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COVID Lawsuits

By John Gannon, Esq.

Businesses across the globe are in the midst of planning, preparing, and executing their reopening strategies. While this news is encouraging, employers face novel and complicated legal questions about their potential liability to employees who either get sick at work or cannot return due to medical or childcare-related reasons.

Searching for answers, businesses leaders are confronted with an array of local, state, federal, and industry-specific protocols for operating safely. Charting a course in the face of this uncertainty is no small task. Unfortunately, one thing remains clear: there will be a wave of lawsuits triggered by the difficult business decisions made during this challenging time.

The COVID-19 crisis will send shockwaves through the courts and fair-employment agencies (such as the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination) for years to come. Senate Majority Leader Mitch McConnell remarked that an “epidemic” of these lawsuits will lead to “a trial-lawyer bonanza.” While likely overstated, the concern for employers should be real. Numerous COVID-19-related lawsuits have been filed, with many more on the way. Here are a sampling of those legal theories, with prevention tips and tactics at the end.

Negligence and/or Wrongful Death

One of the scariest claims for businesses will be negligence and wrongful-death lawsuits. In short, these actions may be lodged by employees (and even customers) who are harmed by COVID-19 because the employer failed to keep the work environment safe.

How might this look? Imagine that employees in a manufacturing plant return to work as the business reopens (or perhaps they have been working all along if the workers are deemed ‘essential’). Joe, who works on the factory floor in close proximity with others, tests positive for COVID-19. Mike, who works near Joe, also tests positive. Mike in turn infects members of his household, including an aging, immune-compromised parent. Can any of them sue the business?

John S. Gannon

John S. Gannon

“Our workers’ compensation system typically prevents employees from suing their employers for injuries that result from working. Instead of suing, employees with occupational injuries get paid through workers’ comp. But is a COVID-19 infection ‘occupational?’”

Our workers’ compensation system typically prevents employees from suing their employers for injuries that result from working. Instead of suing, employees with occupational injuries get paid through workers’ comp. But is a COVID-19 infection ‘occupational?’ Proving the root cause of a COVID infection is very difficult, as the virus spreads easily and can be contracted nearly anywhere.

In the above example, would Joe have a workers’ comp claim? Probably not, unless he can show others he was working in close proximity with someone who had the virus before him. What about Mike? He has a better claim, but still no sure thing. And certainly the family member would not be filing a comp claim. Instead, a negligence or wrongful-death suit might follow.

Recently, the relative of a retail-store employee in Illinois who died from COVID-19 sued the retailer for negligence and wrongful death. The lawsuit claims that the employee contracted COVID-19 in the store, and the business did not do enough to protect employees from the virus. All businesses that are open or reopening should have this case on their radar.

FFCRA Violations

By now, everyone should know that the Families First Coronavirus Response Act (FFCRA) allows employees to take paid leave for a number of COVID-19-related reasons, including the need to care for children who are unable to go to school or daycare. Employees who are denied FFCRA rights or retaliated against for taking FFCRA leave can sue you in court. Successful employees may be entitled to reinstatement, lost wages, attorney’s fees, and double damages.

The first FFCRA-related lawsuit was filed last month. In the case, a female employee (and single mom) claimed she was fired because she requested FFCRA leave due to her son’s school closing. The employee allegedly discussed her need for leave to care for her son, and was told that the FFCRA was not meant to be “a hammer to force management into making decisions which may not be in the interest of the company or yourself.” She was fired a few days later and then filed what might be the first FFCRA lawsuit. Many more are certain to follow.

Discriminatory Layoffs

At the time of this article, the unemployment rate in the U.S. stands at almost 15%, and more than 30 million Americans have filed for unemployment since mid-March. Each layoff decision comes with the risk that someone will claim the reason they were selected was discriminatory.

Suppose Jane, who is 60, gets laid off, while many younger workers were retained for employment. Jane may claim that the reason was at least partially motivated by her age. If she was right, it would be would be textbook age discrimination.

Whistleblower/Retaliation Lawsuits

Employees who raise complaints or concerns about workplace safety are protected against retaliation by the Occupational Safety and Health Act. Similarly, Massachusetts has a law that protects healthcare workers who complain about practices that pose a risk to public health. We expect an increase in these lawsuits during this pandemic.

Prevention Strategies

These novel COVID-19-related lawsuits generally fall into one of two buckets: claims related to worker health and safety, and discriminatory or retaliatory adverse employment actions.

To protect against the first batch, businesses need to rigorously follow federal, state, and local guidance on maintaining a safe workplace. Agencies like the Centers for Disease Control and Prevention, the Occupational Safety and Health Administration, and the Equal Employment Opportunity Commission have issued guidance on topics like maintaining safe business operations, temperature checks for employees, and personal protective equipment. Check with your risk-management advisors to see if they have developed checklists or other tools you can use to aid in your business reopening.

Avoiding the second type of lawsuit (discrimination, retaliation, etc.) involves the same tried and true principles that were critical before COVID-19. Make sure you have reasonable, business-based justifications for your decisions that are not motivated by characteristics like race, age, gender, or use of FFCRA leave. These business-based reasons should be well-documented and understandable to laypeople, who may be reviewing your justification in a jury room. Finally, when in doubt, consult with your labor and employment-law specialists.

John Gannon is a partner with Springfield-based Skoler, Abbott & Presser. He specializes in employment law and regularly counsels employers on compliance with state and federal laws, including the Americans with Disabilities Act, the Fair Labor Standards Act, and the Occupational Health and Safety Act. He is a frequent speaker on employment-related legal topics for a wide variety of associations and organizations; [email protected]

Coronavirus Special Coverage

Q & A for the Reopening

By Ellen McKitterick and Mark Emrick

Employers are beginning to look at bringing employees back into the workplace and/or opening up their offices after being closed for six to eight weeks. Here is a sampling of the key questions that the HR Hotline staff at the Employers Assoc. of the NorthEast (EANE) is responding to.

Ellen McKitterick

Ellen McKitterick

Mark Emrick

Mark Emrick

How do I respond to an employee who says they are afraid to return to work? Each instance needs to be looked at on a case-by-case basis. If the employee has a valid reason that fits within an FMLA, ADA, or other reasonable accommodation, then be sure to start the interactive process and see if the request is reasonable. Otherwise, general fear is not a valid reason, and the employee would be voluntarily resigning.

How do I respond to an employee who says they don’t feel safe returning to the workplace? Assuming you have taken all required cleaning and disinfecting steps, you can respond: “we are operating a safe workplace. We are operating in accordance with state and local safety and health guidelines. There currently is no recognized health or safety hazard in our workplace.” Otherwise, general fear is not a valid reason, and the employee would be voluntarily resigning.

As we ramp up our operations, we need our workforce to return to the physical workplace. How do I respond to an employee’s request to continue working from home? Employers do not have to permit work from home if it does not fit their business needs; it is not up to the employee. That being said, in our current crisis, it is wise to allow working from home until the COVID-19 situation is under better control.

What if I can only bring my employees back part-time? They have been on unemployment during their furlough. How will this affect their ability to collect benefits? Employees who are collecting any benefit from unemployment insurance (UI) will continue to receive the additional $600 from the federal government at least through July 31. Partial unemployment may still qualify them for some UI; there is a partial-payment calculator at mass.gov to determine the possible benefit.

Can my employees continue to collect unemployment after I have asked them to come back, but they refuse? They can try, but they are not eligible if you have offered work. Employers should notify the Department of Unemployment Assistance of any employee refusing to return.

What do I do if my employee says they are making more money on unemployment than working for me and do not want to return right away? The employee needs to make a decision. Either they take the short-term gain of extra unemployment or the long-term gain of their job. This would be considered, in most cases, voluntary resignation. Their position may not be available when they decide to return to work.

What effects does our recent furlough have on my employees’ flexible spending account and dependent care accounts, the loss of contributions, and amount of time remaining for contributions in 2020? Employees may be allowed to make changes to some accounts, but it would require an amendment to your plan. IRS Notice 2020-29 may answer more questions.

Can I screen or test employees for symptoms of COVID-19 before they return to work? What screening methods should I use? Yes, during a pandemic you can take employees’ temperatures or ask business-related health questions such as “have you had symptoms, a fever over 100.4, or been in contact with someone diagnosed with COVID-19?: Remember that HIPAA and privacy laws apply.

Can I require older workers who are at high risk to continue to stay at home? No, you cannot exclude anyone in a protected class. If they voice a concern, then you should enter into the interactive process and see if a reasonable accommodation may apply.

Do I have to provide face masks for my employees? In Masachusetts, employees will be required to wear them at work, but it is to be determined who has to provide them. Neighboring states are all requiring the employer to provide needed personal protective equipment.

How do I respond to any employee who refuses to adhere to our social-distancing guidelines or wear a face covering in the office? Upon return to work, employers should put employees on notice of any new policy, any special protocols that may apply, and the personal protective equipment that is required. Engage in an interactive process to ascertain any concerns and determine if special conditions may apply before moving to discipline.

What should I do if my employees are complaining about coming back to work and the extra requirements? Employees are entitled to complain about working conditions to fellow employees. They should remain professional and follow all company policies, but they have the right to voice their opinion as long as they are not defamatory or causing disruptions.

Ellen McKitterick is EANE’s newest HR business partner. She advises member organizations on all aspects of employment law, including wage and hour issues, employment discrimination, employee benefits, leaves of absence, and unemployment, and trains EANE members and non-members on harassment prevention, basic employment concepts, employee medical and leave issues, and key management skills. Mark Emrick is a senior HR business partner at EANE with consulting responsibilities for all aspects of the HR function — recruiting, interviewing, hiring, training, benefits administration, compliance, performance management, coaching, development, corrective action, and terminations. He is also an experienced investigator for employee complaints and issues.

Law Special Coverage

Calling Back Workers

By Mary Jo Kennedy, Esq. and Sarah Willey, Esq.

Mary Jo Kennedy

Mary Jo Kennedy

Sarah Willey

Sarah Willey

As businesses prepare for reopening, many employers are summoning laid-off and furloughed employees and notifying employees who have been working remotely to return to the physical workplace.

Some employers are anticipating that their reopening may be a gradual process. Employers may do a ‘soft reopening’ in order to test workplace-safety measures such as social distancing. Some businesses may find, as a result of new safety procedures, that their workplace no longer requires certain positions. As a result, employers may not need the same number of employees or positions they had back in early March.

However, recalling only a portion of a workforce does have its own risks. Employers should carefully consider who and how many workers to recall and when to have them return.

Once notified, workers’ responses to the callback may vary. Some employees will welcome the return to work as a sign that things are returning to ‘normal,’ while others may have mixed feelings as they may want or need to stay home until the pandemic is over. Employers must consider how to best respond to workers’ requests.

How do you select which employees to call back when calling back fewer than all?

First, identify the types of positions and the number of employees needed for each position to be recalled. There may be certain skill sets or knowledge base needed in order to ramp up business after the shutdown.

“If they have medical concerns regarding returning to work, they should discuss those concerns with their supervisor or human-resources team and encourage them to stay home or arrange an alternate work assignment.”

Second, businesses should consider any policy or past practice regarding recalling employees as there may be a legitimate business reason for not following them. Employers should evaluate their business rationale for the selection process and document the criteria used for selecting one employee over another. Selection criteria may appear neutral on the surface, but the effect of its application may inadvertently result in the elimination of all or a majority of a group of employees in a class protected under discrimination laws. As a result, selection criteria may need to be reconsidered in order to avoid possible discrimination claims.

Can you decide not to recall employees because of a concern regarding their health?

Employers may have a genuine concern that a group of employees may be susceptible to greater harm if infected with COVID-19. For example, an employer may be concerned about possible exposure to COVID-19 of an older employee, employees with known medical conditions, or a pregnant employee. Any selection decision based on a person’s age, perceived disability, or pregnancy will expose the employer to discrimination claims.

Employers should not take a paternalistic view of deciding what is best for its employees. Rather, an employer should let employees know that, if they have medical concerns regarding returning to work, they should discuss those concerns with their supervisor or human-resources team and encourage them to stay home or arrange an alternate work assignment.

What if you laid off some and furloughed other employees?

Employers should consider calling back furloughed employees before rehiring laid-off employees. Employers may have given furloughed employees written assurances that they would be called back and may have retained them on health insurance, indicators that the employer intended to have the furloughed employees return to work.

How do you communicate the call back?

Employers should communicate the offer to return to work in writing. The communication should detail the start date, full-time or part-time status, position, hours, work schedules, wages, location, and conditions of the job.

What if a business calls back laid-off or furloughed employees and the response is that an employee has found other employment?

If an employer is told that a laid-off or furloughed employee is not returning to work because the individual has found employment elsewhere, the employer should document the reason for not returning and then move to the next employee on the recall list. If your business participated in the Paycheck Protection Program, documenting the reason for the refusal is critical in order to meet the loan-forgiveness requirements.

Also, if accrued but unused vacation time has not previously been paid, it should be paid out to the employee immediately, and if the employee was on the employer’s health insurance, a COBRA notice should be sent to the employee.

What if a business calls back a laid-off or furloughed employee who is unable to return to work because of a lack of childcare?

With schools and daycare facilities currently closed, employees with school-aged children may not have childcare options. Under the CARES Act, individuals who are unable to work (including telework) and are the primary caregiver for a child whose school or childcare facility is closed or whose childcare provider is unavailable due to COVID-19 can receive Pandemic Unemployment Assistance.

In addition, the employee may be eligible for paid extended family and medical leave under the Families First Coronavirus Response Act (FFCRA), under which eligible employees who are unable to work at their normal worksite or by means of telework are entitled to 12 weeks of paid extended family and medical leave (at two-thirds of their regular rate of pay) to care for a child whose school or place of care is closed (or childcare provider is unavailable) due to COVID-19-related reasons.

The FFCRA provides eligibility for paid extended family and medical leave to an employee who was laid off or otherwise terminated by the employer on or after March 1, 2020 and rehired or otherwise re-employed by the employer on or before Dec. 31, 2020, provided that the employee had been on the employer’s payroll for 30 or more of the 60 calendar days prior to the date the employee was laid off or otherwise terminated.

What if an employee has been working remotely during the shutdown and is unable to physically return to the worksite because of a lack of childcare?

While many remote employees have been able to work effectively at home during the forced shutdown, other remote employees may have struggled due their type of work not being conducive to telework. An employer may have valid concerns about an employee’s telework performance, such as the quality and quantity of the work, and should address with remote employees any performance issues.

An employer should discuss with an employee the possibility of flexible or reduced hours in a physical workplace or a modified remote-work schedule. If these options are not viable, an employee unable to return to their normal worksite may be eligible for unemployment.

What if an employee who has a medical condition increasing their risk of harm if exposed to COVID-19 wants to continue working remotely?

Addressing this issue requires consideration of federal and state reasonable-accommodation laws. If the medical diagnosis constitutes a disability under state or federal disability laws, the employee may be entitled to a reasonable accommodation. Given these unprecedented times, an employer may treat a medical condition that puts an individual at an increased risk of harm if exposed to COVID-19 as a disability. The employer should also explore with the employee other possible accommodations in addition to working remotely.

What if an employee can work but has a medical condition, adding increased risk of harm if exposed to COVID-19, but the employee’s job duties cannot be done remotely?

Dealing with employees whose work cannot be done remotely but are at an increased risk of harm if exposed to COVID-19 has unique concerns, and each situation should be considered on a case-by-case basis. If the employee was advised by a healthcare provider to self-quarantine due to concerns related to COVID-19 and the employer is subject to the FFCRA, the employee may be eligible for 80 hours of paid sick leave under FFCRA.

However, in this scenario, the FFCRA requires that the employee be “particularly vulnerable to COVID-19” and that following the advice of a healthcare provider to self-quarantine prevents the employee from being able to work, either at the employee’s workplace or by telework. Employers should obtain appropriate medical documentation substantiating the reasons for the self-quarantine.

In addition, if the medical diagnosis constitutes a serious medical condition or a disability, the employee may be entitled to either an unpaid leave of absence under the Family Medical Leave Act (if the employer has 50 or more employees and as such is a FMLA-covered employer) or a leave of absence as a reasonable accommodation for the disability.

What if an employee wants to continue to work remotely because the employee has an immediate family member who has a medical condition that puts that family member at increased risk of harm if exposed to COVID-19?

An eligible employee of a FMLA-covered employer can take a leave of absence to care for a family member with a serious medical condition. But if the family member does not need the employee’s care, the requirements for FMLA leave would not be met.

Under the American with Disabilities Act, employers are required to provide qualified disabled employees with a reasonable accommodation. When leave and accommodation laws do not apply, employees may ask employers to apply common decency to the situation and let them return to the physical workplace at a later time.

These are challenging issues for employers, who must balance the need to protect employees from COVID-19 with the need to maintain a workforce to keep the business open.

Employers should be cautious when navigating the various leave and disability laws in order to avoid lawsuits. Before denying employees’ leaves or other reasonable-accommodation requests, employers should engage with employees in order to assess the validity and reasonableness of the requests and should document the steps taken.

Mary Jo Kennedy is a partner and chair of the employment group at Bulkley Richardson, and Sarah Willey is counsel and member of the employment group at Bulkley Richardson.

Coronavirus Special Coverage

Climbing Out

It’s not easy for a business to be shut down — seriously curtailing or even eliminating all revenue — for any period of time. But it’s much more frustrating not to know how long that period of time will actually be. That’s where Massachusetts businesses deemed non-essential during the COVID-19 pandemic stand right now — in a limbo of treading water and being as flexible, creative, and patient as they can while they await word on when the state will reopen its economy, and what form that re-emergence will take.

At some point in early March, Ashley Batlle knew what was coming. And she knew what it meant for her health and wellness spa, Beauty Batlles Lounge, that she opened in Chicopee about a year ago.

“This is a personal, physical-contact business. You’re definitely in close proximity with the client, giving them a service that everyone looks forward to — something they’re accustomed to making part of their schedule,” Batlle said. Yet, the rumblings were that, at some point, the rising threat of COVID-19 was going to force businesses to shut their doors. “So we tried to get as many clients in as we could.”

And then, suddenly, those appointments that clients look forward to were cancelled, postponed until — well, nobody knows yet. And that’s the problem for businesses the state deemed non-essential: the unknown.

Toward the end of April, the Baker-Polito administration extended the statewide essential-services emergency order by two weeks, from May 4 to May 18. Businesses and organizations not on the list of essential services can only continue operations through remote means — if at all possible.

For Batlle, well … she can’t offer facials, waxing, microblading, and other treatments remotely. And she was unable to access benefits through the CARES Act and other government relief measures.

“My anxiety level has been very, very high. It hasn’t been fun, not knowing when we’ll begin to open and what kind of measures will be asked of us by the state and city to be able to reopen,” she said, noting that, as a one-woman operation, it will be easy to comply with social-distancing regulations sure to accompany any sort of reopening.

What’s less certain is how customers will respond — to all types of interactions, not just her services.

“I’m going to be able to open up my doors and get everyone in as quick as possible — that’s what I would love to do, but I think it’s going to be a soft situation, where, little by little, we’re getting back to business,” she explained, noting that some people will be leery of close contact at first, especially since the virus doesn’t tend to show symptoms for a while.

Still, most business owners shuttered by the pandemic would love an opportunity to at least try to get back to normal, even if they understand why the governor put the stay-at-home mandate in place.

Rick Sullivan

Rick Sullivan

“We may be seeing the number of cases plateauing, but [development of] a vaccine, or treatment medication, is still in its infancy, so the data still says go slow. I do think some businesses previously deemed non-essential could have protocols put in place to allow partial reopening. However, nobody wants to reopen prematurely and see worse spikes later in the year.”

“While we expected and understand Governor Baker’s decision to extend the stay-at-home advisory, that tough decision underscores the challenging circumstances we find ourselves in as a business community,” said Nancy Creed, president of the Springfield Regional Chamber. “We’re doing a balancing act between wanting to get back to work and getting back to work in a safe manner.”

Many of her members supported the two-week extension; a late-April chamber poll, right before the non-essential closures were extended by two weeks, asked what worried them more: the spread of the virus if restrictions were loosened too soon, or the negative economic impact of not reopening quickly enough. It also asked if Massachusetts was ready for a May 4 reopening.

“Seventy-seven percent responded that the spread of the virus was more worrisome, and an overwhelming number — 91% — responded that Massachusetts was not ready for a May 4 reopening,” Creed said, “clearly revealing that much of the business community is concerned about protecting those most vulnerable and stopping the spread of the disease, and demonstrating the commitment our business community has to the community as a whole.”

Rick Sullivan, president of the Economic Development Council of Western Massachusetts, took a similar outlook.

“I do not think that anyone is surprised that the shutdown has been extended, as the governor has been clear he will follow the data as to when to begin reopening the economy,” Sullivan said. “We may be seeing the number of cases plateauing, but [development of] a vaccine, or treatment medication, is still in its infancy, so the data still says go slow. I do think some businesses previously deemed non-essential could have protocols put in place to allow partial reopening. However, nobody wants to reopen prematurely and see worse spikes later in the year.”

All that may be true, but it’s still difficult — and, for many businesses, exceptionally concerning — to stay closed this long, and possibly longer. Businesses are doing what they can to be creative, in many cases opening doors of commerce they will continue to pursue after the COVID-19 threat passes, or even using the time to support other community members in need (more on that later).

But no one likes the uncertainty of not knowing whether May 18 is the real target for reopening, or just another can to be kicked down the road.

Waiting Game

Paul DiGrigoli would like to reopen, too.

“This has impacted us tremendously,” said the owner of DiGrigoli Salon and DiGrigoli School of Cosmetology in West Springfield. “We haven’t had a chance to reach out to all our clients; some we have. But we just have to wait until Charlie Baker gives us the green light, which hopefully will be May 18.”

He was able to secure a Paycheck Protection Program (PPP) loan, succeeding in the second round of that program’s disbursements after missing on the first round. That will help cover costs like utilities and mortgage interest while keeping his employees paid for eight weeks as well. “We went through Community Bank, and they were phenomenal,” he said.

And he’s getting ready for some anticipated changes when the salon does reopen.

“We bought a lot of hand sanitizer to put at the front desk in the school and the salon, we’ve gotten gloves and masks, and what we’re going to do initially is get the clients’ cell phone numbers and call them from the reception desk to let them know when their appointment is available. And we’ll stick with staying six feet apart, spreading out the stations. Both the stylist and the client will have to wear a mask until further notice. It’s going to be uncomfortable at first.”

As for the school, online training has been effective for theory, but students haven’t been able to practice what they learn.

In general, he told BusinessWest, “we’re really trying our hardest to get back to normal, but we’ve really been handcuffed. There has been frustration and anxiety because we don’t know what to expect.”

Or when to expect it, he added. “We don’t know when it will happen. They’re saying May 18, but who the heck knows? We’re hoping it doesn’t go beyond that, but thank God for the relief funds — that really saved us.”

Claudia Pazmany, executive director of the Amherst Area Chamber of Commerce, polled her members at the end of April and put some of that anxiety into raw numbers. For example, responding businesses are losing an average of $55,837 per month in revenue during the shutdown, and 61% have had to lay off or furlough employees. More than 20% have serious concerns about being able to reopen if the state of emergency extends beyond June 1.

“They’re worried,” she said. “Rent, utilities, and payroll are three areas that continue to be a struggle.”

Amherst is also in an unusual situation, as it’s a small town that loses more than half its population when UMass Amherst and Amherst College aren’t in session. The downtown businesses in particular rely heavily on students — and now there’s talk across the region that colleges might start the fall with distance learning only.

Claudia Pazmany

Claudia Pazmany

“On the flip side, this has stirred a lot of innovation from businesses who have been deemed non-essential or limited; they’ve pivoted or gone online. The creativity and innovation we’ve seen have been really exciting.”

“Initially, there hasn’t been a lot of grumbling, but they’re generally frustrated and just sad. Everything is unknown,” Pazmany told BusinessWest. “They’re fearful — so much is unknown, and delays keep coming. We don’t have a deadline or guidelines; they just keep pushing back the date, and that causes more fear and anxiety.”

Driving Innovation

And also a good deal of invention, driven by necessity.

“On the flip side, this has stirred a lot of innovation from businesses who have been deemed non-essential or limited; they’ve pivoted or gone online,” Pazmany said. “The creativity and innovation we’ve seen have been really exciting.”

Take Zanna, a clothing shop that has been a staple of Amherst’s downtown for decades, but has never had an online store. Until now.

“You have to look at the good in this crisis,” owner Amy Benson said. “In my case, it moved me — encouraged me — to get an online store open. I’ve only owned the store a year, so I didn’t have time to even think about an online store before. Now I did, so I took the time to get it up and going.

“Do I think it’s the wave of Zanna’s future? No, but I think it’s an extension. We’ll probably keep it going once we’re open,” she added, noting that it opens more opportunities. “We’re in a transient community. We see people from all over the country, between the university and Amherst College. We all want things to be the way they were, but we know we’ll have to adapt. Some of these new trends, like my online store, I’m not going to shut that off.”

Benson has been creative in other ways as well, from curbside pickup — with everyone wearing masks — to ‘virtual shopping,’ where she walks a customer around the store using an iPad and FaceTime, showing them tops and bottoms and coordinating outfits.

“We want customers to be engaged, and they want to hear from us because we form those kinds of relationships,” she said. “When we’re FaceTiming, we’re FaceTiming with a friend and shopping with a friend. It’s a really important way to stay connected.

“You have to do something,” she went on. “You can’t just close your doors and do nothing. Our customers are women who have supported us for over 40 years; we’re not going to just shut our doors and not communicate. I do whatever I can to stay engaged with our customers, they’re the lifeline of our business.”

In other words, Zanna has come a long way since last month, when Benson was in “full panic mode” and offering nothing but a gift-certificate promotion. “We’re not bringing in nearly the revenue we would normally, but we’re supporting what we’re able to do right now.”

She’s not alone, Pazmany noted, citing examples like restaurants revamping their online presence with expanded takeout menus to Amherst Books shipping and delivering items to customers, to the Amherst Area Chamber itself, which has been connecting with the business community through marketing seminars.

Doing Some Good

Or taking advantage of an unusual time to do some good in the community.

Dean’s Beans, based in Orange, has seen a surge in web sales as coffee drinkers are brewing more at home due to social distancing and telecommuting. With COVID-19 causing great economic hardship, the company has chosen to share the money from these web sales with the community by helping to fund school food programs — a total of $26,000, in fact, divided among seven Western Mass. school districts.

“Making sure children have access to food throughout this pandemic is crucial, and we are proud to support these essential programs in Springfield, Amherst, and Orange,” said Dean Cycon, founder and CEO of Dean’s Beans. “Part of a company’s profitability is the positivity it generates for others, and we are committed to helping our communities ease the pain of this crisis.”

Amy Benson

Amy Benson

“You have to look at the good in this crisis. In my case, it moved me — encouraged me — to get an online store open. I’ve only owned the store a year, so I didn’t have time to even think about an online store before. Now I did, so I took the time to get it up and going.”

Meanwhile, Batlle has launched the Hero Project, a virtual fundraiser designed to give back to those on the front lines fighting the pandemic. Funds raised will be set aside to provide complimentary self-care services at Beauty Batlles Lounge for healthcare professionals, police officers, firefighters, EMTs, and employees of sheriffs’ departments, once she can open her doors again. Visit beautybatlles.com to donate.

Considering the masks they’re wearing all day long, “they’re going to need facials when this is done,” Batlle joked, before getting serious.

“I reached out to my nurse friends and heard their stories, about the trauma they’re going through. One friend works in the ICU at a COVID unit — she goes into work one day and has four patients, and when it’s time to leave, she only has one. That has to do something to you. How can I give back to them? That’s where the idea for the Hero Project came in.”

It’s a way to pay it forward while anticipating the light at the end of the tunnel, she told BusinessWest. “This isn’t easy on anybody.”

It would be easier with some clarity from Beacon Hill, but that’s not coming right now. Instead, Baker convened a Reopening Advisory Board of public-health officials, representatives from the business community, and municipal leaders from across the Commonwealth. They are charged with advising the administration on strategies to reopen the economy in phases based on health and safety metrics, and are expected to develop a report by May 18.

That’s just the report date. So it’s easy to see why businesses might not suddenly be reopening on that date.

“Personally, every time Governor Baker gives us a date when we’re going to open, I think, ‘hmm, I don’t know if that’s going to happen,’” Benson said. “I’m always thinking, ‘what’s the worst-case scenario? June 1? They keep pushing it back.”

That’s why it bothers Batlle that some proprietors of businesses like hers continue to offer services from their home.

“We should all just be staying stationary; we’re all in the same boat,” she said. “That just puts more stress on business owners who are actually following the rules, and it’s could extend the time we’re going to be out of work.”

Which, for too many business owners and employees across Western Mass., already feels like too long.

Joseph Bednar can be reached at [email protected]

Special Coverage Technology

Drying Times

Excel Dryer

U.S. Rep. Richard Neal (second from left) gets a factory tour with Excel Dryer’s Denis Gagnon, Nancy Gagnon, and Bill Gagnon.

When it comes to the XLERATOR, his company’s signature hand dryer, filtration is nothing new, Bill Gagnon said.

“We’ve had an optional HEPA filtration system in it for years,” said Gagnon, vice president of Excel Dryer in East Longmeadow. “The typical HEPA filtration test you do is performed with bacteria, and it’s to particle sizes of .3 microns or larger. That’s standard in the industry. We’ve done that test; we already had it.”

But coronavirus isn’t bacterial, as its name makes clear. And its typical particle size is around 120 nanometers, or 0.12 microns — much smaller than the bacterial particles the filter had already been tested for.

“When we heard about coronavirus, we wanted to get ahead of this and wanted to test our product and its effectiveness against viruses, so we sent our product to our testing laboratory partner in Minnesota and said we want to do a virus-specific test,” Gagnon explained, adding that the lab put some 380 million virus particles through the system, “and basically zero came out the other end.”

Well, not exactly zero, but pretty darn close; the dryer’s filter lets through about one in 100,000 particles.

“This test shows our HEPA filtration system can filter [the virus] out of the airstream and gives the public assurance that it’s safe to use hand dryers — because it is,” Gagnon told BusinessWest. “Hand dryers are a hygienic way to dry your hands. This was something we wanted to test for — something we thought was important.”

Xlerator

One of the mobile units being delivered to the front lines of the COVID-19 fight.

On May 6, Excel Dryer hosted U.S. Rep. Richard Neal and local media to tour the company’s manufacturing facility and tout the XLERATOR’s virus-filtration capabilities — and an ongoing donation of 100 units, with HEPA filtration systems, to first responders and COVID-19 testing sites across the state.

“Talk about innovation and creativity — they established it,” Neal said of Gagnon and his father, Excel President Denis Gagnon, who invented the popular XLERATOR. “These are 52 domestic manufacturing jobs to compete with supply chains all over the world. If we’ve learned one lesson from a pandemic, it’s that relying on other parts of the world for our products and supplies is not a great idea.”

Neal and his aide, William Tranghese, were involved in early discussions establishing Excel Dryer as an essential manufacturer in Massachusetts, making hand dryers that play a critical role in achieving proper hand hygiene. After all, thoroughly washing and completely drying hands are listed as the top defense against the spread of germs — including the novel coronavirus, which causes COVID-19 — by both the World Health Organization and the Centers for Disease Control and Prevention.

“Proper hand hygiene isn’t just washing your hands, it’s completely drying your hands,” Denis Gagnon said following the factory tour. “When we originally added the HEPA filter as an option to the XLERATOR, we tested for bacteria. Because of the COVID outbreak, we retested the HEPA filter for its ability to filter viruses, and it literally filters 99.999% of viruses. So I think there’s going to be healthy demand for HEPA-filter XLERATORs going forward.”

Bending the Curve

Neal — who, like the Gagnons, Excel’s employees, and guests, wore a face mask during his visit to the plant — touted hand washing as well, and said it’s among the now-common practices, including social distancing, that are flattening the viral curve in Massachusetts.

“The CDC and the WHO have all talked about the notion of hand hygiene, how important it is. I think we’ve seen in Massachusetts the curve beginning to bend,” the congressman noted. “The stabilization — and a little bit of a decline — have had much to do with, I think, adhering to the recommendations of professional health people.”

He particularly praised Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, as “the most reliable voice in America” on coronavirus and related matters. “Whenever I’ve received an invitation over these years in Washington to an event where he was the speaker, I went to hear what he had to say.”

As for the COVID-19 progression, “there is some good news, but there is a ways to go,” Neal went on. “Hot spots seem to be declining in the larger urban areas, but they seem to be moving to new places. So while we have better news in Boston, New York, and even here in Western Massachusetts, other areas of the country are likely to go through the outbreak that we’ve all witnessed here.”

And if Excel can play a part in slowing the spread, all the better, Denis Gagnon said.

“We very much pride ourselves on making our product here in the United States,” he noted. “It didn’t take the inconvenience of disrupted supply chains to bring it back. We never wanted it to leave in the first place. As far as being a good corporate citizen, it’s in our blood. We’re happy to help in any way we can. This was kind of an impromptu solution, and I think it’s going to help on the front lines.”

Indeed, the 100 donated units are already being shipped out, Bill Gagnon said, to police and fire facilities, testing sites, and places like the first-responder recovery center being operated by the Hampden County Sheriff’s Office.

“If they test positive, they don’t want to bring it home, so they get quality food and bedding and a place to get healthy and stay away from their families,” he explained. “We’re donating units there. We’re just trying to find out where they’ll make the biggest impact.”

While the HEPA filters on the dryers are not new, the mobile units are. They came out of a conversation the Gagnons had with Neal and his staff about whether Excel’s work is considered essential.

“In that conversation, I was talking about getting mobile units out to the front lines,” Bill said, explaining that the company’s stainless-steel supplier had built a wall to show off the product in a trade show booth. “They said, ‘we can re-engineer that to be mobile, and we can get this thing out in the field.’ Two days later, the prototype was created, and they drove it up here and dropped it off — it was amazing. Two weeks later, we had the first units being used out in the field.

“So it was an amazing new product innovation,” he continued, “and we were working with the congressman’s office and just trying to figure out, how can we help? How can we get this virus-filtering hand-hygiene solution into these facilities? And now it’s here, and there’s a lot of interest in it, and we think it can make a big difference.”

“When we heard about coronavirus, we wanted to get ahead of this and wanted to test our product and its effectiveness against viruses, so we sent our product to our testing laboratory partner in Minnesota and said we want to do a virus-specific test.”

After all, he explained, while experts like the CDC and Fauci tout proper hand hygiene as the best defense against the spread of germs, it’s important to not forget the role of complete drying as well.

“Everyone talks about washing your hands for 20 seconds, but nobody talks about drying your hands,” Bill said. “You have to completely dry them. Wet hands are 1,000 times more susceptible to pick up or transfer germs. Drying hands is critical.”

Essentially Speaking

So are Excel’s operations, even in the midst of an economic shutdown, he added.

“We were in the same situation of a lot of other small businesses; when the federal guidelines came out and it was up to the states to put out their guidances, there were a lot of general categories” for what constitutes an essential service during the pandemic, he explained.

Excel seemed to fit multiple categories, Bill told BusinessWest; not only is hygiene important during a viral outbreak, but the company has contracts with the federal government to supply its product, which can boost a company’s chances to be deemed essential.

“There’s critical manufacturing, but for us, we’re such a niche market, no one calls out hand dryers specifically,” he went on. “But we felt like we fit under multiple categories, and that’s why we reached out to Congressman Neal’s office. We wanted to do everything we could to make sure we we’re doing the right thing, and they helped us with that. And when the state of Massachusetts put out their second round, a revision to the essential-services list, hygiene actually had its own category … and we’re certainly a critical part of that. So, yes, absolutely, we’re essential.”

And part of a mobile hand-drying solution that promises to reduce the spread of infection, Neal said. “There are simple things we can do in life to get through this, and they are going to be very important to us going forward.”

Joseph Bednar can be reached at [email protected]

Coronavirus Special Coverage

Proceeding as Planned

Gene Cassidy

Even if the fair goes on as scheduled, Gene Cassidy says, crowd counts could be way down.

Gene Cassidy likes to say those at the Big E ‘manufacture’ the 17-day annual fair that is by far the biggest single event on the region’s calendar.

“It’s like putting an automobile together,” he told BusinessWest. “You really can’t cut components out and expect the vehicle to run; it costs ‘X’ number of dollars to produce the fair, and we’re still going to spend that — we have to produce a fair that people are going to want to come to.”

And so, those planning the 2020 edition of the Big E are proceeding with the mindset of including all the parts that typically go into the Big E, despite the COVID-19 pandemic that is currently decimating the local economy and wiping events off the calendar in wholesale fashion.

But while Cassidy is currently certain there will be a Big E — that’s currently — he’s less certain about a great many other things. Perhaps most importantly, he doesn’t know how many people will come to the fairgrounds this September. He quoted at least one poll showing that 50% of respondents said they would not let the pandemic impact their decision to attend an event like the Big E, but another 40% said they wouldn’t attend such an event unless there was a vaccine for the virus.

And if attendance is down 20%, 30%, or even 40%? “It’s going to be a heavy lift to overcome that, but we can’t afford not to go forward.”

And if the fair should have to be canceled? That has happened a few times during the history of the fair — during World Wars I and II, to be specific — but Cassidy isn’t thinking in those terms, because the economic hit would be extremely difficult to absorb.

“I don’t want to say we’d close, but it would be a difficult, heavy lift to figure out how we would sustain ourselves so we could reopen in the future,” he told BusinessWest, adding that such a decision won’t have to be made for some time, and he is obviously hoping, and projecting, that enough progress can be made that he won’t have to take that course.

“I have confidence that we’re going to learn from this bug faster than we’ve learned from anything in the past,” he said. “And I have confidence that, by the time we get to the summer, things are going to start to loosen up; we’ve learned a lot, and we’re going to learn a great deal more — and we will open.”

As he talked about this fall’s Big E and the prospects for it, Cassidy joked that, for a change, the ongoing reconstruction of the Morgan-Sullivan Bridge, which links West and Agawam and abuts the Big E property, will not be the main topic of conversation this summer and fall.

It will still be a topic — two lanes will be closed until late summer 2021, according to the current schedule — but certainly not the topic.

“I don’t want to say we’d close, but it would be a difficult, heavy lift to figure out how we would sustain ourselves so we could reopen in the future.”

Indeed, the bridge is now largely an afterthought as the Big E and the region cope with the global pandemic and questions about both the short term and the long term that simply cannot be answered.

Already, the virus has had a huge impact on the Big E, as it has on any venue that hosts large gatherings. Searching his memory banks — and it was hard to remember back that far because so much has happened, or not happened, as the case may be — Cassidy said the last event event staged at the Big E was an antique and crafts show on March 7 and 8.

Everything since has been wiped off the calendar, including the huge home show scheduled for late in March and the planned Hooplandia, a 3-on-3 basketball festival slated to make its much-awaited debut in June.

Everything is cancelled or postponed through June, he went on, adding that he was not aware of any cancellations for July at this time. Aside from the basketball tournament, this summer was to be dominated by a number of horse shows and a few other gatherings.

But most of the attention has now shifted to the fair, which annually attracts more than 1 million people to the region and contributes more than a quarter-billion dollars to the local economy. At this point in time, the expectation is that the show will go on, said Cassidy, adding that adjustments can and will be made to help maintain the safety of visitors and employees alike.

These will come in such realms as ticketing and accessing the property, he said, adding quickly that, given the nature of fairs — putting a lot of people in very close proximity to one another as they do everything from ride on rides to eat fried dough to watch concerts — there isn’t much more that can be done to facilitate social distancing.

“The fact is … a fair is not the place where you can enforce social distancing,” he said. “We can be suggestive, but that’s not what a fair is. It’s uniquely the American way of life, and it just doesn’t lend itself to social distancing.”

These sentiments explain why there are questions — and concerns — about just how many people will make that pilgrimage to West Springfield this fall, and how many times they’ll make it.

“Citizens are going to decide how close they want to be to other people,” said Cassidy. “And I suspect that there’s a segment of society that may never return to a fair again.”

For now, those planning the fair are proceeding to ‘manufacture’ a fair like those that have come before it — but with some adjustments for the pandemic, obviously.

“We’re building a comprehensive plan for cleaning and disinfecting,” he told BusinessWest, adding that, given the fact that the Big E is an agricultural fair, it has rigorous policies in place for disinfecting the various facilities on the grounds.

Other changes will come with ticketing — there will be print-at-home ticketing, for example — as well as with access to the grounds in an effort to create some distance between people. Employees will wear masks and gloves, and visitors will be wearing masks as well, he said.

As for planning for the fair, it is, in most all respects, right on schedule.

“We’re going at the same speed as we always do,” Cassidy noted. “All the entertainment is booked; the concessionaires are lined up, although many of them are not working currently, and and I hope they can make to September. We’re going full-speed ahead — at this point, the fair is more than 90% ready to go.”

And, as noted earlier, it has all the components that the fairs have had in recent years.

“It costs us about $20 million to run the fair, and we hope to gross about $23 million or $24 million from the fair’s operation,” Cassidy noted. “We can’t produce an event that’s compromised, because people won’t come back.”

That said, one of his biggest concerns moving forward is the massive workforce needed to put on the fair, and the generational nature of that workforce.

“We have grandparents, parents, and grandchildren, all of whom participate in the workforce,” he explained. “And we have hundreds of people who volunteer at the Eastern States, many of whom are over age 65. My job is to protect my 65-year-old as well as any patrons who are in that demographic. That’s what our plan is focused on — how do we protect people who are most vulnerable?”

—George O’Brien

Coronavirus Special Coverage

For Many Impacted by the Pandemic, It Might Be a Viable Option

By Michael B. Katz, Esq.

One thing I’ve learned in my 45 years practicing bankruptcy law is that most individuals who wind up taking this course of action are good people who have found themselves in bad and unexpected circumstances, most often caused by things that were beyond their control.

People get sick, get divorced, lose employment, and have accidents. Likewise, businesses can be adversely affected by events over which they have no meaningful control. Outbreaks of disease, oil shortages, breaks in the supply chain, changing technology, interruption of their workforce, and many other factors can all cause a business or individual to be unable to stay financially afloat.

Which brings us the COVID-19 pandemic. It represents the epitome of unexpected circumstances and matters beyond our control. Indeed, in an effort to slow the spread the spread of the virus, the state has shuttered all non-essential businesses, leading to unemployment levels not seen since the Great Depression.

In these precarious times, individuals and businesses are finding themselves in dire financial circumstances they could not have foreseen, nor done anything to prevent. Given their predicament, some might be looking at bankruptcy as a possible recourse.

In order to help honest but financially burdened individuals make a fresh financial start, Congress has passed a number of bankruptcy laws. Here are the key types:

 

Chapter 7

This is the type of bankruptcy proceeding that allows certain qualifying individuals to eliminate most of their unsecured debts (those without mortgages) and to make a fresh financial start.

In order to qualify for Chapter 7, a person cannot have filed Chapter 7 bankruptcy within the prior eight years. The person filing, known as a debtor, must also pass a test which limits how much earned income the debtor had earned in the prior year. This is called the means test, and it varies based on the state in which the debtor resides, the number of dependents in the family, and whether there is any earned income generated by the debtor’s spouse.

For example, for a Massachusetts resident, the limitation is $67,119 for a single person, $84,125 for a couple (combined gross income), and then increases in different amounts for additional dependents. These limitations became effective as of April 1, 2020 and are subject to periodic adjustment. Similarly, in Connecticut, the individual cutoff is $66,689, and $88,594 for a couple.

Michael B. Katz

Michael B. Katz

In these precarious times, individuals and businesses are finding themselves in dire financial circumstances they could not have foreseen, nor done anything to prevent. Given their predicament, some might be looking at bankruptcy as a possible recourse.

While most unsecured debts can be eliminated in Chapter 7, there are some types of debts that cannot, including income taxes owed from the past three years, alimony and child support, student loans, and debts incurred due to an accident while driving under the influence. 

One of the major benefits of Chapter 7 for an individual obtaining a discharge is that not only are the debts — such as most credit cards, personal loans, foreclosure and repossession deficiency balances, and medical bills — totally wiped out, they are eliminated without incurring any phantom income, on which both federal and state income taxes would be owed.

Compare this to either making a direct settlement with a lender or credit-card company, or going through a non-judicial, multi-year debt-settlement plan, where anything that is settled with the creditors results in the person receiving a 1099 from the creditor and having to pay taxes on the forgiven portion of the debts. In Chapter 7, Congress has decreed that all discharged debts are tax-free, and therefore no hidden taxes are incurred.

The key aspect of Chapter 7 is that the Bankruptcy Court is trying to help an honest debtor make a fresh financial start. In regard to secured debts — for example, those debts that are secured by a lien or mortgage, most often vehicle loans or a home mortgage — in Chapter 7, the debtor gets to select whether they wish to keep the item and continue making the payments, or to surrender the item and wipe out any shortfall amount that might exist after the secured party sells the item after repossession or foreclosure sale.

While a corporate entity can also elect to file Chapter 7 and have the Bankruptcy Court liquidate its assets and distribute the proceeds to its creditors, it does not get to carry on its business affairs after filing. Only an individual qualifies for a discharge, so a corporate entity must cease all business after it files Chapter 7.

 

Chapter 13

In this type of proceeding, an individual is given an option to repay all or a portion of the debt, if approved by the Bankruptcy Court and Chapter 13 trustee, through a plan of reorganization that generally lasts for a period of three to no more than five years. There is no need to pass the means test to qualify for Chapter 13, and, unlike the restrictions in Chapter 7 that allow it to include only unsecured debts, Chapter 13 can also affect secured debts.

The most common application in Chapter 13 is to use it to stop a foreclosure sale of a debtor’s home or automobile, and it allows the debtor to pay the outstanding past-due amounts over the life of the plan, in addition to requiring the debtor to make the full current payment each month. 

For example, if a lender is owed $60,000 in back mortgage payments, requiring the borrower to pay it in full in order to prevent a foreclosure sale, in a Chapter 13, the debtor could propose to pay $1,000 per month for the 60 months of its Chapter 13 plan, plus pay the current mortgage amount each month so that debtor does not fall further behind. 

These are simplified examples, and the details of a Chapter 13 plan are more complex and would require you to consult with a qualified attorney for more specific advice.

 

Chapter 11

A Chapter 11 reorganization can be filed by an individual who owns a business and operates as a ‘DBA,’ but due to its complexity and expense, it is most often filed by a corporate entity.

The idea of a Chapter 11 is to grant the business a ‘time out’ and give it some element of time to figure out a plan of reorganization to allow it to continue in business. Under 11 USC 362(d), all lawsuits and claims against the debtor’s business are enjoined from proceeding, and the debtor gets time to meet with its creditors and to seek to formulate a formal plan of reorganization.

That plan may propose to pay unsecured creditors a percentage on the dollar, which must be found to be a greater percentage than the creditors would receive in an immediate liquidation of the business and its assets. In some cases, mortgage debts can be reduced to the actual value of the assets that secure the mortgage, so that if the debtor owes a lender $750,000 on a building that can be proven to be worth only $500,000, the debtor can seek to ‘cram down’ the mortgage to a reduced amount of $500,000, and the additional $250,000 gets treated as an unsecured debt, and paid at the same percentage on the dollar as the other unsecured debts.

This is a very simplified version of a Chapter 11, as there are many other requirements that must be fulfilled by a Chapter 11 debtor, and the cases are necessarily complex and sometimes expensive. However, the overall savings to the debtor can be substantial, and they are often the key to a business’ survival.

The court in a Chapter 11 is seeking to be fair to both the debtor and its creditors, as well as preserving the jobs of the employees of a business.

 

Non-bankruptcy Alternatives

There are sometimes options for a business to consider without the need to file a formal insolvency proceeding. They require a skilled and knowledgeable attorney to know how to handle these matters, and they include utilization under Massachusetts state law of an assignment for the benefit of creditors, trust mortgage, or sometimes just using a skilled negotiator to try to convince creditors to accept an informal settlement of their debt, rather than forcing the debtor to use funds to pay for a formal bankruptcy proceeding, when those same funds could be paid toward a voluntary settlement with the creditors. 

In reality, these voluntary settlements are often difficult to finalize because you need to negotiate with multiple parties, who sometimes will not agree to the same terms. In a Chapter 11, the creditors are legally required to accept whatever settlement is approved by the bankruptcy judge, after a plan is voted on and approved by the Bankruptcy Court.

It is important that you not let your pride prevent you from finding the best and most effective solution for your personal or business cash-flow problems. You cannot make an informed decision until you know and understand all of your options, as well as the positives and negatives of each option.

During this pandemic, many fraudulent parties are preying on people, so make sure to do your homework to get the name of a qualified person to advise you or your business. Contact the Hampden County Bar Assoc. Lawyer Referral Service, call your accountant, or do a Google search to find an experienced person to help you or your business. 

Working together, we can all find ways get through these uncharted waters.

 

Michael Katz is the chairperson of the Bankruptcy & Creditors Rights department of the law firm Bacon Wilson, P.C., with offices in Springfield, Northampton, Amherst, Hadley, and Westfield; (413) 781-0560.

Daily News Sections Special Coverage

Serving Up Some Good News

Those hungry for some good news in the midst of the COVID-19 pandemic — and that’s just about everyone — received some Thursday with the announcement that the iconic White Hut, a Memorial Avenue landmark since 1939, will reopen under new ownership.

Those owners, Peter Picknelly, chairman and CEO of Peter Pan Bus Lines, and Andy Yee, president of the Bean Group of restaurants, told BusinessWest they plan to start with a food truck slated to open on or soon after May 18 — the new date for possibly restarting the state’s economy — and eventually reopen the small but historic  restaurant, with a target date of July 1.

When it does reopen, it will have a slightly different look (see renderings below). Picknelly described the subtle but important changes this way: “it will be the exact same food in a nicer, cleaner, more modern environment.”

Picknelly and Yee, who, along with partners Michael and Kevin Vann, succeeded in rescuing another iconic restaurant, the Student Prince, in 2014, initially announced plans to do the same with the White Hut back in February, when the popular eatery abruptly closed. The pandemic slowed those plans — while also devastating both Peter Pan and the Bean Group (both large businesses have had to lay off or furlough hundreds of employees) — but they didn’t derail them.

That’s because the partners are committed to rescuing the landmark, said Picknelly, and they obviously see this as a sound business proposition.

“As with the Student Prince, we view the White Hut as an integral part of our community — it’s part of this region’s DNA,” he told BusinessWest, repeating an opinion he first expressed back in February. “Generations of the same family have gone there, just like with the Student Prince. It’s an iconic location in our area, and we wanted to save it for generations to come.

“Also, we’re bullish that business is going to come back,” he went on, “and we’re going to make the White Hut bigger and better than ever.”

As construction commences on the exterior and interior of the actual restaurant, the food truck will begin operating the week of May 18, said Yee, noting that restaurants can operate takeout and delivery business at present, and West Springfield, among other communities, is allowing food trucks to operate.

The truck will be open at least five days a week, serving lunch from 11 a.m. to 4 p.m., said Picknelly. By July 1, the restaurant should be open, he went on, adding that planned renovations will allow for more efficient use of existing space and provide more elbow room for patrons.

“There was a fair amount of dead space in there,” Yee explained. “We looked at it and said, ‘we can open this up and make it much more roomy,’ so we’re doing that.”

West Springfield officials have also given permission for a walk-up takeout window, which, in addition to the traditional fare served up at the White Hut — cheeseburgers with fried onions — will offer ice cream, an addition with considerable promise, said Yee.

When the restaurant does reopen, long-time manager Artie White and most all of the staff working there when the restaurant closed will return, Yee noted. “They’ll be providing the same food and same banter — that’s part of the experience — in a more modern, more efficient White Hut.”

Overall, the partners believe they have all the ingredients — from the name and location to the menu and their own track record for success with restaurants across the region — to script a real success story on Memorial Avenue.

“We’ve done a financial model, and we think, with our buying power and Andy’s family’s experience in running all kinds of restaurants, that we can make a go of it,” Picknelly said. “If the community supports us, then we’ll be successful, and we think they will; as with the Student Prince, you don’t really know what you’ve got until you lose it.”

—George O’Brien

Coronavirus Sections Special Coverage

Seeking Forgiveness with Little Guidance

By Scott Foster

The Paycheck Protection Program (PPP), part of the CARES Act, was launched just over a month ago to much fanfare and promise, but has been bogged down since with technical malfunctions, overwhelmed bankers, political missteps, and incomplete guidance from the U.S. Small Business Administration (SBA). Current guidance on the forgiveness of these loans is scant, additional guidance has been recently posted, and more is expected in the near future. The SBA’s FAQs for PPP have been updated several times a week since they were originally published on April 3, reflecting the current thinking of the SBA in interpreting the CARES Act.

Many businesses have already received their PPP loan proceeds and are wondering: how should I use these funds? How do I document that use? Will all of my PPP loan be forgiven? Unfortunately, until the SBA issues complete guidance — or Congress amends the CARES Act, which is quite likely — we are all in a bit of limbo, but let’s start with what we know today.

What is the covered period? The eight-week period starts on the day your PPP loan was disbursed/funded. Therefore, if your loan was funded on April 15, your covered period should be from April 15 to June 9. Only expenses that are related to the covered period are potentially forgivable.

What expenses are forgivable? First category: payroll expenses, including health insurance and retirement expenses, subject to a cap of $100,000 per year for salary per person. This translates into a $15,384 cap on forgivable compensation. Self-employment income is included in payroll expenses, but the amount that can be forgiven is 8/52nd of that individual’s self-employment income for 2019. Second category: rent (or interest payments on your mortgage) and utilities. But the forgivable amounts in this category cannot exceed 25% of the total amount to be forgiven (said another way, these expenses cannot be greater than one-third of your payroll expenses). Therefore, incurring payroll expenses during the covered period is critical to receiving any loan forgiveness.

If I have $100,000 in forgivable expenses, but I have fewer employees on payroll, does that matter? Yes. The CARES Act provides that any forgiveness is reduced proportionately to the extent your full-time equivalent employees (FTEs) during the covered period are fewer than the FTEs your business had either at the start of 2020 or early 2019. However, the CARES Act also provides that, if you rehire any employee laid off between Feb. 15 and April 26 by June 30, that employee then counts as a FTE during the covered period (but this won’t increase the amount of your potential forgiveness, since the forgiveness is based on your actual payroll expenses in the covered period).

I laid off several employees, but now that I have the PPP loan, I’m ready to hire them back. However, they are making more on unemployment (with the $600-per-week temporary federal bonus) than I can pay them. Now what? There are a bunch of interrelated issues here, but the bottom line is this: as long as you offer the employee their job back, then they should no longer qualify for unemployment, and the SBA has indicated that, if the employee doesn’t return after you offer them their old job, that won’t count against you for the FTE test. This is one issue that members of Congress have cited in a push to amend the CARES Act to extend the covered period for certain impacted businesses, so there is a chance we will see an amendment that would, for example, extend the covered period to 16 weeks.

What documentation will I need to provide to get forgiveness? At a minimum, you can expect to need to provide the same information you provided to obtain the loan: payroll records (ideally a report from your payroll provider), proof of rent payments, utility bills, and a copy of your lease. You will also need to document the number of FTEs you have during the covered period and compare that to the number of FTEs that you had in either the 2019 or 2020 testing period.

Should I put the PPP loan proceeds in a separate account? Ideally, yes. This is a recommended best practice. You will need to show that you used these funds for their intended use. If the funds are co-mingled with other funds, that might make it more difficult to demonstrate how the PPP funds were used.

We are an essential business and have not felt any significant negative effects yet. Can we still use the PPP loan funds? This is one of the murkiest areas, and we need further guidance from the SBA, especially in light of recent unhelpful comments from U.S. Sen. Ron Johnson and Treasury Secretary Steven Mnuchin. On one hand, every business is America is facing some degree of uncertainty, even if you are up and running. What happens if one of your employees get sick? Or if a major customer shuts down? Or a supplier is unable to meet your needs? On the other hand, if you truly are not feeling any impact, then was the certification you made on the application (“current economic uncertainty makes this loan request necessary to support the ongoing operations”) really accurate?

We are recommending that you document the uncertainty your business is facing, even if the uncertainty never comes to pass, along with any steps you are taking and costs you are incurring to mitigate the risks. For example, did you increase pay to your employees during the state of emergency? Have costs associated with cleaning or sanitizing your facility increased? You may also want to document what you would have done had the PPP loan not been available. For example, would you have reduced hours or furloughed employees in anticipation of decreased income?

My business is currently closed due to the governor’s order. What should I do? The only way to have any portion of your loan forgiven is to spend the proceeds on payroll. You either need to try to hire back your employees (maybe to only lay them off again at the end of the covered period) or pay back the unforgiven portion of the loan (which is accruing interest at the rate of 1% on any amount not forgiven). Currently, there is no way to use the PPP loan proceeds after the covered period and have those expenses forgiven.

Scott Foster is a partner at Bulkley Richardson.

Coronavirus Sections Special Coverage

Dropping Down a Gear

By George O’Brien

Steve Lewis spends a good amount of each winter in Florida, and this year was no exception. He was planning on returning to the Northeast in late February, but eventually saw little point in doing so.

As February turned to March, there was even less incentive.

“I figure if you’re going to work from home, you might as well do it where it’s warm and sunny, and where you can play golf,” said Lewis, owner of Steve Lewis Subaru in Hadley, whose Florida address is the Delray Beach area.

But, make no mistake, he is, like most people, WFH, and from Florida he has a very clear picture of what’s happening at his dealership — and within the auto industry itself — during this pandemic. As it is for most all businesses, this an ultra-challenging time that comes with some learning curves and a great deal of uncertainty about what’s going to happen over the next several months.

Sales for March and April of this year are down roughly 50% from what they were over this same period last year, said Lewis, echoing others we spoke with on that estimate. Meanwhile, service work is better, but not as good as in ‘normal’ times. Meanwhile, methods of doing business have changed, with both sales and a good amount of service being undertaken with the customer never visiting the dealership.

And as the pandemic continues, many in the industry, including those we spoke with, said these trends will continue, to one extent or another, even after people are talking about this virus in the past tense.

“We saw this coming — we slowly started to see this change,” said Carla Cosenzi, president of TommyCar Auto Group, referring to everything from online buying to pick-up and drop-off for service work. “We were one of the dealers that believed this this was going to be the future, and I believe this will train the consumer on just how easy it is to buy a car online. And I think this will push online buying to happen for car dealers sooner than it may have if the virus hadn’t happened. But this was coming.”

As for volume of sales, it is obviously down dramatically, as those projections for year-over-year numbers would indicate. But they’re actually better than some people thought they might be, and they might get better still if consumers gain the confidence to take advantage of a number of incentives now being offered.

“I don’t think I’ve seen a better time to buy in all the years that I’ve been in this business,” said Lewis, who has a roughly a half-century under his belt. Elaborating, he listed everything from lower sticker prices to deferred payments; from gas prices now under $2 a gallon (and likely headed lower) to lower insurance costs resulting from people driving less.

Peter Wirth, co-owner of Mercedes Benz of Springfield, agreed that these incentives might be enough to inspire some people who were thinking about buying or leasing and needed something to incite them to action.

“There are some people where it doesn’t matter what the incentives are, they won’t buy a car, and there are people who would have bought the car with or without the incentives,” he explained. “And then there this is middle piece where you can maybe push someone over the edge — they’ll buy if they think they’re getting a really good deal. That has happened, and it’s probably going to continue to happen through May and into the summer.”

And if these incentives aren’t enough, there’s ongoing speculation that, because many car manufacturers have shut down entirely or shifted to making respirators or other products, there may come a day — when, no one can really say — when getting the model you want might become more difficult.

For now, the lots are full, manufacturers and dealers are providing incentives to help clear that inventory, and the world waits to see if and when the economy improves to the point where more people gain the needed confidence to make such a large and important purchase.

That’s the view from Florida, and right here in Western Mass. as well, as this sector works to drive through something that no one currently working within it has dealt with before.

Hitting the Brakes

Lewis told BusinessWest his main role at the dealership with his name on it is to act as a type of cheerleader for his staff. And in the middle of a pandemic, if that’s where we are, there isn’t much need for a cheerleader.

“I get people up and running, but the people who are there are maxed out,” he explained. “We’re bringing people back bit by bit because our business is increasing on a daily basis, but we’re certainly not there yet.”

Elaborating, he said maybe half the company’s employees are back at the dealership, with the service department “insanely busy,” as he put it, and sales working its way back, but volume still well off last year’s pace during what is traditionally a good time for dealers.

On the service side, Lewis, like others we spoke with, said there’s a lot of recall work being done, and some routine, or scheduled, maintenance, but certainly not as much, because people aren’t driving as much, and they’re less inclined to visit the dealership for service — even those who drive the brand he sells.

“Subaru people are very diligent — if they’re 200 miles over their oil change, they think they’re going straight to hell,” said Lewis. “They say, ‘am I OK, is everything OK?’ And we say, ‘yeah, you’re OK.’”

Meanwhile, much of the service work being undertaken doesn’t involve visits to the dealership anyway, as those we spoke with said the pick-up/drop-off method is becoming increasingly popular, and it is likely to stick once this is over. And even those who do come to the dealership for service can’t hang out in the waiting room — at least to the extent they once did — so they’re given a loaner car, even if it’s only for a few hours.

To conduct this type of service, a dealership needs to build an infrastructure, meaning both staff to do the picking up and dropping off and the loaner cars to be left with customers while their vehicle is being worked on. And those we spoke with have been doing just that.

Indeed, Cosenzi said TommyCar saw this coming and put an operation in place. It’s called TommyCar Go.

“We had the infrastructure in place before COVID-19 struck, so it wasn’t a difficult transition for us,” she explained. “We already had the loaner fleet, we already had the personnel in place, we already had the advertising in place and the website organized; for us, we were ahead of the curve when many other dealerships were scrambling to get their operations in place.”

Wirth said Mercedes-Benz now has a fleet of 40 brand-new cars and a team of staff members he would like to grow that is assigned to picking up and dropping off, a service that was starting to catch on before the pandemic forced everyone into their homes, but now has become much more popular.

“Consumers are adjusting to a new normal — they’re not done adjusting, but they are getting more used to it,” he told BusinessWest. “We’re doing more pick-up and drop-off than we ever have before, and we were doing a fair amount before that. And on the flip side, we’re very active with reaching out to people to get service campaigns or recalls that were pending that we would ordinarily just take care of the next time the car comes in.

“And some of this is going to stay with us; consumer behavior will change — it won’t be 180 degrees, but it will be different, and more people will be comfortable with pick-up and drop-off,” Wirth said, adding that his dealership is working to improve the process and is currently researching an app that will enable customers to track where the driver is and when he or she will make that pick-up or drop-off.

Providing Incentive

Meanwhile, patterns are changing on the sales side, again out of necessity. Consumers are doing their shopping online, and increasingly, they’re getting into a new car without having to get into the showroom. And often without leaving their home.

Buyers are directed to the dealers’ websites, the paperwork is now handled via e-mail and DocuSign, and cars are either picked up outside the dealership or, increasingly, in their driveway. And in keeping with the times, the cars are thoroughly sanitized before the keys change hands.

“These are hermetically sealed — they’re like an operating room when people pick them up,” said Lewis, echoing the sentiments of others and speaking for them when he said that dealers are doing their best to make sure buyers get a full tutorial on how everything works, even if the sales associate isn’t sitting in the passenger seat explaining each feature, as has historically been the case.

“Through the internet, we go over the car as best we can,” he explained. “And we invite them back in when this is all over for a complete tour of their automobile.”

Cosenzi agreed. “We’ve done a lot of FaceTiming and Google conferencing, and we’ve set up every kind of conference, from Skype to Google — whatever the customer wants,” she said in reference to creating opportunities to learn all about their car. “There’s been a lot of Webexing.”

As for sales volume, as noted earlier, those numbers are well off last year’s pace, but in some respects better than some might have expected given the damage done to the economy, the huge numbers of people now unemployed, and the high degree of uncertainty when it comes to the future and when the region and the country can return to something approaching normal.

“The way we’re tracking now, April’s going to be about 50% of what it was last year, which is better than we thought,” said Wirth, noting that all the sales have been handled online. “In the beginning, people were thinking that there was no business to be had, but gradually things improved.”

Cosenzi agreed. “There was a lull at the beginning when this first happened,” she noted. “I think everyone was in shock and was really scared. But now, the manufacturers have come out with so many amazing offers, we’re seeing people want to take advantage of that.”

Indeed, the incentives have come in a number of forms, from lower prices, to deferred payments, to protection if the buyer loses their job to COVID-19, and they are commanding the attention of many consumers.

Because most sales are internet-driven, Lewis said, he’s drawing business from a wider geographic area as people shop for the best deal.

“People are really shopping for the best dollar now,” he explained, “because there’s no sales personality involved in the sale; it’s all through the internet, and it’s all about who has the best price, and our pricing is such that we need to move their cars.”

Indeed, his dealership, like most at the moment, has plenty of cars. Lewis said his dealership has a full lot, more cars stored elsewhere, and it’s currently holding up cars at Subaru’s port of entry in Rhode Island.

“We have 150 new cars in stock, and about 100 used cars in stock,” he noted. “That’s about a month’s supply normally, but now it’s a two-months’ supply; we’re paying interest on them, so we’ve got to move them once the floodgates open; I could probably have 300 cars on site right now that are either delivered and on the lot or allocated to us, and we’ve held their delivery up because we don’t have any place to put them.”

Lots of Questions

If sales pick up, as some project they might, and those inventories are depleted, getting new supplies of cars might become more difficult until the manufacturers ramp up production again, noted those we spoke with.

But that day is far off, and there is still a great amount of uncertainty about what can and will happen over the next few months or even the next few weeks, as the stay-at-home order has been extended to at least May 18.

For now, dealers are coping with lots of cars, lots of questions, new ways of doing things, and trends that might become the new norm.

It’s all part of life for a sector that was moving in the fast lane but has had to drop down a gear — or two. Or three.

George O’Brien can be reached at [email protected]