Adams Keegan COVID-19 Employer FAQ Webinar – June 5, 2020

On Friday, June 5, 2020, Adams Keegan hosted a webinar to discuss the most commonly asked questions of the week regarding COVID-19. Topics included the Paycheck Protection Program Flexibility Act, unemployment challenges and solutions, and return-to-work initiatives.  Click here to view the recording of this webinar.

 

House Passes PPP Loan Legislation

Last week, the House of Representatives passed H.R. 7010, also known as the Paycheck Protection Program Flexibility Act, which proposes several changes to the current PPP loan program. Among other things, the legislation seeks to extend the current eight week loan forgiveness “covered period” and to adjust the amount of forgivable expenses that must be used on payroll costs from 75% to 60%. Approval is still required from the Senate, which is expected to take up the matter this week. Read more in a press release from the bill’s co-author, Representative Chip Roy.

 

OSHA Requires Employers to Investigate Confirmed COVID-19 Cases

OSHA has released new guidance that requires employers to make reasonable efforts to determine if an employee’s confirmed case of COVID-19 is work-related, thus qualifying as a recordable illness on the Form 300. Under the requirements, if an employer makes a reasonable and good-faith inquiry and still cannot determine if the causal exposure most likely occurred at work, the employer would not be required to record the illness. Due to the difficulty with determining work-relatedness, OSHA is exercising enforcement discretion to assess employers' efforts in making work-related determinations.

 

Adams Keegan COVID-19 Employer FAQ Webinar – May 22, 2020

On Friday, May 22, 2020, Adams Keegan hosted a webinar to discuss the most commonly asked questions of the week regarding COVID-19. Topics included the Paycheck Protection Program forgiveness process and calculations, including documentation requirements, and any other COVID-19-related topics webinar attendees wanted to discuss. The recording of this webinar has expired.

 

A List of Statewide Return to Work Protocols

Government officials across the country are easing up, or preparing to ease up, on the stringent business closures and stay at home orders that helped the nation successfully slow the spread of COVID-19. Each jurisdiction will emerge from this collective state of suspended animation by implementing different measures, and on different timetables. Many reopening plans include multiple mitigation steps, such as limits on occupancy, sanitation and physical distancing requirements, and new posting duties. Click here to review the general reopening plans and orders that have been issued thus far at the statewide level, courtesy of Littler Mendelson.

 

SBA Issues Loan Forgiveness Application

On Friday, May 15, 2020, the Small Business Administration issued a Paycheck Protection Program Loan Forgiveness Application, which provides guidance on how the SBA will require borrowers to seek forgiveness for Paycheck Protection Program loans. The Forgiveness Application provides the SBA's initial perspective on the qualifications for loan forgiveness under the CARES Act. Baker Donelson summarizes some of the key points here.

 

IRS Relaxes Sec. 125 Plan Rules Due to COVID-19

The IRS has released Notices 2020-29 and 2020-33 to provide flexibility under Sec. 125 due to the COVID-19 pandemic. Under Notice 2020-29, the IRS provided increased flexibility with respect to 2020 midyear elections under a Code Sec. 125 cafeteria plan related to employer-sponsored health coverage, health flexible spending arrangements (health FSAs), and dependent care assistance programs (DCAPs). The IRS also provided increased flexibility with respect to grace periods to apply unused amounts in health FSAs to medical care expenses incurred through December 31, 2020, and unused amounts in DCAPs to dependent care expenses incurred through December 31, 2020. This relief is retroactive to January 1, 2020.

 

COBRA Temporarily Extends Election and Payment Deadlines

The IRS and DOL issued guidance on May 4, 2020 that adds a new level complexity to COBRA administration for employer-sponsored plans.  In short, the relief suspends many key participant deadlines during the so-called “Outbreak Period.”  The new rules define “Outbreak Period” to mean the period beginning March 1, 2020 and ending 60 days following the expiration of the National Emergency declaration related to COVID-19. Read more on this topic from Littler Mendelson.

 

Adams Keegan COVID-19 Employer FAQ Webinar – May 15, 2020

On Friday, May 15, 2020, Adams Keegan hosted a webinar to discuss the most commonly asked questions of the week regarding COVID-19. Topics included the Small Business Administration’s (SBA) loan programs, the unemployment claims process, and the important considerations for bringing employees back to work. Plus, we had time for additional questions. The recording of this webinar has expired.

 

Adams Keegan COVID-19 Employer FAQ Webinar – May 8, 2020

On Friday, May 8, 2020, Adams Keegan hosted a webinar to discuss the most commonly asked questions of the week regarding COVID-19. Topics include the Paycheck Protection Program (including a practical review of the calculations for the “covered” and “choice” periods), the unemployment claims process, and the important considerations for bringing employees back to work, including employee health testing and handling employees’ refusal to return to work. The recording of this webinar has expired.

 

CDC Issues Guidance on Preparing to Reopen Workplaces

The Centers for Disease Control and Prevention (CDC) has issued new Guidance with instructions on cleaning and disinfecting public spaces, workplaces, businesses, schools, and homes in preparation for reopening following COVID-19 shutdowns. The Guidance includes a Cleaning and Disinfecting Decision Tool that distills the advice into a flow chart with different recommendations depending on whether the area is indoors, outdoors, frequently used, and the type of surface involved. The Guidance includes advice regularly seen in other CDC guidance, such as frequent handwashing and social distancing. Click here to read more from Jackson Lewis. 

 

DOL Extends Timeframes Applicable to Group Health Plans

The Department of Labor and the IRS have issued a final rule that extends certain time frames affecting participants’ rights to health care coverage, portability, and continuation of group health plan coverage under COBRA, and extends the time for plan participants to file or perfect benefit claims or appeals of denied claims. The agencies have issued the notice and a set of frequently-asked-questions (FAQs) to help employee benefit plans, plan participants and beneficiaries, employers and other plan sponsors, plan fiduciaries, and other service providers impacted by the COVID-19 pandemic. According to the DOL, these extensions provide participants and beneficiaries of employee benefit plans additional time to make important health coverage and other decisions affecting their benefits in light of the National Emergency.

 

Georgia DOL Recommends Continuing to File Partial Claims for Laid-Off Employees

On May 5, the GA DOL sent an Employer Communication email to many employers in the state recommending that employers who decide to permanently lay off employees continue to file partial unemployment claims on their behalf until further notice. This presents many questions that have not been addressed, not the least of which is that this recommendation is in direct conflict with the information posted on their website which states that “employees must still be attached to the employer” in order for the employer to file a partial claim on their behalf. Adams Keegan will monitor this situation and provide additional guidance as it becomes available.

 

Adams Keegan COVID-19 Employer FAQ Webinar – May 1, 2020

On Friday, May 1, 2020, Adams Keegan hosted a webinar to discuss commonly asked COVID-19-related questions. Topics include the CARES Act, the unemployment claims process, and important considerations for bringing employees back to work. The recording of this webinar has expired.

 

Lawmakers Agree to New Funding for Paycheck Protection Program

Senate lawmakers agreed on April 21, 2020, to inject cash into the Paycheck Protection Program (PPP), a mechanism for offering forgivable loans to small businesses. Lawmakers also agreed to allocate more money for disaster loans, healthcare providers, and testing. These funds give businesses a second chance at relief from the economic damage caused by COVID-19. The House is expected to take up and pass the bill shortly, and the president has indicated he will sign it into law. Click here to read more from Littler Mendelson.

 

House Democrats Propose Health Insurance Relief

House Democrats recently introduced legislation that if enacted would help workers maintain their employer-based health insurance in response to an unprecedented wave of layoffs and furloughs caused by the COVID-19 pandemic. The Worker Health Coverage Protection Act, H.R. 6514, would provide federal assistance to cover the full cost of COBRA premiums for unemployed workers or the full cost of health insurance premiums owed by workers who are furloughed.

 

CA Governor Signs Executive Order to Add Paid Leave for Food Sector Workers Impacted by COVID-19

On April 16, California Governor Gavin Newsom signed Executive Order N-51-20 to support workers from large employers in the food sector industry impacted by the COVID-19 pandemic with two weeks of paid sick leave, filling a gap left by federal relief that had provided similar paid leave benefits for employers with fewer than 500 workers.

 

COVID-19 FAQs

Adams Keegan has received a number of questions from clients regarding FFCRA and CARES Act provisions. Below are some of the most frequently asked along with answers based on the best available guidance at this time.

  • Question: May an employer count leave given for a COVID-related reason prior to April 1 toward the FFCRA tax credit?
    • Answer: No, only leave provided on or after April 1 should be allocated as COVID leave that is eligible for the FFCRA tax credit.
  • Question: May an employee decline using their available COVID sick leave if they have a qualifying reason?
    • Answer: While the DOL has issued guidance stating that an employee may have the option to decline COVID sick leave during a period of eFMLA, they have not issued guidance stating that the employee can decline COVID leave in any other qualifying circumstance.
  • Question: Are businesses with fewer than 50 employees exempt from providing FFCRA leave for COVID-related reasons?
    • Answer: A business with fewer than 50 employees may be exempt from the requirement to provide FFCRA leave due to a child’s school or place of care being closed due to COVID-related reasons if an officer of the business determines that providing such leave would jeopardize the viability of the business. The business would still be required to provide FFCRA leave for all other qualifying reasons.
  • Question: The amount of forgiveness of a PPP loan depends on the borrower’s payroll costs over an eight-week period; when does that period begin?
    • Answer: The eight-week period begins on the date the lender makes the first disbursement of the PPP loan to the borrower. 
  • Question: May an Eligible Employer receive both the tax credits for qualified leave wages under the FFCRA and a Small Business Interruption Loan under the CARES Act?
    • Answer: Yes.  However, if an Eligible Employer receives tax credits for qualified leave wages, those wages are not eligible as “payroll costs” for purposes of receiving loan forgiveness under section 1106 of the CARES Act.
  • Question: My employee was monetarily ineligible for regular state unemployment, is there any provision in the CARES Act to deal with this?
    • Answer: Yes, employees who are monetarily ineligible for regular state unemployment can apply for Pandemic Unemployment Assistance (PUA) which allows benefits for independent contractors, freelancers, and employees who are not normally eligible for regular unemployment. They would follow the instructions on their relevant state website for applying as needed. Some states require no additional action if you have already gone through the regular unemployment process.

 

Information on Employee Retention Tax Credit

Although there is uncertainty surrounding the Coronavirus (COVID-19) crisis, you can trust that Adams Keegan is here to help you navigate these uncharted waters with pertinent and reliable information. With the Employee Retention Credit (ERC), you may be eligible to receive up to $5,000 for each of your employees. Click here for more information about this benefit and business eligibility.

 

Adams Keegan Launches New COVID-19 Government Stimulus Resources

Adams Keegan today announced the launch of two new tools developed to assist businesses with navigating the complexities of COVID-19-related government stimulus programs. Through its proprietary HRIS, Efficenter(R), Adams Keegan's SBA CARES Data Report provides its clients with a complete picture of the qualifying costs of payroll for any date range over the past 12 months. This simplifies and speeds up the process for working with SBA lenders, as part of the Paycheck Protection Program (PPP). This first-of-its-kind tool reflects current general understanding and interpretation of the statutes but will be amended with the most up-to-date information as further SBA guidance emerges. In addition, Adams Keegan has created a tool to assist employers and employees with new emergency paid sick leave and enhanced FMLA leave provisions that allow for additional leave due to COVID-19-related absences. Efficenter allows employers to easily track paid leave and report it in their payroll submissions in a manner consistent with the stimulus requirements. Click here to learn more.

 

COVID-19 LEAVE TRACKING AVAILABLE IN EFFICENTER

As noted in a previous COVID-19 Alert, the Families First Coronavirus Response Act amended the Family and Medical Leave Act (FMLA) to provide paid emergency leave to eligible employees and also required covered employers to provide paid sick leave to employees in need of such leave due to the coronavirus pandemic. The Act also provides reimbursable tax credits to covered employers for the costs associated with providing this paid leave and sick time. The Act goes into effect on April 1 and applies to employers with fewer than 500 employees. To assist clients in managing this process, Adams Keegan has created a tool in Efficenter’s Manage Leave that allows employees to request, and employers to approve and track, leave used for COVID-19-related purposes. To turn on this feature, please contact your Client Service Manager. If you have questions regarding the leave, please direct those to your HR Consultant.

 

INFORMATION ON SBA LOAN PROGRAMS

As a result of the Coronavirus Aid, Relief, and Economic Security Act, multiple avenues of relief will be available to small businesses through programs administered by the Small Business Administration (SBA). Notably, the size limits for consideration as a "small business concern" have been changed, making many more entities eligible for assistance through programs administered by the SBA. Click here to read more from Baker Donelson regarding the various assistance programs available, including the Economic Injury Disaster Loans (EIDL) and the Paycheck Protection Program (PPP). Also note that while the form for filling out a PPP loan has been released, Treasury Secretary Mnuchin has recently stated that the applications cannot be submitted until Friday, April 3, 2020. Efficenter now has the SBA CARES Act Data Report available under the Reports tab, which provides information necessary to complete the PPP application.

 

CARES ACT PAYCHECK PROTECTION PROGRAM INFORMATION

The Coronavirus Aid, Response, and Economic Security Act (CARES Act) includes the Paycheck Protection Program.  Administered through the Small Business Administration, the program offers $350 billion in loans to help small businesses retain employees. Click here to learn more, courtesy of NAPEO.

 

COVID-19 EMPLOYER IMPACT WEBINAR PRESENTATION

On March 31, 2020, Adams Keegan presented a webinar, in conjunction with the Greater Memphis Chamber, about the most current information on COVID-19 impact to employers.  The Families First Coronavirus Response Act (FFCRA) and Coronavirus Aid, Response, and Economic Security Act (CARES Act) are covered, including Paycheck Protection Program and tax credits. Click here for more information.

 

PRESIDENT TRUMP SIGNS CARES ACT INTO LAW

President Trump has signed the Coronavirus Aid, Relief, and Economic Security (CARES) Act, a $2 trillion economic relief package, into law. Among other things, the Act includes a significant expansion of the unemployment insurance program, a small business rescue plan that allocates billions to forgivable loans and grants to small businesses and non-profits, and authorizes direct payments to individuals and families. The Act also provides retention tax credits to encourage businesses to keep workers on the payroll during the coronavirus crisis. Click here to read more on CARES from Jackson Lewis, and note that Adams Keegan is working on creating reports that will provide information employers will need when applying for these SBA disaster loans.

 

UNEMPLOYMENT BENEFITS INCREASE UNDER CARES ACT

Under the CARES Act, a temporary Pandemic Unemployment Assistance program will relax employee eligibility requirements, increase maximum weekly unemployment benefit amounts by $600 for the next four months, and waive the typical one-week waiting period for benefits. Since these unemployment benefits are also available to part-time workers whose pay has been reduced, it is important to note that this change in maximum weekly benefits will expand the pool of employees that are eligible to file a partial claim under the Act.

 

DOL PROVIDES EXTENSIVE FAQS ON FFCRA LEAVE OBLIGATIONS

In an effort to assist businesses with compliance regarding the new FFCRA paid sick and expanded medical leave mandates, the U.S. Department of Labor has issued additional FAQs regarding employer and employee rights and responsibilities under the Act.

 

DHS ANNOUNCES FLEXIBILITY FOR I-9 DOCUMENT REVIEW

Due to precautions being implemented by employers and employees related to physical proximity associated with COVID-19, the Department of Homeland Security (DHS) announced today that it will exercise discretion to defer the physical presence requirements associated with Employment Eligibility Verification (Form I-9). Employers with employees taking physical proximity precautions due to COVID-19 will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. This provision only applies to employers and workplaces that are operating remotely, and a physical inspection of the documents must occur once normal operations resume. For additional information, please read the USCIS News Release.

 

STATES MANDATE BUSINESS CLOSURES

Several states are requiring businesses that are not providing essential services to close or reduce their in-office workforce. New York has issued an executive order mandating businesses that rely on in-office personnel to decrease their workforce by 75 percent. Pennsylvania has ordered many businesses to close their physical locations, and California has issued a stay-at-home order to workers in the state. This is a rapidly updating situation, so please reference the agency website of any state in question for the most up-to-date information on these orders.

 

NEW YORK TO PROVIDE SICK LEAVE FOR CORONAVIRUS AND BEYOND

On March 17, New York Governor Andrew M. Cuomo announced a deal with the state legislature on a bill that would guarantee job protection and pay for New Yorkers who have been quarantined as a result of COVID-19. The program bill would also make permanent the comprehensive paid sick leave policy first advanced by Cuomo in his Fiscal Year 2021 Executive Budget proposal, according to the Governor’s office.

 

OREGON ADOPTS EMERGENCY LEAVE RULE

Under a temporary administrative order, effective March 18, 2020, Oregon employees may be absent for up to 12 weeks, on a continuous or intermittent basis, because the employee’s child’s school or place of care has been closed by public authorities, including out of concerns related to the coronavirus (COVID-19) outbreak. Click here to read more, courtesy of Jackson Lewis.

 

OSHA AND WHD RELEASE COVID-19 GUIDANCE

The Labor Department’s OSHA and its Wage and Hour Division have both published guidance on dealing with coronavirus in the workplace. OSHA has released a comprehensive 35-page guide for employer planning purposes, while the WHD division has released frequently asked questions and answers about COVID-19 and its intersection with the FLSA and FMLA. In addition, OSHA recently launched a COVID-19 webpage, which provides infection prevention information specifically for workers and employers.

 
UNEMPLOYMENT INSURANCE ELIGIBILITY IMPACTED BY CORONAVIRUS 

The House of Representatives has introduced H.R. 6201: Families First Coronavirus Response Act. Among other things, this legislation would assist states financially in administering unemployment insurance programs by providing emergency grants to any states that experience a spike in unemployment claims as long as they temporarily ease eligibility requirements, such as work search, that could limit employee access to benefits due to COVID-19. If passed, this could encourage states to follow the lead from other states that have already eased their unemployment eligibility requirements in response to the outbreak. California, Illinois, Rhode Island, and Washington are among the states that have already acted to revise or clarify their policies to provide relief to employees that must miss work due to the coronavirus pandemic.

 
COLORADO HELP RULES IN EFFECT 

On March 11, the Colorado Department of Labor and Employment (CDLE) released emergency rules that temporarily require employers in certain industries to provide a “small amount of paid sick leave” to employees with flu-like symptoms while awaiting COVID-19 testing. Specifically, rules require these employers to provide paid leave for the four-day period required for testing. The rules will remain in place for 30 days, or longer if the state of emergency declared by Governor Jared Polis continues.