FEDERAL STIMULUS AND LEGISLATION
THE HEALS ACT
Senate Majority Leader Mitch McConnell (R-Ky.) introduced several pieces of legislation as an initial proposed package to begin negotiations on the next, and possibly final, economic relief legislation to address the COVID-19 pandemic, collectively referred to as the Health, Economic Assistance, Liability protection and Schools Act or “HEALS Act.” In brief, there are three bills, divided into an appropriations bill, providing funding to various departments; reforms to the Paycheck Protection Program; and tax provisions. Although the Coronavirus Economic Relief for Transportation Services Act (CERTS Act) was not included in this opening round of proposals, ABA is working around the clock to make sure it is included in the final compromise package.
The proposed legislative pieces of the package, along with summaries of provisions of interest to ABA members, are as follows:
- ADDITIONAL EMERGENCY APPROPRIATIONS FOR CORONAVIRUS HEALTH RESPONSE
- Agriculture – $20.4 billion
- Defense – $29.4billion
- Health & Human Services – $118.4 billion
- Testing and Contract Tracing – $16 billion
- Vaccine development – $20 billion
- Vaccine distribution – $6 billion
- Education Stabilization Fund – $105 billion
- Transportation – $10.1 billion
- Office of the Secretary – $26.2 million
- Essential Air Service (EAS) – $75 million
- FAA Operations – $50 million
- Airport Improvement Program (AIP) – $10 billion
- CONTINUING SMALL BUSINESS RECOVERY AND PAYCHECK PROTECTION PROGRAM ACT
- Additional expenses allowable and forgivable uses for Paycheck Protection Funds
- Covered Operations Expenses: Payment for software, cloud computing and other HR and accounting needs.
- Property Damage Costs: Costs related to property damages from public disturbances occurred during 2020
- Covered Supplier Costs: Expenditures to a supplier pursuant to a contract for goods in effect prior to February 15, 2020 and essential to current operations.
- Covered Worker Protection Expenditure: Personal protective equipment and adaptive investments to help a loan recipient comply with federal health and safety guidelines related to COVID-19 during the period between March 1, 2020 and December 31, 2020.
- Allows the borrower to elect a covered period ending at the point of the borrower’s choosing between 8 weeks after origination and December 31, 2020
- Creates a simplified application process for PPP loans
- Paycheck Protection Program Second Draw Loans
- Creates a second loan from the PPP for eligible businesses
- Must meet the SBA’s revenue side and standard, if applicable;
- Employ not more than 300 or fewer employees;
- Demonstrate at least a 50% reduction in gross receipts in the first or second quarter of 2020 relative to the same 2019 quarter
- Borrowers may receive a loan amount of 2.5 times average total monthly payroll costs in the one year prior to the loan, up to $2 million
- An eligible entity may receive one covered loan
- Businesses who have received a PPP loan may not receive another SBA loan that aggregates to an excess of $10 million
- Borrowers of a PPP Second Draw would be eligible for loan forgiveness equal to the sum of their payroll costs, covered mortgage, rent, utility payments, covered operations expenditures, covered property damage costs, covered supplier costs, and covered worker protection expenditures incurred before January 1, 2021. The 60/40 cost allocation between payroll and non-payroll costs to receive full forgiveness will continue to apply.
- Creates a second loan from the PPP for eligible businesses
- Eligibility of 501(c)(6) Organizations for Loan Under Paycheck Protection Program
- The organization cannot receive more than 10 percent of receipts from lobbying, the organization has 50 or fewer employees, and the loan is not more than $500,000.
- Destination Marketing Organizations that are 501(c)(6) organizations, quasi-government entities, or political subdivisions of a state or local government with 300 or fewer employees are eligible.
- American Workers, Families, and Employers Assistance Act
- Employee Retention Tax Credit enhancements (Effective date: proposed amendments would apply to calendar quarters beginning after June 30, 2020)
- Increase the percentage credit for qualified wages from 50% to 65%.
- Increase aggregate per-employee limitation on qualified wages from $10,000 to $30,000; a quarterly limitation of $10,000 would apply.
- Lowers amount of reduction in gross receipts required to qualify as an eligible employer from a 50% decline to a 25% decline compared to the same calendar quarter in the previous year. For purposes of determining eligibility in third or fourth quarter of 2020, an employer may also satisfy the reduction-in-gross-receipts test if the preceding quarter’s gross receipts declined by at least 25 percent when compared to the same calendar quarter in the previous year.
- Increases 100-employee threshold to 500, so that eligible employers with 500 employees or less can claim the credit for wages paid to any employee (i.e., even if providing services).
- Allow employers to take both PPP loans and ERTC, with limitations to prevent overlapping benefits.
- Clarifies that group health plan expenses are considered qualified wages even when no other wages are paid to employee, consistent with IRS FAQ guidance.
- New Work Opportunity Tax Credit targeted group (Effective date: would apply to individuals who begin work for employer after date of enactment)
- Adds a new WOTC targeted group labeled “qualified 2020 COVID-19 unemployment recipient”.
- Defines new targeted group as an individual who is certified by the designated local agency as having received (or approved to receive) unemployment compensation under state or federal law for either of (1) the week immediately preceding the hiring date; or (2) the week which includes the hiring date, AND who begins work after the effective date and prior to January 1, 2021.
- Increases WOTC amount applicable to this new targeted group to 50% of the first $10,000 of qualified first-year wages.
- Removes limitation on rehires for 2020 qualified COVID-19 unemployment recipients. Treasury would have authority to prescribe rules to prevent abuse (e.g., employers terminating employee for purposes of claiming the credit).
- Establishes a refundable tax credit equal to 50% of the sum of (1) qualified employee protection expenses; (2) qualified workplace reconfiguration expenses; and (3) qualified workplace technology expenses.
- Qualified employee protection expenses: COVID-19 testing of employees and customers, equipment to protect employees and customers from COVID-19, and cleaning products or services to prevent spread of COVID-19.
- Qualified workplace configuration expenses: Expenses to design and reconfigure retail space, work areas, break areas, or other areas that employees and customers regularly use in ordinary course of trade or business, if such design and reconfiguration (1) has a primary purposes of preventing spread of COVID-19; (2) is with respect to tangible property which is located in the U.S. and leased or owned by the employer; (3) is commensurate with the risks faced by employers or customers, or is consistent with CDC or OSHA recommendations; (4) is completed pursuant to a reconfiguration or similar plan that was not in place before March 13, 2020; and (5) is completed before January 1, 2021.
- Qualified workplace technology expenses: Expenses paid for technology systems that employees or customers use in ordinary course of business, if such technology systems (1) have a primary purpose of preventing spread of COVID-19; (2) is used for limiting physical contact between customers and employees in the U.S.; (3) is commensurate with the risks faced by employers or customers, or is consistent with CDC or OSHA recommendations; (4) is acquired by the employer on or after March 13, 2020, and is not acquired pursuant to a plan that was in place prior to that date; and (5) placed in service by employer before January 1, 2021.
- Overall dollar limitation: Eligible expenses are capped based on the employer’s average total number of employees. The cap is equal to $1,000 for each of the first 500 employees, plus $750 for each employee between 500 and 1000, plus $500 for each employee that exceeds 1,000.
- Employment tax limitation with refundability of excess credit: The tax credit mechanism works similarly to the employee retention tax credit. The credit with respect to each calendar quarter shall not exceed “applicable employment taxes” (reduced by credits allowed under IRC sec. 3111(e) (qualified veterans credit), IRC sec. 3111(f) (small business research credit), FFCRA sec. 7001 (required paid sick leave credit), FFCRA sec. 7003 (required paid family leave credit), and CARES sec. 2301 (employee retention credit). But, if amount of credit exceeds employment tax limitation for any calendar quarter, then such excess is treated as an overpayment that shall be refunded under IRC 6402 and 6413(b).
- State tax certainty for employees and employers (Effective date: proposed amendments would apply to calendar years beginning after December 31, 2019)
- Adopts the Mobile Workforce bill through 2024. As a general matter, employees would be subject to income tax only in their state of residence and any state in which they were present and performed employment duties for more than 30 days during a calendar year.
- This period is increased to 90 days with respect to an employee performing duties outside their state of residence as a result of the pandemic.
- Would restore the pre-pandemic status quo by allowing wages earned by employees while working remotely during the crisis to continue to be deemed earned at the employee’s primary work location. (In situations where employers keep records that track where employees perform services, employers would be allowed to elect to continue to use such systems.)
- Also, employees who are working remotely during the crisis would not create tax nexus for businesses and would not alter payroll factors for purposes of apportioning or sourcing income and receipts.
Although negotiations between both parties in the House and Senate, and the Administration are on-going, the timing for moving any additional legislation is unclear. With the upcoming August recess as one possible deadline, along with expiration of several CARES Act programs (think unemployment benefits) by the end of July, Congress and the Administration are hard pressed to reach some sort of deal in the next few weeks.
SUPPLEMENTAL APPROPRIATIONS ACT
The bill provides $8.3 billion in emergency funding for federal agencies to respond to the coronavirus outbreak. The bill includes $4 billion for diagnostic tests and vaccine research, $2.2 billion for the CDC, $1 billion for state and local response efforts and $20 million for disaster assistance loans for small businesses.
FAMILIES FIRST CORONAVIRUS RESPONSE ACT
Big Take Away: H.R. 6201 requires expanded paid Family Medical Leave, paid sick leave, and tax credits. BUT: the requirements only apply to businesses with fewer than 500 employees, AND all required paid leave is offset with a tax credit to the employer. Most, if not all, the provisions of the Act would expire at the end of December 2020.
CORONAVIRUS AID, RELIEF AND ECONOMIC SECURITY (CARES) ACT – PROVISIONS OF INTEREST TO ABA
Division A – Small Business Interruption Loans Provision
PAYCHECK PROTECTION PROGRAM INCREASE ACT OF 2020
On April 21, the Senate passed the Paycheck Protection Program Increase Act of 2020 (the 3.5 package) to replenish certain programs established under the CARES Act and the SBA disaster loan programs. It now needs to be passed by the House and signed by President Trump.
ADMINISTRATION- OVAL OFFICE ADDRESS
On March 11, President Trump addressed the nation from the Oval Office to discuss the ongoing efforts to combat the coronavirus outbreak. Included in his remarks were proposals the President would like incorporated into any future Congressional action on coronavirus including payroll tax cuts, benefits to hourly workers and targeted economic relief for small businesses.
SMALL BUSINESS ADMINISTRATION
The Small Business Administration will provide disaster assistance loans. SBA’s Economic Injury Disaster Loans offer up to $2 million in assistance for a small business. These loans can provide vital economic support to small businesses to help overcome the temporary loss of revenue they are experiencing. Further resources can be found in the attached document as well as on SBA’s website: www.SBA.gov/coronavirus and www.SBA.gov/disaster. SBA Loan Resource Guide
- The U.S. Small Business Administration is offering designated states and territories low-interest federal disaster loans for working capital to small businesses suffering substantial economic injury as a result of the Coronavirus (COVID-19). Upon a request received from a state’s or territory’s Governor, SBA will issue under its own authority, as provided by the Coronavirus Preparedness and Response Supplemental Appropriations Act that was recently signed by the President, an Economic Injury Disaster Loan declaration.
- Any such Economic Injury Disaster Loan assistance declaration issued by the SBA makes loans available to small businesses and private, non-profit organizations in designated areas of a state or territory to help alleviate economic injury caused by the Coronavirus (COVID-19).
- SBA’s Office of Disaster Assistance will coordinate with the state’s or territory’s Governor to submit the request for Economic Injury Disaster Loan assistance.
- Once a declaration is made for designated areas within a state, the information on the application process for Economic Injury Disaster Loan assistance will be made available to all affected communities.
- These loans may be used to pay fixed debts, payroll, accounts payable and other bills that can’t be paid because of the disaster’s impact. The interest rate is 3.75% for small businesses without credit available elsewhere; businesses with credit available elsewhere are not eligible. The interest rate for non-profits is 2.75%.
- SBA offers loans with long-term repayments in order to keep payments affordable, up to a maximum of 30 years. Terms are determined on a case-by-case basis, based upon each borrower’s ability to repay.
- SBA’s Economic Injury Disaster Loans are just one piece of the expanded focus of the federal government’s coordinated response, and the SBA is strongly committed to providing the most effective and customer-focused response possible.
On March 17, as part of the Trump Administration’s aggressive, whole-of-government efforts to combat the Coronavirus outbreak (COVID-19) and minimize economic disruption to the nation’s 30 million small businesses, U.S. Small Business Administration Administrator Jovita Carranza issued revised criteria for states or territories seeking an economic injury declaration related to Coronavirus (COVID-19). The relaxed criteria will have two immediate impacts:
- Faster, Easier Qualification Process for States Seeking SBA Disaster Assistance.
- Expanded, Statewide Access to SBA Disaster Assistance Loans for Small Businesses.
Paycheck Protection and Loan Forgiveness Factsheet (Updated 8/4)
On March 31, the Small Business Administration and the Treasury Department announced that they have initiated a mobilization of banks and other lending institutions to launch the new $349 billion Paycheck Protection Program under the Coronavirus Aid, Relief, and Economic Security (CARES) Act. SBA and Treasury expect to have the loan program up and running by April 3.
Treasury has posted information about the program at treasury.gov/cares, including:
- a program overview at https://home.treasury.gov/system/files/136/PPP%20–%20Overview.pdf
- information for lenders at: https://home.treasury.gov/system/files/136/PPP%20Lender%20Information%20Fact%20Sheet.pdf
- information for borrowers at: https://home.treasury.gov/system/files/136/PPP%20Borrower%20Information%20Fact%20Sheet.pdf
- a loan application at: https://home.treasury.gov/system/files/136/Paycheck-Protection-Program-Application-3-30-2020-v3.pdf
The SBA has posted additional information about the Paycheck Protection Program, including a program overview, eligibility, and other assistance at: https://www.sba.gov/funding-programs/loans/paycheck-protection-program
If you need help navigating the complex rules to obtain money from the Small Business Administration, ABA’s partner USLAW Network has attorneys that can help you (for a fee).
- Adler Pollock & Sheehan P.C. Paul A. Campellone Providence RI (401) 378-1018 firstname.lastname@example.org https://www.apslaw.com/attorney/paul-a-campellone/
- Baird Holm LLP Aaron B. Johnson Omaha NE (402) 312-7448 email@example.com https://www.bairdholm.com/people/index.php?option=com_content&view=article&id=283
- Connell Foley LLP John D. Cromie Roseland NJ (862) 485-5309 firstname.lastname@example.org https://www.connellfoley.com/professionals-john-d-cromie
- Fee, Smith, Sharp & Vitullo LLP Anthony “Lenny” Vitullo Dallas TX (214) 418-0400 email@example.com http://feesmith.com/vitullo.html
- Hanson Bridgett LLP Scott C. Smith San Francisco CA (415) 995-5892 Ssmith@hansonbridgett.com https://www.hansonbridgett.com/Our-Attorneys/scott-c-smith
- Hinckley Allen William Fish, Jr. Hartford CT (860) 331-2700 firstname.lastname@example.org https://www.hinckleyallen.com/people/william-s-fish-jr/
- Lashly & Baer, P.C. Stuart J. Vogelsmeier St. Louis MO 314-436-8349 email@example.com http://www.lashlybaer.com/stuart-j-vogelsmeier/
- Quattlebaum, Grooms & Tull PLLC Grant M. Cox Little Rock AR (501) 772-0203 gcox@QGTlaw.com http://www.qgtlaw.com/attorney/grant-m-cox/
- Rivkin Radler LLP Katherine A. Heptig Uniondale NY (516) 357-3421 Kate.Heptig@rivkin.com https://www.rivkinradler.com/attorneys/katherine-a-heptig-2/
- Roetzel & Andress Michael S. Yashko Columbus OH (239) 338-4249 firstname.lastname@example.org https://www.ralaw.com/people/michael-s-yashko
- SmithAmundsen LLC John Tanselle Indianapolis IN (317) 464-4148 email@example.com https://www.salawus.com/attorneys-John-Tanselle.html
- Sweeny Wingate & Barrow, P.A. Kenneth B. Wingate Columbia SC (803) 606-9021 firstname.lastname@example.org https://www.swblaw.com/ken-wingat
SBA PAYCHECK PROTECTION PROGRAM LOAN FORGIVENESS
The Small Business Administration and the Treasury Department issued two interim final rules (IFRs) related to loan forgiveness under the Paycheck Protection Program.
The first IFR provides borrowers and lenders guidance on the requirements governing the forgiveness of PPP loans. It describes the loan forgiveness process and details what payroll and non-payroll costs are eligible for loan forgiveness.
The second IFR informs borrowers and lenders of the the SBA process for reviewing PPP loan applications and loan forgiveness applications.
INTERNAL REVENUE SERVICE
RELIEF FOR TAXPAYERS AFFECTED BY ONGOING CORONAVIRUS DISEASE 2019 PANDEMIC
On March 20, the Trump Administration moved the April 15 tax day back to July 15. Read more.
On April 23, the Internal Revenue Service issued the attached frequently asked questions about carrybacks of net operating losses (NOLs) for taxpayers who have had section 965 inclusions. Read FAQs here.
For More Information
For more information about these credits and other relief, visit Coronavirus Tax Relief on IRS.gov. Information regarding the process to receive an advance payment of the credit will be posted next week.
DEPARTMENT OF TRANSPORTATION
EXPANDED EMERGENCY DECLARATION UNDER 49 CFR § 390.23 NO. 2020-002 (RELATING TO COVID-19)
On March 20, the FMCSA expanded its Emergency Declaration. See updates below:
DISRUPTIONS TO DRUG AND ALCOHOL TESTING DUE TO THE CORONAVIRUS DISEASE 2019 (COVID-19) PRESIDENTIALLY DECLARED NATIONAL EMERGENCY
On March 24, FMCSA released guidance on drug and alcohol testing during the COVID-19 crisis.
On June 5, the FMCSA granted a three-month waiver from certain pre-employment testing requirements applicable to employers of drivers subject to 49 CFR part 382. For more details, visit the FMCSA web page.
U.S. Department of Transportation Announces Deadline Extension for Federal Transit Administration Competitive Grant Programs
U.S. Transportation Secretary Elaine L. Chao announced that deadlines for several Federal Transit Administration (FTA) competitive grant programs will be extended for 30 days amid the coronavirus (COVID-19) pandemic. The 30-day extension applies to grant programs currently administered by FTA with active notices of funding opportunities (NOFOs). See the grant programs affected by this announcement.
FTA Safety Advisory 20-01: Recommended Actions to Reduce the Risk of Coronavirus Disease 2019 (Covid-19) Among Transit Employees and Passengers
This Safety Advisory recommends that transit agencies develop and implement procedures and practices consistent with all applicable guidance and information provided by the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) to ensure the continued safety of transit passengers and employees during this national emergency. Rad more.
MAIN STREET LENDING PROGRAM GUIDANCE FOR COMPANIES WITH 500+ EMPLOYEES
On April 17, The Federal Reserve has announced that it is establishing a Main Street Lending Program (Program) to support lending to small and medium-sized businesses that were in good financial standing before the onset of the COVID-19 pandemic. The Program will operate through two facilities: the Main Street New Loan Facility (MSNLF) and the Main Street Expanded Loan Facility (MSELF).
On June 17, the Federal Reserve opened the lender portal for the Main Street Lending Program as an alternative to the Paycheck Protection Program. Unlike the PPP, which was created as part of the CARES Act to deliver forgivable loans to small businesses through the U.S. Small Business Administration as long as they retain their employees for eight weeks during the coronavirus pandemic, the Main Street Lending Program’s loans are not forgivable, although they are at low interest rates. The program is being offered through the Federal Reserve rather than the SBA and was originally aimed at large and midsize businesses. However, the Fed and the Treasury have been expanding the criteria. Last week, Federal Reserve chairman Jerome Powell announced that the minimum loan size would be lowered from $500,000 to $250,000, and the term of each loan option has increased from four years to five years.
FED SLASHES INTEREST RATES TO ZERO TO SUPPORT ECONOMY FROM CORONAVIRUS
The Federal Reserve on March 15 announced that it is slashing interest rates to zero and buying hundreds of billions of dollars in bonds, as part of a sweeping emergency effort to breathe life into an economy bracing for the fallout from the coronavirus.
Ahead of its scheduled policy-setting meeting Wednesday, the central bank said it expects to keep rates at zero “until it is confident that the economy has weathered recent events and is on track to achieve its maximum employment and price stability goals.”
Department of Homeland Security
TSA Delays Security Training for Surface Transportation Employees Compliance Date
On May 1, the Transportation Security Administration approved ABA’s request to delay the Security Training for Surface Transportation Employees compliance date from June 22 to Sept. 21. Read more.
DEPARTMENT OF LABOR
DOL PUBLISHES GUIDANCE EXPLAINING PAID SICK LEAVE AND EXPANDED FAMILY AND MEDICAL LEAVE UNDER
THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT
On March 27, the U.S. Department of Labor’s Wage and Hour Division (WHD) announced more guidance to provide information to workers and employers about how each will be able to take advantage of the protections and relief offered by the Families First Coronavirus Response Act (FFCRA) when it takes effect on April 1, 2020.
The new guidance includes questions and answers addressing critical issues such as what documents employees can be required to submit to their employers to use paid sick leave or expanded family and medical leave; whether workers can take paid sick leave intermittently while teleworking and whether workers whose employers closed before the effective date of the FFCRA can still get paid sick leave.
This guidance adds to a growing list of compliance assistance materials published by WHD, including a Fact Sheet for Employees, a Fact Sheet for Employers, and an earlier Questions and Answers document. Available are two new posters, one for federal workers and one for all other employees, that will fulfill notice requirements for employers obligated to inform employees about their rights under this new law, Questions and Answers about posting requirements and a Field Assistance Bulletin describing WHD’s 30-day non-enforcement policy.
FFCRA, signed by President Trump, offers American businesses with fewer than 500 employees tax credits as reimbursement for providing employees with paid leave, either for the employee’s own health needs or to care for family members. The legislation will enable employers to keep their workers on their payrolls, while at the same time ensuring that workers are not forced to choose between their paychecks and the public health measures needed to combat the virus.
WHD provides additional information on common issues employers and employees face when responding to COVID-19 and its effects on wages and hours worked under the Fair Labor Standards Act and job-protected leave under the Family and Medical Leave Act at https://www.dol.gov/agencies/whd/pandemic
For more information about the laws enforced by the WHD, call 866-4US-WAGE, or visit https://www.dol.gov/agencies/whd.
For further information about COVID-19, please visit the U.S. Department of Health and Human Services’ Centers for Disease Control and Prevention.
DOL Publishes Additional Guidance on Wage and Hour Rules, Fmaily and Medical Leave as Workplaces Reopen
On July 20, the DOL published additional guidance for workers and employers on how the protections and requirements of the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Families First Coronavirus Response Act (FFCRA) affect the workplace as workplaces reopen amid the coronavirus pandemic. The guidance from the Department’s Wage and Hour Division (WHD) includes commonly asked questions and answers that address critical issues in all three laws. “The U.S. Department of Labor understands how critically American workers and employers need this information as they return to work. Continuing to provide it remains a top priority for the Wage and Hour Division,” said Wage and Hour Division Administrator Cheryl Stanton. “With so many workers and employers committed to the greatest comeback the American workforce has ever seen, we are providing ongoing guidance to help them better understand their rights and responsibilities to protect workers and help ensure a level playing field for employers as our economy recovers.” Read more.
DEPARTMENT OF DEFENSE
DOD EXTENDS MILITARY BUS AGREEMENT #4 TERMINATION DATE UNTIL APRIL 30
Once ABA gauged the situation on how difficult life would be for the industry because of COVID-19, we immediately requested an extension to provide relief for overburdened operators and maintain continuing business opportunities for the industry moving forward. March 19, we received the announcement from the Department of Defense that the Defense Travel Management Office is extending the Military Bus Agreement #4 termination date until April 30, 2020.
DoD-approved carriers that do not apply for the DoD Bus Agreement #5 will not be able to bid on future DoD moves after this date. The termination of Military Bus Agreement #4 does not affect the rights or obligations that have vested or accrued prior to the effective date of such termination. All carriers, including DoD-approved carriers, interested in participating in the DoD Bus Program under DoD Bus Agreement #5 must submit a new DoD Bus Program Carrier application here.
If you have any questions, email: email@example.com.
For reference, the DoD Bus Agreement #5 is available here.”
If you need a refresher on the DOD program changes, on March 11 ABA held a webinar that discussed the requirements and showed a demo of the GOPAX system. You can watch the webinar, here.