U.S. Senate passes the Paycheck Protection Flexibility Act

Dear WVADA Members,

The U.S. Senate passed the Paycheck Protection Flexibility Act yesterday evening and it is now on its way to President Trump, who is expected to sign it.

Following is a summary of the legislation’s main points compiled by the AICPA:

  • Current PPP borrowers can choose to extend the eight-week period to 24 weeks, or they can keep the original eight-week period. New PPP borrowers will have a 24-week covered period, but the covered period can’t extend beyond Dec. 31, 2020.This flexibility is designed to make it easier for more borrowers to reach full, or almost full, forgiveness.
  • Under the language in the House bill, the payroll expenditure requirement drops to 60% from 75% but is now a cliff, meaning that borrowers must spend at least 60% on payroll or none of the loan will be forgiven.Currently, a borrower is required to reduce the amount eligible for forgiveness if less than 75% of eligible funds are used for payroll costs, but forgiveness isn’t eliminated if the 75% threshold isn’t met.
  • Borrowers can use the 24-week period to restore their workforce levels and wages to the pre-pandemic levels required for full forgiveness. This must be done by Dec. 31, a change from the previous deadline of June 30.
  • The legislation includes two new exceptions allowing borrowers to achieve full PPP loan forgiveness even if they don’t fully restore their workforce. Previous guidance already allowed borrowers to exclude from those calculations employees who turned down good faith offers to be rehired at the same hours and wages as before the pandemic. The new bill allows borrowers to adjust because they could not find qualified employees or were unable to restore business operations to Feb. 15, 2020, levels due to COVID-19 related operating restrictions.
  • Borrowers now have five years to repay the loan instead of two.The interest rate remains at 1%.

The bill allows businesses that took a PPP loan to also delay payment of their payroll taxes, which was prohibited under the CARES Act.

SBA Issues New FAQs on PPP Loan Forgiveness

Yesterday the Small Business Administration issued new FAQs on Paycheck Protection Program forgiveness issues for borrowers. The FAQs provide key insights on potentially eligible payroll and non-payroll costs and on potential reductions to forgivable expenses.

Among other things, the FAQs clarifiy that:

  • Forgivable transportation costs are limited to transportation utility fees assessed by state and local governments; and
  • Reductions in pay outside of salary or wages (e.g., commissions) do not result in pay-level reductions under the statute and do not affect overall forgiveness of the loan.

This latest FAQs supplement an SBA notice outlining the process by which PPP lenders must review loan forgiveness applications, noting that lenders may begin submitting loan forgiveness decisions to SBA on August 10. Dealerships with PPP loans should review both the FAQs and the SBA notice with their lenders and, as necessary, with outside advisors such as CPAs and attorneys.

Note: additional PPP loan forgiveness information is available from NADA’s Coronavirus Hub, including Guidance on the Use and Forgiveness of PPP Loan Proceeds, a recent webinar and CARES Act FAQs.

SBA Issues New Interim Final Rule for the PPP

Today the Small Business Administration and the Treasury Department issued a new Interim Final Rule (IFR) that revises two previous IFRs for the Paycheck Protection Program. This latest rule conforms with changes made by the PPP Flexibility Act.

Note: A detailed explanation of these changes is included in NADA's Lifeline Series Webinar Paycheck Protection Program Flexibility Act of 2020: Impact on the Use and Forgiveness of Loan Proceeds.

New - SBA Publishes New EZ Forgiveness Application for PPP Borrowers

Today the SBA issued an updated version of the Standard Forgiveness Application with instructions. This revised application conforms with changes made by the PPP Flexibility Act.

SBA and Treasury also issued a simplified new EZ Forgiveness Application and instructions for PPP borrowers who can demonstrate:

  1. They qualify to avoid any pay-level-based reduction in loan proceed forgiveness; and
  2. They qualify for either the headcount-based forgiveness reduction safe harbor or the reduced business activity forgiveness reduction safe harbor.

Note: SBA and Treasury have indicated that borrowers may evaluate their eligibility for the head count and pay level forgiveness reduction avoidance safe harbors as of the date their forgiveness applications are filed.

Getting Back to Work Safely

SBA

The Small Business Administration (SBA) released the PPP loan forgiveness application. The SBA will be issuing regulations and guidance to further assist borrowers as they complete their applications, and to provide lenders with guidance on their responsibilities. Click here to view the application and instructions.

May 13 Clarification: New Safe Harbor Final Rule

May 26: Paycheck Protection Program Loans Frequently Asked Questions

CDC

The Center for Disease Control (CDC) has consolidated coronavirus-related information for businesses and workplaces. The CDC has also developed a information to Prepare your Small Business and Employees for the Effect of COVID-19.

EPA

EPA Makes It Easier for Consumers to Find Safe Disinfectants to Fight Coronavirus

Yesterday the Environmental Protection Agency released its List N Tool, an app that allows users to quickly identify disinfectant products that meet EPA’s criteria for use against COVID-19. The new app:

EPA also announced actions to ensure new disinfectant products are safe and effective to use against COVID-19 and can be added to EPA’s list as quickly as possible.

NADA

WV Executive Orders:

Governor Justice has issues a new Executive Order (EO) to replace the Stay at Home EO. The new Safer at Home EO went into effect on April 27, 2020, along with the state’s re-opening plan, West Virginia Strong: The Comeback, to phase in the re-opening of businesses in the state on a week by week basis.

WV DHHR COVID-19 Website

WV DMV announces additional modifications to resume services

PPP Loan Forgiveness Application Now Available

The Small Business Administration and the Treasury Department issued the Paycheck Protection Program Loan Forgiveness Application, along with detailed instructions and worksheets. Forgiveness applications will generally not be filed until after June 30, 2020.

The application and materials are designed to simplify the process and reduce compliance burdens and include:

  • An alternative option for calculating payroll costs using an “alternative payroll covered period” that aligns with a borrower’s regular payroll cycle.
  • Flexibility to include eligible payroll and non-payroll expenses paid or incurred during a borrower’s eight-week covered forgiveness period.
  • Step-by-step instructions on how to perform the calculations required by the CARES Act to confirm eligibility for loan forgiveness.
  • Borrower-friendly implementation of the statutory exemptions from loan forgiveness reductions, including a “safe harbor” based on rehiring employees by June 30, 2020.
  • Addition of a new exemption from the loan forgiveness reduction for borrowers who have made good-faith, written offers to rehire workers who were declined or who have other former employees who departed under certain conditions.
  • A description of the documents that dealers need to submit in support of a forgiveness application.

STEPS DEALERSHIPS SHOULD TAKE...

WVADA encourages all dealers to monitor CDC guidelines for businesses and employers, and implement contingency plans in the event more and more employees need to work remotely. It is recognized that many personnel in a dealership cannot work remotely, such as service advisors, mechanics and sales personnel. It is advised that the following policies and tips be provided to the dealership’s personnel:

Instruct employees to exercise enhanced hygiene, including frequent hand washing with soap for at least 20 seconds, using an alcohol-based hand sanitizer in between hand washing, and avoiding touching eyes, nose or mouth.  Consider sending out handwashing guidelines, like the Centers for Disease Control (CDC)’s handwashing website. Distribute hand sanitizer to employees and make sanitizers available in common areas, such as conference rooms, lunch and break rooms, restrooms, reception areas, F & I desks.

NO HANDSHAKES
Instruct employees that the dealership will be implementing a “no handshake” policy, and place a sign at the reception desk alerting customers and other visitors of this policy. I appreciate this can be difficult as a salesperson attempts to establish a relationship with a customer, but I believe that a customer will understand, and an “elbow bump” can be used to help lighten an otherwise serious situation.
AVOID SICKNESS

Avoid close contact with people that are sick, cover your cough or sneeze with a tissue and then dispose of the tissue.

USE TELEMEDICINE

Instruct employees that they may want to consider using telemedicine to avoid doctor’s offices or hospitals.  The dealership may want to attach a flyer provided by the dealership’s medical insurance provider on telemedicine programs.

STAY HOME
Advise employees to stay home if they are sick, particularly a fever, or other symptoms that are flu-like, and encourage those who work with the employees to do the same. Email HR personnel or the employee’s manager if they have any concerns so the dealership may address the situation confidentially.
CLEAN AND DISINFECT

Clean and disinfect frequently touched surfaces, such as copiers, phones, key-boards and door handles with a cleaning spray and/or wipes.  Potentially consider extra clean staff or shortening open hours to allow more cleaning to occur.

WHEN TO USE A FACE MASK

The CDC does not recommend general use of a face mask for people who are well, only for people who are showing symptoms.

WORK REMOTELY

Advise employees that if they have any special circumstances necessitating that they work remotely (for example, their own health or caring for another member of their household), to reach out to the employee’s manager or to HR personnel at the dealership.

UPDATE CONTACT INFO

Make sure you have any update on emails (work and personal) and mobile and home landline numbers, and employees that can potentially work from home, test the remote access and make sure matters are safe and secure.

FOLLOW THE CDC

Review the CDC website for the most accurate updated information.

CARES Act Loan Updates
The Paycheck Protection Program (PPP) has experienced some delays. Please continue to work with your accountant and lender to apply. Click here for information for the PPP and the application form. 
 
NADA has created a helpful FAQ for loan related information. Click here to view.
FFCRA Updates
All dealerships need to make sure that you have posted the “Employee Right Poster” that went into effect on April, 1. Please make sure you distribute this poster to all employees working remotely, and please remember to keep this posted until December 31, 2020.

 

Below are polices and forms created to help provide guidance during this unprecedented time. Please do not hesitate to contact Johnnie Brown with any questions about how to finalize or use the below forms or policies.

 

  • Salaried employees are to be paid in full for the week or partial week that they work, with limited exceptions. Thereafter, the dealership’s sick day policies and paid time off handbook policy would be in place.
  • Hourly employees are to be paid for the hours they work. Thereafter, the dealership’s sick day policies and paid time off handbook policy would be in place.
  • One law that is very strongly in play is the General Duty Clause under the OSH Act of 1970. (“OSHA”). OSHA’s General Duty Clause requires ALL employers to protect workers from serious and recognized workplace hazards, more information HERE.
  • Any type of influenza, including COVID-19, could qualify as a serious health condition under the Family and Medical Leave Act (FMLA). This only applies to companies with more than 50 employees and if the employee has been employed at least one year and worked over a certain number of hours.
  • Employees infected with COVID-19 could rise to a level of disability under the ADA and State disability statutes, and this is very fact specific. Consult with counsel on these questions.
  • Privacy Laws- The dealership has an obligation to continue to respect and protect its employee’s privacy. It is important if an employee can work off site and is involved with dealing with the private information of customers that adequate protections are put in place to protect the private information of the dealership’s customers.
  • The dealership must continue to remain sensitive to and respect its obligation not to discriminate against employees based on sex, race or nationality. If the dealership is going to be flexible with time off for employees, then it is very important that flexibility be consistent for all employees.

FAQ

For more details on FAQ click HERE.

  1. An Employer is permitted to ask an employee to seek medical attention and get tested for COVID-19.
  2. An employer cannot take an employee’s temperature at work, this would most likely violate the ADA, and considered a prohibited “medical examination” under the ADA.
  3. If an employee does have COVID-19, and has to be sent home, ask them to identify those employees and customers that they have been within 6 feet of at work, and consider sending those employees home for a 14-day period of time.
  4. Do NOT disclose the employees name if they have been diagnosed with COVID-19, you may violate confidentiality laws if you do.
  5. An employer has no duty to report a confirmed case of COVID-19 to the CDC, that is the responsibility of the medical provider.
  6. An employee cannot refuse to come to work just out of fear.
  7. The questions surrounding OSHA about employees wanting to wear mask, or an employer required to provide mask is a legal memo, but generally, such personal protective equipment is not required for salesmen or office workers.

Here is a comprehensive FAQ developed by Fisher Phillips that addresses paid sick leave and Family and Medical Leave Act (FMLA) benefits during this national emergency and also briefly summarizes the refundable tax credits for employers, as well as a small-business exemption that attempts to mitigate these costs for businesses.

SITUATION UPDATES

Office of the Governor - Updated 5.4.2020

Safer-at-home-Order


Governor’s Executive Order - Automobile Dealers ESSENTIAL

May 13 Clarification: New Safe Harbor Final Rule

WV DHHR COVID-19 Website

CDC – COVID-19

Governor Justice Twitter and Facebook and YouTube pages

DMV Information for WV Dealers

The WV DMV Will Close to the Public Beginning Thursday, March 19

The WV DMV has agreed to keep regional offices open to dealers to drop off paperwork. The dealership must call the regional office before sending an employee down to drop off any paperwork. The dealership employee must drop off the paperwork and then leave. The DMV regional office will call the dealership employee once the paperwork is completed for the employee to return back to the regional office to pick up the paperwork.

WV Motor Vehicle Inspections:

As a result of the COVID-19 and the gubernatorial executive stay-at-home mandates, a three month grace period, will be given to WV citizens on vehicle registration and motor vehicle inspection renewal. Beginning April 1, 2020 through July 1, 2020 the motor vehicle inspection program will be suspended during this period. This is subject to change based on the termination or extension of the executive orders.

DMV will be extending the expiration date for 90 days on any:

  • March and April Temp Tags on Consumer’s Vehicles
  • Driver’s License
  • Instructional Permit
  • Vehicle Registration

WV Expiration Extensions Amended

Salvage Inspection Information:

Memorandum

Salvage Documents

VRS Temp Tag Order

  • Starting Friday, March 20, 2020 temp tag stock shipments will be limited to Monday and Wednesday of each week. Temp tag orders will continue to be shipped via FedEx ground. This only applies to temp tag supply orders. Online and Phone Support will continue to operate normally

ADDITIONAL RESOURCES FOR BUSINESSES

WVADA encourages all dealers to monitor CDC guidelines for businesses and employers, and implement contingency plans in the event more and more employees need to work remotely. It is recognized that many personnel in a dealership cannot work remotely, such as service advisors, mechanics and sales personnel. It is advised that the following policies and tips be provided to the dealership’s personnel:

NADA and Alliance for Automotive Innovation

sent a joint letter to President Trump to consider vehicle repair, maintenance, and sales facilities as essential operations during COVID-19

Families First Coronavirus Response Act

Updated Summary of H.R. 6201, Families First Coronavirus Response Act, by Jackson Kelly

IRS Guidance for Claiming the New Employee Retention Credit

IRS Guidance for Claiming the New Employee Retention Credit under the CARES Act and Credits for Emergency Paid Sick Leave Under FFCRA

IRS Form 7200 for Obtaining Credits
View and download the Application – IRS Form 7200 for Obtaining Credits
Guidance on implementing the Pandemic Unemployment Assistance program
which makes benefits available for self-employed workers, independent contractors, gig workers, and others who do not regularly qualify for unemployment assistance.
Guidance on Federal Pandemic Unemployment Compensation

under which states will administer an additional $600 weekly payment to eligible individuals.

SBA & Treasury Department Certification Guidance Issued
The SBA and Treasury Department released guidance addressing PPP certification as part of an update to the PPP Frequently Asked Questions (question 46).
NADA
NADA has released an analysis, the PPP Loan Certification of Need: NADA Analysis of Clarifying Guidance from SBA and Treasury, that provides guidance for dealers taking a PPP loan.

GUIDANCE for Phase 2 and Phase 3 of COVID

DOL Clarifies Eligibility for FFCRA In Light of Summer Program Closures

The U.S. Department of Labor’s Wage and Hour Division clarified eligibility for paid sick or expanded family and medical leave under the Families First Coronavirus Response Act (FFCRA). This provides guidance for employers and employees affected by the closure of summer camps, summer enrichment programs and other childcare programs. DOL also issued a poster and an eligibility tool.

For more information on the FFCRA, see NADA's updated FAQs on the federal emergency paid leave mandates, which reflect this latest guidance. An important addition:

Q: May an employee request FFCRA leave based on the closure of summer camps or other summer programs? 

A: Yes. FFCRA leave may be taken if the employee is unable to work or telework due to a need to care for his or her child whose place of care is closed due to COVID-19 related reasons.

The U.S. Department of Labor Department released an opinion letter addressing whether a dealers' obligation to pay employees is affected by auto manufacturer incentive payments to boost sales persons pay under the Fair Labor Standards Act if the dealer and its employees agree to count third-party payments as wages. Moving forward, dealerships can use such incentive payments to help meet their obligation to pay salespeople minimum wage.

**COVID-19 is a fast-evolving situation, and as new information comes from our Federal and State authorities, WVADA strongly encourages our West Virginia dealers to adapt as governmental guidance is received.  Please keep in mind that this is only supposed to be general guidance. Each dealership is different and each dealer must use their own discretion when it comes to the safety of their employees and customers. Please do not hesitate to contact WVADA , Johnnie Brown or Beth Lord with any questions you may have.