Back to Work You Go?

It’s been a long 9 or 10 weeks (depending on when you began sheltering in place), but all indications are that many states (North Carolina included) are trying to slowly and safely lift restrictions so businesses can open to the public and workers can get back to work.

On May 5, 2020, Governor Roy Cooper laid out a modified stay-at-home order to ease COVID-19 restrictions in three phases. Phase 1 went into effect on May 8. Gov. Cooper has said he’s hopeful North Carolina will move into Phase 2 by May 22, 2020.

Now that there’s a plan for reopening in place, how do you go about actually reopening a business that’s been shuttered for the better part of two months? Glad you asked! A big part of getting employees comfortable with the idea of coming back to work is implementing and enforcing COVID-related safety measures.

Who, When, and How

Beyond stocking up on soap, hand sanitizer, and paper towels, the very first thing you should do is consult all applicable state and local stay-at-home orders or return-to-work phased plans before returning to “business as usual.” Gov. Cooper’s plan generally explains who can return to work as well as when and how they can return. Second, develop a plan for heading back or fully staffing your worksite:

  • Evaluate your business demands – do all employees need to return at the same time?
  • Institute employee education and training before bringing workers back.
  • Take into account any landlord mandates if you’re in a multi-tenant building.
  • Consider extending work-from-home requirements where possible.
  • Make sure your policies are ready to address a post-pandemic return to work.
  • Can you reconfigure your workspace layout to accommodate a 6-foot distance between employees?
  • Do your employees have childcare concerns or health issues?
  • Will you take employees’ temperatures or ask that they self-report before coming to work?
  • How will you keep your workplace clean?

More on that point – will you do it yourself? Will you hire a professional? How often will you clean? The CDC has some suggestions about how to clean and disinfect your workplace. If you’re going to do the cleaning yourself, make sure you use the appropriate cleaning products and always follow the directions on product labels.

Finally, don’t forget OSHA, NLRA, and ADA considerations. OSHA regulations may require you to provide your employees with personal protective equipment (“PPE”). The NLRA can be triggered (even for non-union businesses) when employees voice concerns over COVID-19 workplace safety. And the ADA is always something to consider when addressing disabling conditions like COVID-19.

Just last week, the Centers for Disease Control and Prevention (“CDC”) and the White House reportedly shelved plans to release specific interim guidance – 17 pages of it to be exact – for businesses getting ready to reopen. Though not an official mandate, this report offers some clear and concise suggestions for businesses to follow. That document was never posted, but you can read it here: https://www.documentcloud.org/documents/6883734-CDC-Business-Plans.html.

Instead, the CDC posted several flowcharts (The CDC calls them “Decision Tools”) to assist businesses in the return-to-work process. You can find flowcharts for specific industries including general business, bars and restaurants, and childcare providers.

Preparation won’t prevent all problems, but employers who go beyond the basics of handwashing and social distancing are more likely to get employees safely back to work with fewer hiccups.

PPP Particulars – Looking for Forgiveness

By now, nearly everyone has heard of the Paycheck Protection Program (“PPP”). The PPP is part of the larger Coronavirus Aid, Relief, and Economic Security Act or CARES Act. Administered through the Small Business Administration (“SBA”) and the Department of Treasury, the PPP is a financial aid program designed to help small businesses with fewer than 500 employees by providing loans. The loans help cover 8-weeks of payroll costs including benefits and some overhead. You can find the program’s particulars on the SBA’s website or the Treasury Department’s website.

Businesses scrambled to apply for funds when the program first went online last month. No surprise – the $349 billion allocation was gone in 13 days. So, the Feds allocated another $320 billion at the end of April with new rules mandating that smaller businesses and banks get preference. The SBA also tried to tighten up loopholes that were resulting in large publicly traded companies securing millions in PPP loans.

There is some nuance to it, but the PPP works like this: if businesses keep employees on payroll for the 8-weeks following receipt of the loan and use the funds during that 8-week period for payroll, rent, utilities, or mortgage interest, the loan will be forgiven. The SBA just published this handy Loan Forgiveness Application.

Big Questions

Sounds simple enough, but there are a number of caveats that could affect loan forgiveness. Treasury and the SBA have posted FAQs that are slowly being updated but don’t yet cover the big questions businesses are asking.

Can you fire an employee for non-COVID reasons while you have a PPP loan?

Unfortunately, there is no clear guidance at this point. The debate is heavily in support of an employer’s need to retain the right to terminate problem employees even while operating under a PPP loan, but so far neither the Treasury Department nor the SBA has issued any guidance as to whether they will follow a reasonableness standard in those types of situations.

That means that for now, PPP loan forgiveness is only tied to employee count comparisons pre-PPP and post-PPP.

Do businesses have to use all of the funds within just 8 weeks?

Yes, for now at least. Congress is currently considering several amendments to the PPP including one that would extend the time frame within which to use PPP funds from 8 weeks to 16 weeks and another that would increase the 8-week coverage period to 16 weeks. If these new measures are adopted, it would mean larger loans to businesses, which would, in turn, mean more employees being paid for a longer period of time.

Stay tuned.

Still have questions about the legal implications your business is facing? Please send us an email or give us a call. Lincoln Derr can help guide you through this unprecedented time.

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Kathleen (Kathi) Lucchesi

Kathi Lucchesi regularly advises her clients in connection with all types of employment issues both in and out of the workplace. She works with employers in connection with the hiring, discipline and termination of employees, policy drafting and implementation, claims for wrongful discharge and discrimination, unemployment, FMLA and Wage & Hour violations, and EEOC, DOL, ESC, DOJ, and Title IX investigations.

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