Our federal, state and county governments continue to release additional information regarding a myriad of issues related to COVID-19. Fortunately, we are beginning to see the proverbial “light at the end of the tunnel," as available guidance finally focuses on reopening businesses rather than shutting them down. Nevertheless, employers must remain vigilant on health and safety practices, as well as maintaining ongoing compliance with federal, state and local laws.
We have listed below a variety of updated resources and information about California’s expanded Stage 2 reopening procedures, county variances to the state’s Resilience Roadmap, newly-issued “reopening” guidance from Centers for Disease Control and Prevention, updates to the Department of Labor’s Frequently Asked Questions on the FFCRA, and access to new CARES Act guidance from the SBA and Treasury on PPP loans and loan forgiveness.
California is now in "Expanded Stage 2" of the Resilience Roadmap. Stage 2 addresses the reopening of "low risk" businesses. The expanded reopening guidance now includes retail, related logistics and manufacturing, office workplaces, limited personal services, outdoor museums, child care, and essential businesses, all of whom can now open with modifications. The state has issued guidance to help these workplaces reopen safely; this guidance can be found here.
On May 8, 2020, Governor Newsom outlined a process by which individual counties meeting specific readiness criteria could move more quickly through Stage 2. The list of counties that have filed the necessary Attestation Form with the State, indicating that they have met the readiness criteria, can be found here. Once approved by the state, the individual counties may then amend their local orders and move to a more expanded Stage 2 reopening.
Local county orders are available on the applicable county website, or find the state's summary of the various county orders here.
The Centers for Disease Control and Prevention (“CDC”) recently updated its guidance regarding considerations for reopening during the COVID-19 pandemic; this guidance can be found here. Specific guidance includes the following (among others):
The CDC continually releases new information regarding COVID-19. To access the CDC website, click here. To see "What's New" from the CDC, click here. You can also sign up to receive CDC email updates on the “What’s New” page.
In addition to CDC guidance, be sure to review the state and local orders for specific information and regulations regarding reopening in your geographical location, as noted above.
The Department of Labor (DOL) has also issued regular updates to its guidance on FFCRA benefits. The most recent update has once again expanded the FFCRA "Questions and Answers" guidance (currently 93 separate questions and answers). Updates to the DOL guidance are contained within the original guidance document and appended at the end of that document; employers should review the DOL guidance on a regular basis for ongoing updates. The full DOL FFCRA guidance can be accessed here.
Key excerpts from the most recent FFCRA guidance updates include the following topics:
The SBA and U.S. Treasury have recently released additional guidance related to Paycheck Protection Program (PPP) loans, including important information about loan forgiveness and review of PPP loans by the SBA.
The general process and timeline for PPP loan forgiveness includes the following steps: (1) the borrower submits the PPP Loan Forgiveness Application to its lender; (2) within 60 days from receipt of the Application, the lender will evaluate the borrower’s documentation and issue a decision about loan forgiveness to the SBA; and (3) subject to any SBA review of the loan eligibility or application, the SBA will remit the appropriate forgiveness amount and interest within 90 days after receiving the lender decision. To apply for loan forgiveness, borrowers must submit the PPP Loan Forgiveness Application. The application can be found here.
Employers should regularly review the DOL's Frequently Asked Questions for PPP loans, initially issued on May 19, 2020. Updates may be found here.
For additional guidance on loan forgiveness, click here. Updates currently include:
The guidance document also confirms that loan forgiveness is not adversely impacted when an employee refuses an offer of reinstatement, provided that (1) the borrower makes a good faith, written offer to rehire an employee (or restore the previously-reduced hours) during a covered period, (2) the offer is for the same salary or wages and same number of hours earned prior to the separation or reduction, (3) the employee rejects the offer; (4) the borrower maintains records of the offer and its rejection, and (5) the employer informed the state unemployment insurance office of the rejection within 30 days.
Guidance on borrower/lender responsibilities in the SBA review process can be found here. This guidance includes information about the lender’s process in reviewing loan forgiveness applications, required documentation to be submitted by the borrower, document retention requirements and the implementation of an appellate process after the denial of an application for loan forgiveness.
Notably, the issues surrounding loan forgiveness under the PPP continue to evolve. On May 29, 2020, the House of Representatives passed H.R. 7010, the Paycheck Protection Program Flexibility Act, which extended the eight week covered period for forgiveness of any PPP loan to 24-weeks, reduced the required percentage of the PPP loan proceeds to be spent on payroll costs from 75% to 60%, and extended the deadline for the re-hire exception to forgiveness reduction from June 30, 2020, to December 31, 2020. The House bill also extended the covered period for using PPP loan proceeds from June 30, 2020, to December 31, 2020. The text of the Paycheck Protection Program Flexibility Act can be found here. The Act is now awaiting a Senate vote, which may occur as early as this week.
For questions regarding the above information, or to obtain legal assistance regarding COVID-19 issues specific to your company, contact the employment attorneys at LightGabler.For a more detailed outline of reopening considerations, or to obtain legal assistance regarding reopening issues specific to your company, contact the employment attorneys at LightGabler.