Category: COVID-19

Holcomb Signs Civil Liability Immunity Bill Regarding Covid-19

Last week, Indiana Governor Eric Holcomb signed the Civil Liability Immunity Bill into law. This statute provides tort immunity to claims arising from COVID-19. A tort is a wrongful action that doesn’t arise from a contract, like rear-ending someone else’s car. But this bill provides immunity for tort claims related to COVID-19, in all but cases of gross negligence. 

This immunity means that a person, business owner, or property owner, is not liable if someone contracts COVID-19 on their property. It also provides tort immunity for harm or damages resulting from the design, manufacturing, labeling, selling, distribution, or donation of a “COVID-19 protective product.” It also covers those unapproved products used to treat, test, diagnose, or prevent the spread of COVID-19. 

As noted earlier, this bill excludes acts or omissions of gross negligence. Gross negligence is the voluntary disregard of the use of reasonable care. This means that if a person committed gross negligence a court may find them liable for harm or damages related to COVID-19 caused on their property or via their product(s). To avoid committing gross negligence, be sure you’re following CDC guidelines, as well as local and state regulations and ordinances.

Some states have already passed liability immunity laws, while others are pending legislation. Visit this article for more details on what each of the 50 states are doing. 

If you have any questions about the bill give your lawyer at Jones Obenchain a call.

9 Ways the New Covid Relief Bill May Help Your Small Business

On Sunday, December 27, 2020, President Trump signed the second covid relief bill for $900 billion. This is the second-largest relief bill in U.S. history after the $2 trillion CARES bill passed by Congress in March 2020. This new bill allocates $284 billion to the Paycheck Protection Program for federally-backed forgivable loans to support small businesses. 

This bill outlines more strict eligibility guidelines than the previous bill. Loan receivers must use said loan within 8 to 24 weeks of granting. These new loans cap out at $2 million as opposed to the previous $10 million. While the Covid relief bill may be more strict, it also clarifies points of confusion with the previous PPP. It also offers items in aid of small businesses that were not included in the previous bill. 

What Do You Need To Know?

  1. Congress has settled the dispute over whether expenses paid with the Paycheck Protection Program funds are tax-deductible. While the previous bill was confusing, Congress determined that any PPP or Economic Injury Disaster Loan (EIDL) funds used to pay for items that are usually tax-deductible will still be deductible for 2020. 
  2. This means you will likely pay less in taxes for 2020. Because standard deductible expenses paid for with PPP or EIDL loans are still deductible and the government will not tax either form of the loan, even though small business loans normally are, your small business will most likely owe less in 2020 taxes. That’s certainly something we can all be happy about. But remember to track how you use these funds because both PPP loans and EIDL grants are auditable.
  3. Even if a small business received a loan in the first round of PPP loans, it is eligible to apply again for PPP2. A small business may apply again if it has 300 or fewer employees, have or will use the full amount of their previous PPP, and can show a decline of at least 25% in revenue from comparable quarters in 2020 and 2019. It gets better: if your small business returned its loan or received less than it was entitled to under PPP1, you can now request more funding. But you must spend at least 60% of this funding on payroll expenses. 
  4. PPP2 will allow first-time borrowers from additional groups. These include businesses with over 500 employees, sole proprietors, independent contractors, other self-employed individuals. It also covers non-profits (includes churches), and hospitality/food-service businesses with fewer than 300 employees per physical location. 
  5. Congress approved more expenses as forgivable under the PPP2. PPP1 covered costs such as payroll, rent, utilities, and some mortgage interest. These additional expenses forgivable under PPP2 include covered operational expenses like cloud software, sales and billing software, product delivery, etc. It also includes any expenses incurred from worker and facility protection measures, like personal protective equipment, in compliance with CDC guidelines. Other eligible expenses include property damage costs caused from the public disturbances in 2020 that are not covered under insurance. Finally, the PPP2 covers certain supplier costs that were essential to the business at the time the business placed the purchase and/or in fulfillment of a contract or a purchase order made to a supplier before or during the covered period for perishable goods.
  6. You may be eligible to receive the full EIDL GrantUnfortunately, the Small Business Association’s funds ran out when they changed the original Economic Injury Disaster Loan Grant from $10,000 per business to $1,000 per employee during the first stimulus bill. But this round you may qualify for the full $10,000, minus any grants already received. But this time eligible businesses must align with more strict qualifications. These include having fewer than 300 employees, being located in a low-income community, and have suffered a revenue loss of over 30%. These are in addition to the original qualifications outlined in the CARES Act. 
  7. You may be able to utilize the Employee Retention Tax Credit. While businesses largely overlooked this tax credit under the first relief package, the second one now allows businesses to use it in conjunction with the PPP2. This tax credit is refundable against up to 50% of qualified employment taxes that eligible employers paid between March 12, 2020, and January 1, 2021. Find out more here
  8. The bill simplifies the forgiveness application process for any loans under $150k. Under the new criteria, you need only supply the lender with signed certification of how many employees you were able to retain because of the loan funds, what portion of the loan the business spent on payroll costs, and verification of the accuracy of the supplied information and compliance with the required record retention period. This should simplify the process for over 85% of PPP loans. The SBA will release this new application form in the next month, but until then businesses may use the current forgiveness-form 3508S.
  9. The new bill specifically allocates funds for Community Development Financial Institutions and Minority Depository Institutions. It sets aside $15 billion in funding for CDFIs and MDIs for low-cost and long-term capital investments. It also designates some of this money to the CDFI Fund to provide grants in support of other small businesses and non-profits.

What Doesn’t It Include?

It’s important to note that the loan package excludes certain businesses, including businesses dealing specifically with politics (i.e. a state political party). It also encompasses businesses that operate widely in China or have Chinese residents on their boards, or concert venues, theaters, and museums. These arts venues, though, may apply for a Shuttered Venue Operator Grant of up to $10 million. The application process for this grant is still in the works.

2020 was a tough year in more ways than one, but the Covid relief bill will provide some financial cushioning for small businesses who have fallen on hard times. And remember, like we mentioned before, be sure to keep detailed records of how any funds you receive are used in case of an audit down the road. 

If you have any questions about how your small business can utilize the PPP2, contact us today!

Can Employers Require Workplace COVID-19 Vaccination?

Since the beginning of the Covid-19 outbreak, pharmaceutical companies all over the world have been working tirelessly to create a vaccine. According to the CDC, the U.S. Food and Drug Administration has only authorized and recommended the Pfizer-BioNTech vaccine to prevent COVID-19. As of late November, three other vaccines, from Moderna, Janssen, and AstraZeneca, went into Phase 3 testing. 

With mass vaccine distribution on the horizon, things are starting to look up. 58% of American adults say they will get the vaccine once it becomes available. But what about those skeptical of the vaccine’s effectiveness? Employers may wonder whether they can require employees to take the vaccine as a condition of employment. As with many similar issues, the answer isn’t black-and-white.

New EEOC Guidance: Workplace COVID-19 Vaccination

On December 17th, the Equal Employment Opportunity Commission issued new guidance regarding workplace COVID-19 vaccinations. Since the beginning of the pandemic, the EEOC has noted that COVID-19 meets the Americans with Disabilities Act’s direct-threat standard. The ADA states that it poses a “significant risk of substantial harm” to those in the workplace. This means the ADA allows some more extensive controls in the workplace—like screening questionnaires and medical testing—than there would be under its typical guidelines. 

The EEOC’s guidance addresses an array of questions and concerns from employers, but here are the key takeaways:

  • The COVID-19 vaccine is not considered a “medical exam­ination” under the ADA. This means an employer may generally mandate workplace vaccination under federal law as a requirement for returning to, or remaining at, work.
  • But an employer must attempt to provide reasonable accommodation to employees who decline to receive the vaccine based on medical disabilities or sincerely held religious beliefs. 
  • Pre-screening questionnaires and other medical forms given by an employer to an employee in relation to a vaccination may conflict with the ADA’s provision on inquiries related to disability. If such a pre-screening is necessary, the employer must ensure that the ques­tions are job-related and “consistent with business necessity.” 
  • Title II of the Genetic Information Nondiscrimination Act, which makes it illegal to discriminate against an employee because of genetic information, does not apply when an employer administers the vaccine to employees or requires proof of COVID-19 vaccina­tion. But any questions asked in a pre-screening pertaining to genetic information could violate GINA. 
  • An employer requiring a COVID-19 vaccination may determine that an employee who cannot receive the vaccine due to a disability or religious belief poses a direct threat in the workplace. The employer cannot exclude that employee from the workplace unless there is no other way to provide reasonable accommodation that would either reduce or eliminate the threat. Reasonable accommodation only persists so far as the employer does not incur “undue hardship”, which is defined as significant difficulty or expense to provide an accommodation.

How Employers can Prepare

With these guidelines in mind, particularly those pertaining to reasonable accommodation, there are a few things for employers to review to determine whether mandatory workplace vaccination is the right move for your company. Here’s what you need to know:

  1. Consider whether mandatory vaccination is truly necessary in light of other, less invasive practices, like remote work, social distancing, mask usage, and other preventative measures. 
  2. The CDC and other government organizations are actively advocating to implement a vaccination plan for critical workers on the state and local level. 
  3. If vaccination is necessary, employers should determine if it is needed for all employees. It may be possible to relegate it to high-risk departments or locations where the other means of limiting the virus are less viable. Note that employers may need to negotiate the implementation of a mandatory vaccine with unionized employees. 
  4. If employers deem the vaccine necessary, be sure to give employees enough time to submit requests for accommodations or modifications. This may look like additional PPE or transfers to other departments.
  5. An employer may impose a vaccine deadline based on CDC recommendations. In this case, employers should have a well-trained employee or department assigned to monitor and enforce compliance with vaccination policy. Employers should also clearly define and communicate expectations for employees if they fail to comply.
  6. Employers should consider whether it is possible to provide the vaccine at little to no cost to employees. It is also helpful to provide convenient on-site vaccination locations. 
  7. Review state workers’-compensation laws and current employer insurance policies. Any negative physiological effects derived from an employer-mandated vaccine could lead to a workers’-compensation claim. 
  8. And as always, be sure to continually monitor federal, state, and local policies, guidelines, and laws for the most recent updates in your area.

As the situation continues to rapidly evolve, employers must keep alert to decide if mandatory workplace COVID-19 vaccination is necessary. If you have any questions surrounding the legality of this topic or other concerns, give us a call!

Impacts of the IRS Taxpayer Relief Initiative

Despite the $2.2 trillion stimulus bill released by the Federal Government in late March and the IRS’s People First Initiative to support businesses and individuals through the pandemic, many are still experiencing financial woes. And as president-elect Joe Biden pushes lawmakers to pass another relief package, the IRS recently announced that it will expand taxpayer options for making payments through the Taxpayer Relief Initiative to give flexibility to those still struggling financially.

Details of the Initiative

The IRS has always given taxpayers some alternate tax-payment methods, but this new plan expands the offerings. Here are the key items to note:

  • Qualified individual taxpayers who earn under $250,000 a year may be able to establish an installment agreement without providing a financial statement if their monthly payment proposal is deemed sufficient.
  • Individual taxpayers who only owe for 2019 and who also owe less than $250,000 may qualify to establish an installment agreement without the IRS filing a federal tax-lien notice. 
  • The IRS extended the deadline for short-term payment plans to resolve tax liabilities to 180 days, rather than 120 days. 
  • There is more flexibility for taxpayers who can’t meet the payment terms of an existing offer-in-compromise agreement. (An offer in compromise allows taxpayers to settle their debt for less than the full amount owed.)
  • For any organizations no longer in business, the IRS will automatically adjust certain tax balances of existing installment agreements. 
  • Qualified taxpayers with existing direct-debit installment agreements may be able to request a lower monthly payment rate. They may also be able to change their due date through the online payment-agreement system.

These changes do not apply to cases that are assigned to a revenue officer in field collection.

Taxes can be confusing and challenging to meet. The IRS Taxpayer Relief Initiative should help taxpayers alleviate some of the stress and confusion surrounding their taxes.

Check out our other blog addressing the impacts a new administration could have on estate taxes.

How the Recent Michigan Supreme Court Ruling will Affect You

Throughout the COVID-19 pandemic, Michigan Governor Gretchen Whitmer has taken affirmative steps to limit the virus’s spread. Among other things, she issued dozens of executive orders to help flatten the curve by limiting social gatherings, requiring mask usage, and encouraging social distancing. These measures have had various effects on Michigan businesses and residents. But on October 5, the Michigan Supreme Court issued a landmark opinion curtailing the Governor’s authority to issue or renew COVID-19-related executive orders after April 30, 2020. Let’s dive a little deeper into the background of this case and the questions involved.

The Case

The Court dealt with two issues concerning the Emergency Management Act of 1976 (EMA) and Emergency Powers of the Governor Act of 1945 (EPGA). Governor Whitmer issued her executive orders regarding COVID-19 under these two acts. These put the Michigan in a “state of emergency” under both the EMA and EPGA on March 10, 2020. These orders also established requirements for face masks, business operations, stay-at-home mandates, and other emergency procedures. On April 1st, Governor Whitmer issued another executive order placing Michigan under a “state of disaster” under the EMA. The legislature extended these states of emergency and disaster until April 30th, 2020. On April 30th, Governor Whitmer re-declared these states of emergency and disaster under these statutes sans legislative approval.

At the beginning of the pandemic Governor Whitmer issued executive order EO 2020-17. It prohibited healthcare facilities from performing nonessential medical procedures under the state of emergency. The case of the Midwest Institute of Health, PLLC vs. Whitmer deals with the legality of the Governor’s emergency powers. You can learn more about the specific timeline of Governor Whitmer’s executive orders here.

The Michigan Supreme Court Opinion

The Michigan Supreme Court considered the question of Governor Whitmer’s ability to issue executive orders under the EMA and EPGA. They concluded the negative; the Governor does not have the authority to declare emergency orders under the EMA and EPGA.

Concerning the EMA, the Court unanimously decided that Governor Whitmer’s redeclaration of the state of emergency every 28 days was unlawful without legislative approval. This means that post-April 30th, it was unlawful for the Governor to redeclare the state of the emergency under the EMA without congress’s go-ahead.

In a 4-3 split, the Court ruled that the EPGA was an unconstitutional delegation of legislative power to the Governor. They cited that the statute grants the Governor emergency powers under the guidelines of “reasonable” and “necessary”. The Court determined that neither term places specific or meaningful limits on the Governor’s actions. Thus, the EPGA itself is unconstitutional.

The ruling in both cases means that Governor Whitmer will need to work with the state legislature on all future COVID-19 measures.

What this means for Michigan Residents and Businesses

This ruling means that the Governor’s executive orders issued after April 30th are unconstitutional. On October 12, 2020, the Court denied Governor Whitmer’s request to delay the effects of the ruling until October 30th to give the state time to “transition”. The Governor’s executive orders are no longer valid, so the Michigan Department of Health and Human Services has issued a COVID-19 order that impacts businesses. This order follows similar guidelines established in the Governor’s now-invalid executive orders, but under alternate authority. 

What Michigan employers can expect and prepare for:

  • Guidelines like face-mask mandates, social-distancing parameters, and other safety standards for the workplace still apply. 
  • The order states that employers may not require workers to gather together at the workplace in violation of the order if not “strictly necessary” to perform work duties. The order is somewhat unclear about what circumstances require in-person work. But, if applicable, Michigan businesses should begin documenting why in-person work is necessary for operations.
  • Since we do not know precisely how employers can require in-person work, it is not advisable to implement immediate or drastic change. Be sure to carefully review the adjustments made to the guidelines and how they impact the operations of your business. 
  • If in-person work is necessary, ensure that employees have the appropriate facilities and guidelines to follow the MDHHS order. 
  • Be sure to check with your local government officials to ensure that you adhere to municipal COVID-19 guidelines.

What residents can expect:

  • Guidelines like face-mask mandates, social distancing parameters, and other safety standards issued through the Michigan Department of Health and Human Services still apply. 
  • Just as with businesses, local government guidelines could also impact day-to-day life. If you’re confused about municiple guidelines, contact your local health authorities for more information. 

Even though we are all operating amidst great uncertainty, it is certain that Michiganders can expect some changes in the coming months. It is advisable to take it slow when changing your business’s COVID-19 procedures to maintain a sense of stability for your employees and customers.

We know that all of the rapid and dramatic change can be unsettling and confusing for you and your business. We’re here to help. If you’re wondering how this new ruling could impact you, contact the lawyers at Jones Obenchain!