A Lawyer’s Guide to Strategic Thinking for Businesses During the Pandemic

A Lawyer’s Guide to Strategic Thinking for Businesses During the Pandemic

 

Fringe Benefit Plans, Inc. has been committed to Central Florida since 1969

• We are built on our shared principles of culture, service, advocacy, education and partnership.
• We are committed to serving our community employers and leaders with meaningful education and communication.
• We are a comprehensive financial services firm specializing in employee benefit programs and executive benefits. Our scope of services is focused on consultation, financial strategy, compliance, technology and wellness.
• We help employers recruit, retain, and reward good employees.
• We strive to make insurance a positive and professional experience.
• We work for our clients. Our team consists of knowledgeable professionals working together to provide the best strategies to achieve success.
• We possess the tools to analyze each employers unique situation and offer solutions that complement their short-term and long-term goals and objectives.

Hosted by:

Doug Foreman & Tina Craft

Legal Update Experience

• There will be an opportunity to share questions via the Chat Option
• We will share the presentation after the event via email
• Introducing: Nathan McCoy

Wilson McCoy, P.A. is an employment law firm which represents employers, employees, and unions in workplace matters and related litigation. We handle “work matters” because your work matters.

• Discrimination Matters
• Contact Disputes
• Whistleblower Retaliation
• Wage and Hour Issues
• Non-Competition Disputes
• Severance Negotiation
• Business Advice & Counseling
• Start-Up & Business Formation
• Policy & Handbook Drafting
• Mediations

Tel: 407-803-5400 E-mail: info@wilsonmccoylaw.com | www.wilsonmccoylaw.com

Few attorneys can say they have done it all in their area of practice Nathan A. McCoy can. From defending Fortune 500 companies at one of the nation’s largest and most distinguished management defense firms to practicing with one of Florida’s most well-known “Plaintiffs Firms,” Nathan has gained invaluable experience from every angle of the courtroom. Because he represents both plaintiffs and defendants, Nathan has developed a breadth of legal and business knowledge and a true balanced perspective on legal matters. His diverse experience has given him keen insight into the minds of corporations (both large and small), individuals, and their counsel as they position themselves in legal battles and negotiations.

Nathan has parlayed such experience into co-founding and serving as Managing Shareholder of Wilson McCoy, P.A., a law firm dedicated to coaching, counseling, and representing businesses and individuals in employment and business-related matters. Since its inception in 2012, Wilson McCoy, P.A. has been named by and featured as a “Best Law Firm” by U.S. News & World Report from 2013 – the present. As a true “lawpreneur,” Nathan enjoys working with entrepreneurs, startups, and small businesses to ensure complying with the law does not interfere with the creativity needed to succeed in today’s legalistic business environment. He also vigorously advocates the rights of individuals and whistleblowers who have been subjected to discrimination and retaliation in the workplace.

Nathan graduated with a Bachelor of Science degree in General Business Administration, magna cum laude, from the University of Central Florida (“UCF”) and obtained his law degree from the University of Tennessee, where he served as Managing Editor of Transactions: The Tennessee Journal of Business Law and was a member of the Board of Editors for the Tennessee Law Review.

Nathan has also been publicly heralded as a “Best Lawyer” in Florida by U.S. News & World Report, a “Best Attorney” in Orlando, and is a contributing author to the best-selling book, “Get in the Game,” a publication offering perspective to aspiring entrepreneurs. Nathan has also served as a guest professor on contracts for UCF, and he often lectures at legal seminars. He is married to his wife of 19 years, a proud father of two, and an endurance obstacle race enthusiast.

Contact Info:
(407) 803-5400
www.wilsonmccoylaw.com
nmccoy@wilsonmccoylaw.com

Coronavirus/COVID-19

• Coronavirus/COVID-19 is impacting nearly every business across the nation .
• Presenting challenges to all employers.
• From office closures, newly created family responsibilities, remote work arrangements, and almost hourly changes to local and federal laws, the COVID-19 outbreak has brought on a difficult new reality for us all.

Unprecedented Changes within the Last 30 Days

We’ve all been told to:

• Wash our hands
• Avoid travel
• Leave work if sick
• Work from home
• Self-quarantine
• Keep social distance
• Close non-essential businesses

Significant New Laws Have Been Passed which Impact most Small to Mid-Size Businesses

• The Families First Coronavirus Response Act (“FFCRA”)
• The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”)
• What do these laws mean for businesses? Did they create as many questions as they did answers?
• Can businesses comply with the laws, keep employees employed, and their doors open?
• A closer look at the laws may help identify strategic opportunities.

Families First Coronavirus Response Act (“FFCRA”)

• Emergency Family and Medical Leave Expansion Act
• The first section of the FFCRA that applies to businesses pertains to an expansion of the U.S. Family and Medical Leave Act (FMLA).
• Until the end of 2020, employers with fewer than 500 employees will now be required to provide employees with up to 10 weeks of paid FMLA.
• The first two weeks of the normal 12-week FMLA leave may be provided unpaid, but an employee may be able to be paid through the paid sick leave provision or other paid leave the employee has available.
• Paid FMLA will be available to any employee who has been employed for at least 30 days and must care for children whose schools have closed due to the coronavirus health emergency.
• The eligible employee must not be able work (or work remotely) while caring for children. ►First, employers are required to offer employees unpaid leave (or accrued paid leave or paid vacation) for 10 days. After this, paid leave kicks in and employees are compensated at two- thirds of their regular rate. Paid leave cannot exceed $200 per day and $10,000 total for the full 10 weeks.
• Businesses with fewer than 50 employees may be exempt from all of these requirements if they can prove that providing the leave would risk them going out of business.

Families First Coronavirus Response Act (“FFCRA”)

1. Emergency Paid Sick Leave Act

2. The second leave provision of the FFCRA that affects businesses is emergency paid sick leave. Until the end of 2020, employers with fewer than 500 employees must offer paid sick leave to those who meet criteria associated with the public health emergency.

3. Businesses with fewer than 50 employees may be exempt from all of these provisions if providing the leave could “jeopardize the viability” of your business.

4. The new FFCRA paid sick leave is available to any employee if they are unable to work (in-house or remotely) because they are:
Subject to federal, state, or local quarantine or isolation related to COVID-19;

• Have been advised by their doctor to self-quarantine due to COVID-19;
• Experiencing symptoms of COVID-19 and seeking a medical diagnosis;
• Caring for a family member subject to a quarantine order or self-quarantine;
• Caring for children if schools are closed or their caregiver is unavailable because of the COVID-19 health emergency; or Experiencing substantially similar conditions as specified by the Secretary of Health and Human Services.
• Full-time employees can receive up to 80 hours of paid sick leave, while part-time employees can receive pay based on the number of hours they would work during an average two-week period.
• If an employee qualifies based on the first three reasons above, they receive sick leave at their regular rate with pay capped at $511 per day and $5,110 total.
• If an employee qualifies based on the second three reasons above, they receive sick leave at two-thirds their regular rate of pay with amounts not exceeding $200 per day and $2,000 total.

The CARES Act

1. With a massive $2 trillion allocated for businesses, individuals, federal agencies, and state and local government, the CARES Act has been designed to distribute capital quickly and broadly.

2. There are several provisions that impact small businesses.

• Paycheck Protection Program,
• Loan Forgiveness,
• Emergency EIDC Grants, and
• Enhancements of (Unemployment) Benefits and Covered Individuals.

Paycheck Protection Program (Section 1102)

1. The basic purpose is to incentivize small businesses to not lay off workers and to rehire laid-off workers that lost jobs due to COVID-19 disruptions.

2. Loans are available to small businesses with fewer than 500 employees.

3. Small businesses are eligible to receive loans up to a maximum loan amount equal to the lesser of

     The sum of:

• 2.5 x the average total monthly payments by the applicant for payroll costs incurred during the one-year period prior to the date on which the loan is made plus
• Any outstanding amount of a loan made during the period beginning on January 31, 2020
• Or $10,000,000

4. Loan proceeds must be used for allowable purposes including

• Payroll costs
• Costs related to the continuation of group health care benefits during period of paid sick, medical or family leave, and insurance premiums
• Employee salaries, commissions, or similar compensation
• Payments of interest on any mortgage obligation
• Rent
• Utilities
• Interest on any other debt obligations incurred before the covered period

5. The eligible recipient is required to make a good faith certification that

• Due to the uncertainty of the current economic conditions it is necessary to obtain the loan to support ongoing operations of the business
• The funds will be used to retain workers and maintain payroll or make mortgage, lease or utility payments, and
• There isn’t a duplicative application for the same purposes submitted by the business

Loan Forgiveness (Section 1106)

• Borrowers are eligible for loan forgiveness for 8 weeks commencing from origination date of the loan of payroll costs and rent payments, utility payments, or mortgage interest payments.
• Eligible payroll costs do not include annual compensation greater than $100,000 for individual employees.
• The amount of loan forgiveness may be reduced if the employer reduces the number of employees as compared to the prior year, or if the employer reduces the pay of any employee by more than 25% as of the last calendar quarter.
• Employers who re-hire workers previously laid off as a result of the COVID-19 crisis will not be penalized for having a reduced payroll for the beginning of the relevant period.
• Forgiveness may also include additional wages paid to tipped workers.

Express Loans and Emergency Economic Injury Disaster Loans Grants (Section 1110)

• Increases the maximum loan amount for an Express Loan is increased from $350,000 to $1 million.
• Expands eligibility for borrowers applying for an Emergency Economic Injury Disaster Loan (EIDL) grant.
• Waives requirements that (1) the borrower provide a personal guarantee for loans up to $200,000, (2) that the eligible business be in operation for one year prior to the disaster, and (3) that the borrower be unable to obtain credit elsewhere.
•  Most significantly for borrowers seeking an immediate influx of funds, borrowers may receive a $10,000 emergency advance within three days after applying for an EIDL grant.
• If the application is denied, the applicant is not required to repay the $10,000 advance.
• Emergency advance funds can be used for payroll costs, increased material costs, rent or mortgage payments, or for repaying obligations that cannot be met due to revenue losses.
• If a borrower received a loan under 7(b)(2) after January 31, 2020, the borrower may refinance the outstanding balance as part of a loan under the Program.
• Borrowers may apply for an EIDL grant in addition to a loan under the Paycheck Protection Program, provided the loans are not used for the same purpose.

Enhancement of (Unemployment) Benefits and Covered Individuals (Sections 2101-2116)

1. Extends unemployment insurance by 13 weeks and provides a four-month enhancement of benefits

2. Makes unemployment compensation available for those not traditionally eligible for regular unemployment benefits, including those with limited work history or those who have exhausted their state unemployment compensation benefits

3. A “covered individual” eligible for benefits includes anyone who provides self-certification that he or she is able and available to work, but is unemployed or partially unemployed due to any of the following:

• Has been diagnosed with COVID-19 or is experiencing symptoms and seeking a medical diagnosis
• A member of the individual’s household has been diagnosed with COVID-19
• The individual is providing care for a family member or household member who has been diagnosed with COVID-19
• The individual is the primary caregiver for a child or other person in the household who is unable to attend school or another facility as a direct result of COVID-19
• The individual is unable to reach the place of employment because of a quarantine imposed as a direct result of COVID-19
• The individual is unable to work because a health care provider has advised the individual to self-quarantine due to COVID-19 concerns
• The individual was scheduled to commence employment and does not have a job or is unable to reach the job as a direct result of COVID-19
• The individual has become the breadwinner or major support for a household because the head of household has died as a direct result of COVID-19
• The individual’s place of employment is closed as a direct result of COVID-19
• The individual has quit their job as a direct result of COVID-19

Enhancement of (Unemployment) Benefits and Covered Individuals (Sections 2101-2116)

• Individuals are not eligible if they are working remotely or are receiving paid sick leave or paid family leave.
• State unemployment insurance providers will determine eligibility.
• Provides an additional $600 per week payment to each recipient of unemployment insurance for up to four months (expires on July 31, 2020)
• The total amount of benefits will be equal to the amount determined under state law, plus an additional amount of $600 per worker per week
• Provides an additional 13 weeks of unemployment benefits to those who remain unemployed after state unemployment benefits are exhausted (expires on December 31, 2020)
• Receipt of assistance under the unemployment provisions shall not exceed 39 weeks, unless otherwise extended
• Provides funding to pay the cost of the first week of unemployment benefits for states that choose to pay recipients as soon as they become unemployed instead of waiting one week before the individual is eligible to receive benefits (expires on December 31, 2020)

New Laws Create More Legal Questions

Each new law has an impact on existing laws and employer obligations.

These laws have left your business with many questions such as:

• Do employees have incentive to quit?
• Do I have to follow CDC guidance relating to COVID-19?
• Can I take an employee’s temperature?
• When is a COVID-19 case deemed work-related for purposes of OSHA?
• Should I require my employees to work remotely?
• Can I send employees home from work if they are showing symptoms?
• How many hours of emergency paid sick leave do I need to provide?
• At what rate must I pay an employee taking emergency paid sick leave?
• Which SBA loan should I take out?
• Should I reduce hours, furlough, or lay-off an employee?
• Do I have to accommodate pregnant employees or those who are unable to work?

Strategic Assessment

• Can you employees work remotely?
• How long can your business stay open with or without SBA loans?
• Would you benefit from a restructure?
• Can my business operate differently?
• Can I partner with customers/clients to retain business?
• Where do I get assistance from?

Restructuring – It’s not all or nothing!

Furlough – considered to be an alternative to layoff. When an employer furloughs its employees, it requires them to work fewer hours or to take a certain amount of unpaid time off. For example, an employer may furlough its nonexempt employees one day a week for the remainder of the year and pay them for only 32 hours instead of their normal 40 hours each week. Another method of furlough is to require all employees to take a week or two of unpaid leave sometime during the year.

Layoff – temporary separation from payroll. An employee is laid off because there is not enough work for him or her to perform. The employer, however, believes that this condition will change and intends to recall the person when work again becomes available. Employees are typically able to collect unemployment benefits while on an unpaid layoff, and frequently an employer will allow employees to maintain benefit coverage for a defined period of time as an incentive to remain available for recall.

Reduction in Force (“RIF”) – occurs when a position is eliminated without the intention of replacing it and involves a permanent cut in headcount. A layoff may turn into a RIF or the employer may choose to immediately reduce their workforce. A RIF can be accomplished by terminating employees or by means of attrition.

Go RED for Businesses

• REDUE (payments or pricing)
• EXTEND (terms)
• DEFER (payments)

Partner with Professionals

• Unfortunately, due to the financial impact on their businesses, many employers are afraid to obtain legal advice and are simply relying on unreliable FAQs alone to obtain answers.
• Price should never be a deterrent to quality legal advice, especially in a time of critical need. ►To help serve our community during the pandemic, Wilson McCoy has created its 3-month CRITICAL NEEDS ADVICE PLAN (“CNAP”).
• Through the CNAP, employers of all sizes are provided with access to affordable legal advice. ►The goal of the CNAP is to help employers keep their doors open, keep their people employed, and help them strategically comply with each law which may impact their businesses.
• During the duration of the CNAP, employers can ask our attorneys unlimited questions each month for less than the price most law firms charge per hour.
• There are no long-term commitments or hidden fees.
• Employers get practical legal advice at a time when they need it most. And, when more than just advice is needed, CNAP clients will receive additional discounts for all other hourly and flat-fee services.

Questions?

Send via chat at bottom of screen and Doug Foreman will serve as a moderator.

Thank You!

We will share the presentation after the event via email.

Additional questions?

   For legal inquiries:

       Visit: www.wilsonmccoylaw.com/covid19

       Email: info@wilsonmccoylaw.com

       For employee benefits inquiries:

       Email: tcraft@FBPlans.com

We are here to serve you every step of.

Be Well!