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NY Forward Safety Program Guidance

NY Forward

Thanks to our good friend, Michael Futterman, Partner at McCusker, Anselmi, Rosen & Carvelli, P.C.* for the below helpful information for our New York clients and friends!

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Each business or entity, including those that have been designated as essential under Empire State Development’s Essential Business Guidance, must develop a written Safety Plan outlining how its workplace will prevent the spread of COVID-19.

A business may fill out THIS TEMPLATE to fulfill the requirement, or may develop its own Safety Plan. This plan does not need to be submitted to a state agency for approval but must be retained on the premises of the business and must made available to the New York State Department of Health (DOH) or local health or safety authorities in the event of an inspection. Business owners should refer to the State’s industry-specific guidance for more information on how to safely operate. For a list of regions and sectors that are authorized to re-open, as well as detailed guidance for each sector, please visit: www.forward.ny.gov.  If your industry is not included in the posted guidance but your businesses has been operating as essential, please refer to ESD’s Essential Business Guidance and adhere to the guidelines within this Safety Plan.

Please continue to regularly check the New York Forward site for guidance that is applicable to your business or certain parts of your business functions, and consult the state and federal resources listed below.

Here is a helpful list of things to keep in mind during this time:

  • New York businesses must create a COVID-19 health and safety plan for employees and the public. A template includes provisions for developing physical distancing protocols, providing personal protective equipment to employees, creating hygiene and cleaning protocols, implementing communication practices, creating a COVID-19 screening process, adopting contact tracing protocols, and developing a plan for cleaning and disinfection. It’s also a great resource for NJ businesses.
  • Make sure to implement mandatory health screening assessments including a questionnaire and temperature checks.
  • Limit the total number of employees in the office, enforce 6ft social distancing, and modify/reconfigure the office to allow for social distancing.
  • Provide workers with facemasks at no cost and have an adequate supply in case of need for replacement. Train workers on how to use PPE. Limit the sharing of objects (i.e. tools, machinery, etc.)
  • Adhere to hygiene, cleaning and disinfection requirements of the CDC and Department of Health. Provide and maintain hand hygiene stations in the office. Clean and disinfect the offices on a routine basis.
  • Communicate, post signage and train employees on COVID 19 issues.
  • Employees who are sick should stay home or return home if they become ill at work.
  • Don’t forget about your leave obligations under FFCRA, Emergency FMLA, New York State COVID-19 leave, New York Paid Family Leave, New York City or Westchester Earned Sick Time, New Jersey Earned sick Leave,  or short-term disability leave
  • Consider a delayed reopening or a slow opening, allowing employees to continue to obtain increased unemployment benefits.
  • Don’t forget about your wage and hour obligations i.e. when you reduce salary/hours, pay wages, furlough employees, have employees work from home, impose temperature checks, pre-shift sanitizing, or daily check-in procedures.

*Attorney Advertising: The foregoing is a summary of the laws discussed above for the purpose of providing a general overview of these laws. These materials are not meant, nor should they be construed, to provide information that is specific to any law(s). The above is not legal advice and you should consult with counsel concerning the applicability of any law to your particular situation.



Maintain Eligibility for PPP Forgiveness

Did you get the PPP loan and now you are concerned about making sure the loan is fully forgiven?  Check out this great video from colleague, Chelsea Whalley of J Donovan Financial.

U.S. small businesses that were able to secure financial relief through the SBA’s Payroll Protection Program should consider the following to help their cause for qualification of forgiveness of the full principal amount of the loan and any accrued interest:
• Use the loan funds only toward: payroll, including salary, wages, tips and covered benefits for employees; rent or mortgage interest; and utilities.
• Ensure at least 75% of loan funds are allocated for payroll costs.
• Maintain the level of full-time employee (FTE) headcount without reduction during the eight-week covered period.
• Maintain the salaries and wages of your workforce during the eight-week covered period. Any reduction of more than 25% for any employee who makes less than $100,000 will reduce the amount forgiven.
• Preserve proper documentation to support the amount of proceeds used for payroll costs, rent or mortgage, and utilities.
• Prior to June 30, 2020, restore all full-time employment and salary levels back from any reductions made between Feb. 15, 2020, and April 26, 2020. As mentioned above, preserving proper documentation is important, as this information will be used by your lender when evaluating whether an employer qualifies for PPP loan forgiveness.
For more information regarding loan forgiveness eligibility, go to the following link: https://www.sba.gov/funding-programs/…
Video on how to APPLY for Forgiveness will be released tomorrow!


Working from Home Guide

Most people are working from home these days due to the Covid-19 Pandemic. In order to make work more efficient it’s important to follow these steps in order to be most productive.

1. Follow your standard routine.
2. Set up a special workspace.
3. Use video calls to keep in touch.
4. Use task management to keep track of progress.
5. Do not stay in the same position for too long.
6. Make sure to exercise everyday.
7. Find what helps you concentrate.
8. Look after your mental health.



Section 125 Considerations for Mid-Year Enrollments

Looking for an easy digestible explanation what considerations to make for Mid-Year Enrollments under a Section 125 plan? Check out this great video from colleague, Chelsea Whalley of J Donovan Financial.

 

Special Mid-Year Enrollment Window

1. Get Approval from Health Insurer in writing. If Self-funded, approval comes from stop-loss carrier.
2. Decide if these special deductions will be pre-tax or post-tax. As of right now, the IRS has issued no guidance for pre-tax elections due to COVID-19.

Section 125 Mid Year Election Change Events:
1. Change in employment status if the change impacts eligibility for health plan
2. A significant change in health plan coverage
3. HIPAA Special Enrollment (marriage, birth, etc)

To avoid any unintended liability, employers should check with your CPA and/or attorney to decide what is best for your business.



5 things employers need to know about the CARES Act

The Coronavirus Aid, Relief, and Economic Security (CARES) Act was signed by President Trump on March 27 after passing both the House and Senate earlier in the week. This $2.2 trillion stimulus package is wide-reaching and intended to provide economic relief for the individuals and businesses hit hardest by the coronavirus pandemic and the resulting financial downturn.

Within the 800-page bill, there are several important provisions affecting employers, including requirements for coverage of COVID-19 testing and treatments. There are also provisions that extend beyond the coronavirus into other areas of employer benefit designs with potential impact to group health plans beyond the current public health emergency.

1. Coverage of COVID-19 Testing and Treatment
Group health plans must cover COVID-19 screening and the related office visit without cost sharing, which includes COVID-19 tests that may not have been approved by the US Food and Drug Administration. Group health plans must cover, without cost-sharing, “qualifying coronavirus preventive services,” which are items, services and immunizations intended to prevent or mitigate COVID-19 that receive a rating of “A” or “B” from the US Preventive Services Task Force (USPSTF) or a recommendation from the CDC Advisory Committee on Immunization Practices (ACIP) with respect to the individual involved. This requirement will apply 15 business days after the recommendation is made by the USPSTF or ACIP.

2. Payment for COVID-19 Testing and Treatment
Group health plans providing COVID-19 testing must reimburse the provider in the amount of the negotiated rate, if in effect before the public health emergency began, or if not, an amount that equals the cash price as listed by the provider on a public internet website, or a negotiated rate with the provider for less than the cash price. This provision is effective upon enactment of the CARES Act (March 27, 2020) and is not retroactive.

3. Telehealth
The Act allows a high-deductible health plan with a health savings account (HSA) to cover telehealth services prior to a patient reaching the deductible, without regard to whether the services provided via telehealth relate to COVID-19. This provision is effective upon enactment and lasts through plan years beginning in 2021.

4. Over-the-counter Medical Products without a Prescription
The Act allows for account-based plans, including HSAs, flexible spending accounts and health reimbursement arrangements, to reimburse members for the purchase of over-the-counter medical products without a prescription from a physician, regardless whether the product is related to treatment of COVID-19. This reverses a restriction imposed by the Affordable Care Act. These changes are effective for amounts paid/expenses incurred after 2019 and seem to apply indefinitely.

5. Expansion of DOL Authority to Postpone Certain Deadlines
The Act amends ERISA to provide DOL the ability to postpone certain ERISA filing deadlines and provide other relief for a period of up to one year in the case of a public health emergency.

A few things were also noticeably left out of the CARES Act, including two issues many employer groups have been monitoring closely. First, besides the HSA over-the-counter provision described above, there is nothing in this legislation to address prescription drug pricing. No portions of HR 3 or any other existing drug pricing legislation were included in the CARES Act. Second, there is nothing in the package to address the larger issue of surprise billing. Like the drug pricing issue, no language from existing legislation addressing surprise billing was included in the CARES Act.

The good news is that the Act seems to have bought more time on these issues since the healthcare “extender” deadline set to expire May 22 has been changed to November via this bill. The bad news is that means drug pricing and/or surprise billing legislation will need to be addressed in a lame duck session of Congress where it’s difficult, though not impossible, to pass major bipartisan legislation.

Employer groups will continue monitoring these issues as we work through coronavirus-related legislation implementation, and seek opportunities to be included in discussions, on both COVID-19 and other health policy issues, to ensure employer perspectives continue to be heard.



Stay Safe – Understanding the Symptoms of Covid-19

Just some quick information on symptoms of Covid-19 and what to do if you think you may be infected.



Federal Loan Forgiveness CARES Act

Curious how the forgivable loans work under the CARES Act?  Check out this great video from colleague, Chelsea Whalley of J Donovan Financial.

Coronavirus Aid and Relief Economic Security Act
Emergency grants: The bill provides $10 billion for grants of up to $10,000 to provide emergency funds for small businesses to cover immediate operating costs.
The application process ends on June 30th (“The Covered Period”)
Forgivable loans: There is $350 billion allocated for the Small Business Administration to provide loans of up to $10 million per business. Any portion of that loan used to maintain payroll, keep workers on the books or pay for rent, mortgage and existing debt could be forgiven, provided workers stay employed through the end of June.
Relief for existing loans: There is $17 billion to cover six months of payments for small businesses already using SBA loans.


CARES Act FAQs from Congress Woman Carolyn B. Maloney
Carolyn_Maloney_official_photo

Carolyn B. Maloney

On Monday, Inspector General Michael Horowitz took a strong first step toward implementing the oversight requirements included in the Coronavirus Aid, Relief, and Economic Security (CARES) Act by quickly appointing a Chair for the Pandemic Response Accountability Committee (PRAC). This committee was created by one of the provisions Carolyn B. Maloney offered to the CARES Act as Chairwoman of the Committee on Oversight and Reform.

Maloney’s office created this FAQ sheet for small businesses and nonprofits to help you navigate some of these new resources.



Emergency Paid Sick Leave Explained

Looking for an easy digestible explanation of how the Emergency Paid Sick Leave works for companies under 500 employees?  Check out this great video from colleague, Chelsea Whalley of J Donovan Financial.

– Effective April 2nd 2020 for groups UNDER 500 EMPLOYEES

*A business closure does NOT warrant Paid Sick Leave!*

– All employees are eligible, regardless of tenure
– Differences between Full Time & Part Time Employees
– Full Time: 80 hours of fully compensated time off
– Part Time: Entitled to the Average number of hours worked over 2 weeks



Covid-19: How the CARES Act and Other Recent Legislation Impact Your Business

Federal CARES Act for Nonprofits - Pandemic Stimulus ...

As we know there is so much information out there right now revolving around Covid-10.  If you are looking for how the CARES Act and other legislation will impact your business, please read below for a helpful article we received from Olivera Medenica, Partner of Dunnington, Bartholow & Miller LLP.

Within the past few days—and as recently as 72 hours ago—the United States government, the State of New York and the City of New York adopted legislation intended to provide economic relief to businesses and individuals impacted by the COVID-19 emergency. The following is a review of various loans, loan forgiveness provisions, and other benefits created by these recent acts.*

U.S. Federal Laws

On March 27, 2020, an approximately $2 trillion coronavirus response bill, the Coronavirus Aid Relief, and Economic Security (“CARES”) Act (H.R. 748), was signed into law.

The CARES Act:

  1. Provides Forgivable Loans to Small Businesses

Under the CARES Act’s Paycheck Protection Program, the Small Business Administration (the “SBA”) will back loans of up to $10 million from banks to businesses with not more than 500 employees for those businesses to pay employee salaries, paid sick or medical leave, health insurance premiums, and basic immediate operating expenses like mortgage, rent, and utility payments (“Covered Expenses”).

Borrower Eligibility

There are very few borrower requirements to obtain a loan under the CARES Act. Those requirements include a good-faith certification that the borrower (a) needs the loan to continue operations during the COVID-19 pandemic, (b) will use the funds to retain workers and maintain payroll, or pay the other immediate operating costs, (c) does not have any other pending application under this program for the same purpose, and (d) has not received duplicative amounts under this program from February 15, 2020 until December 31, 2020.

Eligible businesses include private and public non-profits, sole proprietorships, individuals who are self-employed, and businesses with not more than 500 employees (including full-time and part-time employees) per location. For businesses in the hospitality and dining industries, there is a special eligibility rule: if the business has more than one physical location, it employs not more than 500 employees per physical location, and it is assigned to the “Accommodation and Food services” sector (Sector 72) of the North American Industry Classification System, that business is eligible for a loan.

Notably, the CARES Act includes a “Sense of the Senate” that the SBA should issue guidance to lenders to ensure that the processing and disbursements of loans prioritizes small businesses in underserved and rural markets, small businesses owned by individuals who are socially or economically disadvantaged, women owned businesses, and businesses that have been in operation for less than two years.

The Loan Amount

The maximum loan amount (the “Loan Amount”) is the lesser of (a) 2.5 multiplied by the average total monthly payroll costs incurred from the previous one-year period (plus the outstanding amount of any loan that the business received under the SBA’s Disaster Loan Program between January 31, 2020 and the date on which that loan may have been refinanced as part of the Paycheck Protection Program (“Prior SBA Loan Amount”)), or (b) for businesses that were not in existence from February 15, 2019 to June 30, 2019, 2.5 multiplied by the average total monthly payroll costs incurred from January 1, 2020 to February 29, 2020 (plus any Prior SBA Loan Amount), or (c) $10 million. Payroll costs include compensation to independent contractors (including compensation based on commission) up to $100,000 in one year.

Loan Forgiveness

A borrower is entitled to loan forgiveness in an amount equal to Covered Expenses paid during the 8-week period following loan origination (the “Loan Forgiveness Covered Period”). Forgiveness is subject to reduction based on a reduction of the business’s employees, and wages and salaries as explained below (the “Forgiveness Amount”).

To calculate the Forgiveness Amount, the Act instructs to multiply the total of the Covered Expenses incurred during the Loan Forgiveness Covered Period by the result of dividing the average number of full-time equivalent employees (“FTEEs”) that the business employed per month during the 8-week Loan Forgiveness Covered Period, by (at the election of the borrower) either (a) the average number of FTEEs that the business employed per month from February 15, 2019 to June 30, 2019, or (b) the average number of FTEEs that the businesses employed per month from January 1, 2020 to February 29, 2020. The Act also provides that employees whom the business laid off between February 15, 2020 and April 26, 2020, but rehired by June 30, 2020 will, in effect, be treated as employed individuals during the 8-week Loan Forgiveness Covered Period so as not to reduce the Forgiveness Amount.

The Forgiveness Amount will be reduced by the amount of employee salary reduction in excess of 25% of that employee’s total salary during the most recent full quarter during which the employee was employed before the Loan Forgiveness Covered Period. Thus, if the business did not reduce employee salary or wages during the Loan Forgiveness Covered Period by more than 25%, the Forgiveness Amount will not be reduced in this manner.

It is important for businesses to document the use of its funds received under the program pursuant to the documentation provisions in the CARES Act because businesses that to do not properly document their use may be ineligible for loan forgiveness.

Application Process

Businesses can apply for the loans through private sector lenders authorized by the SBA who can use their own paperwork to process the loans. It is estimated that it will take about two weeks for the SBA to approve each loan, and to guarantee it against default. Lenders will not distribute the loan money to businesses until the SBA has assured it that each loan is fully backed, so it may take at least two weeks from applying for the loan for businesses to start receiving the loan money.

Business owners are not required to provide personal guarantees or use their assets as collateral for the loan. There are no fees associated with obtaining the loan, and interest rates are capped at 4%.

  1. Provides Emergency EIDL Grants

The CARES Act provides, in certain circumstances, emergency Economic Injury Disaster Loan (EIDL) grants of up to $10,000 from the SBA to small businesses for those businesses to use the funds for, among other things, providing paid sick leave for employees, maintaining payroll, meeting increased costs due to an interrupted supply chain, and making rent or mortgage payments. It is currently uncertain as to what impact, if any, obtaining an emergency grant under this provision may have on applications made under the Paycheck Protection Program.

  1. Expands Unemployment Benefits

Under the CARES Act’s temporary Pandemic Unemployment Assistance Program, workers not usually eligible for state and federal unemployment benefits—such as independent contractors, and people who are self-employed or who have a limited work history—may receive unemployment benefits if they are unable to work because of the COVID-19 pandemic. Anyone who self-certifies that they are able and available to work but is unemployed or partially unemployed because of the COVID-19 pandemic is considered a “covered individual.” If workers have the ability to work remotely with pay, they are not eligible for these benefits.

Under the CARES Act, unemployment benefits are available for the weeks of unemployment, partial unemployment, or inability to work caused by COVID-19 beginning on or after January 27, 2020 (the date on which the Secretary of Health declared COVID-19 a public health emergency) and ending on or before December 31, 2020, and shall continue to be available as long as the individual’s unemployment, partial unemployment, or inability to work continues, for up to 39 weeks. Individuals will receive the amount that would be calculated under state law plus $600 each week for up to four months, as opposed to the usual three months. Additionally, the standard one-week waiting period is waived, so laid off employees immediately qualify for benefits.

  1. Provides Refundable Payroll Tax Credit to Employers

For businesses whose operations were fully or partially suspended by a government entity due to the COVID-19 pandemic or had a decrease in gross receipts of 50% or more compared to the same quarter last year, the CARES Act provides for a refundable payroll tax credit equal to 50% of the first $10,000 in wages per employee. This payroll tax credit can be claimed for employees who are retained but who do not work during the COVID-19 pandemic. Businesses with 100 or fewer full-time employees can claim the payroll tax credit for all employees’ wages—whether the employer is open for business or has been ordered to close. Businesses with more than 100 full-time employees can claim the credit for employees who are retained but who do not work due to the COVID-19 pandemic.

New York City and New York State Laws

Employers that employ at least two employees in New York State seeking to avoid layoffs should also know about the Shared Work Program, which provides partial unemployment benefits to employees who are working reduced hours. To participate, employers must design a “Shared Work Plan” and apply to participate here at least one week before the proposed effective date. After an employer’s plan is approved, participating employees must file unemployment insurance Shared Work claims. Eligible employees include those who qualify to receive unemployment insurance benefits in New York state and who normally work no more than 40 hours per week. Covered employees may receive up to 26 weeks of regular Shared Work benefits in one year. Currently, it is unclear how employers would take advantage of the New York State Shared Work Program and the Federal Paycheck Protection Program simultaneously. One potential scenario is that the reduction in salary and wages under the Shared Work Program may reduce the amount of the loan forgiveness under the Paycheck Protection Program.

Under New York City’s Employee Retention Grant Program, small business in New York City (including nonprofits) that have been in operation for at least six months, with one to four employees that can demonstrate at least a 25% decrease in revenue as a result of the COVID-19 pandemic may be eligible to receive a grant covering up to 40% of their payroll for two months, for a maximum of up to $27,000. This program was implemented to help New York City businesses retain employees. More information can be found here.

Under New York City’s Small Business Continuity Loan Program, businesses in New York City with fewer than 100 employees that can demonstrate at least a 25% decrease in revenue as a result of the COVID-19 pandemic, and that it has the ability to repay the loan, may be eligible for an interest-free loan up of up to $75,000 to help retain employees and continue business operations. More information can be found here.

*Evolving Regulation and Implementation Procedures

The foregoing is intended as a summary of the various measures enacted within the past few days. The legislation examined above was understandably passed under exigent circumstances. Most, if not all, of the above will be subject to rule-making and interpretation. Therefore, implementation structures, procedures and subsequent regulations may vary from the analysis presented above.

For questions about the foregoing and further developments, please contact us. We also have assembled resources and alerts for COVID-19-related legal issues and considerations on our website under “News – COVID-19 Guidance.” Please check there for useful information and updates as events evolve.

*Required Disclaimer: This alert is provided for informational purposes and does not constitute, and should not be considered legal advice. Specific facts and circumstances will differ. Neither the transmission nor the receipt of this information shall create an attorney-client relationship between the transmitter and the recipient. You should not take, or refrain from taking, any action based upon information contained in this alert without consulting legal counsel of your own choosing. Under applicable professional rules of conduct, this informational publication may be considered attorney advertising.

Dunnington, Bartholow & Miller LLP is a full-service law firm providing corporate, employment, litigation, arbitration, mediation, intellectual property, real estate, immigration, trusts and estates planning services for national and international clientele. Find out more at www.dunnington.com.