UPDATED: 04/08/2020
Small business is the backbone of our Southeastern Louisiana economy so when any disaster strikes, it hits small businesses, and their workers, the hardest. With COVID-19 throwing our world in upheaval, it’s easy to panic and fear the unknown. But remember: this may be the first outbreak affecting the globe in this manner but it’s not the first time we’ve had to weather rough storms economically, personally, and professionally. We made it through September 11th, Hurricane Katrina, (multiple) No Calls, and loving the Saints pre- Drew Brees.
This morning local Slidell business attorney Amber Sheppard (and her trusty side-kick Tubbs the therapy dog) were on a teleconference call with Congressman Steve Scalise, the U.S. Small Business Administration,and 700 of her closest friends (that’s a joke) to discuss what the Federal and State Government is doing to help small businesses and families. Know that the situation changes daily, even hourly, so this post is meant to serve as a catalyst for you to find out more information on these sites and give you a jumping off point. Please do not take it as legal advice: always consult your attorney, CPA, and state and federal laws.
Update: Since this blog was originally posted on 3.20.2020, Amber has been on over a dozen conference calls, webinars, or local calls to discuss how the legislative changes affect local businesses with other attorneys, representatives, and small business owners. She is dedicated to staying up to date and providing easy-to-digest information for our local community as it breaks. She routinely posts on her Instagram (@sheppardlawllc) quick snippets of information as it she about it. Keep in mind, she's a one-man-band with Tubbs and is working as fast as her hands can type.
Remember, Tubbs and Amber aren’t tax accountants! Amber handles small business litigation, Slidell family law matters, and personal injury cases. Tubbs wears funny costumes and provides comfort. That said- Amber would be more than happy to schedule a virtual teleconference or phone call to discuss any legal issues facing you or your Louisiana or Mississippi small business. But no tax advice please.
As it pertains to the “Coronavirus Bill” (officially known as Families First Coronavirus Response Act (H.R. 6021 Bill, passed on 03/14/2020; amended on 03/17/2020; passed in Senate and signed into law on 03/19/2020), it is a business with less than 500 folks employed.
The bill provided for $8.3 billion in emergency funding for federal agencies to respond to the coronavirus outbreak. Of the $8.3 billion, $6.7 billion (81%) is designated for the domestic response and $1.6 billion (19%) for the international response. The bill also includes a waiver removing restrictions on Medicare providers allowing them to offer telehealth services to beneficiaries regardless of whether the beneficiary is in a rural community, at an estimated cost of $500 million.
This is known as H.R. 6021, passed on 03/14/2020 in the House; amended on 03/17/2020; passed in Senate on 03/18/2020 and signed into law by Pres. Trump on the same day. This Act expanded the definition of the Family & Medical Leave Act.
As noted by Jon Heyman, with regards to the FMLA protections for coronavirus-related leaves[2]—
Regarding the proposed paid sick days for coronavirus-related absences, Jon Heyman notes—
The Department of Labor Has Issued The Following Clarifications:
This bill also provided additional funding for children who lose school lunches, SNAP, veterans benefits, and so forth. The House produced a readable summary that can help you see what is available.[4]
I do want to note that the IRS is likely willing to use the Payroll Taxes your business has ALREADY PAID and credit to you in the event your employees utilize FMLA. Stay tuned for more information on that as it becomes available.The proposed bill would give employers a tax credit for 100% of the cost of giving their employers paid leave.
Typically Disaster Relief Loans via SBA are issued after 5small businesses in a Parish (or County) petition for disaster relief status. However, in this case, the entire state and all parishes are automatically qualified thanks to Gov. Edwards. Upon a request received from a state’s or territory’s Governor, SBA will issue under its own authority, as provided by the Coronavirus Preparedness and Response Supplemental Appropriations Act that was recently signed by the President, an Economic Injury Disaster Loan declaration.
So what do the loans look like?
· A small business has the opportunity to receive $2 million in assistance via a loan to provide economic support to small businesses to help overcome the temporary loss of revenue they are experiencing.
· These loans may be used to pay fixed debts,payroll, accounts payable and other bills that can’t be paid because of the disaster’s impact. The interest rate is 3.75% for small businesses. The interest rate for (private) non-profits is 2.75%.
· SBA offers loans with long-term repayments in order to keep payments affordable, up to a maximum of 30 years. Terms are determined on a case-by-case basis, based upon each borrower’s ability to repay.
You can learn more about the loan,ask questions, and apply via the SBA website located at https://disasterloan.sba.gov/ela/Documents/Three_Step_Process_SBA_Disaster_Loans.pdf, call 1-800-659-2955, or email disastercustomerservice@sba.gov. If you want a local number you can call the New Orleans office of SBA at 504-589-6685.
The SBA has authorized lenders to defer pre-existing SBA loan payments for up to 6 months. However, this is at the discretion of the lender so don't automatically assume it is going to happen.
Note there are other pre-existing SBA loans still available for small businesses. SBA has developed LenderMatch, a free online referral tool that connects small businesses with participating SBA-approved lenders within 48 hours[6](the following was taken verbatim from SBA)
Export Business Relief
Government Contractor Relief
To learn more please visit: https://www.sba.gov/federal-contracting/contracting-guide. SBA notes that “if a situation occurs that will prevent small businesses with government contracts from successfully performing their contract, they should reach out to their contracting officer and seek to obtain extensions before they receive cure notices or threats of termination. The SBA’s Procurement Center Representatives can assist affected small businesses to engage with their contracting officer. Use the Procurement Center Representative Directory to connect with the representative nearest you.”
Changing Market Demand is likely a huge concern for some small businesses right now. There maybe access controls or movement restrictions established which can impede your customers from reaching your business. Additionally, there may be public concerns about public exposure to an incident and they may decide not to go to your business out of concern of exposing themselves to greater risk. SBA’s Resources Partners and District Offices have trained experts who can help you craft a plan specific to your situation to help navigate any rapid changes in demand.[7]
President Donald Trump has instructed the Treasury Department and IRS to extend the April 15, 2020 deadline for filing federal income tax returns for those affected by Coronavirus. It is unsure at this time who would be considered affected by the virus but it’s understood it would be a 90 day deadline after April 15th if you owe under $1M in taxes. As a practical note, ify ou are entitled to a refund then it would be prudent, after you talk to your CPA, to file so you can get money in your hands quicker.
Louisiana Department of Insurance Emergency Rule 40 declared that insurance companies CANNOT cancel or not renew insurance policies (car, auto, health, home, etc) for failure to pay if it occurs after March 12, 2020. Additionally, insurance carriers must renew your policies in the interim at that same rate.
NOTE: you cannot have both the SBA Disaster Loan and the Business Interruption Loan.
Under the CARES Act, the federal government, through the SBA, passed legislation to allow small businesses to receive an economic loan due to COVID-19. Qualified businesses include those with under 500 employees, sole proprietorships, independent contractors, 504(c)(6). EIDL offers a loan at a rate of 2.75% for nonprofits and 3.75% for other entities with a deferred repayment option. You must use a qualified SBA lender; most banks are partnering with approved lenders to help their customers navigate this situation.
Should you qualify for this loan and use the bridge loan of $10,000 to cover immediate costs such as rent, utilities (internet, phone, water, etc), then that amount can be forgiven. You cannot use the funds to fund any expansions, lost revenue or lost profits. But you can use it to "keep your doors open" to help with working capital needs like recurring expenses (fixed debt, accounts payable).
Credit requirements: when you apply online through the SBA's website there will be a credit history check and they will look at your ability to repay all loans. If you request over $25,000 then it the loan requires collateral. Real estate can be used as collateral. You must provide all documentation requested within 7 days of that request (forms include SBA Form 5, IRS Form 4506T, Federal Tax Returns (if you don't have that then look at using your year end Profit And Loss Statement).
Exempted Businesses for EIDL
For more information, visit www.sba.gov/disaster or email disastercustomerservice@sba.gov
Also included in the CARES Act are direct payments to Americans. It is proposed for individuals making up to 75K that they receive $1,200 with a 5% phase out to $99,0000 based on your 2018 tax return. Married couples who have combined income of up tp $150,000 would get $2,400 with the 5% phase out. Retirees have some nuisances but appears to be between $600 and $2,500. Learn more here.
If you owe child support and the state has an interest in what you owe in child support (due to failure to pay), then you will NOT receive your direct stipend. You should receive a notice of this.
Payroll Protection Program is available for businesses with less than 500 employees, sole proprietors, self employed, and independent contractors. This plan allows any business who were operating on February 15, 2020 to apply for a loan to cover qualified expenses in order to maintain payroll. It caps payroll per person at $100,000 and does not apply to employees with a principal residence outside of the United States. The end-goal here is to allow companies to pay their employees. If the business uses 75% of the funds for payroll then the "loan" converts to a grant. This means you do not have pay back the government. However, keep meticulous records because if you do not use the funds appropriately then the loan must be paid back at .5%.
This differs from EIDL in so far as no personal guarantee is required, no collateral or credit check is required, and it can be FORGIVEN if used on appropriate expenses (payroll, health benefits, rent, utilities) within eight weeks of receipt. If you are a sole proprietor or self-employed, and were on the payroll, then you can apply for PPP. The government is going to be looking to see if you have paid into social security.
You can apply for PPP directly with your bank or here through the SBA.
According to the US Equal Employment Opportunity Commission (EEOC), as of 03/18/2020, employers can ask the following in compliance with their interpretation with the Americans With Disability Act (ADA) and Rehabilitation Act:
Please note that while the EEOC has listed this information it does not mean a Court in the future will find it valid. However, it is a national guideline and at this time, you would have an argument down the road if someone were to sue you because you asked these questions.
You do have the ability to apply for SBA loans, whether it is the Disaster Loan, EIDL, or PPP. Additionally you can now apply for Unemployment.
As noted by Jon Hyman, “If a company is forced to shut its doors because of COVID-19, the Worker Adjustment and Retraining Notification (WARN) Act might apply if your business is large enough. It applies to employers with 100 or more employees. It mandates 60 days’ advance written notice (or if no notice is given or can be given, 60 days’ pay in lieu of such notice) before a “plant closing” or “mass layoff.” Please note, though, that a mass layoff does not occur, and therefore WARN does not apply, if the layoff is expected to be for less than six months. Because most expect this crisis to subside in less than six months, WARN likely will not apply to coronavirus-related layoffs. It will still apply to a plant closure if your business is large enough to meet the100-employee threshold. Also, keep in mind that some states have their own mini-WARN laws (California, Illinois, Maryland, New Jersey, New York, Tennessee, and Wisconsin, for example) that provide greater coverage.” [8]
An interesting turn of events lately has been insurance companies denying Business Interruption policy claims pursuant to COVID-19. Their argument is typically that the situation needs to affect the physical property of the organization; others exclude viruses altogether. Some lawyers are filing lawsuits in Louisiana to combat the denial of the claims noting that the virus is on the actual, physical property and as such, the claims should not be denied. In the meantime, a National Claims fund is in the works similar to the 9/11 Claim Fund in 2001. If you have been denied coverage on a Business Interruption Policy Claim then hang tight--- you have at least a year under our LA Statute of Limitations to file suit against your insurance company (but review your insurance policy for any additional time delays). In the meantime, apply for the loans and PPP to help your business stay afloat.
Louisiana WorkForce Commission has issued a letter detailing the exact process of how you can apply for unemployment, what the requirements are, and what you may be entitled to receive. You can access that entire document here.
In a nutshell if you answer yes to the following then you may be entitled to unemployment as it pertains to COVID-19:
1. Your work hours have been reduced because of lack of work due to Coronavirus
2. Your workplace closes temporarily, and you are not being compensated
3. You have been instructed not to go to work, and you are not being paid while at home.
The CARES Act via the Pandemic Unemployment Compensation (FPUC) provision has completely changed who is able to receive unemployment. Previously only those on payroll could apply for it. Not anymore. If you qualify for unemployment in the traditional sense, and would receive at least $1, then you qualify for the additional $600.
Now, 1099 workers (independent contractors) and self-employed individuals can apply for unemployment during this crisis thanks to Pandemic Unemployment Assistance (PUA) . Additionally you used to be limited to a maximum of $247 a week. Now, with the CARES Act, you can received an additional $600 through July 30, 2020. A number of factors determine eligibility for benefits. The LWC reviews each case separately. The maximum number of weeks that unemployment benefits can be paid per claim is 26 weeks in a 12-month period. Wages and vacation pay(received or will receive) MUST be reported when you file your unemployment claim. Sick leave and PTO do not need to be reported.
Specifically, according to Jon Hyman's interpretation, the additional $600 a week is available if the self-employed or 1099 worker has...
become unemployed, partially unemployed, or unable or unavailable to work or telework because of any of the following coronavirus related reasons:
At this time, "fear of contracting COVID-19" does appear to be a valid reason to receive Unemployment but that could change. This section is still undergoing analysis and changes. If you have questions please schedule a time to talk with an Employment lawyer and your CPA.
a. US Equal Employment Opportunity Commission directive on what employers can or can’t ask employees: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm
b. US Small Business Administration COVID 19 Guidelines and Guidance: https://www.sba.gov/page/coronavirus-covid-19-small-business-guidance-loan-resources
c. Small Business Administration Disaster Relief Loan and Other Types of Loans: https://disasterloan.sba.gov/ela/
d. For up to the minute Bill and Government News on COVID-19, follow Ohio Employer Law Blog run by Jon Hyman.
e. Full language of the Coronavirus Preparedness and Response Supplemental Appropriations Act : https://www.congress.gov/116/bills/hr6074/BILLS-116hr6074enr.pdf
f. CDC Guidelines for Businesses: https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fspecific-groups%2Fguidance-business-response.html
g. Local SBA Assistance: https://www.sba.gov/local-assistance
h. SBA Lender Match: https://www.sba.gov/funding-programs/loans/lender-match
i. Louisiana Unemployment Service via LWC: https://www.louisianaworks.net/hire/vosnet/Default.aspx
j. Louisiana WorkForce Commission: http://www.laworks.net/Homepage.asp
k. St. Tammany Corporation: https://www.stpdd.org/
l. St. Tammany Parish Government: http://www.stpgov.org/
m. Louisiana Unemployment Pursuant to COVID-19 Informational Letter: http://www.laworks.net/Downloads/PR/COVID_19_Information.pdf
n. Declaration of Emergency by LA Insurance Commissioner: https://www.ldi.la.gov/docs/default-source/documents/legaldocs/rules/rule36-cur-patientprotections
o. CARES ACT information: https://www.americanactionforum.org/insight/tax-provisions-in-the-coronavirus-aid-relief-and-economic-security-cares-act/
p. Louisiana Department Of Insurance: https://www.ldi.la.gov/consumers/insurance-type/healthinsurance/covid-19-emergency-rules/
q. US Committee on Small Business and Entrepreneurship : https://www.sbc.senate.gov/public/
r. SBDC: https://americassbdc.org/
s. St. Tammany Chamber of Commerce: https://sttammanychamber.org/
In conclusion, the issues surrounding COVID-19 is rapidly changing at an hourly base. Please remember to keep your health and safety, along with those in your family and community, your first priority. Wash your hands, don't go around touching people acting a fool, and try not to panic. We are all in this boat together and we will weather this storm. After all, we are Saints fans.
We never gave up on the Black and Gold so don't give you on yourselves, your businesses, or your communities.
If you want to discuss how to protect your small business or family during this time, please Contact Sheppard Law to schedule a teleconference consultation or phone call.
Now is the time to ensure your business policies, forms, procedures, and protocol for sick leave and other business measures are in line with the new FMLA guidelines.
Is there a topic you want to hear more about? Maybe you want to talk about this article? Leave a comment on our facebook page, call or text Amber at Sheppard Law, or shoot us an email at amber@ambersheppardlaw.com to start a conversation.
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[1] https://www.congress.gov/116/bills/hr6074/BILLS-116hr6074enr.pdf
[2] https://www.ohioemployerlawblog.com/2020/03/coronavirus-update-3-17-2020-house-guts.html
[3] This could be changed by the Senate Bill but the rationale may be that big companies with over 500 employees are able to provide paid sick leave and have policies already in place
[4] https://www.inc.com/suzanne-lucas/whats-in-house-coronavirus-relief-bill-for-small-businesses.html
[5] https://www.sba.gov/disaster-assistance/coronavirus-covid-19
[6] https://www.sba.gov/page/coronavirus-covid-19-small-business-guidance-loan-resources
[7] https://www.sba.gov/page/coronavirus-covid-19-small-business-guidance-loan-resources
[8] https://www.ohioemployerlawblog.com/2020/03/the-six-questions-ive-received-most.html
[9] http://www.laworks.net/Downloads/PR/COVID_19_Information.pdf