We at Cafardi Ferguson Wyrick Weis + Gabriel have been prepared for this type of crisis for years. While our physical offices are closed as a result of the Order issued by Gov. Wolf, our lawyers continue to work without interruption, with full computer access and staff coordination. From our founding, we intentionally set up our business so that all of our lawyers and staff have the capability to work from anywhere, with secure access to our systems and client files. Computers, printing, mailing and every other part of our operation was well prepared for this type of circumstance. Our 21st century capabilities are not as a result of preparations for a crisis, but instead flow from our commitment to deliver cutting edge legal solutions to our many business and local government clients – whenever and wherever they need them. The current coronavirus outbreak is no exception. If you are a business or local government that needs guidance during this difficult time, or even if you simply need ordinary legal help while most everyone else is shut down, please reach out. Our entire team is here and we are open for business.
NEW 04.30: Governor Wolf Signs Extension to HB 1869
Governor Wolf just signed the HB 1869, which extends the coverage of the Heart and Lung Act to any Nation Guard soldier who is called to active duty for the pandemic and also for any employees already covered by the Heart and Lung Act, including the sheriff and deputies, police officers, and firefighters. If any of those employees contracts the virus or is quarantined because of exposure, they are to be covered by the Heart and Lung Act (which means they get paid their full salary with no deductions) for a period not to exceed 60 days per occurrence.
Here is a link to the bill: HB 1869
NEW 04.15: Order Imposing Additional Employee Safety Measures To Go Into Effect April 19, 2020
WHAT DO YOU NEED TO DO TO PREPARE?
The Office of the Secretary of the Pennsylvania Department of Health issued an Order today imposing additional safety requirements and protocols on businesses in the Commonwealth that must remain open during the COVID-19 pandemic. The Order requires, among other things, that employers:
- Stagger start and stop times when practicable to prevent groups of people from gathering when entering or leaving the premises;
- Provide and require employees to wear masks at all times, except when eating or drinking;
- Require all customers to wear masks;
- Ensure social distancing protocols are being maintained in your buildings, including limiting meetings, setting up break areas to ensure sufficient space between people as well as forward facing seating so that people do not sit across from each other, and limiting people in common areas;
- Schedule hourly breaks for handwashing;
- Designate a specific weekly time for high-risk and elderly person to use the business if there is a continuing in-person customer-facing component;
- Prohibit non-essential visitors for coming in entirely; and
- You can see the full list here: https://www.governor.pa.gov/wp-content/uploads/2020/04/20200415-SOH-worker-safety-order.pdf
The Order goes into effect at 8:00PM on April 19, 2020. Governor Wolf has directed the following state agencies to enforce the order and issue citations, fines, or license suspensions:
- Pennsylvania Liquor Control Board
- Department of Health
- Department of Agriculture
- Department of Labor and Industry
- Pennsylvania State Police
- Local officials, using their resources to enforce closure orders within their jurisdictions.
NEW 04.01: Updated Definition of Emergency Responder
The Department of Labor issued new guidance today on the Families First Coronavirus Response Act, which further updated the definition of an emergency responder. The new definition has been expanded to include child welfare workers and service providers. A full copy of the guidance is available at: https://www.dol.gov/sites/dolgov/files/WHD/Pandemic/FFCRA.pdf
Guidance on New Families First Coronavirus Response Act
The U.S. Department of Labor and Industry has posted additional questions and answers regarding implementation of certain provisions of the Federal Families First Coronavirus Response Act. The questions and answers can be found at https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.
This information includes the following answer, which is very important for many of our clients:
57. Who is an emergency responder?
ANSWER: For the purposes of employees who may be excluded from paid sick leave or expanded family and medical leave by their employer under the FFCRA, an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.
To minimize the spread of the virus associated with COVID-19, the Department encourages employers to be judicious when using this definition to exempt emergency responders from the provisions of the FFCRA.
Coronavirus Aid, Relief, and Economic Security (CARES) Act – Help for Your Business
On March 25, the Senate unanimously passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act – the third COVID-19 relief package to help workers, families, hospitals and their staff, small businesses, and the unemployed during this crisis. On March 27, the House of Representatives passed the CARES Act and it was signed into law by the President. This is a period of uncertainty for many small businesses. The CARES Act was designed by the Federal Government to provide assistance not only to individuals (in the form of direct payments), but also to small businesses.
What relief is included in the CARES Act for small businesses?
- Paycheck Protection Program (PPP): The law includes nearly $350 billion to create a Paycheck Protection Program that will provide small businesses, nonprofits, and other entities with zero-fee loans of up to $10 million based on average monthly payroll costs. Up to eight weeks of average payroll, mortgage interest, rent, and utility payments can be forgiven if the business retains its employees and their salary levels. Principal and interest payments can be deferred for up to a year, and all SBA borrower fees are waived. This temporary emergency assistance through the U.S. Small Business Administration (SBA) and the Department of Treasury can be used in coordination with other COVID-financing assistance established in the law or any other existing SBA loan program.
- Small Business Administration (SBA) Loans: The law also includes $17 billion to further ease the burden on small businesses that use SBA loan products. Under the law, the SBA will cover all loan payments for existing SBA borrowers, including principal, interest, and fees, for six months. The loan amount is based on average total monthly payments for payroll for the 12-week period beginning February 15, 2019, or at the election of the eligible recipient, March 1, 2019, and ending June 30, 2019.
- Emergency Economic Injury Grants: The law includes $10 billion in funding for a provision to provide an advance of $10,000 to small businesses and nonprofits that apply for an SBA economic injury disaster loan (EIDL) within three days of applying for the loan. EIDLs are loans of up to $2 million that carry interest rates up to 3.75% for companies and up to 2.75% for nonprofits, as well as principal and interest deferment for up to 4 years. The loans may be used to pay for expenses that could have been met had the disaster not occurred, including payroll and other operating expenses.
- The EIDL grant does not need to be repaid, even if the grantee is subsequently denied an EIDL, and may be used to provide paid sick leave to employees, maintaining payroll, meet increased production costs due to supply chain disruptions, or pay business obligations, including debts, rent and mortgage payments.
- Refundable Tax Credits: IRS will be posting information soon on these credits on its website (www.irs.gov), including information on how to obtain advance payment of these credits.
- Payroll Taxes: The law defers payroll taxes through the end of 2020. Deferred taxes will not become due until end of 2021 and end of 2022, with 50% of the liability being paid at each date.
- Employee Retention Tax Credit: is available for struggling businesses that are not eligible or choose not to participate in the new SBA Paycheck Protection Program.
Is my small business eligible for relief?
- Paycheck Protection Program (PPP): This relief is available for small businesses, 501(c)(3) nonprofits, 501(c)(19) veterans organizations, or Tribal businesses with not more than 500 employees who were in operation on February 15, 2020. It is also available to sole proprietorships, independent contractors, and eligible self-employed individuals.
- Small Business Administration Loans: This relief will be available to existing SBA loan borrowers and new borrowers who take out an SBA loan within six months after the president signs the law. Each program has different requirements, go to www.sba.gov/funding-programs/loans for more details.
- Emergency Economic Injury Grants: The grant is available to small businesses, private nonprofits, sole proprietors and independent contractors, tribal businesses, as well as cooperatives and employee-owned businesses. Eligible grant recipients must have been in operation on January 31, 2020.
- Refundable Tax Credits: The law makes the credits available for private-sector employers that are required to offer coronavirus related paid leave to employees.
- Payroll Taxes: Any business that does not have a loan forgiven under the new SBA Paycheck Protection Program is eligible for the payroll tax deferral.
- Employee Retention Tax Credit: The law provides a refundable payroll tax credit for 50% of wages paid by employers to furloughed or reduced-hour employees during the COVID-19 crisis.
SBA lenders are still awaiting guidance from the SBA regarding what the application process for any of the forms of assistance referenced above will be. Business owners should compile necessary expense documentation so that they are ready to complete the application process when it is finalized.
Understanding Emergency Sick Leave, Emergency FMLA, and Expanded Unemployment Compensation for Businesses and Local Governments
During this pandemic, a big issue for every employer has been how to handle their employees—whether to continue to maintain their employment, pay them, or lay them off and rely on their ability to collect unemployment compensation benefits.
There have been several recent laws that have addressed these issues. First, on March 18, 2020, the President signed the Families First Coronavirus Response Act. It becomes effective on April 1, 2020, and it provides paid sick leave and expanded FMLA benefits to employees who are unable to work or telework due to COVID-19 related issues. These benefits are in addition to any benefits your company or municipality already provides.
Paid Sick Leave:
A full-time employee unable to work or telework due to the following is entitled to up to 80 hours of paid sick leave at his or her regular rate of pay:
- The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.
- The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID– 19.
- The employee is experiencing symptoms of COVID– 19 and seeking a medical diagnosis.
A full-time employee unable to work or telework due to the following is entitled to up to 80 hours of paid sick leave at 2/3 his or her regular rate of pay:
- The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).
- The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.
Part-time employees also receive paid leave based upon their average hours worked.
The expanded FMLA applies to all public entities and private employers with less than 500 employees. This is different than regular FMLA which does not apply to private employers with less than 50 employees. In addition, to be entitled to this FMLA benefit, an employee only needs to have been employed for 30 calendar days.
Qualified employees can receive up to an additional 10 weeks of expanded FMLA at two-thirds their regular rate of pay if the employee is unable to work due to a bona fide need to care for a child whose school or child care provider is closed due to COVID-19.
On March 27, 2020, the President signed the CARES Act into law. It provides various benefits for individuals and businesses to handle the financial ramifications of this pandemic. Part of the CARES Act is the Relief for Workers Affected by the Coronavirus Act, which provides, among other things, expanded unemployment compensation benefits for individuals who suffered a loss of employment or a reduction in hours as a result of COVID-19. Specifically, the Act provides:
- Covered Individuals: The Act specifically applies to only unemployment resulting from the COVID-19 pandemic and sets for specific basis for which it applies. In addition to employees who are unable to work or suffered a reduction in hours, it also applies to self-employed individuals. It does not apply to individuals who can telework with pay or individuals receiving sick leave or other paid leave benefits (this would include the paid sick leave and expanded FMLA detailed above).
- Federal Pandemic Unemployment Compensation: The Federal government is providing an additional $600 per week in unemployment compensation to employees. This is in addition to the State benefit the employee would receive.
- Effective Period: The effective period shall be January 27, 2020 – December 31, 2020. The period shall not exceed 39 weeks. The Secretary of Labor is charged with determining how it will apply retroactively.
- No waiting week.
- Reimbursements: The Act provides that the State shall receive Federal funds to reimburse governmental entities and non-profit organizations for amounts paid into the State unemployment funds for the period of March 13, 2020 through December 31, 2020. It is not clear how these reimbursements will be disbursed to local governments.
- Relief From Charges: Apart from the Act, Pennsylvania Office of Unemployment Compensation, has confirmed that contributory businesses will be granted Relief from Charges and their tax rates will not be increased due to COVID-19 related claims. https://www.uc.pa.gov/COVID-19/Pages/Employer-COVID19-FAQs.aspx
The intention of the law is to provide federal money to supplement any benefits the employee is eligible to receive from the state. It leaves it up to the individual states to work with the Secretary of Labor to reach agreements and to figure out how administratively it will be applied. It is expected that guidance will be issued by the Secretary of Labor and the Office of Unemployment Compensation, which will provide additional details to employees and employers. We will continue to monitor that, but you may also find additional information at https://www.uc.pa.gov/Pages/covid19.aspx.
If you have questions about the Family First Coronavirus Response Act or Relief for Workers Affected by the Coronavirus Act and how they impact you, please contact Christopher Gabriel at firstname.lastname@example.org or 412.328.5853 or Stephanie Fera at email@example.com or 814.594.9201
Pennsylvania Supreme Court Closes Courts to the Public Statewide
In an effort to further restrict potential COVID-19 exposure within the courts, the Pennsylvania Supreme Court announced on March 18, 2020 that all Pennsylvania courts – including trial and intermediate appellate courts – are closed to the public for non-essential functions through at least April 3, 2020.
The statewide court closure also includes magisterial district courts, Philadelphia Municipal Court, and Pittsburgh Municipal Court, Arraignment Division. In addition, the Court has suspended all time calculations and deadlines relevant to court cases or other judicial business through April 3, 2020. The Court has also authorized and encouraged the use of advanced communication technology to conduct emergency court proceedings.
In the Courts of Common Pleas, the Order outlines essential functions as:
- Emergency bail review and habeas corpus hearings;
- Gagnon 1 hearings;
- Bench warrant hearings pursuant to Pennsylvania Rule of Criminal Procedure 150;
- Juvenile delinquency detention;
- Juvenile emergency shelter and detention hearings;
- Temporary protection from abuse hearings;
- Emergency petitions for child custody;
- Emergency petitions for guardianship;
- Civil mental health reviews (50 P.S. §302)
- Any pleadings or motions relating to public health concerns and involving immediate and irreparable harm; and
- Any other function deemed by a president judge to be essential consistent with constitutional requirements.
In addition, court calendars, scheduling notices, subpoenas or other court orders compelling appearance by any attorney, litigant or other participant in non-essential cases are continued or postponed until further order.
Except for ongoing trials, jury and non-jury trials (both criminal and civil) are suspended and jurors do not need to report for duty on or before April 3, 2020.
The Court has offered the following guidance to magisterial district courts, Philadelphia Municipal Court, and Pittsburgh Municipal Court, Arraignment Division (minor courts) with regards to essential functions:
- Preliminary arraignments (bail setting) for bailable cases;
- Criminal case filings and subsequent processing;
- Preliminary hearings for incarcerated persons only;
- Issuance of search warrants; and
- Emergency protection from abuse petitions.
The Court’s Order also directs that, during the period of judicial emergency, no eviction, ejectment or other displacement from a residence based on failure to make payment can be made. It also suspends Rule of Criminal Procedure 600 in all judicial districts.
Unless otherwise designated by a President Judge, all other cases pending are postponed.
Minor courts are directed to accept payments by mail, electronically (online), or by telephone where possible.
Additional information about the impact of COVID-19 on court operations is available online, at http://www.pacourts.us/ujs-coronavirus-information.