General Business Guidance
These challenging times present particular challenges to small business. Notwithstanding efforts to stimulate the economy, the fact remains that many businesses simply can’t function at a sustainable level without open doors and customers who require inventory, raw materials or products to sell. Empirical data supports a substantial downturn in gross domestic production such that the federal government has declined to publish economic forecast data for the summer of 2020. Millions have been separated from employment – either temporarily or permanently. Every business and every businessperson has felt the economic effect of the pandemic.
While small business may never be the same, it is not dead. We all know the United States economy is driven by small to medium employers no matter the media focus on big industry. There will no doubt be consolidation in nearly every sector of the economy from construction to retail. History has proven that, for the savvy businessperson, trying times like these bring opportunity. Taking advantage of opportunity requires strong, focused and forward thinking business relationships.
Much has been made and reported about the federal government’s effort to sustain the economy and assist working families through programs such as enhanced unemployment benefits and the Payroll Protection Plan. AMM has assisted many small business owners in negotiating the application process and anticipating both documentary requirements and potential financial consequences of the available programs. State and local governments have also offered programs to the business community. Bucks County has now announced the creation of a new grant funding opportunity: the “Bucks Back to Work Small Business Grant” program. Availability is limited, however, and the application window is small so qualifying business owners must act quickly to obtain a share of the grant fund.
May 14, 2020
Yesterday the Small Business Administration (SBA) issued updates to its Frequently Asked Questions (FAQs) guidance on the Paycheck Protection Plan (PPP) Loans, and added Questions/Answers (Q&A) 45 and 46, with the latter Q&A being directly related to the certification issues, and to the corresponding May 14th deadline for the return of funds as a “safe harbor” from civil and criminal penalties relating to the certification of need.
As previously reported, the PPP applications required borrowers to certify that “current economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.” Until its issuance of this Q&A, the SBA’s guidance suggested that it would seek to impose civil and criminal penalties relating to the certification as a first resort, if it determined that the loan was unnecessary. In doing so, the SBA induced a sense of fear; and then further induced a sense of urgency by offering the safe harbor from such penalties, allowing borrowers to return the funds on or before May 7th to avoid such penalties. Such deadline was further extended to May 14th.
As state governments issue stay-at-home orders, employment lawyers across the country have been digesting new employment laws, assisting clients in managing layoffs, furloughs, and leaves of absence, and working to keep up with a changing employment landscape. Federal legislation has imposed dramatic, although temporary, changes to the way employers manage their employees during this trying time. The Families First Coronavirus Response Act (“Families First Act”) and its regulations impose, for the first time under federal law, paid leave obligations. The CARES Act changes the economics of layoffs, furloughs and reduced hours for employers.
On March 18, 2020, President Trump signed the Families First Act into law. The Act includes provisions to assist employers and employees during these extraordinary times. The Families First Act creates two forms of paid leave related to the Covid-19 crisis: two-week paid leave (“Emergency Leave”); and expansion of the Family and Medical Leave Act (“FMLA”) to provide twelve weeks of paid leave (“Expanded FMLA Leave”).
On April 23, 2020, Governor Wolf announced that all businesses in the construction industry in the Commonwealth are permitted to resume “in-person operations” beginning Friday, May 1, 2020. Construction industry businesses include those in new construction, renovation, and repair, as well as land subdivision and design-related field/project site activities.
The Wolf Administration has issued guidance (the “Guidance”) for all construction industry businesses and their employees in anticipation of resuming operations while at the same time mitigating the spread of COVID-19. The Guidance provides universal protocols for all construction activity, as well as specific additional guidance for residential, commercial, and public construction projects. If you own or manage a construction industry business, you should review these guidelines and ensure such safety protocols are in place before starting up again.
With individuals residing in Allegheny County, Bucks County, Chester County, Delaware County, Monroe County, Montgomery County, and Philadelphia County ordered to stay at home with only certain limited exceptions, and non-life sustaining businesses ordered to close, business owners struggle with what to do next. The full text of the Governor’s order and other related information can be found here. While there are many unanswered questions and additional guidance is continually being issued, business owners do have resources available to them.
Business interruption insurance covers a business’ losses resulting from a direct physical loss or damage to property. Accordingly, coverage under such a policy generally will not trigger unless there is a direct physical loss to the business’s property. In some circumstances, loss of income due to a disaster-related closing of a business’ physical location is covered.
The coronavirus pandemic has already caused massive financial impacts across nearly every industry in the Commonwealth of Pennsylvania. Unemployment claims have skyrocketed, essentially all physical business locations are closed, and industry is struggling to convert to remote operations. Unfortunately, it appears the financial crisis is just beginning.
Pennsylvania Business owners have probably heard that Governor Tom Wolf ordered that all "non-life-sustaining" businesses in Pennsylvania must close their physical locations to slow the spread of COVID-19. This order went into effect last evening. You may be wondering whether your business is “life-sustaining” and may stay open. There is little guidance from the Governor’s office, other than the chart published by the Governor.
As the coronavirus pandemic extends its grip across the Commonwealth of Pennsylvania, its effects are felt throughout the practice of law. The very nature of litigation, the need for witness testimony, advocacy and argument before a tribunal, judge or jury necessarily implicates close personal contact. While measures to preserve the status quo are certainly necessary, the impact on pending litigation as well as potential new litigation, is developing.