application-and-program/

@OKcommerce on Twitter

@OKcommerce on Facebook


Kendra Norman Web

Kendra M. Norman represents individuals and businesses in a broad range of transactional matters.

For more information on this alert and its impact on your business, please call 405.606.4726 or email me.

Keep up with our ongoing COVID-19 resources, guidance and updates at our RESOURCE CENTER.

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