DEPARTMENT OF HEALTH ISSUES NEW ORDER DIRECTING
PUBLIC HEALTH SAFETY MEASURES FOR BUSINESSES
PERMITTED TO MAINTAIN IN-PERSON OPERATIONS
On April 15, 2020, the Pennsylvania Department of Health issued a Public Health Order directing safety measures by businesses that are permitted to maintain in-person operations under the Governor’s Closure Order. Compliance will be enforced beginning Sunday, April 19th at 8:00 p.m. The Order directs operating businesses to immediately implement specific social distancing, mitigation and cleaning protocols, which mirror the recommendations issued by the CDC.
Businesses permitted to maintain in-person operations are required to do the following:
-Maintain pre-existing cleaning protocols.
-Routinely clean and disinfect high-touch areas in spaces that are accessible to customers,
tenants or other individuals.
-Establish protocols to execute if the business is exposed to a person who is probable or
confirmed case of COVID-19.
-Stagger start and stop times for employee work shifts.
-Stagger employee break times and provide sufficient space for employees to social distance
while on break.
-Limit the number of persons in common areas.
-Conduct meetings and trainings virtually.
-Provide employees access to regular handwashing, hand sanitizer and disinfectant wipes.
-Provide masks for employees to wear and make it mandatory to wear masks at the work
-Ensure a sufficient number of employees to perform all measures required under the
Order, to control access, maintain order and enforce social distancing of at least 6 feet.
-Prohibit non-essential visitors.
-Ensure that employees are made aware of all required procedures under the Order, orally
or in writing in their native or preferred language as well as English.
Businesses that serve the public within a building or defined area such as grocery stores and other essential retail stores, must do the following:
-Where feasible, conduct business by appointment only. When this is not possible, limit
occupancy to no greater than 50% of the number stated on the certificate of occupancy.
-Alter hours of operation to permit sufficient time to clean and restock.
-Install shields or other barriers at registers and check-out areas.
-Encourage use of online ordering by providing pick-up or delivery.
-Designate a specific time for high risk and elderly person to use the business at least once per
-Require all customers to wear masks on the premise, and deny entry to those not wearing
-In businesses with multiple check out lines, use every other register or fewer. Rotate registers
-Scheduling handwashing breaks for employees at least every hour.
-Where carts and handbaskets are available for customers, assign an employee to wipe down
carts and handbaskets before they are available to customers.
OSHA ISSUES UPDATED GUIDANCE
ON RECORDKEEPING AND ENFORCEMENT
OSHA recently issued two enforcement memos outlining guidance for businesses during the pending COVID-19 outbreak.
Enforcement Guidance for Recording of Cases of COVID-19
Under OSHA’s normal recordkeeping requirements, COVID-19 is a recordable illness which employers must record on their OSHA logs if the occurrence is work-related. In an Enforcement Memo issued on April 10, 2020, OSHA acknowledged that employers may have difficulty determining whether employees who contracted COVID-19 were exposed at work. In light of this difficulty, OSHA is exercising its enforcement discretion as follows:
-Employers of workers in the healthcare industry, emergency response organizations and
correctional institutions must continue to make work-relatedness determinations as usual under
OSHA’s recording standard.
-For all other employers, OSHA will not enforce its recording standard to require employers to make
work-relatedness determinations, except where:
-There is objective evidence that a COVID-19 case may be work-related (for example, a number
of COVID-19 cases developing among a group of employees that work closely together); and
-The evidence was reasonably available to the employer (for example, information provided to or
learned by an employer).
Interim Enforcement Response Plan for COVID-19
On April 13, 2020, OSHA issued an Interim Memorandum to its Area Offices and compliance safety and health officers (CSHOs) providing guidance and instructions for handling COVID-19-related complaints, referrals and severe illness reports. The Memorandum indicates that, in conducting site inspections, CSHO’s should take into account current CDC guidance when evaluating workplace hazards and the adequacy of an employer’s protective measures for workers.
Businesses that have not already done so should immediately review and implement the CDC’s Interim Guidance for Businesses and Employers to Plan and Respond to COVID-19. Many of the CDC’s recommendations have been incorporated into the Department of Health’s Order for Pennsylvania. Failure to comply with these requirements could result in enforcement if OSHA receives an employee complaint.
On Friday, March 27th, the President signed the much anticipated $2 Trillion COVID-19 stimulus package, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) into law. Although the CARES Act is vast in scope, of immediate importance to small business owners, sole proprietors, independent contractors and charitable organizations are the availability of forgivable loans for small businesses, emergency grants and debt relief for businesses with existing SBA loans.
I. SMALL BUSINESS LOANS & LOAN FORGIVENESS - PAYCHECK PROTECTION PROGRAM
$350 Billion has been made available via the Paycheck Protection Program (PPP), a 100% federally guaranteed loan program for employers that maintain their payrolls during the COVID-19 crisis.
Businesses that maintain their payroll during this crisis will be entitled to the forgiveness of that portion of the loan used to cover payroll expense, mortgage interest, rent and utilities. The PPP is retroactive to February 15, 2020 in order to enable employers to bring employees that have already been laid off back onto their payrolls.
Eligible businesses and entities include:
• Businesses with fewer than 500 employees
• Non-Profits, 501(c)(3) and 501(c)(19)
• Sole Proprietors
• Independent Contractors
• Eligible Self Employed Individuals
If you were in business between February 15, 2019 and June 30, 2019 you may borrow up to 2.5 times your average monthly payroll cost during that period up to a maximum of $10 million.
If you were not in business between February 15, 2019 and June 30, 2019 you may borrow up to 2.5 times your average monthly payroll cost between January 1, 2020 and February 29, 2020.
For purposes of this calculation, payroll expense includes employee compensation, payment for vacation and leave, severance benefits, payments for group health care benefits, payment of retirement benefits and payment of state and local taxes assessed on employee compensation.
Use of Loan Proceeds
Loan proceeds may be used to cover payroll expenses as set forth above, costs related to the continuation of group healthcare benefits during periods of paid leave, salaries, commissions and similar compensation, payment of interest on mortgages obligations (not including pre-payment or payment of principal), rent, utilities and interest on debt incurred before February 15, 2020.
PPP loans differ from typical SBA loans in a number of material ways:
• No Personal Guarantees
• No Collateral
• No Requirement to demonstrate that the business cannot obtain credit from other sources
Borrowers will be required to certify that the loan is necessary due to current economic conditions and that the funds will be used to retain employees and cover other approved expenses.
Loans will be available through SBA approved banks, credit unions and other qualified lenders. It is expected that the SBA will issue guidance with respect to the application process shortly.
Loan Forgiveness & Interest
PPP loan recipients may apply for loan forgiveness through their lender. To be eligible for forgiveness, you must be able to provide:
• Documentation verifying the number of employees and pay rates including IRS payroll tax filings, State income and payroll tax filings and unemployment insurance filings;
• Documentation verifying payments on covered mortgage obligations, lease obligations and utilities; and
• Certification that the documentation is true and that the amount to be forgiven was used in accordance with PPP guidelines.
Loan amounts not forgiven will be treated as an ongoing loan with a maximum term of ten years and a maximum interest rate of 4%. Principal and interest will be deferred for six months to one year after disbursement of the loan.
II. EMERGENCY ECONOMIC INJURY GRANTS
These grants provide an emergency advance of up to $10,000 to small business and non-profits impacted by COVID-19. Under this program, funds will be disbursed within three days of the submission of an application for an SBA Economic Injury Disaster Loan (EIDL).
To obtain the advance, apply for EIDL and then request the advance. The advance does not need to be repaid and may be used to cover payroll expenses, sick leave pay, meet increased production costs due to supply chain disruptions or pay other debts including rent and mortgage payments.
EIDLs and emergency grants are available to businesses with fewer than 500 employees, sole proprietors with or without employees, independent contractors, co-ops and employee owned businesses and charitable organizations with exemptions under 501(c), (d) or (e) of the Internal Revenue Code. Applicants must have been in operation as of January 31, 2020.
EIDLs and emergency grants are retroactive to January 31, 2020 and will be available through December 31, 2020. Businesses that apply for an EIDL may also apply for a forgivable PPP loan. If you receive both, you cannot use your EIDL for the same purpose as your Paycheck Protection Program loan.
You may apply for an EIDL directly through the SBA by clicking here.
III. SMALL BUSINESS DEBT RELIEF
The Small Business Debt Relief Program is intended to provide relief for small businesses with (non-disaster) SBA Loans including 7(a) Loans. Under this program, the SBA will cover all loan payments on SBA loans for six months. This relief will also be available to borrowers who take out (non-disaster) SBA Loans for the next six months.
Before you make any decisions with respect to which program or programs are right for your business or if you require assistance with respect to the application process of any component of the CARES Act or other COVID-19 related legislation, please contact a member of our Financial Services, Business or Employment Law practice groups.
On Wednesday, April 1, 2020 at 4:00 p.m., BCGL will host a webinar titled “First Day of FFCRA: Update for Employers.” During the webinar, Angela Sanders, a member of BCGL’s Employment & Labor Law Department, will address new Department of Labor Guidance on the Families First Coronavirus Response Act (FFCRA), employment-related provisions in the recently passed Coronavirus Aid, Response and Economic Security Act (CARES Act), and updated guidance on Governor Wolf’s Order directing non-essential businesses to close. Topics covered will include:
-Determining whether an employer exceeds FFCRA’s 500-employee threshold.
-Calculating paid sick time under FFCRA and substitution of paid leave.
-Employer recordkeeping requirements.
-Impact of business closures, layoffs and furlough on FFCRA sick leave benefits.
-FFCRA opt out for employers of health care providers and emergency responders.
-Small business exemption under FFCRA.
-Tax credits under FFCRA and CARES Act.
-Unemployment compensation benefits created under the CARES Act.
-New guidance on Pennsylvania’s closure order for non-essential businesses.
TO JOIN THE WEBINAR
Join us Wednesday at 4:00 p.m. at the following link: FFCRA Webinar
You can also dial in using your phone at the following toll free number: 1 866 899 4679
The access code for the webinar is 714-440-453
*There is a 250 person attendee limit for the webinar.