The Small Business Administration’s latest Flash Report states that SBA has failed to prioritize “underserved and rural markets” and that its PPP requirements “could result in an unintended burden to the borrowers.”[1]

The report states that, because “SBA did not provide guidance to lenders about prioritizing borrowers… including rural, minority and women-owned businesses, [these borrowers] may not have received the loans as intended.”[2] According to the Center for Responsible Lending, “upwards of 90% of businesses owned by people of color have been, or will be, shut out of the Paycheck Protection Program,” in part because minority business owners are less likely to have existing relationships with major banks.[3] The center has further determined that “[r]oughly 95% of Black-owned businesses, 91% of Latino-owned businesses, 91% of Native Hawaiian or Pacific Islander-owned businesses, and 75% of Asian-owned businesses stand close to no chance of receiving a PPP loan through a mainstream bank or credit union.”

Banks tend to prioritize larger loan applications, which presents yet another hurdle for smaller minority and women-owned businesses. CBS News reports that, on average, “minority and women-owned businesses have 30% fewer employees compared to male- or white-owned businesses,” which means the value of the loans they are seeking—which are based on a business’s average monthly payroll—are likely smaller.[4]

Moreover, the PPP’s forgivable loans could end up leaving many small businesses with more debt. To have their loans fully forgiven under the PPP, business owners must allocate at least 75 percent of the funds toward payroll costs. However, SBA’s newest report found that “tens of thousands of borrowers” have used more than 25 percent of the funds to cover costs such as rent and utilities, meaning they are likely to be stuck with new debt.[5] This debt—the amount of nonpayroll costs in excess of 25 percent—must be paid back within two years.

*       *       *

[1] U.S. Small Business Administration. Flash Report: Small Business Administration Implementation of the Paycheck Protection Program Requirements (May 8, 2020), https://www.sba.gov/sites/default/files/2020-05/SBA_OIG_Report_20-14_508.pdf.

[2] Id.

[3] CBS News. “Up to 90% of minority and women owners shut out of Paycheck Protection Program, experts fear” (Apr. 22, 2020), https://www.cbsnews.com/news/women-minority-business-owners-paycheck-protection-program-loans/.

[4] Id.

[5] See supra note 1.

It is Sunday and nearly 5 million world citizens (7.85 billion) have become ill with COVIF-19.

In the United States 1.5 million have been sickened and nearly 90,000 have died and we are only 4.29% of the world population.

There is no country that is even a close second.

And, here are the projections:

The CDC reports today about COVID-19 and asymptomatic illnesses and “superspreaders.”

Superspreading events involving SARS-CoV-2, the virus that causes COVID-19, have been reported.

Following a 2.5-hour choir practice attended by 61 persons, including a symptomatic index patient, 32 confirmed and 20 probable secondary COVID-19 cases occurred (attack rate = 53.3% to 86.7%); three patients were hospitalized, and two died. Transmission was likely facilitated by close proximity (within 6 feet) during practice and augmented by the act of singing.

The potential for superspreader events underscores the importance of physical distancing, including avoiding gathering in large groups, to control spread of COVID-19. Enhancing community awareness can encourage symptomatic persons and contacts of ill persons to isolate or self-quarantine to prevent ongoing transmission.

The models vary, most based on the assumptions of social distancing.

Over that last few days I have seen both the ongoing march of illnesses and deaths and the number of people out on the road, walking and riding bikes increasing.  Yesterday the garden store was packed with people buying plants – most wearing masks. Take-out in the few restaurants in my town seemed be be booming with customers waiting on their orders several feet apart, some with and some without masks.  I think many are becoming “sick” of the isolation.  I hope that the loosening of restrictions does not make more and more of us really sick.

To Washington State’s credit, at the beginning of this pandemic, we have one of the highest illness and death tolls.  Due to actions by the State and citizens, numbers have still increased, but at a much slower pace – we have bent the curve.

Here are the grim forecasts:

I am going to try and continue focus on the health facts and urge friends, family and my firm to do the same.  Science and facts have to “trump” feelings and emotions.

Timothy D. Lytton is a Distinguished University Professor and Professor of Law at Georgia State University College of Law.

President Donald J. Trump has vacillated between entreating Americans to shelter in place and tweeting support for protesters demanding an immediate end to the shutdown. When Georgia Governor Brian Kemp announced that he was relaxing restrictions despite the warnings of public health officials, mayors around the state urged local businesses not to reopen and local residents to remain at home, notwithstanding the governor’s policy. The day after Governor Kemp’s announcement, President Trump publicly admonished him for moving too fast. A week later, the President pivoted again, when White House officials announced that he would be touring the country to advocate reopening the economy.

Adding to all the uncertainty, businesses that reopen too soon or without adequate precautions currently face the prospect of private lawsuits for facilitating the transmission of COVID-19. Surprisingly, the fear of being sued may actually help reduce the chaos created by the Trump Administration’s vacillations and conflicting federal, state, and local government policies.

In the absence of clear national leadership, a multitude of government officials are sending mixed signals based on competing models and ballpark guesses about what the future holds. When intensive news media coverage of overflowing hospital wards in New York City competes with coverage of street protests in Austin, Texas, public officials face political crosswinds which may be influencing their policy decisions, especially as election season heats up.

The prospect of lawsuits against businesses that open too soon or fail to take proper precautions to prevent the spread of COVID-19 is likely to focus business owners’ attention on exercising reasonable care to avoid liability for negligence. The various considerations that define the legal standard of reasonable care—cost-benefit analysis, emerging industry customs, public safety regulations, and common sense—applied in specific contexts by the people who know them best may make the reopening process more reflective and rational than if businesses rely solely on the changing or conflicting policy statements released by public officials.

Fears that liability exposure will lead to a flood of litigation are unwarranted. Legal claims will face considerable obstacles. One problem is the difficulty of establishing causation, given the uncertainty about many aspects of coronavirus infection and the complexity of disease transmission. Nevertheless, in some cases, contact tracing may offer sufficient evidence to show that a victim contracted the virus in a defendant’s place of business.

Another problem is assumption of risk, which would bar recovery for business patrons who appreciated the dangers of contracting the illness and yet voluntarily accepted them. Whether individual plaintiffs appreciated the level of risk that they faced, and whether their patronage of the business or service was fully voluntary, will be issues that are likely to vary from case to case.

To the extent that liability insurers currently do, or in the future will, provide coverage for COVID-19-related claims, that liability protection can help businesses avoid the potentially devastating financial consequences of a successful lawsuit.

Equally important, liability insurers can be counted on to help businesses take reasonable measures to reduce the risk of transmission, such as by selling insurance only to those businesses that implement appropriate risk-reduction measures, providing premium discounts to businesses that take extra precautions, or excluding coverage for high-risk activities such as crowded gatherings. Deductibles will ensure that, although insurance prevents financial ruin, the financial sting of liability will still exist to give businesses an incentive to exercise reasonable care as they weigh the wisdom of reopening.

Public officials should resist growing calls for immunity from civil liability—calls that have unfortunately already been heeded in the state of New York, where the legislature enacted broad immunity for health care workers from medical malpractice claims during the COVID-19 crisis. Senate Majority Leader Mitch McConnell has threatened that he will not allow another coronavirus bailout bill to pass the Senate unless it includes sweeping immunity from liability for businesses.

Immunity legislation will encourage businesses to be even less mindful of taking reasonable precautions to prevent COVID-19 transmission as they face growing financial pressure to reopen.

Legislatures should instead think about how to facilitate the role that liability exposure and liability insurance can play in promoting an orderly reopening of businesses. In New Jersey, for example, a proposed bill would require insurance companies to cover business losses due to coronavirus, notwithstanding any exclusions for communicable diseases or viruses. Other states or the U.S. Congress might consider doing the same for liability coverage.

As the U.S. economy is buffeted by political winds from all directions, liability exposure can help businesses plot a reasonable course through the current coronavirus storm as they attempt to sail toward calmer waters.

Fishing season is right around the corner, and at least one player in the seafood industry is doing everything it can to minimize the chances of a COVID-19 outbreak on its Alaska-bound vessels. Prior to heading out for the season, employees must participate in a two-week quarantine, daily temperature checks by nurses, and, if the company can obtain them, have a negative COVID-19 test two days before they are set to embark.

Alaska’s seafood industry, which delivers more than half of the U.S. harvest, is classified as an essential business, and it’s good to see at least one entity taking worker safety so seriously. In a cost/benefit analysis, the millions of dollars it takes to implement these strict pre-embarkment procedures is, as the company’s CEO put it, a “drop in the bucket” compared to the financial consequences of a COVID-19 outbreak in the middle of salmon season.

However, worker safety is only one side of the coin. In Alaska, remote communities, who have suffered heavy casualties in prior outbreaks, are petitioning Governor Mike Dunleavy to close off the Bristol Bay region to salmon fishing completely. How Alaska will navigate how to best preserve the safety of all involved remains to be seen. Shoreside processing plants are also high-risk areas should an outbreak occur, where workers live and work in close quarters like bunkhouses and dining halls. Isolated but fishing crucial towns, such as Cordova, will be on the frontlines, and the town has said it will require a 14-day quarantine before entry as a safety mechanism. Cordova residents remain weary of trying to strike a balance between the town’s economy and residents’ safety; some think the fishing season should be called off entirely.

You can read the full article here: https://www.seattletimes.com/business/as-alaska-fishing-season-set-to-begin-fearful-communities-and-seafood-industry-try-to-prevent-spread-of-coronavirus/?mc_cid=11fb5a9b3f&mc_eid=f5333d4f15

The $2 trillion CARES Act, signed into law on March 27, allocated $350 billion in forgivable loans to the Paycheck Protection Program (PPP) – a program intended to provide economic relief to America’s small businesses during the coronavirus pandemic.[1]

Since then, the Small Business Administration has approved more than 1.6 million loans under the PPP. But the program’s funds were quickly depleted, leaving hundreds of thousands of small businesses in limbo. The application process was also plagued by issues: some small business owners could not find banks to accept their applications (as banks prioritized existing customers) and money was allocated to not-so-small businesses including major restaurant chains, hedge funds, and Ivy League colleges.

As a result, “after two weeks of negotiations between Republicans, who wanted to press additional small business funding forward without much reevaluation, and Democrats, who were eventually able to secure additional relief measures[,]” the Senate unanimously passed another relief bill on Tuesday evening.[2]

The latest bill is worth $484 billion and includes an additional $310 billion for the PPP (“with $60 billion of that money reserved for small businesses without existing banking relationships”), $75 billion for hospitals, and $25 billion for coronavirus testing.[3]

The bill will now move to the House, where it is expected to pass on Thursday.

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[1] Read more on the CARES Act: https://www.covid19-blog.com/2020/04/small-business-relief-under-the-cares-act-bankruptcy-protections-and-the-paycheck-protection-program/.

[2] Taylor Hatmaker, Senate passes new $484 billion relief bill to replenish small business loans, fund hospitals and testing (Apr. 21, 2020), https://techcrunch.com/2020/04/21/when-will-the-ppp-get-more-funding-coronavirus/.

[3] Sarah Hansen, Senate Passes $484 Billion Interim Relief Package. Here’s What’s In It—And What’s Missing (Apr. 21, 2020), https://www.forbes.com/sites/sarahhansen/2020/04/21/senate-passes-484-billion-interim-relief-package-heres-whats-in-it-and-whats-missing/#ca16df13e34e.

The CDC released an interesting analysis of a case study of a COVID-19 outbreak among 10 people from three families whose only common denominator was that they all ate at the same air-conditioned restaurant on January 23, 2020, in Guangzhou, China. Spoiler alert: It wasn’t the food.

Family A, who had just been in Wuhan, and Families B and C all sat at neighboring tables for their meal for an overlapping period of more that 50 minutes. Later that day, a member of Family A began experiencing symptoms of fever and cough.

The air outlet and return air inlet for the central air conditioning were located above Family C’s table. Given that COVID-19 is commonly transmitted through droplets, the CDC concluded the most likely scenario was that three of Family B’s members were infected and two of Family C’s were infected by the Family A member by strong airflow from the air conditioner that could have propagated droplets from table C to table A, then to table B, and then back to table C.

In light of this scenario, CDC recommends  strengthening temperature-monitoring surveillance, increasing the distance between tables, and improving ventilation. You can read the full report here: https://wwwnc.cdc.gov/eid/article/26/7/20-0764_article

With many of us trying to stay at home as much as possible, ordering meal kits and other mail-order food is a popular alternative to going out. The CDC has published some tips to make sure these types of food are handled in a way to prevent bacteria growth. Although the CDC reiterates there is no evidence to support transmission of COVID-19 through food, it is important to be aware of foodborne pathogens that can make you sick.

Before ordering

  • Research companies and call customer service to ask about food safety standards. Ask how the company responds if food is delivered at an unsafe temperature or is otherwise not safe to eat. Find out if the company provides information with each shipment on safe handling and preparation of food, including cooking temperatures.
  • Arrange for delivery when someone is at home so food can be refrigerated quickly instead of being left outside until someone is at home.
  • Find a safe space for delivery if no one will be at home when food arrivesFood should be delivered to a cool, shaded, and secure location where pests and rodents won’t be able to get it.

Safe food delivery and receipt

  • Examine the box and packaging. When you get your delivery, look for stickers on the box that say “Keep Refrigerated” or “Keep Frozen” if you ordered perishable food such as meat, seafood, poultry, eggs, or dairy.
  • Make sure the company uses insulated packaging and materials such as dry ice or frozen gel packs to keep perishable food cold in transit.
  • Refrigerate or freeze your delivery as soon as possible. Bacteria can multiply rapidly if food is kept in the “danger zone” between 40°F and 140°F for more than two hours.
  • Notify the company if food arrives above 40°F. Don’t eat any of the food, or even taste it to see if it is safe. Food can be unsafe and still taste, look, and smell OK. When in doubt, throw it out.

Safe food handling

  • Wash your hands and kitchen utensils. Wash your hands with soap and water for at least 20 seconds before, during, and after handling any food and before eating. Wash your utensils, cutting boards, and countertops with hot, soapy water after using them.
  • Rinse fresh fruits and vegetables under running water.
  • Separate foods to avoid cross-contamination. Keep raw meat, poultry, seafood, and eggs away from other foods, and use separate cutting boards, plates, and utensils for these ingredients.
  • Refrigerate leftovers within 2 hours.  Make sure you know how long your leftovers will keep in the fridge or freezer.

You can read the full CDC recommendations here:https://www.cdc.gov/foodsafety/communication/food-safety-meal-kits.html?deliveryName=USCDC_485-DM25470