Ogden Murphy Wallace, PLLC recognized by Chambers as a leading Washington state law firm

Seattle, Wash. (May 22, 2020) Congratulations to OMW and its attorneys for being recognized as a leading law firm in Healthcare in the latest edition of Chambers USA.

Chambers USA ranks the country’s top lawyers and law firms by focusing on those firms that are the country’s best in their respective areas of practice. Chambers and Partners rankings are also assessed by researchers and experts who collect extensive data of organizations, individuals, and the marketplace.

Chambers USA has recognized OMW as a leading law firm in the Healthcare practice area and has also recognized individuals from the firm as well:

Donald Black, Chair and member of the Healthcare practice area, has been recognized by Chambers as an outstanding Healthcare attorney. Don’s practice focuses on transactional work, with emphasis on regulated health care providers, including acquisitions, sales and joint ventures, business organization and structures, governance, state and federal health regulatory compliance, fraud and abuse, tax-exempt organization issues, public hospital district issues, professional and facility licensing, payor contracting, certificate of need, and real estate.

David Schoolcraft, also a Chair and member of the Healthcare practice area, has been commended by Chambers as a leading attorney in Healthcare. Dave’s practice focuses extensively on legal issues related to HIPAA and health information exchange including organizational governance, data security, and privacy compliance matters.

Ogden Murphy Wallace is recognized as a leading multi-specialty law firm in the Pacific Northwest region and strives to provide exceptional legal services to commercial, municipal, and individual entities. To learn more about our firm and the services we offer, please visit www.omwlaw.com.

SBA issues additional guidance for PPP loans

On Wednesday, May 13, the U.S. Small Business Association (SBA) issued additional guidance regarding the need to certify “current economic uncertainty” and the need for financing when applying for PPP money.  In short, the new guidance gives a safe harbor for all loans under $2 million, and is rather candid in the reasoning—it takes away uncertainty in rehiring employees, and preserves the SBA’s audit resources for review of larger borrowers.

The language also provides some guidance for PPP borrowers with loans over $2 million.  It provides a likely remedy of only repayment of the loan and not further sanction in most cases.

Unfortunately, the SBA has yet to issue guidance on forgiveness questions that many of us are asking.  We are hopeful to receive guidance on those issues before the end of the month, as the first eight week periods are about to expire.  There is also some talk of Congress extending the eight week periods to allow full use of the funds, but no legislation has been passed to provide this relief.

Here is the language from the SBA FAQS as of May 13, 2020:

“46. Question: How will SBA review borrowers’ required good-faith certification concerning the necessity of their loan request?

Answer: When submitting a PPP application, all borrowers must certify in good faith that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.” SBA, in consultation with the Department of the Treasury, has determined that the following safe harbor will apply to SBA’s review of PPP loans with respect to this issue.”

Any borrower that, together with its affiliates, received PPP loans with an original principal amount of less than $2 million will be deemed to have made the required certification concerning the necessity of the loan request in good faith. 

SBA has determined that this safe harbor is appropriate because borrowers with loans below this threshold are generally less likely to have had access to adequate sources of liquidity in the current economic environment than borrowers that obtained larger loans.

This safe harbor will also promote economic certainty as PPP borrowers with more limited resources endeavor to retain and rehire employees. In addition, given the large volume of PPP loans, this approach will enable SBA to conserve its finite audit resources and focus its reviews on larger loans, where the compliance effort may yield higher returns.

Importantly, borrowers with loans greater than $2 million that do not satisfy this safe harbor may still have an adequate basis for making the required good-faith certification, based on their individual circumstances in light of the language of the certification and SBA guidance. SBA has previously stated that all PPP loans in excess of $2 million, and other PPP loans as appropriate, will be subject to review by SBA for compliance with program requirements set forth in the PPP Interim Final Rules and in the Borrower Application Form. If SBA determines in the course of its review that a borrower lacked an adequate basis for the required certification concerning the necessity of the loan request, SBA will seek repayment of the outstanding PPP loan balance and will inform the lender that the borrower is not eligible for loan forgiveness. If the borrower repays the loan after receiving notification from SBA, SBA will not pursue administrative enforcement or referrals to other agencies based on its determination with respect to the certification concerning necessity of the loan request. SBA’s determination concerning the certification regarding the necessity of the loan request will not affect SBA’s loan guarantee.

If you have any questions or concerns, please feel free to contact us at (206) 447-7000.

What Does “Return to Work” Look Like?

On May 4, 2020, Washington Governor Jay Inslee issued “Safe Start Washington A Phased Approach to Recovery.”  It includes broad, general requirements for businesses that are by now familiar to all of us – wash your hands, maintain social distancing, etc.  It also requires compliance with Department of Labor & Industries (L&I) and Department of Health (DOH) guidelines, and it cross-references a checklist developed by Challenge Seattle and the Washington Roundtable.  Additionally, businesses are expected to implement any additional requirements developed specifically for their industry.

The logistics of compliance present a challenge for employers.  Here are some points to keep in mind:

  • Health and safety requirements vary by industry.  For example, childcare and construction have detailed requirements that are quite different from others.
  • There is no single go-to place to find all of the health and safety requirements, and they are continually changing.  The primary sources for the requirements are L&I, DOH, and Governor’s Proclamations, but there are also City and County requirements as well as federal requirements from the CDC and the Department of Labor, among others.  Many of these requirements were adopted on an emergency basis and are not included in published sets of rules or regulations.
  • Any necessary physical changes to the workplace must be made before returning employees to work.  Examples include spacing for social distancing, removing excess chairs, putting up signs with capacity limits on conference room doors, installing barriers, etc.
  • Locate suppliers now for things you will need that are in short supply – masks, gloves, disinfectant, hand sanitizer, plexiglass shields, toilet paper, paper towels, bleach, etc.
  • Develop a written plan and policy for employees that addresses all the requirements for employee health and safety.  Be sure it explains who is responsible for implementing each aspect of the plan, and hold employees accountable for compliance.  Checklists help.
  • Having protocols that employees don’t follow is not a good practice.  Your health and safety plan should reflect the realities of your workplace; for example, a plan that includes taking each employee’s temperature and logging the results may not be feasible. A temperature self-check before coming to work could be substituted if current requirements allow it.
  • Develop a plan for customer/client service.  It could address health screening, social distancing, capacity limits, masks, preorders, changes to payment methods, procedures to keep people from congregating outside the facility, clear messaging of expectations, and the flexibility to address changes as industry standards change.
  • Liability to employees for failure to maintain a safe workplace is limited under Title 51 RCW (the Worker’s Compensation/Industrial Insurance laws), but there are some still circumstances where employers may be found liable.
  • Liability to business visitors (customers, vendors, etc.) is primarily based on tort law, and is very fact-specific.  For some service providers and businesses, a waiver/release may be appropriate.
  • Insurance policies may have an exclusion of coverage for pandemic-related claims.
  • Laws such as the Americans with Disabilities Act (ADA) and HIPAA apply to health screenings and reasonable accommodation, with some exceptions related to the declaration of a pandemic.
  • Wage and hour laws also still apply, which may raise questions about compensability of time spent on health screens, donning and doffing PPE, telework, pay cuts, and furloughs for exempt employees, etc.
  • Employees may refuse to return to work out of fear of contracting COVID-19, which may have implications for unemployment eligibility and PPP loan forgiveness.

For additional guidance on the Governor’s May 4, 2020 Proclamation, see:

This analysis is a broad overview only and should not be relied upon for any purpose, especially since the laws, regulations, rules, orders, government guidance, and industry standards keep changing.  If you need legal advice, engage an attorney who has experience in this area.

What does “Return to Work” look like?

On May 4, 2020, Washington Governor Jay Inslee issued “Safe Start Washington A Phased Approach to Recovery.”  It includes broad, general requirements for businesses that are by now familiar to all of us – wash your hands, maintain social distancing, etc.  It also requires compliance with Department of Labor & Industries (L&I) and Department of Health (DOH) guidelines, and it cross-references a checklist developed by Challenge Seattle and the Washington Roundtable.  Additionally, businesses are expected to implement any additional requirements developed specifically for their industry.

The logistics of compliance present a challenge for employers.  Here are some points to keep in mind:

  • Health and safety requirements vary by industry.  For example, childcare and construction have detailed requirements that are quite different from others.
  • There is no single go-to place to find all of the health and safety requirements, and they are continually changing.  The primary sources for the requirements are L&I, DOH, and Governor’s Proclamations, but there are also City and County requirements as well as federal requirements from the CDC and the Department of Labor, among others.  Many of these requirements were adopted on an emergency basis and are not included in published sets of rules or regulations.
  • Any necessary physical changes to the workplace must be made before returning employees to work.  Examples include spacing for social distancing, removing excess chairs, putting up signs with capacity limits on conference room doors, installing barriers, etc.
  • Locate suppliers now for things you will need that are in short supply – masks, gloves, disinfectant, hand sanitizer, plexiglass shields, toilet paper, paper towels, bleach, etc.
  • Develop a written plan and policy for employees that addresses all the requirements for employee health and safety.  Be sure it explains who is responsible for implementing each aspect of the plan, and hold employees accountable for compliance.  Checklists help.
  • Having protocols that employees don’t follow is not a good practice.  Your health and safety plan should reflect the realities of your workplace; for example, a plan that includes taking each employee’s temperature and logging the results may not be feasible. A temperature self-check before coming to work could be substituted if current requirements allow it.
  • Develop a plan for customer/client service.  It could address health screening, social distancing, capacity limits, masks, preorders, changes to payment methods, procedures to keep people from congregating outside the facility, clear messaging of expectations, and the flexibility to address changes as industry standards change.
  • Liability to employees for failure to maintain a safe workplace is limited under Title 51 RCW (the Worker’s Compensation/Industrial Insurance laws), but there are some still circumstances where employers may be found liable.
  • Liability to business visitors (customers, vendors, etc.) is primarily based on tort law, and is very fact-specific.  For some service providers and businesses, a waiver/release may be appropriate.
  • Insurance policies may have an exclusion of coverage for pandemic-related claims.
  • Laws such as the Americans with Disabilities Act (ADA) and HIPAA apply to health screenings and reasonable accommodation, with some exceptions related to the declaration of a pandemic.
  • Wage and hour laws also still apply, which may raise questions about compensability of time spent on health screens, donning and doffing PPE, telework, pay cuts, and furloughs for exempt employees, etc.
  • Employees may refuse to return to work out of fear of contracting COVID-19, which may have implications for unemployment eligibility and PPP loan forgiveness.

For additional guidance on the Governor’s May 4, 2020 Proclamation, see:

This analysis is a broad overview only and should not be relied upon for any purpose, especially since the laws, regulations, rules, orders, government guidance, and industry standards keep changing.  If you need legal advice, engage an attorney who has experience in this area.