Senate Republicans Unveil Proposed COVID-19 Liability Shield

Senate Republicans have recently unveiled their proposed liability protection measures intended to be included with the next Congressional COVID-19 pandemic response bill. Republicans have long signaled that providing businesses a federal liability shield is a top legislative priority for future relief bills, and Senate Majority Leader Mitch McConnell’s office has now released the text of the SAFE TO WORK Act, a legislative measure that could provide key liability protections for an array of businesses and organizations for COVID-19-related lawsuits. While the measure will likely face partisan opposition to its enactment, if passed, the liability shield would preempt many of the state law measures currently in place, and provide uniform protections for not just businesses, but also nonprofits, state and local governments, schools, and other organizations currently facing unknown liability risks from the COVID-19 pandemic.

Oregon COVID-19 Law Halts Foreclosures, Expands Borrower Protections

On June 30th, 2020, Oregon governor Kate Brown signed into law HB 4204, providing sweeping protections to mortgagors and putting a moratorium on foreclosure proceedings. This law also requires all lenders operating within the state to provide written notice by mail to every borrower by August 29, 2020 of the protections added by the bill. This law applies to all lenders who hold a collateral interest in property or a retail installment contract within the state of Oregon, regardless of the lenders’ location. These protections will remain in place until 90 days after the end of the state’s COVID-19 “emergency period,” which is currently ends on September 30th but is likely to be extended.

Virginia Adopts COVID-19 Workplace Safety Mandates

After it recently announced plans to issue the first statewide Coronavirus workplace safety rules in the U.S., the Virginia Department of Labor and Industry (DOLI) has published emergency temporary regulations under the authority of the Virginia Occupational Safety and Health (VOSH) Program. The regulations, which are expected to take effect during the week of July 27, 2020 after being published in a Richmond newspaper, will remain in effect for six months. Violations of these standards will subject Virginia employers to penalties under the existing VOSH penalty standards, which range from up to $13,047 for serious and certain other violations, to up to $130,463 for willful and repeated violations. This alert summarizes key provisions of the regulations, but Virginia employers should review the detailed regulatory requirements in full.

Generational Reform of the National Environmental Policy Act Has Weighty Implications for the Nuclear Industry

On July 15, 2020, the White House Council on Environmental Quality (CEQ) promulgated a final rule amending the implementing regulations (40 CFR § 1500, et seq.) of the National Environmental Policy Act, 42 U.S.C. § 4321, et seq. (NEPA). The final rule largely tracks proposed amendments, which the CEQ issued on January 10, 2020. The amendments aim to align NEPA’s implementing regulations with underutilized principles embedded in statutory provisions, agency guidance, and court decisions to streamline the environmental review process. These regulatory changes represent the culmination of Trump administration efforts to modernize NEPA dating back to August 2017, when the White House issued Executive Order 13087 to mitigate the delays that environmental reviews present to infrastructure development, including the licensing and development of nuclear facilities. The final rule will become effective on September 14, 2020.

Going Dark: Deregistration in the COVID-19 Era

In the wake of the recent economic downturn and resulting liquidity concerns, companies subject to public reporting requirements are reconsidering whether the advantages of a public listing outweigh the burdens of ongoing reporting and compliance obligations. Deregistration, or “going dark,” is an increasingly appealing alternative for companies seeking to avoid Securities and Exchange Commission (SEC) reporting obligations and associated costs.

Virginia Adopts First COVID-19 Workplace Safety Mandates

The Nation’s First Coronavirus Workplace Safety Rules
On Wednesday July 15, Virginia’s Department of Labor and Industry’s Safety and Health Codes Board (the Department) announced the first coronavirus-related workplace safety regulation in the United States (Workplace Rules). This mandate follows an executive order issued by Governor Ralph Northam in late May that directed the Department to create infectious disease regulation. The Workplace Rules will require businesses under the jurisdiction of the Virginia Occupational Health and Safety Administration to implement safety measures to protect those who have been exposed to and infected by COVID-19 at the workplace. The Workplace Rules will likely come into force toward the end of July once they are published in a newspaper of general circulation. They will then remain in effect for a period of six months, after which they could become permanent if adopted through legislative enactment.

Supply Chain Threats and Cybersecurity Compliance Issues on the Horizon

U.S. government agencies continue to implement new rules to guard against supply chain threats and mitigate cybersecurity risks. We have previously discussed regulations aimed at excluding, and in some cases removing, Chinese-origin equipment from U.S. telecommunication networks and supply chains. In addition to discussing recent developments related to those regulations, this alert examines how the Department of Defense (DoD) and other agencies plan to mitigate cybersecurity risk at the contractor level.

Court Holds COVID-19 Executive Order Triggers Lease’s Force Majeure Clause, Excusing Some Rent Obligations

In June 2020, the United States Bankruptcy Court for the Northern District of Illinois issued its decision, In re Hitz Restaurant Group (No. 20-B-05012, 2020 WL 2924523 (Bankr. N.D. Ill. June 3, 2020)). The Court held that the Illinois Governor’s Executive Order, issued in response to the ongoing COVID-19 pandemic, triggered the force majeure clause of a lease and excused part of the tenant’s rent payment obligations. For some, this decision was surprising because force majeure clauses usually do not excuse, wholesale, payment obligations.

New Privacy Laws in California and New York Are on a Collision Course with the COVID-19 Technology Boom

Stay-at-home and shelter-in-place orders prompted by the COVID-19 pandemic have already led to a dramatic increase in the reliance on technology—and the generation and collection of extensive personally identifiable information (PII)—for myriad personal and professional purposes. As businesses now contemplate how to safely welcome customers, guests and employees back to their physical premises, the collection of PII is only likely to increase in the form of virus and antibody testing, temperature taking, video monitoring to ensure social distancing, contact tracing via location tracking, and similar preventative measures based on the collection of biometric and other personal data.

The Limited Pandemic Federal Liability Protections

With the continued public health threat posed by COVID-19, many businesses that have remained open or that are planning their reopening face legal risks of civil liability relating to employees and consumers who are injured as a result of the coronavirus contracted on their premises. As part of the federal pandemic response, the federal government has included legislation and issued administrative declarations providing limited liability protections aimed specifically at health care providers and manufacturers and distributors of health care products used for the current public health crisis.

DoD Memorandum Discusses Contractor Reimbursement for COVID-19 Expenses

A memorandum released on July 2, 2020 by Acting Principal Director for Defense Pricing Kim Herrington provides guidance on some of the action taken by the Department of Defense (DoD) in its efforts to support its contractors with reimbursement for the related impacts and costs incurred by DoD contractors in response to the COVID-19 pandemic. The memorandum highlights the possibility of contractor cost recovery for measures that may have been taken by industry to prevent the spread of COVID-19 and allow facilities to remain open and productive during the pandemic. It further directs contracting officers to use their experience and skill to find innovative solutions to both protect government interests and ensure the continued health of the defense industrial base.

The Economic Recovery: States Offer Varied Liability Protections for Businesses

Pre-pandemic, well-advised business owners could have a good understanding of their potential liabilities to customers and employees for safety and health risks in their workplace. Now, in the midst of a pandemic, businesses are uncertain what their potential liabilities may be to customers or employees who contract COVID-19 and suffer harm as a result. Instead of clear and uniform guidelines for proper precautions, businesses face evolving and difficult-to-apply laws and guidance, and a correspondingly increased risk for lawsuits.

Impact of Remote Working on End User Computing Solutions and Services

Twitter and Square have announced that all of their employees may remain working from home “forever.” Facebook expects half of its 48,000 employees to be working remotely in the next five to 10 years. And it is not only leading tech companies that are contemplating a major shift toward remote working. A recent Gartner survey of 317 CFOs and finance leaders revealed that 47% of respondents will move at least 10% of their on-site employees to permanent remote positions, while 74% will move at least 5% of their previously on-site workforce to permanently remote positions. Overall, the Gartner survey showed that 48% of employees will likely work remotely at least part of the time after COVID-19.

SBA Discloses Identities of PPP Borrowers

SBA, in conjunction with the Department of the Treasury, announced in a June 6, 2020 press release that it would disclose “detailed loan-level data” regarding all of the 4.9 million PPP loans made to date. Recent legislation, which we summarized here, extended the deadline to apply for new PPP loans to August 8, 2020.

Tour de Force: Do the Current Economic Conditions Caused by COVID-19 Constitute a Force Majeure Event?

Past Economic Crises Typically Have Not Constituted Force Majeure Events

In most jurisdictions, courts have been reluctant to find that an extreme economic downturn, such as the Great Recession of 2008 or the earlier post-9/11 downturn, constitutes a force majeure event excusing performance of a party’s contractual obligations.

The Main Street Lending Program – Avoiding the Potholes on the Road to Recovery

Introduction

Under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Congress authorized the Treasury Department to provide more than $450 billion for loans, loan guarantees, and investments in support of the Federal Reserve’s lending facilities.

Tour de Force: What Constitutes an “Act of God,” and Other Developments in Force Majeure Law

What is an Act of God?

Absent an express reference to “epidemics” or “pandemics,” a contracting party seeking to invoke a force majeure clause is most likely to look to catch-all language like “Acts of God” or events “not within the parties’ reasonable control” as the most likely language to cover COVID-19. Historically, courts indeed defined “Act of God” to encompass sickness. See, e.g., Herter v. Mullen, 159 N.Y. 28, 37 (1899) (“The disability of a party to do the particular thing, or to perform the contract by reason of sickness is held to be a disability by the act of God.”); Love v. Barnesville Mfg. Co., 19 Del. 152, 50 A. 536, 537 (Del. Super. Ct. 1901) (“The defendant would not be liable for damages caused solely by the act of God, such as an epidemic of sickness in the defendant’s factory.”).

President’s Executive Order to Expedite Environmental Reviews of Infrastructure Pushes the Envelope on the Interpretation of Emergency Authorities

The Key Environmental Laws at Issue

Citing the economic downturn caused by the outbreak of COVID-19, on June 4, 2020, President Trump signed an executive order (EO) directing federal agencies to invoke emergency powers available to them to expedite the environmental review and permitting of infrastructure projects. The EO explicitly enumerates the emergency provisions of the following federal laws:

Compliance Programs Must Track and Adapt to Changes and Risks

On June 1, 2020, DOJ updated its Guidance (2020 Update), once again, on how it will evaluate corporate compliance programs in deciding “whether to bring charges, and negotiating plea or other agreements.” The 2020 Update builds on the 2019 Update from April 30, 2019, and emphasizes three questions:

Key Changes to Paycheck Protection Program Await President’s Signature

Both the House and Senate have passed a bipartisan bill to modify elements of the PPP established by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). The legislation is intended to provide a “quick fix” to obstacles faced by small businesses seeking relief under the forgivable loan program.

Senate Bill Could Result in De-Listing of Certain Chinese Companies and Non-Chinese State-Owned Enterprises from U.S. Securities Exchanges

On May 20, 2020, the U.S. Senate unanimously passed S. 945, the Holding Foreign Companies Accountable Act (HFCAA). If enacted, the bill would amend the Sarbanes-Oxley Act of 2002 (15 U.S.C. §7214) to require additional disclosures from certain issuers regarding foreign jurisdictions that prevent the Public Company Accounting Oversight Board (PCAOB) from performing inspections of auditors of public companies.

Tour de Force: Tracking the Evolution of COVID-19 as a Force Majeure Event

This is the first issue of a new client alert series titled Tour de Force, focused on the doctrine of force majeure and its significance in a post-COVID-19 world. Each issue will explore a discrete nuance in application of the force majeure doctrine and include an annotated list of cases filed across the United States, updated with new cases and relevant decisions.

Updated CDC Guidelines Impact Business Districts, Office Buildings and Their Tenants, and Users

For the past two-and-a-half months, unlike many service workers, most white-collar office workers have been able to work from home (WFH). While some companies like Twitter and Facebook have implemented permanent “work from home” policies, many other companies are contemplating when and how to bring their workforces back to the office. National attention has now turned to “returning to work” and the changes needed to ensure workplace safety, including for those in office buildings.

COVID-19 Relief: Understanding SBA Loan Opportunities Under the CARES Act

Overview
On May 27, 2020, the Internal Revenue Service issued Notice 2020-40 (“Notice”), which modifies certain rules related to the production tax credit (PTC) available pursuant to IRC Section 45 and the investment tax credit (ITC) available pursuant to IRC Section 48 in light of the COVID-19 pandemic.

SBA Issues Long-Awaited Paycheck Protection Program Forgiveness Regulations

The Coronavirus Aid, Relief, and Economic Security Act (CARES Act), enacted March 27, 2020, established the PPP and set aside $349 billion for small business loans. We summarized the Act’s small business loan provisions here. On April 24, 2020, the Paycheck Protection Program and Health Care Enhancement Act increased appropriations for the PPP by $310 billion. Perhaps the most notable facet of the PPP—and the reason that many thousands of companies applied for loans under it—was Congress’ promise to forgive loan amounts expended for up to eight weeks of permissible uses enumerated by the CARES Act.

Distressed Real Estate During COVID-19: New York State Court Order Finds UCC Foreclosures Are Not Suspended by New York E.O. 202.8.

A recent court order issued as part of an ongoing litigation involving a Manhattan hotel held that a mezzanine lender may proceed with a UCC foreclosure sale of the mezzanine loan collateral despite N.Y.E.O. 202.8, which prevents creditors from initiating judicial foreclosures. That clarification alone would have been enough to make the decision important during the COVID-19 pandemic but, in a few short pages, the order touches upon the appropriate remedies involving the foreclosure of an indirect ownership interest in real estate. The “secondary” implications from the order are likely to impact real estate lending even after N.Y.E.O. 202.8 has been lifted. Mezzanine lenders and borrowers should take note as they evaluate remedies under existing mezzanine loans.

New York State Courts to Restore (Electronic) Filing of New Nonessential Actions

In our last alert, we noted that litigants had been banned from commencing new nonessential actions (including most commercial actions) in New York State courts since March 22, 2020. On that date, New York Chief Administrative Judge Lawrence K. Marks issued an administrative order (AO-78-20), prohibiting litigants from making any court filings (paper or electronic) in any non-essential matters, whether new or pending. While the Chief Administrative Judge loosened the restrictions on electronic filings in pending nonessential matters in Administrative Order 87-20, issued on May 1, 2020, the ban on the filing of new nonessential cases remained in place.

All Employers Must Monitor Employee COVID-19 Cases Under Updates to OSHA’s Interim Enforcement Plan and Guidance for Recording Cases

On May 19, 2020, the Occupational Safety and Health Administration (OSHA) of the U.S. Department of Labor issued both an Updated Interim Enforcement Plan and Revised Enforcement Guidance for Recording Cases, which will on May 26, 2020, rescind April 10 guidance issued on the respective topics.

COVID-19: New York and New Jersey Announce Phased Reopening of Businesses

On Friday, May 15, New York began reopening businesses after widespread closures in response to the coronavirus pandemic. New York Forward, the New York plan to reopen the state, divides the state into ten (10) regions. Each region may reopen in a four-phased process as it satisfies certain metrics. Generally, the metrics monitor the region’s new infections and analyze the region’s health care, diagnostic testing, and contact tracing capacities.¹ The executive orders remain in effect, as described in this alert, requiring all people in New York to wear masks or face coverings in public, including when taking public or private transportation. As previously advised, employers will generally be expected to provide face masks to employees.(This link provides an updated map and table of each region’s status.)

Implications of PPP Certifications for D&O Coverage

The Paycheck Protection Program (PPP), a key feature of the Coronavirus Aid, Relief and Economic Security Act (CARES Act), was enacted to provide forgivable loans to certain small business and self-employed individuals demonstrating urgent financial need in the wake of the COVID-19 pandemic. (See H.R. 748 § 1102.) Loan recipients must certify their compliance with the terms and conditions of the loan, and violations expose them to a wide array of potential civil and criminal penalties, forfeiture, and other liabilities. If you or your company have already obtained, or are considering applying for a PPP loan, it is highly advisable for you to carefully review your D&O Liability Insurance Policy, as coverages for defense or ultimate liability vary significantly.

The Regulation of Medical Waste During COVID-19

After many used medical syringes washed up on beaches in the eastern United States, Congress enacted the Medical Waste Tracking Act of 1988, which directed EPA to establish a two-year medical waste demonstration project that would principally affect several northeastern states. The Act amended the Resource Conservation and Recovery Act (RCRA) and EPA promulgated medical waste standards in 1989. (See 54 FR 12326.) The rules were located in EPA’s solid, non-hazardous waste rules at 40 CFR Part 259 (later revoked). These rules followed the standard RCRA format and regulated Generators, Transporters, and Treatment and Disposal Facilities. When the initial batch of EPA’s RCRA Hazardous Waste Rules were promulgated in 1980, EPA decided against designating infectious waste as a hazardous waste. As a result, medical waste was not made subject to the rigorous RCRA regulatory regime. According to EPA, medical waste is a subset of solid wastes generated at health care facilities—principally hospitals—that may be contaminated by blood, bodily fluids or other potentially infectious materials and can take different forms.

SBA Issues Critical New Guidance on PPP Borrowers’ Certification of Necessity

On April 24, 2020, President Trump signed into law the Paycheck Protection Program and Health Care Enhancement Act, whose provisions we summarized here. PPP applicants are required to make a number of certifications in connection with their applications, for example concerning their eligibility and the purposes for which they will use the loans. Attention to these certifications is extremely important, given the severe penalties that are possible for submitting false or misleading certifications to the government. One such certification that has drawn particular scrutiny is the certification that the “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.”

COVID-19’s Impact on the Motion Picture and Television Industries and How Insurance Can Soften the Blow

COVID-19 has left few industries unscathed. For those facing substantial financial damages, insurance policies may offer hope, and this is just as true for those losses being suffered in the entertainment industry as government orders have placed nearly all TV and film production in stasis because of the pandemic.

COVID-19, Corruption and Money Laundering–Managing Risk and Avoiding the Coming Wave of Enforcement

The pandemic crisis gripping the world has dramatically expanded demand for medical, food, household and other supplies. Governments, international organizations, NGOs and private companies have unleashed a wave of spending. Sadly, corruption, fraud and money laundering thrive in such environments.

California Allows Localities to Reopen Certain Businesses Consistent with State Guidance

On Thursday, May 7, California rolled out a modified stay-home order and issued guidance to move into “Stage 2” of reopening certain sectors of the economy. This new statewide order, and the county-level reactions to it, create another layer in the patchwork of compliance requirements, but provide a pathway for certain industries to open doors sooner than others.

Congress, Department of Justice Turn Their Attention to Oversight of COVID-19 Stimulus Funds

On May 5, the Department of Justice (DOJ) announced its first fraud and abuse indictments related to CARES Act lending. DOJ charged two men in Rhode Island with fraudulently seeking more than $500,000 in forgivable loans from the Small Business Administration (SBA) under the Paycheck Protection Program (PPP). The men allegedly sought funds for businesses that were not in operation prior to the COVID-19 pandemic in order to pay the salaries of employees that did not exist, while providing false documentation to support the application. DOJ charged the men with bank fraud, conspiracy to commit bank fraud, conspiracy to make false statements to influence the SBA, and aggravated identity theft. This is expected to be the first of many enforcement actions DOJ will launch against COVID-19 fraudsters.

Mitigation of Investment Adviser Business Interruption and Regulatory Noncompliance Risks Related to COVID-19—Update

Investment advisers

• Relief from the Form ID notarization process for certain filers. The SEC has adopted a temporary final rule to provide relief from the Form ID notarization process for certain filers where circumstances related to COVID-19 render it impracticable or impossible to obtain a notarization in a timely fashion. From March 26, 2020 through July 1, 2020, temporary paragraph (c) to Rule 10 of Regulation S-T under the Securities Act of 1933 will allow filers to gain access to the EDGAR system on a temporary basis without initially providing the required notarization to the manually signed document, provided that the filer indicates on the face of the signed document that it could not obtain the required notarization due to circumstances relating to COVID-19. Filers seeking access to EDGAR in reliance on the temporary final rule may be asked to provide documents, on a supplemental basis, to support their application and assist the staff in validating the request. Once the codes are issued, the filer may commence filing.

SBA Extends PPP Safe Harbor to May 14

On April 24, 2020, President Trump signed into law the Paycheck Protection Program and Health Care Enhancement Act, whose provisions we summarized here. PPP applicants are required to make a number of certifications in connection with their applications, for example concerning their eligibility and the purposes for which they will use the loans. Attention to these certifications is extremely important, given the severe penalties that are possible for submitting false or misleading certifications to the government. One such certification that has drawn particular scrutiny is the certification that the “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.” Many applicants have noted that this certification is vague and have sought guidance on it.

Florida’s “Step-by-Step” Plan to Reopening Businesses

Beginning on Monday May 4, 2020, at 12:01 a.m., Florida will begin reopening business in the Phase 1 of the recovery plan laid out by Gov. DeSantis. Businesses seeking to reopen will be subject to social distancing guidelines and CDC and OSHA requirements. Gov. DeSantis entered Executive Order 20-112 outlining the requirements for businesses looking to reopen. While this is a statewide order, Miami-Dade, Broward and Palm Beach counties will follow stricter protocols in coordination with their mayors and are excluded from this Executive Order. The remaining provisions of the Safer At Home executive order remains in place.

Texas Governor Releases Plan to Reopen the State

On April 27, 2020, Governor Greg Abbott released Texas’s long-term plan to open the state for business, while still containing the spread of COVID-19. The plan consists of two key components: Executive Order GA-18 (Order), which designates the businesses currently permitted to reopen, and the Governor’s Report to Open Texas (Report), which outlines Texas’s increased testing efforts, contact tracing program, and other safety measures, and provides checklists for individuals and all employers, as well as retailers, restaurants and movie theaters.

Personal Guaranties May Not Deter Property Owner Bankruptcies

This is the fourth in a series of alerts on insolvency topics affecting real estate. In this alert, we evaluate whether the existence of personal guaranties are likely to deter property owner bankruptcies—a question raised during Pillsbury’s recent “Real Assets Roundup – Real Estate” webinar.

In the wake of COVID-19, default rates for commercial real estate loans, including those supported by personal guaranties, will likely accelerate. Inevitably, borrowers will consider seeking bankruptcy protection to implement a restructuring of debt or a sale of real property collateral, and lenders should not assume that personal guaranties will prevent borrower bankruptcies. Given the current economic climate, lenders should instead assess the likelihood of their borrowers filing for bankruptcy and consider whether they are better off supporting a controlled bankruptcy process to accelerate favorable collateral disposition, as opposed to litigating on both the bankruptcy and guaranty fronts.

COVID-19 Data Privacy Risks from Return to Work and Geolocation Tracing

As some countries and U.S. states start to lift COVID-19 shutdown restrictions, businesses with staff now able to return to factories and offices need to watch out for unwittingly exposing themselves to fines for breaches of data laws while trying to comply with government guidelines on social distancing and other pandemic-related regulations and guidelines.

SBA Imposes New PPP Certification Requirement, Provides May 7 Safe Harbor

On April 24, 2020, President Trump signed into law the Paycheck Protection Program and Health Care Enhancement Act, whose provisions we summarized here. In relevant part, this Act increases by $310 billion the funds appropriated for the PPP established on March 27, 2020, by the CARES Act, whose provisions we summarized here. The SBA has announced that new loans under this second tranche of PPP appropriations will commence April 27, 2020. As the PPP has evolved since its inception on March 27, so too have SBA and Treasury’s articulation of its requirements. One of the agencies’ primary mechanisms for conveying these requirements to borrowers has been through a regularly updated list of Frequently Asked Questions, many of which the SBA then formalizes through interim final rules that it publishes in the Federal Register.

U.S. Subsidiaries of Foreign Companies Can Also Benefit from the CARES Act

As reported in our March 30 alert, the United States Coronavirus Aid, Relief, and Economic Security Act, or CARES Act (H.R. 748) became effective on March 27, 2020. The CARES Act is intended to provide financial assistance to companies hit by the COVID-19 pandemic.

President Trump Signs 4th Stimulus Bill

On April 24, 2020, President Trump signed into law the Paycheck Protection Program and Health Care Enhancement Act. This is the fourth piece of legislation approved by the President and Congress since March 1 to address the COVID-19 pandemic and associated economic fallout. Most notably, the Act provides critical new funding for the Small Business Administration’s (SBA) Paycheck Protection Program (PPP), which exhausted its original CARES Act appropriation within days of program implementation.

How Chapter 11 Solved One Multifamily Condo Regime’s Dual Challenges of Mounting Liabilities and Unpaid Dues

With many struggling to make housing payments due to COVID-19, dues owed to multifamily condominium associations are likely to go unpaid—especially if homeowners feel deprived of the use of common areas, such as pools, gyms and playgrounds. Associations with significant reserves may be able to weather this storm, but for associations that were already struggling, the future may look less promising. Advance consideration of options and planning may help avoid a worst-case scenario and maximize value for associations and their unit owners.

Federal Reserve Expands Size and Scope of Primary Market Corporate Credit Facilities (PMCCF) and the Secondary Market Corporate Credit Facilities (SMCCF)

On April 9, 2020, the Federal Reserve announced additional programs under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), which provides up to $2.3 trillion in loans and other investments to support the U.S. economy. A key component of the relief package is an expansion in the size of the Primary Market Corporate Credit Facility (PMCCF) and the Secondary Market Corporate Credit Facility (SMCCF), significantly upsizing the funds available under both programs from those initially announced on March 23, 2020. The Federal Reserve also published term sheets for each of the programs.

Department of Education Makes Available Institutional Portion of Grants Awarded under CARES Act

As previously noted, the Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, (CARES Act), which was signed into law on March 27, 2020, includes approximately $14 billion in stimulus funds for higher education. Approximately $12.6 billion are allocated to IHEs according to a formula based on student enrollment (Formula Grants). See CARES Act, § 18004(a)(1). On April 9, 2020, ED made available to IHEs half of the Formula Grants to be used for emergency financial aid to students (more information here).

CISA Releases New Guidance for Essential Critical Infrastructure

On April 17, 2020, the Cybersecurity and Infrastructure Security Agency (CISA) rolled out its third installment of the Essential Critical Infrastructure Workers guidance ( Guidance). This Guidance amends prior versions released on March 19 and March 28. Our redline identifying the differences can be found here.

The District Extends Stay-at-Home Order and Expands COVID-19 Restrictions

Washington, DC Mayor Muriel Bowser has implemented additional restrictions in the District to combat the spread of COVID-19. Mayor’s Order 2020-058, issued April 8, 2020, adds further social distancing requirements for retail food sellers and farmer’s and fish markets. Mayor’s Order 2020-063, issued April 15, 2020, extends the previous public emergency and public health emergency orders through May 15, 2020, implements additional protocols for group facilities, and adds face covering requirements.