COVID-19

Gray Reed is here to help you and your business.  Our lawyers have already begun to address the difficult business and legal issues facing our clients.  To learn more about how we can help you as it relates to COVID-19 CLICK HERE.

COVID-19 Resource Center

Gray Reed is here to help you and your business through the COVID-19 pandemic. Our lawyers are constantly assessing the difficult business and legal issues facing our clients. For instance, we’ve already been assisting with issues relating to cancellation of contracts. We’ve also been working with clients to position them to deal with the possibility that many of their customers or counterparties will be seeking bankruptcy protection. In addition, we have established a COVID-19 Task Force, which is strategically comprised of litigators and transactional attorneys involved with a wide array of industries. In fact, members of the Task Force represented ConocoPhillips and Jani-King and prevailed in trial court and on appeal on a key issue impacting most industries during this time (force majeure). 

Below are links to Gray Reed articles that may provide important guidance as you begin to deal with consequences of the pandemic. As more articles and resources from our firm become available, we will add them to the list below.

Agriculture

USDA Announces $19 Billion Coronavirus Food Assistance Program to Support Farmers, Ranchers and Consumers - and Where do Biofuel Producers Stand? - April 20, 2020
On April 17, the U.S. Secretary of Agriculture announced the launch of the Coronavirus Food Assistance Program (CFAP), a U.S. Department of Agriculture program that will provide $19 billion in critical support to farmers, ranchers and consumers in response to the COVID-19 crisis.  This alert describes the CFAP programs, when its funds are anticipated to be made available, how farmers and ranchers impacted by COVID-19 may qualify for CFAP funds and the maximum amount of direct payments that any one entity or individual may receive under the CFAP’s Direct Payment Program.  This alert also discusses the omission of biofuel producers from the CFAP programs.

Agricultural Subsidies and Business Loan Programs in the CARES Act - April 17, 2020
This alert summarizes certain key commercial lending and grant provisions in the CARES Act that are intended to provide a lifeline to eligible businesses, in particular agricultural producers and other agricultural businesses, to fund payroll costs and other operating costs.

Bankruptcy

The Impact of the CARES Act on the U.S. Bankruptcy Code - April 7, 2020
The CARES Act aims to provide support to both individuals and businesses during this unprecedented time in our country’s history. This alert summarizes the Act’s amendments to the Bankruptcy Code, which provide specific assistance to consumer and “small business” debtors.


Contact: Jason Brookner

CARES Act

Now Available: Revised PPP Loan Forgiveness Application And New EZ Application - June 19, 2020
On June 16, 2020, the Small Business Administration released an updated Paycheck Protection Program (PPP) Loan Forgiveness Application and Instructions, as well as a new PPP Loan Forgiveness Application Form 3508EZ and Instructions, to reflect recent amendments to the PPP made by the PPP Flexibility Act.  This alert discusses the new PPP loan forgiveness applications and the related new Interim Final Rule issued by the Small Business Administration on June 17, 2020.

Main Street Lending Program Finally Launches with Modified Key Terms - June 17, 2020
The Federal Reserve on June 15, 2020 launched the lender registration portal for the $600 billion Main Street Lending Program to keep credit flowing to small and medium-sized businesses that were in sound financial condition before the COVID-19 pandemic. This alert summarizes the June 8, 2020 modification of key terms of three of the Program’s loan facilities.

Paycheck Protection Program Flexibility Act of 2020: What You Need to Know - June 15, 2020
The Paycheck Protection Program Flexibility Act of 2020 provides more beneficial loan terms principally relating to maturity dates, time to use loan proceeds and loan forgiveness under the Paycheck Protection Program. This alert from our CARES Act Task Force outlines what borrowers need to know. 

Application of Affiliation Rules to Private Equity Funds and Portfolio Companies under the Paycheck Protection Program - May 14, 2020
Companies with private equity fund investors have experienced challenges in determining whether they qualify as a borrower that is eligible to participate in the Paycheck Protection Program (PPP) created by the CARES Act. This alert aims to alleviate some confusion by reviewing certain SBA affiliation rules that may disqualify a private-equity backed company from PPP loan eligibility.

Federal Reserve Expands the Scope of its Main Street Lending Programs - May 6, 2020
The Federal Reserve on April 30, 2020 announced changes to expand the loan and eligibility requirements under its $600 billion Main Street Lending Program to allow participation by larger businesses and those with higher debt levels. This alert explains what businesses are eligible for loans and what potential borrowers need to know.

FCC Infuses Cash to Eligible Providers to Help Defray Costs Associated with Developing a Telehealth Program - April 24, 2020
Among other things, the CARES Act recently allocated to the Federal Communications Commission $200 million for the COVID-19 Telehealth Program, which was created to help eligible providers pay for and offer telehealth services to patients to continue fighting the coronavirus pandemic. This alert outlines who is eligible and what those providers need to know about applying for funding.

Second Tranche of Provider Relief Fund Payments Commences Today - April 24, 2020
The second tranche of payments, totaling $20 billion, from the $100 billion Public Health and Social Services Fund, authorized under the CARES Act, is being distributed to providers starting today, April 24. This alert explains the methodology for distribution and the terms and conditions that fund recipients need to be aware of.  The alert also explains how the U.S. Department of Health and Human Services plans to allocate the remaining funds and addresses the replenishment of the Fund through the most recent stimulus package that President Trump signed today.

Senate Sends $484 Billion COVID-19 Stimulus Package to the House - April 22, 2020
Yesterday (April 21), the Senate passed a $484 billion COVID-19 stimulus package to the house, including $310 billion to replenish the Paycheck Protection Program, $60 billion for Economic Injury Disaster Loans (EIDLs) and $10 billion for additional emergency EIDL grants. This alert outlines what small businesses, agricultural enterprises and health service providers can anticipate starting tomorrow, when the House is expected to pass the bill. 

Federal Reserve and Treasury Announce $600 Billion Main Street Lending Program - April 18, 2020
The Federal Reserve, with the approval of the Department of the Treasury, recently announced the establishment of a Main Street Lending Program to support loans of up to $600 billion to small and mid-sized businesses affected by the COVID-19 pandemic. While additional guidance regarding applications is expected in the coming days, this alert discusses key terms and requirements for borrowers and lenders.

Agricultural Subsidies and Business Loan Programs in the CARES Act - April 17, 2020
This alert summarizes certain key commercial lending and grant provisions in the CARES Act that are intended to provide a lifeline to eligible businesses, in particular agricultural producers and other agricultural businesses, to fund payroll costs and other operating costs.

The Impact of the CARES Act on the U.S. Bankruptcy Code - April 7, 2020
The CARES Act aims to provide support to both individuals and businesses during this unprecedented time in our country’s history. This alert summarizes the Act’s amendments to the Bankruptcy Code, which provide specific assistance to consumer and “small business” debtors.

Update: CARES Act Tax Provisions Impacting Businesses - April 6, 2020
The CARES Act provides immediate benefits to businesses through a number of provisions including (1) a new SBA loan program called the Paycheck Protection Program and (2) both refundable payroll tax credits and payroll tax deferral for a significant portion of employer payroll taxes. Additionally, the Act made a number of significant taxpayer-friendly changes to the Internal Revenue Code. This alert reviews the CARES Act’s main tax provisions that impact businesses.

Update: New Interim Final Rules for Paycheck Protection Program Loan Applicants - April 3, 2020
This alert summarizes the new interim final rules published on April 2, 2020 by the Small Business Administration to implement the $349 billion allocated for the Paycheck Protection Program loans in the CARES Act.

CARES Act: What Employers Need to Know About the Pandemic Unemployment Assistance Program - April 3, 2020
This guide addresses the expanded unemployment benefits and eligibility contained in the CARES Act.

CARES Act 101: What Healthcare Businesses Need to Know - April 1, 2020
This alert provides an overview of several significant provisions of the CARES Act that impact healthcare businesses, including hospitals, physicians, long-term care providers, laboratories and others. 

Business Loan Programs in the CARES Act: What Businesses Need to Know - March 31, 2020
The CARES Act's commercial lending provisions are intended to provide a lifeline to the economy in the form of loans to eligible businesses to fund payroll and other operating costs.  This alert summarizes the following loan programs in the CARES Act: the Paycheck Protection Program, Economic Injury Disaster Loans (EIDLs), advances for up to $10,000 on EIDLs (an Emergency Advance) and the Subsidy for Certain Loan Payments.  

Commercial Litigation

Can COVID-19 Trigger a Force Majeure Defense? - March 24, 2020
Can COVID-19 Make a Contract Impossible to Perform? - March 24, 2020
The coronavirus pandemic is disrupting our daily lives but does it also extinguish or extend our contractual deadlines? These two Tilting the Scales articles discuss two options for parties seeking to use COVID-19 as an excuse for not performing or delaying performance. But each option is risky, and the best approach may be to search for flexible and creative solutions to achieve a win-win for all parties to the contract during this challenging time.

COVID-19: What are your Rights Under a Contract if you are Damaged or Blamed for the Damage? - March 20, 2020
The coronavirus pandemic is shutting down businesses and markets worldwide, causing panic and uncertainty. Most companies have already been damaged by COVID-19, and others will be sued and blamed for those damages. This article outlines some of your contractual rights and obligations. 


Contact: Scott Funk

Construction

New COVID-19 Safety Constraints on Construction in Dallas County - March 31, 2020
Dallas County has again amended its “Stay Home Stay Safe” order. Effective March 29, 2020, the order contains several provisions that impact the construction industry. This alert outlines the new requirements for construction businesses and the penalties for failing to comply.

Coronavirus and the Construction Industry: How to Handle an Inevitable Delay - March 9, 2020
This alert discusses how COVID-19 may affect construction materials and labor, and encourages those in the construction industry to check contract language and supplier agreements for force majeure clauses, and develop a plan in the event of a labor shortage.


Contact: JP Vogel

Employment

Federal Court Strikes Down FFCRA Regulations - August 5, 2020
On August 3, a federal court struck down several regulations concerning the Families First Coronavirus Response Act, the recent federal law that provides paid sick leave and expanded FMLA leave for employees impacted by COVID-19. The affected regulations include: (1) the classification of employees as “health care providers” who may be exempted from paid leave benefits; (2) the work availability requirements for benefits eligibility; (3) the requirement that employees provide documentation prior to leave; and (4) the mandate that employees obtain their employers consent to take intermittent leave. This alert explains what employers need to know.

Reporting Work-Related COVID-19 Diagnoses to OSHA - July 6, 2020
Employers are generally not responsible for reporting employees’ positive COVID-19 diagnoses to the U.S. Department of Health and Human Services or the Texas Department of State Health. However, employers shouldn’t forget about the reporting requirements for workplace illnesses that must be made to the Occupational Health and Safety Administration (OSHA). This alert summarizes OSHA’s recently released revised enforcement guidance that provides employers with substantive direction concerning the recording of COVID-19 cases.

COVID-19 Return-to-Work FAQs 
After Texas Governor Greg Abbott’s press conference on April 27, returning to the workplace is more of a near reality than ever for many Texans. This resource provides answers to many questions that employers may have as they begin the challenging task of returning employees to the workplace.

An Unexpected Hurdle: How to Handle Employees Who Refuse to Return to Work - May 1, 2020
Following Governor Abbott’s announcement of plans for safely reopening some Texas businesses, many employers looking to get back to (near) normal are encountering an unexpected hurdle: employees who refuse to return to work. This alert provides employers with guidance on what to do when employers are ready to get back to business but some employees are not.

CARES Act: What Employers Need to Know About the Pandemic Unemployment Assistance Program - April 3, 2020
This guide addresses the expanded unemployment benefits and eligibility contained in the CARES Act.

Effective April 1, 2020: The Emergency FMLA and Paid Sick Leave Provisions of the Families First Coronavirus Response Act - March 31, 2020
The Department of Labor has issued guidance clarifying several issues that have been vexing employers since the Families First Coronavirus Response Act was passed two weeks ago. This alert summarizes what employers need to know.

An Employer's Guide to Saving the Company - Furloughs - March 24, 2020
During this time of financial uncertainty resulting from the COVID-19 outbreak, businesses are being forced to close operations and analyze whether to furlough or terminate some or all of their employees. This article explains what a furlough is and how it compares to a layoff, as well as provides legal issues that employers should consider before implementing a furlough.

Employers May Get Relief from Notice for Mass Layoffs Because of Unprecedented Times - March 20, 2020
If mass layoffs (defined as 50 or more employees) become necessary because of the COVID-19 global pandemic, employers need to be mindful of their obligations under the Worker Adjustment and Retraining (WARN) Act. However, the WARN Act also has some exceptions, outlined in this article, that employers should know about during these uncertain times.

Families First Coronavirus Response Act Enacted into Law: What Employers Need to Know - March 19, 2020
The Families First Coronavirus Response Act expands the coverage and benefits of the Family and Medical Leave Act (FMLA), requires paid sick leave for employees affected by COVID-19 and provides tax credits for employers to help offset the increased costs of the leave provisions. This alert outlines what employers are impacted and what they need to know.


Contact: Ruth Ann Daniels

Energy

OSHA’s New Guidance for the Energy Arena - July 22, 2020
The Occupational Safety and Health Administration (OSHA) recently issued guidance for oil and gas industry workers and employers in light of the increased risk of workplace exposure to COVID-19. OSHA’s guidance provides three categories of workplace safety measures for employers to follow: (1) engineering controls; (2) administrative controls; and (3) safe workplace practices. This alert explains what oil and gas employers need to know.

COVID-19: Shelter-in-Place Orders and the Energy Industry - March 26, 2020
Many counties and cities in Texas have issued shelter-in-place orders to flatten the curve of the COVID-19 pandemic, and more states, counties and cities are expected to issue similar orders in the coming days and weeks. Businesses and industries deemed “essential” are exempt from many of these orders and this alert helps clear up confusion as to what specific businesses in the energy sector fall into this category.

Coronavirus and the Energy Industry: Drilling into Force Majeure Clauses - March 12, 2020
This alert outlines a Houston court’s recent interpretation of a force majeure clause in a drilling contract and whether or not “disease or pandemics” should be specifically listed in the clause to cover the effects of a pandemic such as coronavirus.


Contact: Charlie Sartain

Family Law

Will Disruptions in School Schedules Result in Changes to Child Possession Orders? - March 19, 2020
School districts across the nation have extended their spring breaks by at least one or more weeks as a precaution to help contain the coronavirus outbreak. For co-parents, would the extended period of time away from school mean that a scheduled “spring break” visitation period in the possession schedule would likewise be extended, perhaps indefinitely? This alert explains what Texas courts have said and identifies some issues that may be coming in the months ahead.


Contact: Kyle Sanders

Healthcare

FCC Infuses Cash to Eligible Providers to Help Defray Costs Associated with Developing a Telehealth Program - April 24, 2020
Among other things, the CARES Act recently allocated to the Federal Communications Commission $200 million for the COVID-19 Telehealth Program, which was created to help eligible providers pay for and offer telehealth services to patients to continue fighting the coronavirus pandemic. This alert outlines who is eligible and what those providers need to know about applying for funding.

Second Tranche of Provider Relief Fund Payments Commences Today - April 24, 2020
The second tranche of payments, totaling $20 billion, from the $100 billion Public Health and Social Services Fund, authorized under the CARES Act, is being distributed to providers starting today, April 24. This alert explains the methodology for distribution and the terms and conditions that fund recipients need to be aware of.  The alert also explains how the U.S. Department of Health and Human Services plans to allocate the remaining funds and addresses the replenishment of the Fund through the most recent stimulus package that President Trump signed today.

CMS Issues Blanket Waivers of the Stark Law in Response to the COVID-19 Pandemic - April 2, 2020
In response to the COVID-19 crisis, and in connection with the associated declaration of an emergency by both the President and the Secretary of the Department of Health and Human Services, the Centers for Medicare & Medicaid Services has implemented blanket waivers, including one specifically related to the prohibition against physician self-referral (Stark Law). These waivers are designed to permit certain activities that might otherwise be prohibited, in an effort to provide patients with greater access to healthcare services.

CARES Act 101: What Healthcare Businesses Need to Know - April 1, 2020
This alert provides an overview of several significant provisions of the CARES Act that impact healthcare businesses, including hospitals, physicians, long-term care providers, laboratories and others. 

Keeping a Pulse on Telemedicine Changes in Light of COVID-19 - April 1, 2020
To facilitate access to medical care and contain the spread of the coronavirus, the Department of Health and Human Services and the Texas Medical Board are temporarily suspending certain provisions that place restrictions on health practitioners’ ability to use telemedicine in their treatment of patients. This alert outlines the scope of both the federal and state “waivers” and addresses reimbursement considerations.


Contact: Darrell Armer

Helping Texas Get "Back to Business"

Stay Shut Down or be Sued? The Risk to Businesses from COVID-19 Premises-Liability Claims - July 7, 2020
Many companies are eager (or even desperate) to re-open and begin generating revenue. However, they are wary of potential liability if their customers, guests, employees or vendors contract COVID-19 while on their property. This article addresses the risks facing Texas companies who decide to re-open.

Governor Abbott Issues Executive Order and Proclamation Ahead of July 4th Holiday - What Does it Mean for Businesses? - July 3, 2020
 

Incarceration, Personal Service Businesses & Inspections: The Latest in the Reopening of Texas Businesses - May 8, 2020
After seeing a Dallas salon owner jailed for refusing to cease operations despite COVID-19 restrictions, Texas Governor Greg Abbott amended his earlier orders to specifically provide that individuals may not be jailed for non-compliance with orders related to COVID-19. Despite this new limitation, however, businesses should continue to be aware of the ongoing restrictive executive orders and prepared for unannounced inspections by local authorities during the reopening process.

Texas Begins to Reopen: What's Next for Retailers and Franchisees? - May 1, 2020
As of May 1, 2020, various retailers and restaurants, many of which are franchises, may reopen with certain limitations and under the guidelines outlined by Governor Greg Abbott’s Executive Order GA-18.  Safely resuming operations under the guidelines will, undoubtedly, prove tricky. This alert provides answers to a few common questions and practical tips to help business owners navigate hurdles associated with reopening.

An Unexpected Hurdle: How to Handle Employees Who Refuse to Return to Work - May 1, 2020
Following Governor Abbott’s announcement of plans for safely reopening some Texas businesses, many employers looking to get back to (near) normal are encountering an unexpected hurdle: employees who refuse to return to work. This alert provides employers with guidance on what to do when employers are ready to get back to business but some employees are not.

Defining a "Single Office" in Governor Abbott's Executive Order for Texans Returning to Work - May 1, 2020
One of the potential ambiguities surrounding Governor Abbott’s Executive Order GA-18, which implements the Governor’s phased plan for safely reopening Texas businesses, is the term “single offices”. This alert addresses the confusion and helps clear up what companies should and shouldn’t be allowing employees back in the office at this time.

An Overview of Governor Abbott's Executive Order on Reopening Texas - April 29, 2020
On April 27, Texas Governor Greg Abbott announced plans for safely reopening some Texas businesses that have been shut down or subject to significantly reduced operations in the wake of the COVID-19 pandemic. As part of those plans, he issued Executive Order GA-18. This alert outlines what businesses need to know.

Gray Reed Establishes Task Force to Help Get Clients “Back to Business” - April 21, 2020
 

Insurance

Update: Business Interrupted by COVID-19? Check Your Insurance Policy for Lost Business Income Coverage - April 14, 2020
This alert discusses the availability of insurance coverage for lost business income due to COVID-19 and encourages clients to review their various policies to determine whether they have any coverage to recoup lost income caused by closure of or limits to operations.


Contact: Darin Brooks

Real Estate

Can COVID-19 Trigger a Force Majeure Defense? - March 24, 2020
Can COVID-19 Make a Contract Impossible to Perform? - March 24, 2020
The coronavirus pandemic is disrupting our daily lives but does it also extinguish or extend our contractual deadlines? These two Tilting the Scales articles discuss two options for parties seeking to use COVID-19 as an excuse for not performing or delaying performance. But each option is risky, and the best approach may be to search for flexible and creative solutions to achieve a win-win for all parties to the contract during this challenging time.

COVID-19: What are your Rights Under a Contract if you are Damaged or Blamed for the Damage? - March 20, 2020
The coronavirus pandemic is shutting down businesses and markets worldwide, causing panic and uncertainty. Most companies have already been damaged by COVID-19, and others will be sued and blamed for those damages. This article outlines some of your contractual rights and obligations. 

NOTE: "The case law in this area regarding whether a tenant is no longer obligated to pay rent is very fact specific and lease language specific.  There is not a one size fits all even though in this instance the cause of the premises not being able to be used for the purpose for which it is intended (that is often described in many leases because LLs don’t want the premises to be used for something other than what they leased it for) is the governing authorities’ orders (which we know are also inconsistent and subject to interpretation and arguments)." - Daryl Bailey (Real Estate Litigation Practice Group Chair)


Contact: Scott Funk

Retail

Texas Begins to Reopen: What's Next for Retailers and Franchisees? - May 1, 2020
As of May 1, 2020, various retailers and restaurants, many of which are franchises, may reopen with certain limitations and under the guidelines outlined by Governor Greg Abbott’s Executive Order GA-18.  Safely resuming operations under the guidelines will, undoubtedly, prove tricky. This alert provides answers to a few common questions and practical tips to help business owners navigate hurdles associated with reopening.

The Great Toilet Paper Crisis: Price-Gouging During the Coronavirus Pandemic - March 30, 2020
Because of the uncertainty caused by the COVID-19 pandemic, staples such as toilet paper, hand sanitizer, bottled water and surgical masks are flying off the shelves. The retailers’ natural response to the sudden increase in demand for those products would be to raise their prices, but merchants who do so run the risk being accused of and sued for “price-gouging.” This article reviews price-gouging laws in Texas and what retailers should be careful of.


Contact: Bill Drabble

Tax

Comptroller Changes Impacting Texas Business Owners During the COVID-19 Pandemic - April 7, 2020
The Texas Comptroller has announced several changes over the last week in response to the COVID-19 pandemic. This alert summarizes the changes that impact Texas business owners during this unprecedented time.

Update: CARES Act Tax Provisions Impacting Businesses - April 6, 2020
The CARES Act provides immediate benefits to businesses through a number of provisions including (1) a new SBA loan program called the Paycheck Protection Program and (2) both refundable payroll tax credits and payroll tax deferral for a significant portion of employer payroll taxes. Additionally, the Act made a number of significant taxpayer-friendly changes to the Internal Revenue Code. This alert reviews the CARES Act’s main tax provisions that impact businesses.


Contact: Dan Kroll or David Gair