Backend Category: Coronavirus

Are your company’s COVID-19 temperature and symptom screeners properly trained? To protect your company as much as possible from complaints, lawsuits, local labor issues, etc., it is critically important to:

• Establish a consistent process for conducting such screening and excluding symptomatic individuals to promote workplace
  safety;
• Adopt measures to mitigate the risk of claims under laws related to discrimination and medical privacy; and
• Be mindful of employee relations considerations.

Temperature and symptom screeners play an important role in accomplishing these objectives, so it’s a good idea to ensure that they are properly trained to take temperatures and screen for symptoms. MCAA’s new training resource, COVID-19 Temperature and Symptom Screener Training, will help you provide the proper training.

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Second Round of PPP Loans:  There has been a lot of news swirling online that new legislation will open the door for borrowers to get a second PPP loan.  Also there is more chatter that automatic forgiveness for certain loans is on the horizon. It appears as though early August may be the target for new legislation if it comes. Details on this are fluid to say the least, but it looks like both Republicans and Democrats are on the same page that the PPP is an effective tool that they want to use as part of upcoming stimulus programs.

SBA Issues Procedural Notice on Forgiveness Process:  The SBA released a notice that provides clarification to lenders on how they should submit applications to the SBA for “final approval” after the lender has reviewed and approved a borrower’s forgiveness application. The highlight in this document is that the SBA indicated it will be using a third party software vendor to develop its portal, which will not be up and running until August 10^th, so lenders will need to hold any applications until that time.  

The SBA further clarified that it may delay the opening of its portal further if any new legislation impacts the forgiveness process.  Withum has long believed Congress or the SBA would choose a loan threshold (e.g., loans of $250,000 or less) and grant “automatic” forgiveness to those borrowers, requiring only a signed certification that the funds were used properly. This would drastically reduce the amount of applications that the SBA and lenders would need to review. 

Withum does not have any official guidance or information on the legislative proposals reported in the press in past day or two (as noted above), but they think it may be prudent to wait to submit your application to your lender until a legislative consensus emerges. As a reminder, lenders have 60 days to process your loan forgiveness application and submit their decision to the SBA, and the SBA has 90 days to authorize the forgiveness amount.

PPP and M&A:  Withum often gets questions regarding how the sale of a business or the acquisition of another entity may impact a borrowers PPP loan and ability to obtain forgiveness. Withum put together an article addressing some of the complexity that may arise from these transactions, as well as how they impact the employee retention tax credit.

Reminder Section:  (what should I be doing):

• Talk to your payroll company about claiming the employer payroll tax deferral and employee retention credits (ERC) that were made available in the CARES Act.
• Talk to your payroll company about claiming the qualified sick/family leave refundable tax credits (from FFCRA, passed prior to the CARES Act).
• Consider speaking with your lender to discuss changes to terms of existing debt facilities.
• If you have already received a PPP loan, start forecasting how you intend to spend the funds and how you can qualify for the highest amount of loan forgiveness possible.  If you are not forecasting 100% loan forgiveness, then most likely you should seek assistance regarding your particular situation.  Withum believes the vast majority of borrowers should expect and plan to receive 100% loan forgiveness.

CDC Guidelines for Discontinuing COVID-19 Isolation & Precautions – For Non-Healthcare Settings – July 2020

Recent research indicates that individuals with mild to moderate cases of COVID-19 remain infectious no longer than 10 days after symptoms began; and individuals with severe illness or those who are severely immunocompromised remain infectious no longer than 20 days after symptoms began.

Based on these findings, the CDC has made changes to their guidelines regarding discontinuing COVID-19 isolation and precautions for non-healthcare settings. The highlights of these changes include the following:

• Decision makers should use a symptom-based strategy for decision making. Using a test-based strategy is no longer recommended, except to discontinue isolation or other precautions earlier than would occur under the symptom-based strategy that follows.
• Persons with COVID-19 who have symptoms and were directed to care for themselves at home may discontinue isolation under the following conditions:
  • At least 10 days have passed since symptom onset; and
  • At least 24 hours have passed since resolution of fever without the use of fever-reducing medications; and
  • Other symptoms have improved.
• Infected individuals who never develop COVID-19 symptoms may discontinue isolation and other precautions 10 days after the date of their first positive real-time qualitative test for the virus.
• The test-based strategy may still be appropriate for severely immunocompromised individuals. Consult with infectious disease experts for more information.

These recommendations will prevent most, but cannot prevent all, instances of secondary spread. 

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In a joint letter to the Congress, the national labor/management coalition responded to the Western Council of Teamsters rebuttal of the Groom Law Group paper of Composite Plans. Coalition partners include the Associated General Contractors of America, FCA International, International Council of Employers of Bricklayers and Allied Craftworkers, International Union of Operating Engineers, Laborers’ International Union of North America (LiUNA!), Mechanical Contractors Association of America, National Electrical Contractors Association, Sheet Metal and Air Conditioning Contractors’ National Association, The Association of Union Constructors, The International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, The Signatory Wall and Ceiling Contractors Alliance, United Association of Plumbers and Fitters, and United Brotherhood of Carpenters and Joiners of America. This July 31, 2020 version of the letter contains update analysis of the 5500 filings of the median critical and declining status plans.

Alston & Bird have released their July 27 COVID-19 update, including the latest news on emergency funding, administrative and regulatory actions, workplace and home issues, and many other topics, as well as to links to all their past updates.

Automatic Forgiveness?: Treasury Secretary Mnuchin recently suggested publicly that the SBA should consider forgiving all PPP loans and forgoing the process of the forgiveness application. This would, of course, be a stunning change in direction with respect to the mechanics of loan forgiveness. There has been chatter for a while that the SBA may seek to forgo applications on “small” loans as a vast majority of the loans issued were below $150k. This would substantially reduce the workload of the lenders and SBA when it comes to processing applications, and is appearing more and more likely as the days roll on, though the actual dollar threshold is a moving target. 

EIDL Loans: As we all know, the EIDL loan program was funded and gained a lot of traction/interest at the same time as the PPP roll out. Many companies clamored to gain access to the loan product as a result of its favorable terms (30 year repayment, 4% max rate, no personal guarantee for small loans). Withum is starting to see clients identify onerous covenants and reporting requirements (e.g., quarterly financial reports and year-end reviewed financials). There does not appear to be uniformity among all EIDL loan agreements, if you received an EIDL loan, it is important to review your agreement to ensure you have clearly identified all reporting requirements that are connected with the loan.

Reminder Section:  (what should I be doing):

• Talk to your payroll company about claiming the employer payroll tax deferral and employee retention credits (ERC) that were made available in the CARES Act.
• Talk to your payroll company about claiming the qualified sick/family leave refundable tax credits (from FFCRA, passed prior to the CARES Act).
• Consider speaking with your lender to discuss changes to terms of existing debt facilities.
• If you have already received a PPP loan, start forecasting how you intend to spend the funds and how you can qualify for the highest amount of loan forgiveness possible.  If you are not forecasting 100% loan forgiveness, then most likely you should seek assistance regarding your particular situation.  Withum believes the vast majority of borrowers should expect and plan to receive 100% loan forgiveness.

WASHINGTON, DC – On Monday, July 20, the U.S. Department of Labor published additional guidance for workers and employers on how the protections and requirements of the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Families First Coronavirus Response Act (FFCRA) affect the workplace as workplaces reopen amid the coronavirus pandemic. The guidance from the Department’s Wage and Hour Division (WHD) includes commonly asked questions and answers that address critical issues in all three laws. 

“The U.S. Department of Labor understands how critically American workers and employers need this information as they return to work. Continuing to provide it remains a top priority for the Wage and Hour Division,” said Wage and Hour Division Administrator Cheryl Stanton. “With so many workers and employers committed to the greatest comeback the American workforce has ever seen, we are providing ongoing guidance to help them better understand their rights and responsibilities to protect workers and help ensure a level playing field for employers as our economy recovers.” 

Today’s guidance is the latest addition to compliance assistance materials the WHD has published. These materials include a Fact Sheet for Employees, a Fact Sheet for Employers and a Questions and Answers resource about paid sick and expanded family and medical leave under the FFCRA. WHD has also produced two guidance posters, one for federal workers and one for all other employees, that fulfill notice requirements for employers obligated to inform employees of their FFCRA rights; Questions and Answers about posting requirements; and simple Quick Benefits Tips to determine how much paid leave the FFCRA allows workers to take.

FFCRA will help the U.S. combat and defeat the coronavirus by reimbursing, through tax credits, American businesses with fewer than 500 employees for the cost of providing employees with paid leave taken for specified reasons related to the coronavirus. The legislation enables employers to provide such paid leave, while at the same time ensuring that workers are not forced to choose between their paychecks and the public health measures needed to combat the virus.

WHD provides additional information on common issues employers and employees face when responding to the coronavirus and its effects on wages and hours worked under the Fair Labor Standards Act and job-protected leave under the Family and Medical Leave Act at https://www.dol.gov/agencies/whd/pandemic

For more information about the laws enforced by the WHD, call 866-4US-WAGE, or visit www.dol.gov/agencies/whd

Alston & Bird have released their July 20 COVID-19 update, including the latest news on emergency funding, administrative and regulatory actions, workplace and home issues, and many other topics, as well as to links to all their past updates.

Alston & Bird have released their July 13 COVID-19 update, including the latest news on emergency funding, administrative and regulatory actions, workplace and home issues, and many other topics, as well as to links to all their past updates.

The Food and Drug Administration (FDA) is warning everyone about hand sanitizers made with methanol. The substance, which is a form of alcohol, is toxic when absorbed through the skin or ingested. Last month the FDA listed a number of hand sanitizers made by Eskbiochem that contain methanol. This month the agency is expanding that list to include sanitizers made by other companies.

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Main Street Lending Program is Now Open:  The MSLP has been “baking” for over 3 months and is finally ready for primetime.  Withum has a new article with more details on terms and eligibility here.  The program has garnered some controversy as some have taken the view that it was overly restrictive and not borrower friendly.  Some banks have also indicated they will not participate in the program.  That said, it is now available to borrowers and can be a new source of working capital. 

Reminder Section:  (what should I be doing):

• Talk to your payroll company about claiming the employer payroll tax deferral and employee retention credits (ERC) that were made available in the CARES Act.
• Talk to your payroll company about claiming the qualified sick/family leave refundable tax credits (from FFCRA, passed prior to the CARES Act).
• Consider speaking with your lender to discuss changes to terms of existing debt facilities.
• If you have already received a PPP loan, start forecasting how you intend to spend the funds and how you can qualify for the highest amount of loan forgiveness possible.  If you are not forecasting 100% loan forgiveness, then most likely you should seek assistance regarding your particular situation.  Withum believes the vast majority of borrowers should expect and plan to receive 100% loan forgiveness.

Alston & Bird have released their July 6 COVID-19 update, including the latest news on emergency funding, administrative and regulatory actions, workplace and home issues, and many other topics, as well as to links to all their past updates.

New PPP Bill Passed by House and Senate:  The Bill that was introduced and passed by the Senate on Tuesday, June 30 has now been passed by the House and is headed to the President’s desk for signature.  This Bill extends the application deadline for the PPP an additional 5 weeks (recall that the deadline was June 30, 2020 and they still had about $130 billion in available funds).  It is unclear how valuable this additional time will be since most businesses that wanted funds have already received them.

New Stimulus Package in the Works:  Treasury Secretary Steven Mnuchin told a House panel that the administration would support a new stimulus package if it was put forward. He also indicated that he is in discussions with the Senate about revising the PPP to provide additional support to hard hit industries such as restaurants, hotels, etc.  We are not sure yet how the P4 Bill that was passed by the House (which allows businesses to obtain a second PPP loan under certain circumstances) will fare if the Senate decides to take it up, but there appears to be bipartisan support to find a solution.

Reminder Section:  (what should I be doing):

• Talk to your payroll company about claiming the payroll tax deferrals and employee retention credits that were made available in the CARES Act.
• Talk to your payroll company about claiming the qualified sick/family leave refundable tax credits (from FFCRA, passed prior to the CAREs Act).
• Consider speaking with your lender to discuss changes to terms of existing debt facilities.
• If you have already received a PPP loan, start forecasting how you intend to spend the funds and how you can qualify for the highest amount of loan forgiveness possible. If you are not forecasting 100% loan forgiveness, then most likely you should seek assistance regarding your particular situation. Withum believes the vast majority of borrowers should expect and plan to receive 100% loan forgiveness.

New PPP Bill Introduced in the Senate:  On Tuesday, June 30th, the Senate passed a bill which extends the application deadline for the PPP an additional 5 weeks (recall that the deadline was June 30th and they still had about $130 billion in available funds).  The bill still needs to go through the House and would need to be signed by the President to be passed into law.  It is unclear how valuable this additional time will be as most believe that those businesses who wanted funds have already received them.

When Will Banks Accept Applications?:  Many have inquired regarding when they can apply for forgiveness and when banks will accept applications.  Withum has heard that one bank has reached out to its clients to inform them that if they received their PPP loan in April, the bank will accept a forgiveness application in August.  If the loan was received after April, the date the bank will accept the application is TBD.  This is of course just one bank, but they have generally seen that banks are not in a position to accept applications currently and few have been explicit in how they will manage the process.  They also have not seen any mechanism for a borrower to “declare” that they want to keep their eight-week covered period if they want to.  At this point, borrowers will just have to be patient, they do not believe that there are any proactive steps required on the borrowers side right now other than being in consistent contact with their lender on the process.

Status of the P4 Bill:  The P4 bill that was introduced by the House two weeks ago has not moved since it first came into play.  This bill would allow certain borrowers to obtain a second PPP loan if they meet certain criteria (less than 100 employees, 50%+ reduction in revenue).  There is not much information on the probability of this passing or how it will interplay with the PPP extension bill noted above. 

Main Street Lending Programs:  Withum reported on the general parameters of the MSLPs previously, at this point the program is still not available to the public.  Anecdotally there have been mixed reviews from banks, many of which have indicated that they do not intend to participate in the program. 

New FAQs:  It has been rumored for several weeks that a multitude of new FAQs are coming out in the near future to cover current open questions and to provide clarification.  Withum believes this is correct but do not have insight as to when they are coming, it could be as soon as this week. 

Reminder Section:  (what should I be doing):

• Talk to your payroll company about claiming the payroll tax deferrals and employee retention credits that were made available in the CARES Act.
• Talk to your payroll company about claiming the qualified sick/family leave refundable tax credits (from FFCRA, passed prior to the CAREs Act).
• Consider speaking with your lender to discuss changes to terms of existing debt facilities.
• If you have already received a PPP loan, start forecasting how you intend to spend the funds and how you can qualify for the highest amount of loan forgiveness possible. If you are not forecasting 100% loan forgiveness, then most likely you should seek assistance regarding your particular situation. Withum believes the vast majority of borrowers should expect and plan to receive 100% loan forgiveness.

The IRS has released Notice 2020-50, which offers added guidance and relief for retirement plan participants taking pandemic-related distributions and loans under the CARES Act. Notice 2020-50 expands the definition of qualified individuals under the Act and provides guidance regarding coronavirus-related distributions and loans. Lindabury, McCormick, Estabrook & Cooper, P.C. have prepared a summary outlining the details, including the criteria for eligibility.

Alston & Bird have released their June 29 COVID-19 update, including the latest news on emergency funding, administrative and regulatory actions, workplace and home issues, and many other topics, as well as to links to all their past updates.