Category Archives: COVID-19

COVID-19 FACILITY SURVEYS

During this challenging and uncertain time in the fight against COVID-19, the Agency for Health Care Administration (“AHCA”) has been working closely with the Florida Department of Health (“DOH”) and health care providers on COVID-19 prevention and response efforts to ensure that facilities across Florida have the knowledge and training to take every precaution to ensure the health and safety of patients, residents and health care staff. AHCA shares key guidance from the Centers for Disease Control and Prevention (“CDC”) and DOH on the importance of restricting visitors, infection control protocols, and hygiene best practices. All licensees need to be vigilant in the protection against the spread of COVID-19 at their facilities. In facilities such as Assisted Living Facilities (“ALFs”) and Skilled Nursing Facilities (“SNFs”), it is extremely important to follow prevention guidelines because once COVID-19 appears in a facility it is a quick battle to isolate it and prevent others from being infected. Unfortunately, sometimes the battle is not quickly won, and the good guy suffers despite following detailed recommendations released by the CDC and the DOH.

Although AHCA and the DOH provide information on training, prevention, and response efforts, it must be noted that they are the policing agencies that are responsible for making sure that the Florida facilities protect their residents. Alerts released through AHCA require that facilities must report the positive COVID-19 cases in their facilities on a daily basis through the Emergency Status System (“ESS”). The ESS is the approved database for all licensees providing residential or inpatient services to report their emergency status. The number of COVID-19 cases in a facility is considered emergency status and must be reported daily.

AHCA and other state survey agencies are under extreme pressure to survey facilities to ensure compliance with COVID-19 directives. In fact, on January 4, 2021, the Centers for Medicare and Medicaid (“CMS”) issued a revised memorandum detailing new triggers for focused infection control surveys. The original CMS memorandum from June 1, 2020 identified two triggers for an infection control survey: nursing homes that report three or more new COVID-19 cases in the past week or one new resident case in a nursing home that was previously COVID-free as reported to National Healthcare Safety Network (“NHSN”). These surveys must be initiated by the state survey agency within three to five days of identification.

The January 4, 2021 update has outlined five more triggers for a focused infection control survey which went into effect immediately. Now nursing homes must meet one of the original case criterion plus at least one of the following new criteria: multiple weeks with new COVID-19 cases, low staffing, selection as a Special Focus Facility (a facility identified by CMS to have a documented pattern of providing poor care), concerns related to conducting outbreak testing per CMS requirements, or allegations or complaints that pose a risk of harm or immediate jeopardy to the health or safety or that are related to certain areas such as abuse or quality of care (e.g., pressure ulcers, weight loss, depression, decline in functioning). A survey may not be necessary for nursing homes meeting the above criteria if the nursing home received an onsite focused infection control survey in the three weeks prior to meeting the criteria, either as a stand-alone survey or as part of a recertification survey. However, in the event that a nursing home continues to meet the above criteria in the fourth week following the prior focused infection control survey, a new survey should be initiated. It must be noted that the original June 1, 2020 memorandum directed that state survey agencies must conduct a focused infection control survey of a minimum of 20% of the nursing homes in the state during the fiscal year 2021. Additionally, to meet this minimum of 20% of state nursing homes surveyed, only stand-alone focused infection control surveys may be counted.

In February 2021, AHCA issued its most recent emergency rules regarding mandatory entry for testing: 59AER21-3 Mandatory Entry for Testing and Infection Control for Nursing Homes and 59AER21-2 Mandatory Entry for Testing and Infection Control for Assisted Living Facilities. These rules provide updated DOH infection control directives and infection control duties concerning staff and resident testing, including making off-shift staff available at the facility for testing.

AHCA’s Field Operations Offices are responsible for conducting facility surveys. When deficiencies are found, a report called a Statement of Deficiencies (“SOD”), is generated to the facility for corrective action. The SOD issued to the facility will specify which rules or statutes the facility is deficient in following. In a situation where a facility is the subject of a focused COVID survey, the SOD may contain a deficiency for Resident Care – Rights & Facility Procedures pursuant to F.A.C. 59A-36.007(6) and F.S. 429.27 and F.S. 429.28 for failure to adhere to recognized standards from the CDC. Such failure may be in the form of failing to ensure social distancing and/or, failure to ensure residents and staff wore personal protective equipment (“PPE”) to prevent the spread of COVID-19. Additionally, it may include facility’s failure to ensure that the staff were knowledgeable about the prevention of the spread of COVID-19 and failure to screen staff and residents appropriately.

Another potential violation of the above rule and statutes that the SOD may contain is for failure to properly abide by the Division of Emergency Management (“DEM”) Order No. 20-011 (signed October 20, 2020) regarding the prohibition of entry of individuals to the facility except in certain circumstances as follows:

1. Every facility must continue to prohibit the entry of any individual to the facility, except in the following circumstances:
…
K. General visitors, i.e. individuals other than compassionate care visitors, under the criteria detailed below:
…
iii. Before allowing general visitors, the facility shall:
1. Set a policy to prohibit visitation if the resident receiving general visitors is quarantined, positive for COVID-19 and not recovered (as defined by most recent CDC guidance), or symptomatic for COVID-19;
2. Screen general visitors to prevent possible introduction of COVID-19;
3. Establish limits on the total number of visitors allowed in the facility, or with a resident at one time based on the ability of staff to safely screen and monitor visitation;
4. Establish limits on the length of visits, days, hours, and number of visits allowed per week;
5. Schedule visitors by appointment only;
6. Maintain a visitor log for signing in and out;
7. Immediately cease general visitation if a resident—other than in a dedicated wing or unit that accepts COVID-19 cases from the community—tests positive for COVID-19, or is exhibiting symptoms indicating that he or she is presumptively positive for COVID-19, or a staff person who was in the facility in the prior ten (10) days tests positive for COVID-19;
8. Monitor visitor adherence to appropriate use of masks, PPE, and social distancing;
9. Notify and inform residents and their representatives of any changes in the facility’s visitation policy;
10. Clean and disinfect visiting areas between visitors and maintain handwashing or sanitation stations; and
11. Designate staff to support infection-prevention and control education of visitors on use of PPE, use of masks, hand sanitation, and social distancing.

2. Individuals seeking entry to the facility, under the above section 1, will not be allowed to enter if they meet any of the screening criteria listed below:
A. Any person infected with COVID-19 who does not meet the most recent criteria from the CDC to end isolation.
B. Any person showing, presenting signs or symptoms of, or disclosing the presence of a respiratory infection, including cough, fever, shortness of breath, sore throat, chills, headache, muscle pain, repeated shaking with chills, new loss of taste or smell, or any other COVID-19 symptoms identified by the CDC.
C. Any person who has been in close contact with any person(s) known to be infected with COVID-19, who does not meet the most recent criteria from the CDC to end quarantine.

Clearly, this Order is very detailed on when and how a facility can admit visitors into the facility and it can easily be found that a facility failed to follow it precisely.

Another possible deficiency that a facility may be cited for is failure to follow the Comprehensive Emergency Plan that is required by F.S. 408.821. This statute requires that any licensee providing residential or inpatient services must utilize an online database approved by AHCA to report information to AHCA regarding the provider’s emergency status, planning, or operations. As stated above, all facilities are required to report their COVID-19 positive cases through the ESS on a daily basis. If a facility fails to report a positive case on any day, it can be cited for failure to follow the Comprehensive Emergency Plan violating the statute.

AHCA imposes administrative fines for violations according to a classification system in statute, based on the nature of the violation and the gravity of its probable effect on facility residents. ALFs’ (governed by Chapter 429, Part I, Florida Statutes, in addition to Chapter 408, Florida Statutes) deficiencies are classified as a Class I, Class II, Class III, or Class IV violation. The core licensing statutes for the facility type determine the Class and the fine that AHCA is authorized to charge the provider. SNFs are governed by Chapter 400, Part II, Florida Statutes, as well as Chapter 408, Part II, Florida Statutes. The “classification” system and applicable penalties for SNFs are found in section 400.23(8), Florida Statutes, and while similar to those of ALFs have striking differences. Specifically, the SNF statute provides for different levels of fines depending on whether the deficiency was isolated, patterned, or widespread. Additionally, for Class I, II, and III deficiencies, section 400.23(8), Florida Statutes, provides that “The fine amount shall be doubled for each deficiency if the facility was previously cited for one or more class I or class II deficiencies during the last licensure inspection or any inspection or complaint investigation since the last licensure inspection.” (emphasis added).

As part of a survey that results in deficiencies due to COVID-19, AHCA may request a facility to enter a Voluntary Limitation on Admissions in order to help control the spread of COVID-19 in the facility. Many facilities will agree to the voluntary limitation in the best interests of their residents. Unfortunately, the facility cannot begin readmitting former residents or admitting new residents until AHCA issues a letter lifting the voluntary limitation. When the facility finally gets the green light on admissions it is possible that they will have lost numerous readmissions and initial admissions and therefore face a steep financial challenge.

Additionally, even though a facility agrees to a voluntary limitation and then quickly contains the COVID-19 outbreak, they are still at risk for being the subject of an Administrative Complaint. The Administrative Complaint will seek administrative fines, a survey fee, and will sometimes seek to take action against the facility license (e.g., license suspension or revocation). Once served with an Administrative Complaint, the facility has the option to file a Petition for Formal Administrative Hearing to challenge the validity of AHCA’s action or proposed action on the license. Hearings on license proceedings are held before an independent administrative law judge at the Division of Administrative Hearings. Such hearings are an opportunity to prove that the true facts do not support the sought fines, and suspension or revocation of the facility license.

If your facility has received an Administrative Complaint resulting from COVID-19 issues, we can help. Contact an attorney at Smith & Associates today to discuss your rights and options. For additional information on challenging a statement of deficiency or on classification of violations, please see our article Defending Alleged Survey Deficiencies At Assisted Living Facilities (ALFs) and Skilled Nursing Facilities (SNFs).

COVID-19 UPDATE: STATE AND FEDERAL ASSISTANCE FOR INDIVIDUALS AND SMALL BUSINESS OWNERS

Responding to the ongoing global Coronavirus pandemic, government, at all levels, has been taking drastic measures to help combat the spread of COVID-19 and to provide economic assistance to the individuals and businesses that have been impacted. This article highlights some of the key actions taken by state and federal government

Economic Assistance

In an effort to slow the spread of COVID-19, President Trump issued the national guidelines “15 Days to Slow the Spread” and, after briefly suggesting that businesses and people could potentially return to normal by Easter, extended the National Guidelines for at least another 30 days. Florida Governor Ron DeSantis initially resisted calls for a state-wide lockdown but has now issued an Executive Order providing for “Safer at Home” measures including the closure of all non-essential businesses, and directing that citizens remain at home except for essential services and functions. The economic fallout has been dramatic as the economy grinds to a halt. Global economic recession is now a reality, with the only question being how long will the recession last and when can the country get back to work.

While all sectors of the economy have been dramatically impacted, small businesses and individual employees have been especially hard hit. With the need to continue social distancing guidelines and business closures, the Federal Government and the State of Florida have implemented economic packages to provide emergency relief and economic stimulus for the affected businesses and the people who were employed by them.

The CARES Act: On Friday, March 27, 2020, the Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) was signed into law. This law provides an estimated $2 trillion in relief to individuals and businesses suffering due to COVID-19.

  • Individuals: Under the CARES Act:
    • Individuals will receive a check of up to $1,200 per person and $500 per child based upon the individuals income;
    • If you are on unemployment, the amount of time you can be on unemployment has increased by 13 weeks and the federal government will add an additional $600 per week to the unemployment pay for up to four months;
    • All federal held student loan payments, including interest, are deferred through September 30, 2020 without penalty to the borrower;
    • A Pandemic Unemployment Assistance program for gig workers and freelancers is established;
    • The time to file 2019 tax returns is extended until July 15, 2020; and
    • All health insurance plans are mandated to cover COVID-19 testing, vaccination and treatment,
  • Small Businesses: The CARES Act defines a small business as one with 500 or fewer employees. For these small businesses, the CARES Act:
    • Provides $10 billion for grants of up to $10,000 to provide emergency funds for small businesses to cover immediate operating costs;
    • Allows for the Small Business Administration to provide loans of up to $10 million per business. Any funds from that loan that are used to maintain payroll, keep workers on the books or pay for rent, mortgage and existing debt could be forgiven, provided that workers stay employed through the end of June of 2020; and
    • For businesses with existing SBA loans, $17 billion has been allocated to help pay for up to six months of payments.
    • With regards to whether a business has fewer than 500 employees, the SBA will be applying its “affiliation” rules to determine if a business is actually “controlled” by another business. If so, those businesses will be treated as a single business for the purposes of determining the number of employees. SBA’s guide on “affiliations” can be found here.
  • Larger Businesses and Targeted Businesses: In addition to small businesses, the CARES Act provides some relief to larger businesses and also to specific types of businesses. These include:
    • The “Main Street Business Lending” program which will be administered by the Department of the Treasury and Federal Reserve. This program provides:
      • $25 billion in loans or loan guarantees for passenger air carriers, aviation repair stations, and airline ticket agents;
      • $4 billion in loans or loan guarantees for cargo air carriers;
      • $17 billion in loans or loan guarantees for businesses critical to maintaining national security;
      • $454 billion (plus any unused amounts from the programs above) for loans, loan guarantees and other investments in support of the Federal Reserve’s lending facilities that support eligible businesses, states and municipalities.
    • Tax credits for businesses that keep employees on the payroll;
    • For hospitals, the CARES Act:
      • Sets up a $100 billion emergency fund to keep hospitals and employees afloat;
      • Give hospitals that treat Medicare COVID-19 patients a 20% payment increase for all services provided; and
      • Lifts the planned 2% Medicare sequestration payments cuts to providers until the end of this year.
      • Providing $1.32 billion in immediate additional funding for community health centers; and
      • Significantly expanding the availability and use of telehealth.

The Florida Small Business Emergency Bridge Loan Program: The Florida Department of Economic Opportunity administers this Program in partnership with the Florida SBDC Network and Florida First Capital Finance Corporation to provide cash flow to businesses economically impacted by COVID-19. These short-term, interest-free loans help bridge the gap between the time the economic impact occurred and when a business secures other financial resources, including payment of insurance claims or longer-term Small Business Administration (SBA) loans. Up to $50 million has been allocated for the Program. The application period for this short-term interest-free loan opened on March 17, 2020 and will continue at least through May 8, 2020. The highlights of the program are:

  • Short-term interest-free loans in an amount up to $50,000 for business owners.
  • Loans to be repaid without interest within one year.
  • Interest rates after one year go to 12%.
  • Purpose of the Program is to provide short-term liquidity to small business owners to remain open despite economic impacts of the Coronavirus pandemic.

“Families First Coronavirus Response Act” (H.R. 6201): The key features place new responsibilities on employers to assist employees who are affected when the employee or a family member is affected by Coronavirus. The Bill includes the following:

  • Applies to businesses with fewer than 500 employees.
  • Paid Family and Medical Leave for 12 weeks (the first 14 days are to be paid under sick leave provisions).
  • This leave benefit covers employees who have been working for at least 30 calendar days.
  • Among other uses, employees may use the leave to respond to quarantine requirements or recommendations, to care for family members who are responding to quarantine requirements or recommendations, and to care for a child whose school has been closed as a result of the COVID-19 pandemic.
  • After the first 14 days, employers must compensate employees in an amount that is not less than two-thirds of the employee’s regular rate of pay. These pay requirements apply to only the COVID-19-related leave reasons listed above.
  • The provisions will go into effect 15 days after the date of enactment and expire on December 31, 2020.
  • Paid Sick Leave provisions of the Bill also require employers with fewer than 500 employees to provide full-time employees two weeks (80 hours) of paid sick leave for specific circumstances related to COVID-19 (e.g., self-isolating, doctors’ visits, etc.).
  • Part-time employees are also covered and entitled to paid sick leave for the number of hours equal to the number of hours they work, on average, over a two-week period.
  • Employers must compensate employees for any paid sick time they take at their regular rates of pay.
  • Employers will be required to post a notice informing employees of their rights to leave.
  • As currently drafted, the Bill expressly provides that it does not preempt existing state or local paid sick leave entitlements.
  • Employers will be provided with tax credits to offset their costs in meeting the new paid leave mandates.
  • The provisions will go into effect 15 days after the date of enactment and expire on December 31, 2020.
  • The Bill provides $1 billion in emergency unemployment insurance (UI) relief to the states: $500 million for costs associated with increased administration of each state’s UI program and $500 million held in reserve to assist states with a 10 percent increase in unemployment. Besides the necessary increase in unemployment, in order to receive a portion of this grant money, states must temporarily relax certain UI eligibility requirements, such as waiting periods and work search requirements.

Florida Department of Emergency Management – Emergency Requisition Requests: For healthcare facilities unable to get necessary supplies, including personal protective equipment, N95 Masks, and COVID-19 tests, the Florida Department of Emergency Management has created a COVID_19 Emergency Requisition Request system that allows the facilities to request necessary equipment when it is unable to obtain it anywhere else. The form for this can be found here.

Actions Taken to Slow/Stop the Spread of COVID-19

The Executive Office of the Governor: As of the date of this article, the Governor has issued numerous Executive Orders aimed at slowing or stopping the spread of COVID-19. These orders include:

  • EO #2020-51 establishing a coronavirus response protocol and directing a public health emergency;
  • EO #2020-52 declaring a state of emergency;
  • EO #2020-68 suspending bars, pubs, and nightclubs and limiting capacity at restaurants, and limiting the size of groups at public beaches;
  • EO #2020-69 allowing local government meeting to occur electronically;
  • EO #2020-70 restricting restaurants to take out food service only and suspending movie theatres, concert houses, auditoriums, playhouses, bowling alleys, arcades, gymnasiums, fitness studios and beaches in Broward and Palm Beach counties;
  • EO #2020-71 restricting on-site alcoholic sales, but allowing restaurants to sell packaged alcohol to-go and closing gyms and fitness centers;
  • EO #2020-72 prohibiting any non-emergency or elective emergency procedure or surgery;
  • EO #2020-80 requiring the screening and isolation of anyone arriving in Florida from New York, New Jersey, or Connecticut by airplane;
  • EO #2020-82 requiring the screening and isolation of anyone arriving in Florida from New York, New Jersey, or Connecticut regardless of how they arrive;
  • EO #2020-83 advising people over the age of 65 or with other health issues to stay at home and advising against any gathering, including work, where 10 or more people are together.
  • EO #2020-91 and 92, commonly referred to as the “Safer at Home” order, closing all non-essential businesses, and directing that citizens remain at home except for essential services and functions.

Florida State Agencies: In addition to the actions taken by the Governor, state agencies are also taking action.

  • All agencies have suspended licensing, and renewal requirements for existing licensed professionals for at least 30 days.
  • Florida Department of Emergency Management: FDEM has activated Level 1, which is a full scale Activation of State Emergency Response Teams and has mobilized the national guard. Additionally, FDEM has:
    • Established a grant program to assist Florida Counties;
    • Worked with the federal government to provide needed medical supplies, including mobile intensive care units, ventilators, hospital beds, personal Protective equipment,. N95 face masks, and other necessary medical supplies.
    • As discussed above, FDEM has established a process to allow healthcare facilities to request these needed items.
    • FDEM, in conjunction with the Agency for Healthcare Administration, have implemented emergency rules restricting who can visit nursing homes and assisted living facilities.
  • Florida Department of Highway Safety and Motor Vehicles: Driver license renewal requirements have been suspended for at least 30 days.
  • Florida Department of State: The Florida Department of State has extended the annual report filing deadline for businesses until June 30, 2020.

Centers for Medicare and Medicaid Services (“CMS”): CMS, in conjunction with Florida Medicaid, has also taken steps to stop the spread of COVID-19 and provide additional access to care to patients that have or may have COVID-19. These steps include:

  • Confirmation that Florida Medicaid will cover all medically necessary services related to testing and treatment of COVID-19;
  • Waiving prior authorization for medically necessary services and supplies for Florida Medicaid patients;
  • Removing limits on prescription refills and allowing for 90-day supplies of medications for Florida Medicaid patients;
  • Waiving co-pays for all services for Florida Medicaid patients; and
  • Waiving Medicare Telehealth Reimbursement Restrictions.

Schools and Universities: School districts and universities across the state are making significant changes to ensure the safety of their students, staff, and the community at large. These include:

  • Extending spring break until March 30, 2020 (with the exception of Collier, Duval, Sumter, and Union counties);
  • Implementing distance learning for all K-12 students from March 30 through at least April 15th;
  • Cancelling required student assessments and adjusting graduation and grade promotion requirements accordingly;
  • Cancelling school grades;
  • Establishing programs to provide technology and internet access to low-income K-12 students to access distance learning;
  • Colleges and universities are directed to use virtual or remote learning for the remainder of the spring semester and all other activities and gatherings have been cancelled or postponed; and
  • Colleges and universities have cancelled May 2020 commencement ceremonies and are considering extending the spring semester through June of 2020.

County and other Local Government Actions: Counties and other local governments are also taking action to stem the tide of COVID-19. These actions include:

  • Orange and Osceola County have ordered all theme parks to close and imposed curfews;
  • Miami-Dade County has ordered parks and public beaches to close;
  • Many other counties have also closed or limited beach access;
  • Lake County has issued emergency orders requesting that residents over 65 shelter in place and requesting that employers with residents over the age of 65 to allow working from home.
  • The Florida Keys have closed to visitors; and
  • Some counties and cities have also closed boat ramps and restricted access to boating and boat gatherings.

Stay Up To Date

Additionally, both the state and federal governments are providing numerous online resources to keep people informed of COVID-19 and how to protect themselves. These sites include:

Conclusion

COVID-19 is an unprecedented challenge for everyone. If you have concerns as to how to access the resources described in this article, please consider contacting an attorney at Smith & Associates to discuss your rights under these new laws and regulation.

COVID-19 – Economic Stimulus Packages for Employers

During the ongoing national economic and health care crisis caused by the global coronavirus pandemic, Smith & Associates, will remain open and available to assist our clients with their legal needs. We have received numerous inquiries about the recently enacted state and federal programs that are now available to address the economic dislocation caused by the pandemic. The good news is that there are federal and state programs that can provide immediate financial assistance in these stressful times. Since there is always much confusion when dealing with applications and the required supplemental documents that need to be gathered, we are here to assist you by explaining the programs available and the best options for you. Below is a brief description of some of the available financial assistance program.

Paycheck Protection Program (PPP) Loans

The Paycheck Protection Program is part of the federal economic stimulus bill known as the CARES Act. This program is intended to provide eligible small businesses with eight weeks of cash-flow assistance through a 100% federally guaranteed loan from the U.S. Small Business Administration. Provided the funds are used to maintain employee payroll and other business expenses as detailed below, the loan amount will be forgiven for those expenses incurred in the eight weeks following the approval of the loan. In other words, a small business owner who meets the requirements will receive a cash infusion with no required repayment if they meet the conditions set forth in the Act.

Who is eligible?

Small businesses with 500 employees or fewer and other eligible entities (includes corporations, partnerships, sole proprietors, independent contractors, self-employed individuals, 501(c)(3) and 501(c)(19) organizations) will be able to apply for funding in the form of an SBA loan to offset harm to the business caused by the coronavirus crisis between February 15, 2020 and June 30, 2020. This program would be retroactive to February 15, 2020, in order to help bring workers who may have already been laid off back onto payrolls.

How much may I borrow?

Up to 2.5 times your monthly payroll costs as reflected in your most recent tax return (up to a maximum amount of $10 Million), which includes salaries, wages, tips, payments for sick and medical leave, insurance premiums, and state and local taxes assessed on the compensation of employees. Eligible payroll costs do not include compensation of individual employees for amounts exceeding $100,000 annually (this would be pro-rated for the relevant period). Any loan payments will be deferred for periods of six months and in some cases a maximum deferral of up to a year. No collateral or personal guarantees are required for loans. You do not have to provide financial qualifications for the loan. Neither the government nor lenders will charge small businesses any fees.

What can I use the loan for?

Payroll costs; mortgage, rent and utility costs; interest on debt obligations incurred prior to February 15, 2020.

Can my loan be forgiven?

You will not be required to pay back the portion of the loan used for the above expenses paid within the eight-week period after the loan closing date. HOWEVER, if the business does not retain or re-hire employees at the same level as the previous 12-month period, the loan amount forgiven will be reduced in proportion to any reduction in employees and/or reduction in pay of any employee beyond 25%. Businesses that rehire workers previously laid off by June 30, 2020 will not be penalized for having reduced payroll at the beginning of the period.

Forgiven expenses include:

  1. Up to eight weeks of payroll expenses in the form of wages, salaries, commissions, tips, health insurance costs, and retirement benefits.
  2. Mortgage payments on the business property.
  3. Rent payments for the business property.
  4. Utility payments.

What happens after the forgiveness period?

Any loan amounts not forgiven are carried forward as an ongoing loan with max terms of 10 years, at a maximum interest rate of 4% (the amount will be determined by the SBA lender at the time of the loan). Principal and interest will continue to be deferred for a total of six months with the potential to defer for up to a year after disbursement of the loan. The clock does not start again. (Be on the lookout for the Main Street Business Lending Program soon to be announced by the Federal Reserve as a complement to the PPP.)

SBA Economic Injury Disaster Loans & Emergency Economic Injury Grants

These grants provide an emergency advance of up to $10,000 to small businesses and private non-profits harmed by COVID-19 within three days of applying for an SBA Economic Injury Disaster Loan (EIDL). To access the advance, you first apply for an EIDL and then request the advance. The advance does not need to be repaid under any circumstance, even if you are not approved for the loan, and may be used to keep employees on payroll, to pay for sick leave, meet increased production costs due to supply chain disruptions, or pay business obligations, including debts, and rent or mortgage payments.

Who is eligible?

Small businesses with 500 or fewer employees including sole proprietorships, with or without employees; independent contractors; cooperatives and employee owned businesses; and tribal small businesses. Small business concerns and small agricultural cooperatives that meet the applicable size standard for SBA are also eligible, as well as most private non-profits of any size.

What are the loan terms if I’m approved?

A maximum low interest loan of $2 Million, determined by SBA; up to a 30-year term and amortization (determined by the SBA on a case-by-case basis) and no payments for the first 6-12 months. Within 72 hours of submitting a complete application, you can receive a grant of $10,000 if you have been in business since January 31, 2020. This does not have to be paid back, even if the loan is not approved. The deadline to apply is December 18, 2020.
 
If I get an EIDL and/or an Emergency Economic Injury Grant, can I get a PPP loan?

Whether you’ve already received an EIDL unrelated to COVID-19 or you receive a COVID-19 related EIDL and/or Emergency Grant between January 31, 2020 and June 30, 2020, you may also apply for a PPP loan. If you ultimately receive a PPP loan or refinance an EIDL into a PPP loan, any advance amount received under the Emergency Economic Injury Grant Program would be subtracted from the amount forgiven in the PPP. However, you cannot use your EIDL for the same purpose as your PPP loan. For example, if you use your EIDL to cover payroll for certain workers in April, you cannot use PPP for payroll for those same workers in April, although you could use it for payroll in March or for different workers in April.

Florida Small Business Emergency Bridge Loan Program

These short-term, interest-free working capital loans are intended to “bridge the gap” between the time a major catastrophe hits and when a business has secured longer term recovery resources, such as sufficient profits from a revived business, receipt of payments on insurance claims or federal disaster assistance.

Who is eligible?
Applications will be accepted by qualified for-profit, privately held small businesses that maintain a place of business in the state of Florida. All qualified applicants must have been established prior to March 9, 2020 and suffered economic injury as a result of the designated disaster. Qualified small business applicants must be an employer business with 2 to 100 employees.

How much may I borrow?

Up to $50,000 per eligible small business. Loans of up to $100,000 may be made in special cases as warranted by the need of the eligible small business.

What are the loan terms?
One year and loans will be interest-free for the loan term (one year). The Interest rate will be 12% per annum on the unpaid balance thereafter, until the loan balance is repaid in full.

When should I apply?

Applications will be accepted by qualified Florida small businesses under this program through May 8, 2020, contingent on the availability of funds.

Families First Coronavirus Response Act (FFCRA)

This Act imposes new requirements on small business employers to provide employees with paid sick leave for COVID-19 related illnesses and expanded family and medical leave with 2/3 pay for specified reasons related to COVID-19.

Who is a covered employer?

Covered Employers include certain public employers, and private employers with fewer than 500 employees.

What are qualified reasons for leave?

There are six qualifying reasons for an employee to take leave:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. The employee has been advised by a health care provider to self-quarantine related to COVID-19;
  3. The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. The employee is caring for an individual subject to an order described in section 1 or self-quarantine as described in section 2;
  5. The employee is caring for his or her child whose school or place of care is closed or unavailable due to COVID -19-related reasons; and
  6. The employee is experiencing any other substantially similar condition specified by the U.S. Department of Health and Human Services.

What is the duration of leave and the rate of pay?
An employer must provide up to two weeks of paid sick leave to qualified employees, paid at:

  • 100% of their regular rate of pay (up to $511 per day and $5,110 total) if the leave is for any of reasons 1 through 3 above; or
  • 2/3 of their regular rate of pay (up to $200 daily and $2,000 total) if the leave is for reasons 2 or 6 above.

Additionally, if the employee is taking leave due to reason 5, they are entitled to up to 12 weeks of paid leave at 2/3 their hourly rate (up to $200 daily and $12,000 total). If the employee has been employed for at least 30 days, the employee may be entitled to an additional 10 weeks of 2/3 pay if it is being taken for reason 5.
For part-time employees, the regular rate of pay is calculated based on the normal hours that the employee would have been expected to work during that weekly time period.

For example, workers can take time off if they’re isolated because of “a broad range of governmental orders,” including stay-at-home orders or mandates that “otherwise restrict” their mobility. However, they’ll only qualify if the order is what prevents them from working. A worker can’t take leave if they can telework or if they wouldn’t have work even without the isolation order, such as if they work for a coffee shop that has shuttered because of low business. Additionally, workers can use leave intermittently by agreement with employers and that employers can make workers take accrued vacation days or other paid time off at the same time they take leave to care for a child.

What Employees qualify for Family Medical Leave due to COVID-19 related reasons?

In general, employees of private sector employers with fewer than 500 employees, and certain public sector employers.

What if my business cannot afford to make these payments?

The long-term leave portion of the law includes a provision exempting businesses with fewer than 50 workers for whom granting leave would jeopardize business viability.

The regulation lays out three circumstances that qualify an employer for this exemption. Under the rule, these small business employers will not have to provide leave if doing so would raise expenses above revenue such that the employer would “cease operating at a minimal capacity”; the absence would “pose a substantial risk” to the employer’s financial health or operations because of the requesting worker’s skills, knowledge or duties; or the employer can’t find enough workers to perform the work of the employee requesting an absence. Such employers are not exempt from the two-week sick time requirement unless the worker is requesting time off to care for a child whose school has closed, however.

Are there any benefits for the employer?

While the FFCRA imposes significant financial obligations on small businesses as described above, it also ensures that those financial obligations are 100% refundable. Employers who provide the leave and pay described above are entitled to 100% reimbursement. This reimbursement includes the employer’s share of the Medicare tax imposed on those wages and its cost of maintaining health insurance coverage for the employee during the leave period. To ensure that businesses already struggling due to the COVID-19 pandemic receive this reimbursement quickly, the IRS has set up a two-pronged process for reimbursement.

The first prong allows employers to deduct from their Federal payroll taxes the amounts they spent complying with the employee sick leave portion of the FFCRA. Thus, employers will immediately receive reimbursement up to the amount of their payroll taxes. The second prong allows the employer to submit forms for reimbursement of costs above the amounts covered by the payroll tax withholding, and even allows for advanced reimbursement for anticipated overages. The IRS is promising a fast turn-around time on these refunds (two weeks), to help ensure that employers are getting these refunds quickly.
Can I require that the employee provide documentation of the COVID related illness such as a doctor’s order?
Yes, and in order for the employer to get the credit discussed above, they must maintain sufficient documentation to show the employee’s leave was for one of the qualifying reasons.

Conclusion

In conclusion, there are programs available to help you during this unprecedented time. We are here to assist in finding the right program for you. Call or email us, we will help!

Employer’s Guide to the new FFCRA Paid Sick Leave Requirements

Updated April 2, 2020 with information from the Department of Labor’s new rule.

With the flurry of new legislation in response to the COVID-19 pandemic, many companies are concerned about what benefits they have to provide their employees regarding paid sick leave, especially related to COVID-19, and what, if any, programs are available to help them bear the costs of these new employee benefits.

In short, while employers are obligated to grant employees paid sick time in accordance with these new laws, the employer will receive immediate reimbursement in the form of a credit against any Federal withholding tax amounts due to the IRS and an additional cash refund if the credit is insufficient to offset the paid leave granted to employees.

Employee Rights and Benefits

The Families First Coronavirus Response Act (“FFCRA”) granted broad, new paid sick leave rights to employees of qualified employers – namely any private business with fewer than 500 employees. These new provisions, at least currently, are limited in time and only apply from April 1, 2020 through December 31, 2020.

Importantly, the FFCRA established six qualifying reasons for an employee to take leave. These reasons are:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. The employee has been advised by a health care provide to self-quarantine related to COVID-19;
  3. The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. The employee is caring for an individual subject to an order described in section 1 or self-quarantine as described in section 2;
  5. The employee is caring for his or her child whose school or place of care is closed or unavailable due to COVID -19-related reasons; and
  6. The employee is experiencing any other substantially similar condition specified by the U.S. Department of Health and Human Services.

Further, the FFCRA provides that an employer must provide up to two weeks of paid sick leave to qualified employees, paid at:

  • 100% of their regular rate of pay (up to $511 per day and $5,110 total) if the leave is for any of reasons 1 through 3 above; or
  • 2/3 of their regular rate of pay (up to $200 daily and $2,000 total) if the leave is for reasons 2 or 6 above.

Additionally, if the employee is taking leave due to reason 5, they are entitled to up to 12 weeks of paid leave at 2/3 their hourly rate (up to $200 daily and $12,000 total). If the employee has been employed for at least 30 days, the employee may be entitled to an additional 10 weeks of 2/3 pay if it is being taken for reason 5.

For part-time employees, the regular rate of pay is calculated based on the normal hours that the employee would have been expected to work during that weekly time period.

As with the FMLA, the employee must provide notice and that notice must only be given within a reasonable time given the circumstances. However, given the reasons for leave, reasonable notice could very well be shortly before or even shortly after the leave begins.

Additionally, documentation as to the reason for the leave is required. This documentation must include a signed statement by the employee containing the following information: (1) the employee’s name; (2) the date(s) for which leave is requested; (3) the COVID-19 qualifying reason for leave; and (4) a statement representing that the employee is unable to work or telework because of the COVID-19 qualifying reason. Additionally, this documentation must include whatever additional information is necessary to show that the employee is lacking leave for a qualified reason. For example, if the employee is taking leave due to a government quarantine, the name of the government entity that ordered the quarantine is required in the documentation. An employee requesting paid sick leave due to a doctor-imposed quarantine must provide the name of the health care provider who advised him or her to self-quarantine for COVID-19 related reasons. An employee requesting paid sick leave to care for an individual must provide either (1) the government entity that issued the quarantine or isolation order to which the individual is subject or (2) the name of the health care provider who advised the individual to self-quarantine, depending on the precise reason for the request. An employee requesting to take paid sick leave or expanded family and medical leave to care for his or her child must provide the following information: (1) the name of the child being cared for; (2) the name of the school, place of care, or child care provider that closed or became unavailable due to COVID-19 reasons; and (3) a statement representing that no other suitable person is available to care for the child during the period of requested leave.

The Department of Labor (“DOL”), in a temporary rule issued April 1, 2020, has also clarified that employers are not required to pay this sick leave if there is no work for the employee. The DOL provided the following example:

For example, if a coffee shop closes temporarily or indefinitely due to a downturn in business related to COVID-19, it would no longer have any work for its employees. A cashier previously employed at the coffee shop who is subject to a stay-at-home order would not be able to work even if he were not required to stay at home. As such, he may not take paid sick leave because his inability to work is not due to his need to comply with the stay-at-home order, but rather due to the closure of his place of employment.

Additionally, the temporary rule provides that if an employee subject to an isolation order is able to telework, that employee is not eligible for the paid sick leave benefits of the FFCRA.

Finally, the employer must post in a conspicuous place notice of these FFCRA requirements. The Department of Labor poster containing these rights is available here.

Employer Benefits, and Potential Exemptions

While the FFCRA imposes significant financial obligations on small businesses as described above, it also ensures that those financial obligations are 100% refundable. Following the passage of the FFCRA, the IRS issued guidance to businesses as to how to obtain refunds. This guidance was adopted into law with the passage of the CARES Act.

Importantly, the FFCRA provides that employers who provide the leave and pay described above are entitled to 100% reimbursement. This reimbursement includes the employer’s share of the Medicare tax imposed on those wages and its cost of maintaining health insurance coverage for the employee during the leave period. To ensure that businesses already struggling due to the COVID-19 pandemic receive this reimbursement quickly, the IRS has set up a two-pronged process for reimbursement.

The first prong allows employers to deduct from their Federal payroll taxes the amounts they spent complying with the employee sick leave portion of the FFCRA. Thus, employers will immediately receive reimbursement up to the amount of their payroll taxes.

To the extent the reimbursement exceeds the payroll taxes, the IRS has created a second prong that allows the employer to submit forms for reimbursement of costs above the amounts covered by the payroll tax withholding, and even allows for advanced reimbursement for anticipated overages. The IRS is working on drafts of these forms and they are expected to be final in the very near future. Further, the IRS is promising a fast turn-around time on these refunds (two weeks), to help ensure that employers are getting these refunds quickly.

As mentioned above, the IRS is requiring that employers who claim this credit maintain sufficient documentation to show that the employee’s leave was for one of the qualifying reasons.

Finally, if the company has less than 50 employees, it may be eligible for an exemption to the requirement that the employer cover leave for reason number 5. To qualify, the employer must believe that providing said leave would “jeopardize the viability of the business as an ongoing concern.” The DOL’s temporary rule sets forth the criteria for determining if a business qualifies for this exemption:

  1. Such leave would cause the small business employer’s expenses and financial obligations to exceed available business revenue and cause the small business employer to cease operating at a minimal capacity;
  2. The absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the small business employer because of their specialized skills, knowledge of the business, or responsibilities; or
  3. The small business employer cannot find enough other workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labor or services are needed for the small business employer to operate at a minimal capacity.

If a company believes it qualifies for this exemption, it must keep documentation and records that support its reasoning. However, that documentation should not be submitted to DOL.

Conclusion

If you need any assistance in implementing the new FFCRA sick leave provisions, obtaining the refund, or determining if you qualify for the exemption, you should contact an attorney at Smith & Associates to discuss your rights and options.

Coronavirus Impacts on Employers and Employees: Overview of Federal, State and Local Mitigation and Assistance Programs

The Coronavirus pandemic poses unprecedented challenges for employers and employees as more stringent measures and restrictions are imposed almost daily by federal, state and local officials seeking to control the spread of the virus. The possibility of large geographic areas being ordered to “Shelter in Place” and not leave their homes is taking hold as cities and states continue to evaluate their options.

As of the date of this article, all public schools in Florida have been closed, most likely for the reminder of the school year; restaurants have been ordered to operate only at 50% of seating capacity; bars and nightclubs have been ordered to close for at least the next 30 days; Disney and Universal Studios, as well as other tourist attractions, have been closed until at least the end of the March, and likely beyond; the cruise industry has effectively shut down; and now the prospect of closing down Florida’s beaches seems to be on the horizon. Aside from the drastic government measures, the fear among the populace is palpable as many people now practicing social distancing by refusing to eat out at restaurants and limiting all but essential shopping and commercial activities. The impact on Florida’s business is already devastating on the state’s tourism and hospitality industries. As this crisis grows, business owners and employers are evaluating options and strategies to try to save their businesses. Employees are facing lay-offs with unemployment projected to reach the highest level since the Great Depression. Given the devastating consequences and economic dislocation, employers and employees alike should consider available assistance and mitigation programs available. A few possible options are:

The Florida Small Business Emergency Bridge Loan Program: The Florida Department of Economic Opportunity will administer the Program in partnership with the Florida SBDC Network and Florida First Capital Finance Corporation to provide cash flow to businesses economically impacted by COVID-19. The short-term, interest-free loans help bridge the gap between the time the economic impact occurred and when a business secures other financial resources, including payment of insurance claims or longer-term Small Business Administration (SBA) loans. Up to $50 million has been allocated for the Program. The application period for this short-term interest-free loan opened on March 17, 2020 and will continue at least through May 8, 2020. The highlights of the program are:

  • Short-term interest-free loans in an amount up to $50,000 for business owners.
  • Loans to be repaid without interest within one year.
  • Interest rates after one year go to 12%.
  • Purpose of the Program is to provide short-term liquidity to small business owners to remain open despite economic impacts of the Coronavirus pandemic.

“Families First Coronavirus Response Act” (H.R. 6201): This emergency federal legislation passed the House overwhelmingly with bipartisan support and is expected to pass the Senate today. The key features place new responsibilities on employers to assist employees who are affected when the employee or a family member is affected by Coronavirus. The Bill includes the following:

  • Applies to businesses with fewer than 500 employees.
  • Paid Family and Medical Leave for 12 weeks (the first 14 days are to be paid under sick leave provisions).
  • This leave benefit covers employees who have been working for at least 30 calendar days.
  • Among other uses, employees may use the leave to respond to quarantine requirements or recommendations, to care for family members who are responding to quarantine requirements or recommendations, and to care for a child whose school has been closed as a result of the COVID-19 pandemic.
  • After the first 14 days, employers must compensate employees in an amount that is not less than two-thirds of the employee’s regular rate of pay. These pay requirements apply to only the COVID-19-related leave reasons listed above.
  • The provisions will go into effect 15 days after the date of enactment and expire on December 31, 2020.
  • Paid Sick Leave provisions of the Bill also require employers with fewer than 500 employees to provide full-time employees two weeks (80 hours) of paid sick leave for specific circumstances related to COVID-19 (e.g., self-isolating, doctors’ visits, etc.).
    Part-time employees are also covered and entitled to paid sick leave for the number of hours equal to the number of hours they work, on average, over a two-week period.
  • Employers must compensate employees for any paid sick time they take at their regular rates of pay.
  • Employers will be required to post a notice informing employees of their rights to leave.
  • As currently drafted, the Bill expressly provides that it does not preempt existing state or local paid sick leave entitlements.
  • Employers will be provided with tax credits to offset their costs in meeting the new paid leave mandates.
  • The provisions will go into effect 15 days after the date of enactment and expire on December 31, 2020.
  • The Bill provides $1 billion in emergency unemployment insurance (UI) relief to the states: $500 million for costs associated with increased administration of each state’s UI program and $500 million held in reserve to assist states with a 10 percent increase in unemployment. Besides demonstrating an increase in unemployment, in order to receive a portion of this grant money, states must temporarily relax certain UI eligibility requirements, such as waiting periods and work search requirements.

Additional Federal Legislation Under Consideration: Additional legislation will be adopted to provide relief to employees who are dislocated by the impacts of the pandemic. As of this writing, the proposal is likely to include a cash payment directly to every American worker in an amount of $1,000.00. The overall price tag of this Bill is projected to be in excess of $1 Trillion. Details of the program will be posted in subsequent updates to this article.

Conclusion:

There is absolutely no question that Coronavirus will pose new challenges for both Employers and Employees. In assessing their business strategy for meeting new obligations, and navigating the process to seek assistance, both employers and employees should consider consulting with qualified legal counsel. If you have questions about any of the issues contained herein, you should contact an attorney at Smith & Associates to discuss your rights.