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Cautious Reopening Plan Draws Questions, Criticism

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Coronavirus Cover Story

Baby Steps

After more than two months of a widespread economic shutdown, Massachusetts is opening its economy again — sort of. The plan, announced by Gov. Charlie Baker on May 18, allows some businesses to open their doors under tight health restrictions, while others — including restaurants, spas, and most retail — have to wait longer to invite the public inside. What’s got businesses frustrated is not knowing exactly when their turn will come — and the financial impact they continue to endure every week they have to wait.

Massachusetts is the 15th-most populous state in the U.S., yet, the day Gov. Charlie Baker released his economic reopening report, it had reported the fourth-most total COVID-19 cases in the country.

So, the reopening was never going to be a free-for-all.

“We were all very aware that, no matter what we went forward with, there will be more infection and more deaths,” said Easthampton Mayor Nicole LaChapelle, one of 17 members of the governor’s Reopening Advisory Board. “While the public-health metrics are numbers, statistics, they’re also people — they’re your neighbors, maybe your mother or father.

“People want to open,” she told BusinessWest, “but they don’t want to put people at risk — themselves, their customers, their parents. The compassion is remarkable.”

That’s why it was no surprise that Massachusetts is reopening slowly and cautiously. Last week, manufacturing facilities, construction sites, and places of worship were allowed to return under strict guidelines (more on those later), and on May 25, the list will expand to offices (except in Boston) and labs; hair salons, pet grooming, and car washes; retail, with remote fulfillment and curbside pickup only; beaches, parks, drive-in movies, and some athletic fields and courts; fishing, hunting, and boating; and outdoor gardens, zoos, reserves, and public installations.

That covers what Baker is calling phase 1, with three more reopening phases to follow. Conspicuously not on the phase-1 list? Restaurants, spas, daycare centers, in-store retail … it’s a long list. And, for many business leaders, a frustrating one.

Nancy Creed

Nancy Creed says businesses in phase 1 got the clarity they were seeking, but those in phase 2 are still waiting.

“There’s certainly an appreciation for public health, but there also needs to be some common sense, and I think it’s very hard to explain why it’s OK for 200 people to be in line at Home Depot, but a small, downtown store can’t have two or three people in it,” Rick Sullivan, president and CEO of the Economic Development Council of Western Massachusetts, told BusinessWest.

“Certainly everyone has to be smart,” he added, “but I think there needs to be more common sense brought into the reopening. I appreciate where the governor is — the balancing act — and I think the reopening committee did a great job with outreach, but there needs to be clear guidance and some common sense.”

Others were less diplomatic.

“While protecting public health is important and something we all support, it defies logic to declare that the opening of barbershops and hair salons is safe, while claiming opening small retail businesses is not,” Jon Hurst, president of the Retailers Assoc. of Massachusetts, said in a statement.

“The same is true for the opening of churches and large office buildings,” he went on. “Having two or three people in a retail shop is every bit as safe, if not safer, than the allowable businesses in phase 1. The Baker administration has consistently picked winners and losers during this crisis, and it is disappointing to see that trend continue in the reopening plan.”

As president of the Springfield Regional Chamber, Nancy Creed has been in touch with her members for almost three months now on the impact of the COVID-19 pandemic. She, like Sullivan, understands the delicate balance the state is walking.

“When we were part of the presentation to the advisory board, the last thing I said to them was, ‘our businesses are struggling, but they are surviving this. What they can’t survive is for it to happen again.”

“Certain sectors thought they’d be in phase 1, so there’s always that frustration,” she told BusinessWest. “When we were part of the presentation to the advisory board, the last thing I said to them was, ‘our businesses are struggling, but they are surviving this. What they can’t survive is for it to happen again. So we need to be smart about it and make sure we’re doing everything we can so the reopening is successful, and this doesn’t happen again.’”

She knows that’s not easy for many small businesses to hear, particularly ones with no revenue stream at all during this time.

“This is different for everyone, but businesses are muddling through it, pivoting, doing the things they need to do for basic economic survival,” she added. “But if it happens again, I don’t think we’ll survive the second round.”

Hence, baby steps, and a multi-phase reopening that offers real hope for many sectors, but continues to draw no small amount of criticism as well.

Guidance — and Lack Thereof

According to Baker’s plan, each phase of the reopening will be guided by public-health data that will be continually monitored and used to determine advancement to future phases. The goal of a phased plan is to methodically allow businesses, services, and activities to resume, while avoiding a resurgence of COVID-19 that could overwhelm the state’s healthcare system and erase the progress made so far.

Each phase will last a minimum of three weeks and could last longer before moving to the next phase. If public-health data trends are negative, specific industries, regions, or even the entire Commonwealth may need to return to an earlier phase.

Nicole LaChapelle

Nicole LaChapelle

“When talking to businesses and different groups and unions, the question was always, ‘what are the barriers right now, what are your biggest challenges, but more importantly, what do you need to see happen in order for your industry to open, and what is the timeline for that to happen for you?’”

In addition, success in earlier phases will refine criteria for future phases, including travel, gathering sizes, as well as additional openings in retail, restaurants, lodging, arts, entertainment, fitness centers, museums, youth sports, and other activities.

“Going in, the goals were, how do we safely and slowly open the Massachusetts economy?” LaChapelle said. “And that is directly tied to public-health metrics. When talking to businesses and different groups and unions, the question was always, ‘what are the barriers right now, what are your biggest challenges, but more importantly, what do you need to see happen in order for your industry to open, and what is the timeline for that to happen for you?’”

It was helpful, she explained, to seek input from myriad sectors and businesses — those deemed essential and never forced to shutter; those that had to pivot, such as retailers boosting their online presence and manufacturers shifting to making masks and face shields; and businesses that have been effectively sidelined.

“The board, at no point, even at the beginning, was like, ‘let’s get this thing going and roll it out immediately,’” she added, noting that she understands the need for companies to start ramping back up. “They may be a little disappointed, but they’ve been very understanding. There’s some education we have to do, but nobody is really upside-down about it.”

In order to reopen, businesses must develop a written COVID-19 control plan outlining how its workplace will prevent the spread of the virus. They must also create and display posters and signs describing rules for maintaining social distancing, hygiene protocols, as well as cleaning and disinfecting.

“I think there needs to be an appreciation for restaurants and small Main Street businesses that are not going to be able to just comply with the state’s protocols immediately.”

Sullivan appreciates the attention to public-health concerns, but said it offers little comfort for businesses stuck in an as-yet-undefined phase 2 — or beyond. While the reopening plan gives clear guidance for businesses in phase 1, those in phase 2 don’t even get a target date they can work toward or a set of protocols they can begin to develop. And that lack of clarity has led to frustration.

“I do think many businesses, especially smaller businesses, were kind of expecting more things to open up,” he said. “I think there needs to be an appreciation for restaurants and small Main Street businesses that are not going to be able to just comply with the state’s protocols immediately. They’ll need to plan, order some equipment, and spend some time reorganizing their business, because it’s going to be different than it was pre-COVID. And it’s not something they can do overnight. Many businesses are just looking at lead time — they want to open sooner than later, but they want lead time so they can be ready to go.”

Creed agreed.

“I think what businesses wanted, at least in the beginning, was some clarity about the guidelines, about the timelines, about the standards, about the checklists, all those things, so they can create their own plan — and that was achieved, at least for phase 1,” she explained. “But I am hearing the phase-2 people saying, ‘well, I wanted to be able to plan, but I don’t have enough guidance right now,’ so there’s some frustration.”

The Massachusetts Restaurant Assoc. said as much in a statement following the plan’s release.

“Obviously, every restaurateur is disappointed with the lack of a defined reopening date in today’s announcement,” it noted. “Massachusetts restaurants need their suppliers to have time to restock perishable inventory before it can be delivered to them. They need to notify employees about returning to work and conduct other due diligence to ensure restaurants can open effectively.”

Safety and Numbers

Across Massachusetts, the reopening plan sparked a spectrum of reactions, all acknowledging the competing health and economic interests in play, but expressing different levels of understanding and frustration — and often both.

“We realize that every employer in Massachusetts would love to hear that they can reopen immediately. But we also acknowledge that a phased reopening balances the need to restart the economy with the need to manage a public-health crisis that continues to claim 100 lives a day in Massachusetts,” John Regan, president and CEO of the Associated Industries of Massachusetts, noted in a statement.

Even as some businesses start to reopen and others plan to do so, the state Department of Public Health updated its stay-at-home advisory, replacing it with a new “Safer at Home” advisory, which instructs everyone to stay home unless they are headed to a newly opened facility or activity. It also advises those over age 65 and those with underlying health conditions to stay home, with the exception of trips required for healthcare, groceries, or that are otherwise absolutely necessary. All residents must continue to wear a face covering in public when social distancing is not possible, and individuals are advised to wash their hands frequently and be vigilant in monitoring for symptoms. Restrictions on gatherings of more than 10 people remain in effect.

The state also encourages working from home when possible, and Baker’s office released a list of 54 large companies — employing about 150,000 workers among them — that have issued statements extending work-from-home policies for the remainder of the spring, with numerous reporting intentions to extend into the summer and, in some cases, for the remainder of 2020.

“As MassMutual develops our plan to gradually return to the office, the health and safety of our employees is our top priority,” said Roger Crandall, chairman, president, and CEO of MassMutual, noting that his employees will return to the office no sooner than the beginning of September.

“We expect to come back in a slow, phased manner,” he added. “We will continue to monitor and reassess and will be factoring in a number of considerations — from federal, state, and local government and health officials’ guidance to a sustained reduction in cases in our operating locations, to broader available testing and our employees’ personal circumstances and comfort.”

Patrick Sullivan, Massachusetts President of People’s United Bank, is also promoting continued work from home where possible.

“People’s United Bank is assessing re-entry conditions and protocols to ensure the safety of our team members and our customers,” he said. “Our approach will balance the needs of employees with the needs of the business. As we have been successful in pivoting and adjusting to working from home, we will continue to encourage this behavior.”

Still, those are businesses that can at least operate in most aspects. Retail stores can’t so easily adjust — and have been devastated by the inability to invite shoppers into their stores.

“We are incredibly disappointed with how Governor Baker has treated retail businesses throughout the health and economic crisis. Massachusetts has been one of the most hostile states in the nation toward small retailers.”

“We are incredibly disappointed with how Governor Baker has treated retail businesses throughout the health and economic crisis. Massachusetts has been one of the most hostile states in the nation toward small retailers,” said Hurst, noting that Massachusetts stores are losing Memorial Day weekend at a time when other states have let them open up shop by now. “Retail businesses are ready and able to open safely now with a limited number of people in stores and for appointment shopping. By not allowing that until late June, many small, Main Street businesses will close forever.”

That’s not hyperbole for small businesses of many kinds. Matt Haskins, who operates the popular Matt’s Barber Shop in Amherst, said a recent grant from the Downtown Amherst Foundation has helped him stay afloat at a time when he doesn’t know when college business will return.

“Just five minutes before [receiving word of the grant], I was on a phone call discussing if Matt’s Barber Shop was going to make it or break it,” he told foundation officials. “The grant helps me think we’re going to make it.”

So will being able to open his doors again on May 25. And that’s all most business owners want right now — a target. Creed hears that, but at the same time, she’s encouraged by recent chamber polling suggesting the percentage of business owners who feel they’ll survive this crisis is rising.

“What that says to me is people are finding a way to make sure it doesn’t put them out of business,” she said, “which shows the resilience of the businesses we have here.”

Yes, they have resilience, in spades. Now, they want clarity — and some hard dates.

Joseph Bednar can be reached at [email protected]

EANE Relates the Most Common Issues Posed to Its Hotline

By Contributor
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.

SBA Issues New Guidance Regarding PPP Loan Forgiveness

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Coronavirus Features

The Questions Keep Coming

The Paycheck Protection Program (PPP) was created by the CARES Act to provide forgivable loans to eligible small businesses to keep American workers on the payroll during the COVID-19 pandemic. The SBA recently provided updates to its PPP guidance and also released the form application for PPP loan forgiveness, which will help small businesses seek forgiveness at the conclusion of the eight-week covered period, which begins with the disbursement of their loans.

Here are five common questions area attorneys have been hearing from business owners concerned about how PPP funds may be used in order to be forgiven.

Where can I spend my PPP loan in order for it to be forgiven?

“You’ve got to use 75% of what was loaned for payroll purposes,” said Kathryn Crouss, shareholder with Bacon Wilson. “Obviously, that’s salaries and wages, but other money employers spend on payroll costs count as well — vacation pay, parental or family leave, paid sick leave, or if there’s an employer match for plan premiums. So the definition of ‘payroll costs’ is relatively broad.

“The remaining money can be spent on other approved expenses — keeping the lights on or mortgage or rent or utility bills, those sorts of things,” she added. “Assuming you can prove to the government that you have spent 75% of the loan on qualified payroll expenses and the remaining portion on other qualifying expenses, then the loan should be forgiven and becomes a grant rather than a loan.”

In addition, she added, “if an employer brings an employee back on and that employee used to make, say, $3,000 a month, if they pay them less, they have to be within 75% to be forgiven. That’s not true for head count — they still have to have the same number of employees; not necessarily the same people, but the same head count.”

How do you measure whether an employee’s salary or wages were reduced by more than 25%?

“This may be the area that was causing the most angst among business owners, since it seemed mathematically impossible to not have reduced compensation by at least 25% if you were comparing compensation in the first quarter of 2020 — 13 weeks — to the covered period of eight weeks,” said Scott Foster, partner with Bulkley Richardson. “Fortunately, the SBA has opted to focus only on either the annualized salary for exempt employees, or the average hourly wage for non-exempt employees. Also, with respect to the salaried employees making more than $100,000 per year during the first quarter, as long as the annualized salary remains above $100,000 during the covered period, then any reduction in salary is not considered a reduction under this test.”

What about employees that were furloughed or laid off, but now refuse to return to work?

“For any employee the business has offered to re-employ in writing, and the employee (for whatever reason) refuses to accept re-employment, this will not reduce the loan-forgiveness amount,” Foster said.

Amy Royal, CEO of Royal, P.C., noted that she’s had many questions of this type. “They’re asking, ‘if I want to make sure I get loan forgiveness, how do I address a situation where I’ve offered to bring people back and they’ve said, thanks but no thanks?’ Obviously, those people have their own unemployment issues because if they’ve been offered a job and continue to take unemployment benefits, that could, in certain circumstances, be fraudulent.”

As for the employer, “if you make a good-faith offer to rehire someone with PPP money, make sure that offer is in writing,” she added. “If the employee rejects the offer, make sure you, as a business, have documented that. It will help you when you apply for loan forgiveness. That issue has been a real concern.”

Crouss agreed, noting that some employees may have legitimate reservations about returning to work — for instance, because they have a 95-year-old parent and don’t want to infect them.

“Make sure that conversation is in writing,” she said. “If they say they can’t return, get that response in writing as well, save that correspondence, and put those documents in their personnel file. Where we’re heading is, the head-count piece may be forgiven if they have that kind of documentation.”

Interestingly, Foster noted, “the application states that any employee fired for cause during the covered period does not reduce the borrower’s loan forgiveness. Oddly, this could mean that an employee that was fired for cause prior to the covered period would still count as a missing FTE during the covered period.”

My employees have nothing to do until my business is allowed to reopen and ramps back up. What if I want to save the PPP funds for after the eight-week period?

For example, Royal said, “if you’re a restaurant, you’re not open now. Maybe, if you’re lucky, you’re doing takeout, but the bulk of your business is full service. So the timing has presented issues because they can’t be fully ramped up now, but they’ve got to avail themselves of the funds right now before they run out.”

Businesses may absolutely hang onto the money and use it beyond the eight-week window, she explained — but they will have to pay it back over two years with 1% interest.

“That’s a very attractive loan,” Crouss noted. “Many businesses are making that decision — which is a perfectly sound decision. This only goes for eight weeks, and when you get that amount of money, it should cover your payroll for eight weeks, but what happens if the world hasn’t righted itself? So maybe it makes sense to save it for a rainy day and think of it as a loan and not a forgivable grant.”

Do I have to claim the PPP loan as income?

“The good news is, the IRS has spoken and said no,” Royal said. However, expenses paid for with PPP funds are also not deductible. “That makes sense — you can’t double dip. The way I conceptualize this is, it didn’t happen. We’re going to pretend this period didn’t happen for tax purposes.”

—Joseph Bednar

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