Updated: Jul 1
Guest post by Emily Martin
As the economy begins to reopen and employees begin to go back to work, navigating the landscape of business and employer-related legislation, benefits, and other factors can be overwhelming, especially as small-business owners are focused on ways to just stay afloat during this time.
To help provide you with some peace of mind, we’ve assembled some updates and tips on the most up-to-date information that we think you need to know as you look to reopen in order to do your part to keep you, your staff, and the public safe, and make sure you are staying compliant and making the most of all the assistance out there.
Of course, we recommend consulting with a professional services provider, like EBC or legal counsel, your CPA, etc., about your specific circumstances before taking specific action on many of the items below to make sure you are doing the right thing for your unique circumstances.
1: You should start planning for how to reopen now!
Although it seems like we are in a perpetual state of “PAUSE”, businesses are going to be given the green light to open soon, even if in a reduced way. The key to protecting your staff, your business, and the public, will be making sure you are aware of the requirements and best practices from both a preventative and reactive standpoint to reduce exposure and mitigate issues that do arise. To be best prepared, we suggest starting to prepare and make decisions now, including:
- What level of preventative measures you want to take (will you test employees, require self-reporting, require masks for all, redesigning work schedules/space setups to allow for distancing, etc.).
- What actions you will take with employees, customers, etc. should someone test positive or similar situation occurs (will they be sent home, how will you communicate to others exposure, etc.)
- Assigning designated roles and responsibilities to handle and manage these plans. Confidentiality will be essential so only those that are in positions that can be trusted to handle sensitive information with the utmost care should be assigned responsibilities.
- Getting supplies needed. Masks are required for all client facing employees (employer provided), but perhaps you want to provide or require them for all employees. Buffalo Resilience is a local organization where you can request donations or purchase masks. You may also want to start sourcing gloves, thermometers, etc. for other plans you are putting into place.
2) Know how to maximize your Payroll Protection Program (PPP) benefit and the forgivable amount of the loan.
PPP rules are still evolving- make sure you are properly planning for/spending for maximum benefit and forgiveness, and staying up-to-date on changes that affect how to do this, but also to make sure you are steering clear of pitfalls that could result in issues later.
Remember that:
- You need to return to full headcount by June 30th, if possible, to avoid having your loan forgiveness reduced. The ratio of headcount previous to the pandemic v. that by June 30th, will be a primary determining factor for your forgiveness percentage.
- You also need to get employee pay rates back to normal by June 30th. Reductions still in place as of this date will directly reduce your forgiveness amount also.
- 75% of the funds you received need to be spent on payroll- this means cash compensation made through payroll, within an 8 week timeline of when you received the funds. Consider keeping an eye on your spending over the 8 weeks, and if in your final week or days you are short, you may want to issue a bonus or take other measures to get to the 75% number of the funding.
3) Make sure you are tracking employees’ refusal to return to work.
Maybe you’ve received PPP funding that you now need to spend, or you have a reopen date in mind and need staff to return to start operating the business, but when you’ve made that phone call to let your staff know they can come back- they have not been so enthusiastic.
Businesses are struggling to get employees back to work either because of the financial incentive that the beefed up unemployment program has put in place to stay home, or because they have obstacles still in place due to COVID (childcare, concerns for health, etc.).
As you navigate these waters with your staff, there are implications for your business that you should be aware of in deciding how you want to respond.
- Consider the impact on your PPP. Without that headcount your payroll spending capacity certainly decreases, but also your FTE count for forgiveness will be affected if you can’t get the person back by June 30th. To avoid at least the 2nd consequence to PPP impact, you should document the employee’s refusal to return to work. New guidance has indicated that if an employer offers an employee’s job back, and they choose not to return, documented proof of this will excuse that loss in headcount from impacting the PPP forgivable amount. One thing to note here, is that employees with COVID leave qualifying circumstances can “come back” on staff, but then go out on COVID leave and that will still count toward your total FTE count. More on that leave is discussed below.
- Documenting refusal to return to work also could reduce the negative impact to your NYS Unemployment rate later. The jury is still out on how the COVID cases will affect this rate for employers.
4) FFCRA and other leaves remains available even if employees return to work.
As employees return to work, whether immediately or in the coming months, it is likely they will encounter leave-qualifying circumstances that will prevent them from being able to work due to COVID (diagnosis, quarantine, or child care for example). In these cases, almost all employers are required to provide the Federal Emergency Paid Sick Leave or Family Leave. Make sure you are aware of the terms of this and other leaves if they apply to you (FMLA, NY Disability, NY Paid Family Leave) and that you are administering them correctly.
These include:
- For FFCRA leaves, the business pays the employee through payroll for the leave time, and then is reimbursed for those payments later through a tax credit. Make sure you are aware of the details before granting any leaves as dollar amounts and leave lengths vary based on circumstances.
- If an employee is active with you, but out on one of these leaves, their headcount still counts toward the PPP number. In this case, and also for actual compliance reasons with NYS unemployment, if the employee is asked to return to work but can’t for a leave qualifying reason, they technically should return and then go out on leave.
5) Documentation during this time could be vital later!
Whether it is leave requests, refusals to work, or measures you are taking to prevent spread or handle employee exposure, documentation of everything you do during this time could have big implications down the road for benefit eligibility, but also legal purposes.
Many are already predicting a slew of lawsuits related to discrimination, negligence, and other reasons as this goes on. Taking a little extra time now to be thorough here could save you a lot of headache, time, and money later!
This post was written by Emily Martin, Owner of Ally HR Partners LLC, a Buffalo-based HR consulting firm that helps small businesses identify and implement custom solutions to their people problems and opportunities. Often a business’ #1 expense, Ally HR Partners believes your people should be your #1 asset. Through an integrative partnership approach, Ally becomes your internal expert on all things HR including compliance assurance, performance management, and strategic HR initiatives designed to make the most out of your Human Capital. For more information about how Ally can work for you, visit AllyHRPartners.com
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