The latest coronavirus updates and how they’re affecting Colorado businesses

As coronavirus spreads across the world and the country, businesses are experiencing a major shift in their day-to-day operations, including employee interaction, business strategy and more. With daily changes to policies, regulations and lifestyle, ColoradoBiz is dedicated to bringing you the latest news affecting employers and employees. This page will continually be updated with the latest changes and news by Kim Ritter, director and employment law attorney at MB Law. So, bookmark this page and check back regularly. 

JULY 29, 2020

SBA issues new PPP Loan Forgiveness Guidelines

BY: JIM THOMAS

Asking for forgiveness can be hard.  At least with PPP loans, the SBA has a process.  The process PPP lenders must follow was recently updated here.  The updated process addresses changes in the PPP program, such as the reduction of the amount of the loan to be spent on payroll from 75% to 60%, and, for loans made before June 8, the option of using either an 8 or 24 week “covered” period.  Applications must be made through your lender.  The application is available in either a standard form or, for the self-employed or businesses that made no personnel cuts or salary reductions, an EZ form.  The SBA will begin processing forgiveness requests from lenders beginning August 10, but there is no need to rush.  You have up to 10 months after the end of your covered period to apply, but it is time to confer with your legal or financial advisor on which option—8 or 24 weeks–is best for you.

JUNE 23, 2020

EEOC provides guidance on return-to-work antibody testing

The US Equal Employment Opportunity Commission (EEOC), based on guidance from the Center for Disease Control, has taken the position that antibody tests constitute a ‘medical exam’ under the Americans with Disabilities Act (ADA).  According to the EEOC, antibody tests, which reveal whether an individual was ever infected with the COVID-19 virus, do not meet the “job related and consistent with business necessity” standard set by the ADA.  The EEOC cites a distinct difference in an antibody test from a test to determine if someone has an active case of COVID-19.  Employers are allowed to require diagnostic tests for workers for COVID-19 under the ADA because a person suffering from the virus poses a ‘direct threat’ to the health of others in the workplace.

JUNE 9, 2020

When fear keeps your employee from returning to work

Many employees who are working from home are concerned about returning to the workplace. Their fear of contracting COVID-19 remains a valid reason for not returning to work, but, only under very limited circumstances.  Occupational Safety and Health Act (OSHA) regulations state the employee must reasonably believe they are in imminent danger, i.e. that there is a threat of death or serious physical harm likely to occur immediately or within a short period of time for this protection to apply.

An employee can refuse to come to work if:

• The employee has a specific fear on infection that is based on fact – not just a generalized fear of contacting COVID-19 infection in the workplace.
• The employer cannot address the employee’s specific fear in a manner designed to ensure a safe working environment.

ADA

Generally, employers should accommodate employees who request altered worksites arrangements, remote work options or time off from work due to underlying medical conditions that may put them at greater risk from COVID-19.

FFCRA

If a health care provider advises an employee to self-quarantine because the employee is particularly vulnerable to COVID-19, the employee may be eligible for paid sick leave under FFCRA.

You should always engage in a discussion with your employee regarding his or her fear of returning to work before making any final decisions.

JUNE 2, 2020

Evictions and what to expect

Gov. Jared Polis’ moratorium on evictions was set to expire on May 31. On Friday, May 29, the Governor extended that moratorium an additional 15 days until Saturday, June 13, 2020. Denver Mayor Hancock also extended the city’s moratorium on evictions stating that “It will stay in place until further notice.”

Under the moratorium, all courtroom proceedings are currently frozen, and sheriffs are not serving eviction notices. Once the order is lifted, there may be more than 450,000 renters at risk of being evicted from their homes and businesses. Although many landlords have worked with their tenants to extend the monthly payments out over time and/or modified the lease to accommodate the tenant’s financial situation, landlords also need to pay their bills.

The courts system has left it up to the individual districts to decide when to reopen and hear cases. Currently, state lawmakers are working on a law to extend protections for renters and homeowners. Once the language in the bill is finalized and introduced, we will provide updates.

MAY 28, 2020

Planning for the future of your business succession

BY: BARB WELLS, director at MB Law

Before COVID-19 swept through the state, many business owners I spoke to were planning on having employees buy into their business – either to become owners for the first time or to increase their equity stake. Of course, succession plans, like many other aspects of business, are on hold right now. However, any business owners who have considered this course of action should keep it top of mind. Now is the best time to makes these plans so that in a few months you are ready to talk with the employees again.

Employees who are possible successors need to know that their future is not on hold forever (especially in uncertain times like these) and will want to provide more input on how things progress. As such, every business owner needs to keep thinking about what’s next: How long do you want to continue in the business and at what pace do you want to work? Who is the next owner or group of owners? How will they move into ownership?

Many business owners think about selling to buyers from outside the business, and that is certainly one option. But transferring the business to insiders – employees or family members – is a great option as well and may be your best option.

Planning for a transition to insiders can, and should, start now. Business owners should ask the following questions:

• Who are your possible successors? Do they have the right skills? What do they need to develop more skills?
• If there is more than one successor, do they get along and appreciate/trust each other?
• How long do you want to stay involved?
• How long will it take those people to be fully in charge?
• What monetary/financial options are available to structure this type of transition to insiders?
• What are the tax consequences of a transition like this? How can I limit the taxes?

The business owner (and their employees) should have the chance to give their input on all these questions.  With the help of business, legal and financial advisors, a transition of this sort can work out well for all parties.

MAY 22, 2020

Enforcing safety measures in your place of business during COVID-19

BY: JERRY MCPEAKE, Chief Operating Officer at MB Law

Things are confusing these days to say the least.  While the State of Colorado is on a “Safer at Home” order from the Governor, some municipalities are maintaining stricter standards within their jurisdictions with the threat of fines or imprisonment.  Aspen, Boulder, Denver, Fort Collins, Glenwood, Lone Tree, Summit County, Superior and Wheat Ridge are among those enforcing face covering requirements.  Social distancing is still being required statewide.

It is no less confusing within individual businesses.  Each is complying in different ways based on their needs and circumstances.  A business serving the general public will have different issues than an office that may or may not have a line of customers waiting to enter.  As a business owner or manager, you must integrate the requirements of your local jurisdiction into your new standards of operation.  You may also enforce stricter standards than your local jurisdiction requires.  This means that you set the rules that apply to your business, including rules for internal employees and outside guests, customers, or vendors.

Some of your employees may not wish to comply with these new rules for a myriad of reasons.  For instance face coverings can be annoying and uncomfortable to wear for some; regardless, you get to set the rules and enforcement as long as those rules don’t violate a proven medical condition that could put that person’s life in danger.  Those who do not wish to comply can be denied entrance into the business.  You may require anyone claiming that they have a medical condition to provide you with a valid doctor’s note.  Employees who refuse to comply can be disciplined or terminated.

To ensure fair and equal enforcement:

• Make the rules clear and unambiguous;
• Post the rules for both employees and guests to easily see;
• Revise the rules as needed and if something isn’t working, make the necessary changes;
• Enforce the rules uniformly and obey them yourself as well; and
• Be firm and resolute in your process.

MAY 20, 2020

Paycheck Protection Program Loan Forgiveness Guidance and Application

BY: LISA D’AMBROSIA

The U.S. Small Business Administration, in consultation with the U.S Department of the Treasury, just released the Paycheck Protection Program (PPP) Loan Forgiveness Application providing detailed instructions and calculation for the amount eligible for loan forgiveness under the PPP loan program.

The form and instructions provide some long awaited guidance for borrowers on the PPP loan forgiveness amount and process, including:

• Borrower’s ability to elect an “alternative payroll covered period” to calculate payroll costs to align borrower’s normal payroll cycles with the borrower’s loan funding date;
• Inclusion of eligible payroll and non-payroll expenses either paid or incurred during the eight-week (56-day) period after receiving their PPP loan;
• Guidance in the calculation of the amount and timing for the inclusion of eligible payroll expenses and eligible non-payroll expenses “incurred” during the eight-week (56-day) period so long as such eligible amounts are paid on or before the next regular payroll date for eligible payroll costs or the next regular billing date for eligible nonpayroll costs;
• Step-by-step instructions and calculation of the eligibility and the amount for loan forgiveness;
• Provides for a full time equivalency (FTE) employee reduction exception to avoid a decrease in loan forgiveness based on certain actions of an employee, including an employer’s inability to rehire after a good-faith written offer is rejected by the employee, an employee’s voluntary reduction in hours, or an employee’s termination for cause; and
• Provides for a FTE employee reduction safe harbor to exempt certain amounts from reduction in loan forgiveness based upon an employer’s ability to restore its FTE employees by June 30,

The form and instructions for borrowers on how to apply for forgiveness of their PPP loans and can be viewed and downloaded here.

MAY 13, 2020

SBA Issues Guidance on PPP Loan Necessity

BY: LISA D’AMBROSIA

The SBA recently issued guidance on the determination of whether A PPP loan was necessary to support the ongoing operation of the loan. This is very good news, especially for those with loans under $2 million.  Below is an excerpt from the SBA’s update to its PPP FAQ.

Question No. 46: How will SBA review borrowers’ required good-faith certification concerning the necessity of their loan request?

Answer: When submitting a PPP application, all borrowers must certify in good faith that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.” SBA, in consultation with the Department of the Treasury, has determined that the following safe harbor will apply to SBA’s review of PPP loans with respect to this issue:

Any borrower that, together with its affiliates, received PPP loans with an original principal amount of less than $2 million will be deemed to have made the required certification concerning the necessity of the loan request in good faith.  SBA has determined that this safe harbor is appropriate because borrowers with loans below this threshold are generally less likely to have had access to adequate sources of liquidity in the current economic environment than borrowers that obtained larger loans. This safe harbor will also promote economic certainty as PPP borrowers with more limited resources endeavor to retain and rehire employees. In addition, given the large volume of PPP loans, this approach will enable SBA to conserve its finite audit resources and focus its reviews on larger loans, where the compliance effort may yield higher returns.

Importantly, borrowers with loans greater than $2 million that do not satisfy this safe harbor may still have an adequate basis for making the required good-faith certification, based on their individual circumstances in light of the language of the certification and SBA guidance. SBA has previously stated that all PPP loans in excess of $2 million, and other PPP loans as appropriate, will be subject to review by SBA for compliance with program requirements set forth in the PPP Interim Final Rules and in the Borrower Application Form. If SBA determines in the course of its review that a borrower lacked an adequate basis for the required certification concerning the necessity of the loan request, SBA will seek repayment of the outstanding PPP loan balance and will inform the lender that the borrower is not eligible for loan forgiveness. If the borrower repays the loan after receiving notification from SBA, SBA will not pursue administrative enforcement or referrals to other agencies based on its determination with respect to the certification concerning necessity of the loan request. SBA’s determination concerning the certification regarding the necessity of the loan request will not affect SBA’s loan guarantee.

MAY 11, 2020

COVID-19 disrupts M&A, but recent SBA guidance provides relief

BY: SHERAP THARCHEN

Continuing the upward trend of mergers and acquisitions from last year, January and February got off to a great start.  Even in March, optimism was high and dealmakers around Colorado helped clients buy and sell businesses. Of course, that all changed after COVID-19.  At first, some deals were put on hold, but with the continued economic impact, many buyers pulled out and new deals all but dried up.

With the CARES Act, small businesses around the country were promised financial assistance and many have received PPP loans.  The law, however, left many open questions for those considering a business purchase or sale as things begin to open up.  Would a new company formed to purchase the assets of an existing business be PPP eligible? What happens when a PPP borrower is acquired during the 8-week forgiveness period? For these businesses and their owners, a challenging transition is further complicated by such uncertainties.

Recent SBA-issued guidance provided some answers.  We learned that a business in operation on February 15, 2020, that meets the other PPP criteria, may still apply regardless of entity change caused by an asset sale. So, if you acquired a business and your bank previously rejected your PPP loan application due to the “in operation” rule, consider resubmitting it.

What if the pre-sale business had applied for and received a PPP loan?  This is more complicated.  Check with your legal counsel on how to structure and execute a transaction so that it does not negatively affect the PPP loan or its forgiveness.  For certain transactions, an equity sale may be sufficient.  For others, more complex structures may be necessary to achieve your goals.

APRIL 27, 2020

What to do before re-opening your workplace

Every business has different need, even those in the same industry have different cultures and business practices. Through these differences there are some basic things that should apply to all businesses as we prepare for a phased re-introduction of employees into the workplace.

1. Implement preventative measures. This includes many of the processes that we have already incorporated into our daily lives such as:

• Requiring social distancing of at least 6 feet at all times in the workplace;
• Encouraging regular washing of hands and use of hand sanitizer;
• Cleaning and disinfecting common areas in your business;
• Providing, requiring or allowing employees to wear gloves or other personal protective equipment (PPE) and prohibiting workplace harassment of employees who choose to engage in these protective measures;
• Limiting or prohibiting non-employee visitors or, depending on the type of business, having visitors/clients wear masks and gloves; and
• Staggering shifts, start-times, breaks and meals.

2. Identify and isolate sick employees.  Keeping in mind your obligations to protect your employees’ medical rights under HIPAA, here are a few things you can do about sick employees:

• You can require daily temperature screenings before employees are permitted to enter the workplace;
• Ask employees to self-monitor for signs and symptoms of the coronavirus if they suspect possible exposure; and
• Develop policies and procedures for employees to report when they are sick or experiencing symptoms of COVID-19.

3. Flexible workplace programs.

• Allow employees to work from home if or whenever possible;
• Offer alternative transportation for employees who rely on public transportation;
• Require sick employees to stay home, including contract or temporary employees, until they are symptom free for 72-hours; and
• Maintain flexible policies that permit employees to stay home to care for a sick family member; and for employees who are at high-risk or live with someone who is high risk.

Slow and deliberate planning will save lives.

APRIL 20, 2020

How do workshare programs work for employers?

A workshare program allows participating employers to temporarily reduce hours and wages for some of their employees. The affected employees become eligible to collect partial unemployment benefits in order to recoup some of their lost pay. This allows employers to implement cost-savings measures while maintaining their workforces and minimizing the financial impact to their employees.

The requirements and qualifications for employers are:

• You must have reduced the normal weekly work hours by at least 10%, but by no more than 40%
• The reduction must affect at least two out of all employees in the business or a minimum of two employees in a certain unit
• You must have paid in premiums as you paid your former employees in unemployment insurance benefits

This program is administered by the Colorado Department of Labor. For further details visit to www.coloradogov.org

APRIL 17, 2020

SBA reports that the PPP loan funds are exhausted

By: LISA D’AMBROSIA

The SBA has reached the $349 billion dollars set aside for the Paycheck Protection Program (PPP). If you have not received confirmation from your lender of your approval, please contact your lender to determine the status of your loan application.  The U.S. Treasury Department has requested Congress allocate an additional $250 billion in funds dedicated for this program, but for now the funds for this program are exhausted.  There are other options to consider.  The SBA is still offering their Economic Injury Disaster Loans.  While this loan is not forgivable, proceeds can be used for items other than payroll and rent.  The loans have a very favorable 30 year term at 3.75% interest rate and have potential collateral and personal guarantee requirements.  In the event the PPP funds are expanded, a business can benefit from both loan programs but not for the same purposes so the Economic Injury Disaster Loan application should be completed carefully not to overlap funds for payroll and rent.

APRIL 7, 2020

Tips for implementing a work-from-home policy

For many employers a work-from-home workforce is a new phenomenon. With the advent of stay-at-home orders in response to the COVID-19 pandemic, we find ourselves trying to invent new policies on the fly to accommodate this new way of working. Here are some suggestions on implementing a work-from-home policy using these best practices:

• Trust your employees to be honest, but make sure that you have a process for accountability. Generally, that process involves tracking hours of work and in some situations a login, logout system. Set a schedule and clear expectations on productivity. Finally, be clear about the process for working overtime, if allowed.
• Control the additional costs of working from home. Many employees need additional equipment at home to perform their jobs, printers, programs, etc.  Clarify from the beginning when allowing employees to work at home that additional equipment must first be approved by the employer.
• Maintain information security. Remote work may lead to inadvertent security breaches. One simple rule is to strictly require the remote employee login and out when not using the computer to avoid a family member causing a data breach. Another is to be sure that you are using secure services if conducting video enabled meetings. Hackers (Peepers as some are now calling them) are getting into unsecured video meetings and may be able to steal or broadcast confidential information.

Clear and frequent communication is the key to making a work at home employee be successful.

APRIL 2, 2020

Business owners’ requirements for the Familes First Coronavirus Response Act: Employee Paid Leave Rights

The requirement is that all businesses must display the new U.S. Department of Labor’s poster regarding employee paid leave rights by April 1, 2020. Since many employees are now working from home, you should also email this poster to everyone in your organization to demonstrate compliance. Here is a link to download the Employee Rights poster. This poster should be displayed in your workplace along with other required labor law notices. If you are unsure about acceptable posting requirements just follow these guidelines from the U.S. DOL Wage and Hour Division’s FAQs. You may obtain additional information regarding your obligations under the FFCRA employee paid leave rights requirements here.

MARCH 31, 2020

The rules for exempt employees still on the job

Many employers are relying on their exempt employees (executives, administrators or professionals) to cover the workload of the downsized business now that non-exempt employees have been laid off. What are the rules for exempt employees during the COVID-19 pandemic?

Exempt employees generally must receive their full salary in any week in which they perform any work. The FLSA does not limit the number of hours per day or week that an exempt employee can be required to work. If the exempt employee’s work is outside of their job description be mindful of the Department of Labor test that fifty percent 50% of the exempt employee’s duties remain as the employee’s primary duties and that those duties are of sufficient importance to the employer, in order to maintain their exempt status.

MARCH 26,2020

Colorado Apartment Association advises rent relief

Landlords, are you prepared to deal with COVID-19?

Tenants are being advised by the Colorado Apartment Association to request relief from landlords.  Now is the time to decide how you plan to respond to tenants who request:

• A payment plan
• Waiver of late fees
• Deferral of eviction actions
• Postponement of rent increases

Although no official order is currently in place in Colorado, the Governor has asked that sheriff’s offices avoid taking any eviction actions through April 30. In essence, many officials are following a de facto moratorium on ceasing to process eviction summonses and notices. This is caused by the effective shut down of the state and federal court systems.

Fannie Mae and Freddie Mac have been ordered to suspend foreclosures and foreclosure related evictions for at least two months. The U.S. Department of Housing and Urban Development (HUD) is suspending evictions and foreclosures through April related to the fallout of the coronavirus.

Landlords, whatever action you decide to take, put it in writing as a modification to the lease.

MARCH 24, 2020

Denver Mayor issues stay at home order

The Denver Stay at Home order goes into effect at 5:00 p.m. Tuesday, March 24. The intent of the order is to protect the ability of public and private health care providers to handle in influx of new patients and safeguard public health.

What about non-essential businesses? How do they handle their employees in response to the Stay at Home order?  Here are some helpful tips:

• Communication is key. Talk to your employees remotely so they understand what is happening with their jobs.
• The order closes physical business that are non-essential, but it does not prohibit employees from working remotely.
• Wage and hour laws still apply.
• If you cut headcount, you should be furloughing people or laying them off.
• Employees who are not working during this shutdown can apply for unemployment.
• Remember that the paid sick leave and family leave under the Families First Coronavirus Response Act takes effect on April 2, 2020.

Read the full Denver Stay at Home order.

MARCH 23, 2020

Colorado Governor orders reduction of non-critical workplaces

Colorado Gov. Jared Polis has ordered all non-critical workplaces to reduce their workforce by 50% or more effective today. Is your business or workplace considered critical by the State of Colorado?

According to the order, the following businesses are critical:

• Health Care operations
• Critical Infrastructure including utilities, fuel supply and transmission, public water, telecommunications, transportation, hotels, organizations that provide for disadvantaged people and food supply chain
• Critical Manufacturing such as food, beverages, chemical, medical equipment, pharmaceuticals, sanitary products and agriculture
• Critical Retail such as grocery stores, liquor stores, farms, gas stations, restaurants and bars for takeout, marijuana dispensaries but only for medical or curbside deliver and hardware stores
• Critical Services such as trash and recycling, mail, shipping, laundromats, childcare, building and cleaning and maintenance, auto supply and repair. warehouses/distribution, funeral homes, crematoriums, cemeteries, and animal shelters and rescue
• News Media
• Financial Institutions
• Providers of basic necessities to economically disadvantaged population
• Construction
• Defense
• Public Safety services like law enforcement, fire prevention and response, EMT’s, security, disinfection, cleaning, boiling code enforcement, snow removal and auto repair
• Vendors that Provide critical services including logistics, childcare, tech support or contractors with critical government services
• Critical Government Functions

If your business is not on this list it is considered a non-critical business and must conform to the 50% reduction of in-person workforce, or if not practical or possible, must stagger work schedules to keep personnel a minimum of six-feet apart.

You can review the complete list of business requirements and exemptions in Public Health Order 20-24.

MARCH 20, 2020

Coronavirus aid package signed into law

On the evening of Wednesday