Updated August 9.
The Chicago area and Illinois business owners are facing a number of challenges and the CoronaVirus pandemic is threatening the continued viability of their business. Here are some of the more frequently questions asked by business owners.
- Paycheck Protection Program Forgiveness
August 9 ALERT: On August 4 the SBA released new Guidelines for the Paycheck Protection Program (PPP) loan forgiveness. The Guidelines give borrowers instructions regarding PPP loan forgiveness applications, forgiveness-eligible payroll costs (including detailed guidance regarding compensation of owner-employees) and non-payroll costs and loan forgiveness reductions. The PPP forgiveness platform to process PPP loan forgiveness applications will begin August 10.
- Updated Interim Final Rule effective June 24 –
On June 24 the eligibility criteria set forth in the first interim final rule released on April 2, 2020 were amended. The forgiveness period is now 24 weeks but you have the option of using the old 8 week forgiveness period.
The Treasury Department and Small Business Administration released an interim final rule updating eligibility criteria for Paycheck Protection Program (PPP) loans made under the Coronavirus Aid, Relief and Economic Security Act (CARES Act) and the Paycheck Protection Program Flexibility Act. The interim final rule loosens the eligibility criteria that applied to owners of 20 percent or more of a PPP loan borrower’s equity, specifically concerning the criminal histories of such owners. In addition, the interim final rule confirms certain other eligibility criteria that will remain in place. For the text of the rule go to: https://home.treasury.gov/system/files/136/PPP–IFR–Revisions-to-Loan-Forgiveness-Interim-Final-Rule-and-SBA-Loan-Review-Procedures-Interim-Final-Rule.pdf
For the Loan Forgiveness Application go to: https://www.sba.gov/document/sba-form-paycheck-protection-program-loan-forgiveness-application-revised-6-16-2020
- Paycheck Protection Program Flexibility Act –
The Paycheck Protection Program Flexibility Act (“Flexibility Act”) provides businesses with time to maximize loan forgiveness for loans received under the Paycheck Protection Program. The Flexibility Act has made the following changes to the Payment Protection Program:
- Forgiveness Period: The borrower’s “forgiveness period” is extended to 24 weeks, but no later than December 31, 2020.
- Proceeds Used for Payroll Costs: Borrowers must spend at least 60% of their loan towards “payroll costs” to be eligible for loan forgiveness.
- Safe Harbor Period: The Flexibility Act extents a borrower’s safe harbor period – their time to eliminate a reduction in employment, salary and wages – to December 31, 2020. The borrower will not undergo a reduction in their forgiveness amount resulting to a decline in full-time employees if the borrower can prove the following:
- Their inability to rehire individuals employed on February 15, 2020; and an inability to hire qualified employees for unfilled positions on December 31, 2020; OR
- Their inability to return to their level of business activity as it was prior to February 15, 2020 due to the requirements issued by the Secretary of Health and Human Services, the Director of the Centers for Disease Control and Prevention, or the Occupational Safety and Health Administration between March 1, 2020 and December 31, 2020.
- Payment Deferral: Borrowers must make principal and interest payments 10 months after the ending date of the forgiveness period if they have failed to apply for forgiveness within 10 months following their 24-week forgiveness period.
- Maturity Extension: The maturity date is extended to a minimum of 5 years for loans disbursed on or after the date of the Act’s enactment. Borrowers and lenders may mutually agree to modify the maturity terms of loans disbursed prior to the Flexibility Act.
- CDC issues guidelines for reopening of businesses.
The CDC issued updated guidance for employers, including a user-friendly checklist for employers to prepare workplaces for return to work.
Among the recommendations:
- Encourage employees to stay home when sick; provide flexible sick leave
- Physically ensure separation among employees
- Promote hygiene – frequent hand washing and sanitizing
- Encourage employees to wear cloth face coverings when social distancing is difficult to maintain
- Increase cleaning, especially frequently touched surfaces
- Provide incentives for employees to use other forms of public transportation that allow for single-occupancy rides
- Allow workers to request new hours to commute when it is less busy
- Support and encourage telework for employees who have serious underlying medical conditions making them high-risk for severe illness from COVID-19
- Make plans to continue operations in the event of a spike in absenteeism due to COVID-19, including cross training and identifying essential functions
- Social distancing
- Flexible worksites and hours
- Increase physical space between employees and employees and customers through moving work stations or physical barriers
- Close or limit access to common areas
- Prohibit handshaking
- Limit the number of people on elevators
- Implement flexible meeting and travel options
- Minimize work-related travel
- Encourage telework following travel
- Use video and teleconferencing when possible for meetings and travel
- Hold essential meetings in open, well-ventilated meeting spaces and follow social distancing and/or have employees wear face coverings
- Improve ventilation
- Illinois Mask Enforcement will be left to local Businesses
Illinois’ modified stay-at-home order for May will require people to wear masks in some public places, Gov. J.B. Pritzker announced last week. But like other parts of the order, the Chicago Tribune reported, compliance will be enforced by local businesses and through social pressure rather than fines or arrests. It will be up to each open business to require employees and customers to require masks.
- Paycheck Protection Program (“PPP”)
UPDATE: On April 24 the Paycheck Protection Program and Health Care Enhancement Act (“Enhancement Act“) was signed into law and which provides an additional $484 billion in funding for distressed small businesses by replenishing the depleted Paycheck Protection Program (PPP), designed to keep workers on payrolls, and Economic Injury Disaster Loan (EIDL) program, offering loans and emergency grants. The Enhancement Act also provides funding for hospitals and coronavirus testing. The SBA announced that it will start accepting applications thru approved SBA banks on Monday, April 27 at 9:30 am cst.
This is one of the best programs for small business owners and will be under high demand with details just announced on April 3 by the SBA. More information is below or on the SBA website. The SBA has an online lender referral tool with more info.
The Paycheck Protection Program (PPP) offers streamlined loans through the Small Business Administration (SBA) of up to $10 million to businesses, nonprofits, and veterans organizations that employee less than 500 employees or less than the employee size standard set by the SBA for the borrower’s particular industry. Interest on the loans will be less than 4% and can be used to cover payroll, insurance, mortgage payments and other debt obligations. Loan amounts spent on payroll costs, mortgage interest, rent, or utilities during the 8-week period following the origination date of the loan (roughly through June) may be forgiven, but the forgiveness amount is reduced if the borrower reduces employee count or salaries (from their prior year level). The money can be used to retroactively bring back employees already laid off on or after February 15, 2020. The details on how to apply for the newly enhanced loans have now being released and it appears that loan applications will be on June 7 thru your business bank (as of April 3). The loan application can be downloaded here.
The best advice we can offer is to contact your regular banker to initiate the loan process immediately. Or, reach out to any local bank. The requirements for a bank to become an SBA-approved lender have been expedited, so more banks will be eligible to make the PPP loans. Banks are now accepting applications. There will be very strong demand for these PPP loans so it is important to move now.
More SBA loans are discussed below.
- What are the income tax consequences of a PPP Loan?
The Paycheck Protection Program (PPP) provided certain taxpayers a low-interest loans to enable continued operations during the coronavirus pandemic. Provided the borrower business spends the PPP loan on certain enumerated expenses – such as payroll costs and rent – all or most of the PPP loan will be forgiven. However, there are some very important tax ramifications which should be considered such as:
- Recipients are ineligible to claim the employee retention credit, which is a refundable payroll tax credit also established by the CARES Act.
- For the part of the PPP loan which is forgiven, the IRS announced that no tax deductions will be allowed for expenses that are funded by PPP loans that are later forgiven. Forgiveness is available only if the taxpayer spends the PPP funds on certain enumerated expenses such as payroll costs, mortgage interest, rent, and utilities.
- To get all of the loan proceeds forgiven at least 75% of the PPP funds must be spent on payroll costs; the remaining 25% can be spent on the other enumerated expenses.
- Under the IRS guidance, if a taxpayer uses PPP funds for these expenses and the taxpayer’s PPP loan is later forgiven, the taxpayer is not eligible to deduct any such expenses.
- The PPP funds are considered to be income tax exempt from tax.
- Once a taxpayer has a PPP loan forgiven, the taxpayer cannot defer any subsequent payments of payroll taxes.
- Courts Remain Closed until early June.
Except for emergency matters, the courts are closed. Generally, every case has been continued with new dates to be assigned by the judge. For a full listing of court closures go here to see where your courts stand.
- Independent Contractors get Relief from the State and the SBA
As of April 15, 2020, the Illinois Department of Employment Security (“IDES”) is asking all unemployed and underemployed individuals to file a claim for benefits even if they do not believe that they are eligible to receive them. The state has determined that many people who have been told that they are not eligible actually are. Furthermore, the state is not factoring whether or not an employer payed unemployment taxes into their determination.
Pandemic Unemployment Assistance (PUA) extends federally funded unemployment assistance to individuals, such as independent contractors and “gig” workers, who were previously ineligible for their unemployment through IDES. While it is unclear if IDES has actually begun facilitating unemployment compensation for independent contractors, IDES has stated that rejection from the traditional IDES unemployment application process will help IDES identify those who are newly eligible for unemployment pursuant to the new temporary program.
With IDES evaluation in mind, employers need to be extremely careful that they have correctly classified their laid off and furloughed employees. With all unemployed and underemployed employees being encouraged to apply for unemployment and IDES conducting an independent evaluation that does not factor in whether employers initially paid unemployment taxes, this could lead to some employers being flagged for misclassification. (Submitted by Attorney Jillian Tattersall.)
On April 10 the SBA announced a special program to assist independent contractors (those who receive IRS Form 1099). Independent contractors receiving 1099-MISC forms and self-employed individuals are eligible to apply for these potentially 100% forgivable loans beginning on April 10, 2020. This is an expansion of the Paycheck Protection Program (“PPP”) described below. Click here for more information from the SBA on how independent contractors can apply for a PPP loan.
- Salesforce Care Grant.
For-profit companies with between two and fifty employees that have been in business for at least two full years as of March 2020 with an annual revenue between $250,000 and $2,000,000 experiencing difficulties from COVID-19 may be eligible for a $10,000 Salesforce Care Grant. Grant applications open April 24, 2020 at 10 a.m. CDT. More details, including full eligibility requirements and application instructions can be found at: https://grants.ureeka.biz/salesforce
- Do I have to close my business?
As of March 30 over half of Americans were under “stay at home” orders in 24 states and the District of Columbia in addition to several other major cities and local areas. Four states have also ordered all nonessential businesses to close without issuing a formal “stay at home” order. Which businesses can and cannot stay open varies depending on how each state, city, or area defines an essential business. Gyms, hair salons, and restaurants (aside from carry out) generally are among those defined as non-essential.
In Illinois a “Shelter-in-Place” order began on March 20 and was initially scheduled to at least April 7, but the “Shelter-in-Place” order has now been extended to April 30. Under the Order, all nonessential businesses must close, and all people who can work from home must do so. All Illinois schools will stay closed until at least April 8.
Chicago Mayor Lori Lightfoot said the order “is not a lockdown or martial law.” Pharmacies, grocery stores, clinics and airports remain open and garbage is being collected.
Governor J.B. Pritzker’s Shelter-in-Place Order lists as essential: gas stations, pharmacies, food-related businesses like grocery and convenience stores, restaurants (for delivery, take-out and curbside), laundromats, funeral services, hotel and lodging, hardware and supply stores, and critical trades like plumbers, electricians, exterminators, and security personnel. Car dealerships can stay open for service and parts, while outdoor landscaping generally provides enough social distancing. Police and fire stations, healthcare and human service operations, community-based organizations that provide social services, jails and prisons, garbage and sanitation, transportation, utilities, public works, post offices and other shipping services are also permitted to remain open. If you’re still not sure where your business fits, this flow chart may help, or you can review the full text of the Ilinois Stay-at-Home Order.
EFFECTIVE MAY 1 the Governor modified the Stay-at-Home Order which now provides:
- Any individual able to medically tolerate a face covering or mask will be required to cover their nose and mouth with a face covering when in a public place (including work) and unable to maintain a six-foot social distance.
- Children over the age of two are required to adhere to the face covering or mask requirements.
- Face-coverings are required in public indoor spaces, such as stores.
- Retail stores designated as Essential Businesses and Operations are required to comply with additional measures to prevent the spread of COVID-19, including:
- Provide face coverings to all employees who are not able to maintain a 6 foot social distance at all times.
- Cap occupancy at 50 percent of store capacity or occupancy limits based on store square footage.
- Set up aisles to be one-way where practicable and identify aisles accordingly.
- Communicate social distancing requirements set forth in this order through signage, public announcements and advertisements.
- Discontinue use of reusable bags.
- Household members must limit the number of members who enter stores to the minimum necessary.
- Non-essential retail stores may reopen but only for phone and online order through outside pick-up and delivery. Any employees working in these stores must follow social distancing and must wear a face covering when coming within 6 feet of another employee or customer.
- Manufacturers must provide face coverings to employees who are not able to maintain a 6 foot social distance at all times, implement staggering shifts, reduce line speed, operating only essential lines while shutting down non-essential lines, ensure all gathering places (for example, a break room) allow for social distancing, and downsize operations, if necessary, to allow for social distancing.
- All businesses must evaluate which employees can work from home and facilitate remote work from home when possible.
- All business that have employees physically reporting to a worksite must post guidance from the Illinois Department of Public Health regarding workplace safety during COVID-19.
- Outdoor activities are allowed in state parks that remain open as designated by the Illinois Department of Natural Resources But, fishing and boating may only be done in groups of two or less, and golf is permitted only when following the guidelines of the Illinois Department of Commerce and Economic Opportunity.
- Animal grooming services are now included in the definition of Healthcare and Public Health Operations for which individuals may leave their house.
- Schools will remain closed but educational institutions may allow and establish procedures for pick-up of necessary supplies and/or student belongings and dormitory move-out if conducted in a manner consistent with public health guidelines, including Social Distancing Requirements.
While the Governor announced last week that hospitals would be able to begin scheduling non-life-threatening surgeries and some elective procedures would be able to resume, there is nothing in the current modified draft order specifically permitting this change.
- What happens if I don’t close my business?
Non-essential businesses can continue minimum business operations like payroll, security and inventory, and other employees may telecommute if that’s practical. Otherwise they should be closed. Businesses within the City of Chicago should be aware that Mayor Lori Lightfoot has asked residents and employees aware of non-essential businesses staying open to submit complaints to the city’s 311 system. The city will investigate and potentially fine such businesses up to $10,000. Other cities are pursuing different avenues.
State and local law enforcement will ultimately be responsible for enforcement of the executive order. Illinois Governor Pritzker said on March 27 that law enforcement must first get a court-ordered cease-and-desist letter and deliver it to the resident not obeying the new rule. If they still refuse, violators are likely able to be assessed a fine.
- What financial resources are available to help my business during the pandemic?
The U.S. Small Business Administration offers several programs to assist small business owners. For an SBA published guide on the programs available click here. This is a summary of the programs available:
- Paycheck Protection Program. THIS IS THE LOAN THAT EVERY SMALL BUSINESS SHOULD BE APPLYING FOR IMMEDIATELY. Contact your bank now! Some of our clients have already received funds from this program
- The program will provide $349 billion in Small Business Administration (SBA) administered loan and loan forgiveness relief to small businesses with with fewer than 500 employees, sole proprietors, independent contractors, and people who are self-employed. Loans are available in amounts of 2.5 times the monthly average payroll cost for the one-year period prior to the loan, but not to exceed $10 million.
- The loans cover expenses such as payroll, rent, mortgage interest, utilities, and certain group health plan costs plus an additional 25% of that amount.
- Borrowers do not need to provide collateral or make a specific showing regarding coronavirus-related losses.
- Lenders must defer all loan payments for a minimum of 6 months.
- Loan proceeds spent on payroll, rent, mortgage interest, or utilities during the 8-week period after the loan is funded can be forgiven up to the full amount of the loan, and the forgiven amount is not considered taxable income. Note that the forgiveness amount is subject to reduction in the event of employee terminations or pay reductions.
- Paycheck Protection Program loans are available until June 30, 2020.
- Contact your bank now.
- Existing SBA Loan Relief: This is an excellent opportunity for businesses who have an existing SBA loan [7(a) Loans]. The principal and interest of current SBA loans can be for up to six months beginning with the first payment due after March 27!
- Small businesses (less than $3 million annual revenue) can apply for an Economic Injury Disaster Loan and request an Emergency Economic Injury Grant of up $10k. The grant can be received within 3 days, used towards rent, and does not need to be repaid. Go here for the COVID-19 ECONOMIC INJURY DISASTER LOAN APPLICATION. For some information about this SBA program, click here.
- The Economic Injury Disaster Loan Program (“EIDL”) which provides loans up to $2 million to pay fixed debts, payroll, accounts payable, and other obligations affected by the disaster; loans will not exceed a 4% annual interest rate and can be extended for up to 30 years. See Geo’s Blog for more information on the EIDL Program. For a one-page summary here.
- The SBA Express Bridge Loan Pilot Program allows small businesses that have a pre-existing relationship with an SBA Express lender to apply for up to $25,000 that can be accessed quickly and with less paperwork while awaiting results of an Economic Injury Disaster Loan application. The SBA 7(a) loan program, the SBA’s normal non-disaster loan program, offers up to $5 million for any for-profit, U.S.-based business that has reasonable owner equity and has used other financial resources first; the range of purposes goes from acquiring land or building, to acquiring inventory or supplies, to purchasing or starting a business in the first place. The recently passed federal legislation contains additional aid for “severely distressed sectors” of the economy like restaurants, some types of retail, and service businesses. Given that there likely will be more applicants for such programs than resources available, businesses should be prepared to provide requested information, and document their losses as accurately and detailed as possible.
- Are Self-employed people are newly eligible for benefits?
Yes! Benefits will be calculated based on previous income, using a formula from the disaster unemployment assistance program. Self-employed workers will also be eligible for the additional $600 weekly benefit provided by the federal government as part of the CARES Act.
- Do I have to pay my employees if I close?
Exempt, salaried employees are entitled to their full salary in any week they perform work, although they may be required to use paid time off first for time not worked. Non-exempt, hourly employees are paid only for time they have actually worked, at least beyond using their paid time off. The U.S. Department of Labor has issued guidance encouraging employers to prompt employees to telecommute as their job duties allow. But if the business closes and there is nothing that can be done remotely, employers are not obligation to pay workers who do not work.
- Workers’ Compensation for Ill Employees:
Those who have become ill with coronavirus and think they caught it at work might be eligible to file a workers’ compensation or occupational disease workers’ compensation claim. Learn more about workers’ comp coverage and illness due to workplace conditions by clicking here and visiting the web site of our partner Peter Wachowski.
- What are the requirements for health plans when it comes to COVID-19?
Under the Families First Coronavirus Act, employer and all other health plans must cover diagnostic testing, provider services and facility costs including the emergency room, without cost-sharing such as deductibles, copayment and coinsurance. These services cannot require prior authorization or other preconditions from the insurance plan. Employers must notify their employees of this.
- What about paying my mortgage?
The federal stimulus package prohibits foreclosures on all federally-backed mortgage loans (1-4 units) for a 60-day period beginning on March 18, 2020. Provides up to 180 days of forbearance for borrowers of a federally-backed mortgage loan (90 days for federally-backed multifamily mortgage loans, i.e., those with 5 or more units) who have experienced a financial hardship related to the COVID-19 emergency.
Any mortgage, including conventional mortgage loans, could be federally backed through Fannie Mae or Freddie Mac. If you are unsure of your financing type, please contact your mortgage servicer directly or you may check the following websites:
- Has anything changed related to unemployment insurance?
The federal government has provided $1 billion in emergency grants to states for this year, which will cover anything related to processing and payment of unemployment insurance. Illinois has implemented several changes to the filing process due to the overwhelming number of applicants. Those individuals whose last names begin with A through M may file online Sundays, Tuesdays, and Thursdays or via the call center Tuesdays and Thursdays. Those individuals whose last names begin with N through Z may file online Mondays, Wednesdays, and Fridays or via the call center Mondays and Wednesdays. Online registration will also be available to everyone on Saturdays and the call center will be open for everyone on Fridays.
- What about my mortgage payment?
Prohibits foreclosures on all federally-backed mortgage loans (1-4 units) for a 60-day period beginning on March 18, 2020. Provides up to 180 days of forbearance for borrowers of a federally-backed mortgage loan (90 days for federally-backed multifamily mortgage loans, i.e., those with 5 or more units) who have experienced a financial hardship related to the COVID-19 emergency.
Any mortgage, including conventional mortgage loans, could be federally backed through Fannie Mae or Freddie Mac. If you are unsure of your financing type, please contact your mortgage servicer directly or you may check the following websites:
- Do residential tenants have to pay rent?
Landlords will have a number of problems to deal with over the course of the pandemic.
- The Economic Stimulus package (CARES) provides for a 120-day moratorium on late fees, notices to vacate, and evictions for nonpayment of rent where the landlord’s mortgage on that property is a federally-backed mortgage loan as well as those backed by the rural housing voucher program or the Violence Against Women Act of 1994. In addition, owners are prohibited from issuing notices to vacate of less than 30 days.
- Obviously, with everyone in the same predicament, landlords are going to try to work with their good tenants in setting up payment plans rather than filing eviction suits. The effects of the shutdown could result in diminished rent collections for at least April and May as some tenants could potentially be facing the loss of jobs or income. It is probably in the landlord’s best interests to try to manage these situations on a case by case basis and try to work with any tenants who have been financially affected by the virus, or its economic windfall, with the goal being to keep the tenant in place with a plan to get rent payments paid in full. This may mean remaining open to to the idea of accepting late rent, waiving late fees, or a combination of the two. The end result would be to avoid a vacancy if the tenant’s inability to pay is related to the coronavirus pandemic.
- Illinois courts are closed for routine business thru the month of April. All routine trials, hearings and service by the Sheriff have been postponed until the courts re-open. Since the Sheriff is not serving papers like eviction summonses and there are no judges to sign orders.
- If a tenant owed 2 months’ or more rent before the shutdown, you should definitely serve a 5-Day Notice (or whatever notice is required under your lease). There is no law yet prohibiting a landlord from either serving a demand notice or filing an eviction suit.
- The Circuit Court of Cook County has stayed all evictions of tenants during the Pandemic. ON MAY 1 THE CIRCUIT COURT OF COOK COUNTY ANNOUNCED THAT EVICTIONS WILL BE PERMITTED TO PROCEED AFTER JUNE 1.
- Do I have to pay my employees if they get sick?
Employers must provide paid sick leave to those: subject to a governmental quarantine or isolation order related to COIVD-19, whose healthcare provider has advised them to self-quarantine, who are experiencing symptoms, who are caring for those in any of the aforementioned categories, or who are caring for a child whose school or daycare is closed. Employers with fewer than 500 employees must provide full-timers 80 hours of sick leave at the employee’s regular rate, or two-thirds of that rate if caring for someone else. Total wages are capped at $511 per day and $5,110 total, or $200 per day and $2,000 total if caring for others. Those who have worked part-time or irregular hours are paid based on the average number of hours worked over the previous six months. The City of Chicago says it will investigate complaints called into 311 if employees are being refused sick leave, and will fine employers $1,000 per employee per violation.
- What are the newly expanded Family and Medical Leave requirements?
Amendments to the Family and Medical Leave Act temporarily require, from April 2 through December 31, that employers with fewer than 500 employees provide up to 12 weeks of job-protected leave for anyone employed for at least 30 days, including those whose children’s school or childcare provider is closed. Those with 50 or fewer employees can apply for an exemption with the Department of Labor if doing so would impact the viability of their businesses. The first 10 days may be unpaid, although employees can use accrued vacation or sick leave, and after that, full-time employees must be paid two-thirds of their regular salary, up to $200 per day and $10,000 total per employee. Part-time or irregular employees can be paid based on the average number of hours worked over the previous six months.
- Business Interruption Insurance Claims
Many businesses have suffered economic loses as a result of forced closures ordered by the State. We have been investigating business disruption claims on behalf of several are restaurants for losses suffered during the COVID-19 pandemic. Many businesses pay premiums to insurance companies to protect against loss, including loss of use, occupancy and business interruption, but many insurance companies have already denied claims for losses to these family businesses. Bellas & Wachowski has been examining the delays or denials of claims under the policy, there may be a claim against insurance company. If you have questions about the loses suffered as a result of the pandemic, please contact the attorneys at Bellas & Wachowski.
FOR MORE INFORMATION AND ADDITIONAL SUPPORT FOR YOUR BUSINESS, CONTACT THE EXPERIENCED CHICAGO BUSINESS LAWYERS OF BELLAS & WACHOWSKI – 847-823-9030