RIW Alerts Concerning the Business & Legal Impacts of COVID-19

Here is a complete library of RIW Alerts concerning the business and legal impacts of COVID-19. We will continue to monitor COVID-19 and will send client alerts as further information becomes available.

BAR AND RESTAURANT OPERATIONS

CARES ACT FOR SMALL BUSINESS

  • Enhanced Debt Relief Under the CARES Act – Leverage for Small Businesses
    To date, much of the discussion regarding the Coronavirus Aid, Relief, and Economic Stability Act (the “CARES Act”) has been focused on the provisions of its Paycheck Protection Program (the “PPP”), which provides forgivable loans to small businesses based upon two and half months of their average payroll costs. The PPP has been incredibly successful in stemming the initial economic shock caused by the COVID-19 pandemic. However, now that the dust is settling, many businesses are confronting harsh realities as they attempt to adjust operations to the “new normal”. The assumptions of pre-COVID business models and capital structures often don’t match the post-COVID world, and the PPP is insufficient to bridge the gap. READ MORE HERE.
  • CARES Act: Assistance for Small Business
    On March 27, 2020, President Trump signed the Coronavirus Aid, Relief, and Economic Stability (“CARES”) Act (the “Act”), as approved by the Senate on March 26, 2020, and the House on March 27, 2020. This article is intended to focus on those provisions of Phase 3 of the federal COVID-19 stimulus package relative to the eligibility requirements, qualifying criteria, and ramifications of Small Business Act Section 7(a) loans for businesses. READ MORE HERE.

CONSTRUCTION PROJECTS

  • As Construction Projects Ramp Back Up, What Does Your Contract Say About Who Bears the Costs of Delays?
    Everyone is aware that the COVID-19 pandemic has substantially disrupted businesses of all types throughout the country, and construction has been no exception. At the project level, the pandemic has impacted construction sites in a wide variety of ways. Some projects were completely shut down, whether by state or local mandate, by unilateral owner decision, by mutual agreement of owner and contractor, or, in some cases, by union shutdowns. Other projects continued apace, albeit with heightened safety, sanitary, and social distancing measures in place. Regardless of the project, however, virtually every project has experienced some impact due to COVID-19. READ MORE HERE.
  • Boston’s Construction Site Best Practices for COVID-19: A Glimpse of ‘Business As Usual’ Post COVID-19
    As the initial shock of COVID-19 has just begun to fade, many in the business world are contemplating the post-coronavirus workplace. What will “business as usual” look like after federal, state, and local agencies lift stay-at-home orders and other social distance mandates? That question has been answered, at least with respect to construction projects in the city of Boston. On April 17th, Boston’s Inspectional Services Department (“ISD”) issued a directive on “COVID-19 Safety Plans” found here. The directive describes what coronavirus measures will be required for all jobsites once construction in Boston is allowed to proceed. ISD’s April 17th directive is immediately applicable to all essential projects that have continued to work through this pandemic. READ MORE HERE.
  • Massachusetts Construction Projects: Full Steam Ahead? Governor Baker Seems to Overturn COVID-19 Municipal Construction Work Stoppages in the Commonwealth, But Mayor Walsh Balks
    In the fast-moving environment of “Can v. Can’t” and “Do v. Don’t” resulting from COVID-19 and governmental shutdowns, it is a challenge to keep track of what business activities are permitted to continue and who can perform them. Notwithstanding industry-wide construction shutdowns in certain municipalities (Boston, Cambridge, Somerville, and others), Governor Baker issued further guidance on March 25, 2020 which expressly overruled any previously-issued municipal shutdown of construction projects and allows construction state-wide to continue. Just a few hours after the issuance of this guidance, however, Mayor Marty Walsh extended the pause on non-essential construction work in the City of Boston indefinitely, placing Boston at odds with the Governor’s Order and creating confusion among owners and contractors. READ MORE HERE.

ESTATE PLANNING

  • COVID-19 and Your Estate: Planning Considerations During These Difficult Times
    We find ourselves in an unwanted new world, some say a “new normal”. As the pandemic continues, here are some things to consider as part of your estate planning matters. It is particularly important to evaluate the choices of fiduciaries that you have named/nominated or will name in the following estate planning designations:
    • Your durable powers of attorney
    • Your health care proxy and the terms of your living will
    • The Personal Representative/Executors of your Estate
    • The individuals/entities you have nominated to serve as trustees of your respective revocable and, if applicable, irrevocable trusts
    READ MORE HERE.
  • Estate Planning Developments in the Midst of the COVID-19 Crisis
    The novel Coronavirus has impacted nearly every aspect of our daily lives. The current crisis presents unprecedented obstacles that can only be remedied over time. This alert will address recent developments related to the crisis in the estate planning context.
    Massachusetts Temporary Virtual Notarization Act Signed Into Law
    On a practical level, mandatory shutdowns of non-essential businesses and social distancing protocols pose a significant barrier to the face-to-face interactions generally required for the execution of estate planning documents. This time of great uncertainty invites a review of one’s estate plan, particularly that of the elderly and those otherwise in high-risk groups. It is also an important time for adult children (age 18 and over in Massachusetts) to establish basic estate planning documents, as without the documents in place, it is very difficult for parents and other family members to make financial and health care decisions for them should they become unable to manage their own affairs. READ MORE HERE.

EVICTIONS & FORECLOSURES

  • Governor Baker Signs Act Providing for a Moratorium on Evictions and Foreclosures During the COVID-19 Emergency
    On April 20, 2020, Massachusetts Governor Charlie Baker signed into law an act which adopts protections relating to evictions and foreclosures. The Act addresses three main topics: Commercial Evictions, Residential Evictions, and Foreclosures. Key provisions of the Act provide for the following:
    Definitions
    – “Non-essential eviction”, an eviction: (i) for non-payment of rent; (ii) resulting from a foreclosure; (iii) for no fault or no cause; or (iv) for cause that does not involve or include allegations of: (a) criminal activity that may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public; or (b) lease violations that may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public; provided, however, that a non-essential eviction shall not include an eviction for a small business premises unit on account of the expiration of the term of a lease or tenancy or a default by the tenant of a small business premises unit under the terms of its lease or tenancy that occurred before the declaration of the COVID-19 emergency. Note – the Act contains a distinction that excludes protection from small business premises unit evictions that relate to pre-COVID expiration or defaults. READ MORE HERE.

FAMILIES FIRST CORONAVIRUS RESPONSE ACT

  • Department of Labor Guidance and Workplace Poster on Families First Cornavirus Response Act
    Since the Senate passed and the President signed into law the Families First Coronavirus Response Act (the “Act” or “FFCRA”), the Department of Labor has issued guidance regarding the Act as well as a mandatory workplace notice that employers must provide to employees. READ MORE HERE.
  • Families First Coronavirus Response Act Signed Into Law
    Last Wednesday, the Senate passed and the President signed into law the Families First Coronavirus Response Act (the “Act”). The Act has undergone revisions regarding the paid sick and family leave programs since the House’s passing of the Act, mostly designed to limit some of the leave provided and capping the paid leave to match the tax credit the employer receives. The Act will go into effect no later than April 2, 2020. READ MORE HERE. 
  • House Passes Families First Coronavirus Response Act
    Last Saturday, the U.S. House of Representatives passed the Families First Coronavirus Response Act to address the anticipated economic impacts of the Coronavirus outbreak and to provide support to affected Americans. Although the bill may be subject to changes, it is expected that the Senate will pass the bill and it will be signed into law early this week. READ MORE HERE.

FORCE MAJEURE AND FRUSTRATION OF PURPOSE

  • Contractual Rights, Performance Obligations and COVID-19: A Primer on Gap-Filler Doctrines and Force Majeure
    The spread of COVID-19 has triggered economic turmoil and unprecedented government intervention into private industry. Business owners, lenders, landlords, employers and their respective counter-parties are reviewing the key terms of innumerable business arrangements and relationships impacted by current events. One common contract term that ordinarily draws little attention and is often relegated to the miscellaneous section of many agreements is Force Majeure. Generally, Force Majeure clauses serve to excuse performance and liability where a party cannot carry out its contractual obligations as a result of an event that is beyond that party’s control. READ MORE HERE.
  • The Effect of COVID-19 on Risk Allocation in Commercial Leases: Recent Superior Court Decision Provides Guidance
    In one of the first written decisions from the Massachusetts Superior Court on the practical impact the COVID-19 pandemic has had in the commercial real estate space, the Business Litigation Session in the case of UNMV 205-207 Newbury, LLC v. Caffe Nero Americas Inc. not only denied an attempt at summary judgment by the Lessor, but also granted partial summary judgment to the Lessee – sua sponte. READ MORE HERE.

GAP CLOSINGS

  • Can I Still Sell My Property When the Registry Closes? – Gap Closings
    As sectors of the US economy effectively shut down one by one in response to COVID-19, a quick review of those sectors and essential functions that remain open for business may be the better approach to measure where things stand. In the world of real estate and mortgage financing, certain transactions may be able to proceed to close during this pandemic, despite the fact that many registries will not accept documents for recording until further notice. READ MORE HERE. 

MASSACHUSETTS STATE COURT

  • Massachusetts State Courts Move Toward Resumption of Civil Litigation
    Nearly three months after pausing civil litigation due to the COVID-19 crisis, the Massachusetts Supreme Judicial Court (“SJC”) has released a new emergency order, effective June 1, 2020 (the “June Order”), that lays out the present plan for resumption of civil litigation. Although the June Order’s plan is contingent upon there being no further surges of COVID-19 cases in the Commonwealth, it is the first such order since the crisis began that contemplates bringing COVID-related extensions to an end. READ MORE HERE.
  • Massachusetts State Courts Begin to Adjust for Civil Litigation in the COVID-19 Period
    After all but shutting down civil litigation in mid-March 2020 (as discussed in a prior alert), Massachusetts state courts are beginning to chart a course forward for handling non-emergency civil litigation matters. For example, in the weeks after the March 17, 2020 Supreme Judicial Court (“SJC”) order closing courthouses and postponing trials (and its subsequent April 6, 2020 order extending court restrictions, deadlines, and statutes of limitations through May 4, 2020), the SJC created a Frequently Asked Questions page to provide further information about how parties and attorneys can interact with court staff while the restrictions remain in place. Subsequently, each of the individual trial courts established email addresses for submission of inquiries regarding non-emergency matters to the respective clerk’s offices. The SJC also authorized service of papers (other than complaints and summonses) by email as of right, the use of electronic signatures as of right, and the remote swearing-in of witnesses by videoconference. And both the SJC and the Appeals Court have been conducting oral argument through internet-connected video conference platforms. READ MORE HERE.
  • Massachusetts State Court Civil Case Management Impacts of COVID-19
    Before the spread of COVID-19 last week, the Massachusetts court system—which consists of the Supreme Judicial Court (“SJC”), the Appeals Court, and the Trial Court (itself comprised of the Superior Court, District Court, Land Court, and Housing Court, among others)—was already stretched thin. For example, it is typical in many Superior Court civil sessions to wait six months or more for a motion hearing. The spread of COVID-19, however, has in many respects brought the Massachusetts court system to a standstill in civil cases. In fact, all Massachusetts state courts will remain closed for civil business until at least April 6, 2020, except for in-person emergency proceedings and non-emergency proceedings that can be conducted remotely. READ MORE HERE.

PAYCHECK PROTECTION PROGRAM (PPP) LOANS

  • SBA Issues Revised PPP Loan Forgiveness Applications
    On Tuesday, June 16, 2020, the Small Business Administration (the “SBA”) quietly released the revised Paycheck Protection Program Loan Forgiveness Application (the “Long Form Application”) and the new Paycheck Protection Program PPP Loan Forgiveness Application Form 3508EZ (the “EZ Application”). The instructions included as part of the Applications provide borrowers with much needed guidance on how to calculate and apply for loan forgiveness following the enactment of the Paycheck Protection Program Flexibility Act (the “PPPFA”). READ MORE HERE.
  • House and Senate Pass Paycheck Protection Program Flexibility Act
    On June 3, 2020, the United States Senate passed the Paycheck Protection Program Flexibility Act (the “Act“), as passed by the House on May 27, 2020, amending certain aspects of the Small Business Administration Act and the Paycheck Protection Program (the “PPP“), created by Division A, Title I of the Coronavirus Aid, Relief, and Economic Stability Act (the “CARES Act“). The Act will now go to President Trump, who is expected to sign same. READ MORE HERE.
  • SBA Issues PPP Loan Forgiveness Application
    The Small Business Administration (the “SBA”) quietly released on Friday May 15th, the Paycheck Protection Program Loan Forgiveness Application (the “Application”). The instruction included as part of the Application provides borrowers with much needed guidance on how to calculate loan forgiveness under the Paycheck Protection Program (the “PPP”). READ MORE HERE.
  • SBA Updates FAQ on Good Faith Certification of Need
    Pursuant to Division A, Title I of the Coronavirus Aid, Relief, and Economic Stability (“CARES”) Act, as amended, Congress, among other things, established a framework for the Paycheck Protection Program (the “PPP”). In the weeks and months following the signing of the CARES Act by President Trump, the Small Business Administration (the “SBA”) and the U.S. Treasury issued guidance including Frequently Asked Questions (“FAQ”) and interim rules relating to the terms of the PPP, including, but not limited to, permitted expenditures for loan proceeds and loan forgiveness. READ MORE HERE.
  • Deductions to be Limited for Expenses Covered by Forgiven PPP Loans
    Based on the latest guidance from the IRS in Notice 2020-32, businesses that use Paycheck Protection Program (“PPP”) loan proceeds to pay payroll costs, mortgage interest, rent and utilities will not be allowed to deduct those expenses to the extent that the PPP loan is later forgiven. READ MORE HERE.
  • Congress Appropriations Bill Extends Paycheck Protection Program
    Following weeks of negotiation, Congress passed the 5,593 page Consolidated Appropriations Act, 2021 (the “Act”) in the late hours December 21, 2020, that, in part, allocates approximately $900 billion towards emergency coronavirus relief and effectively extends and expands the Paycheck Protection Program (the “PPP”) and existing unemployment assistance programs. READ MORE HERE.

PERMITTING

  • Massachusetts House Bill Proposes to End Local COVID-19 Permitting Stay as of December 1, 2020
    Earlier this year, we reported that House Bill 4617 effectively stayed the expiration of local approvals and permitting deadlines as of March 10, 2020, in response to COVID-19. Governor Baker also issued COVID-19 Executive Order No. 17, which stayed permitting activity before state agencies. Both the state and local orders were originally set to expire, “45 days after the termination of the [COVID-19] state of emergency”. At the time, no one expected that the state of emergency would last throughout 2020 with no end in sight. When it became apparent that the state of emergency would endure, the Governor was able to quickly amend his initial order as it applied to state permitting agencies. The Governor’s COVID-19 Order No. 42 issued on July 2nd lifted the stay applicable to state permitting agencies as of August 10, 2020. Arguably, the Governor’s July 2nd order could be interpreted to compel action by local permitting agencies that review and issue state permits (e.g. a local conservation commission acting under State Wetlands Protection Act), but as a practical matter such an argument is not going to win over any local boards that are not inclined to act on their own initiative. Because all local permitting was stayed by legislative action, a clear legislative amendment is necessary to decouple the local permitting freeze from expiration of the Governor’s state of emergency. READ MORE HERE.

  • Governor Signs Bill to Provide Permitting Relief for Communities and Applicants
    On April 3, 2020, Governor Charlie Baker signed an emergency bill into law which covers a comprehensive set of topics to address challenges facing municipalities and state agencies. Section 17 of House No. 4617 specifically addresses extending certain deadlines applicable to municipalities as well as applicants with respect to the permitting and approval process. READ MORE HERE.

REOPENING MASSACHUSETTS

  • Step II of Phase III Reopening Plan Announced
    On September 29, 2020, the Baker-Polito Administration announced that effective Monday, October 5th, lower risk communities* will be permitted to move into Step II of Phase III of the Commonwealth’s reopening plan with the following restrictions:
    • Indoor performance venues will be permitted to open with 50% capacity with a maximum of 250 people.
    • Outdoor performance venue capacity will increase to 50% with a max of 250 people. READ MORE HERE.

SECURE NOTARIZATION ACT

  • Legislation Would Create National Remote Online Notarization Standards
    In an effort to mitigate the significant harm to commerce caused by COVID-19, several organizations including the American Land Title Association (“ALTA”), the Mortgage Bankers Association (“MBA”), and the National Association of Realtors (“NAR”) are rallying around the Securing and Enabling Commerce Using Remote and Electronic Notarization Act of 2020 (the “SECURE Notarization Act”) to set minimum national standards for remote online notarization (“RON”), while respecting and integrating with existing state laws permitting RON. READ MORE HERE.

COVID-19 VACCINATIONS

The “new normal” following the COVID-19 pandemic appears just across the horizon. The number of active COVID-19 cases continues to decline. Traffic is increasing. The sun is coming out and temperatures are rising (aside from Memorial Day weekend). This return to normalcy is helped in great part by the large number of people in the Bay State who have elected to receive the COVID-19 vaccination. READ MORE HERE.

Over the last week, the United States saw a heartening advancement in the COVID-19 situation: the distribution and administration of a vaccine.  This exciting development suggests a return to “normal” may, in fact, be on the horizon.  At the same time, many questions remain concerning the COVID-19 vaccination in the employment context.  Can an employer require an employee to receive the vaccination before returning to work?  What questions can an employer ask an employee about receiving the vaccination?  What options are available if an employee refuses to receive the vaccination?  What if an employee does not receive the vaccine because of a disability or sincerely held religious belief? READ MORE HERE.

The U.S. Food and Drug Administration (“FDA”) recently approved use of the Pfizer-BioNTech COVID-19 Vaccine for the prevention of the COVID-19 disease in individuals 16 years of age or older. Previously, all COVID-19 vaccinations administered in the United States were approved through Emergency Use Authorization (“EUA”), which enables the FDA to allow for use of medical products during a public health emergency. Some vaccination opponents have used the EUA approval and (prior) lack of full approval as a defense for not receiving the vaccination. The FDA’s approval has now negated that purported justification for a person to not receive the COVID-19 vaccination. READ MORE HERE.

As developments continue to unfold regarding the coronavirus (COVID-19), RIW’s top priority remains the health and safety of our staff, clients, and community. We are following the guidance of the World Health Organization, Centers for Disease Control, and local health officials. We will adapt as necessary.

RIW continues to serve client needs without interruption. Our substantial remote technology and conferencing capabilities allow attorneys and staff to work remotely and to provide our legal services with the same level of attention to all existing and upcoming matters that our clients have come to expect. We are receiving updates from state and federal courts and are actively monitoring case dockets and associated scheduling impacts.

Through these efforts, we expect to maintain a “business as usual” approach to our work while minimizing the health impacts presented by this unprecedented situation. The lawyers and staff at RIW are committed to the well-being of our clients, colleagues, and communities and will remain vigilant as we strive to overcome these challenges. In the meantime, please do not hesitate to reach out to us if you have any questions or concerns. We stand ready to assist with your needs, and we hope that you and your loved ones remain safe and healthy.

Please do not hesitate to reach out to your RIW Attorney contact if you have any questions or concerns. We will continue to send client alerts as further information becomes available.