By Attorney Kelly Jesson
Amendments to the Payroll Protection Program (“PPP”) that have been discussed for weeks finally made it to law on Friday. The amendment makes six major changes:
1) Forgiveness period possibly extended: The definition of “covered period” has changed to give businesses the option of choosing the eight-week period, or the earlier of 24 weeks or through December 31, 2020. This enables businesses to have more time to spend PPP money on forgivable expenses, thus increasing the likelihood that the entire loan may be forgivable. However, there’s a catch: because the “covered period” has extended, the business owner needs to maintain payroll levels appropriately under the CARES Act during the extended period in order to obtain full forgiveness. Thus, some business owners may opt to keep the shorter 8-week period.
2) Businesses need only spend 60% of the loan on allowable payroll expenses: This is a decrease from 75%, which is not in the CARES Act but was made a rule by the Treasury Department. It obviously has a negative effect on businesses that have large rental or mortgage expenses. Now, they can use 40%, instead of 25%, on rent, mortgage, and utilities
and still have that part forgiven.
3) New PPP loans allowed to be paid off within five years: This is an increase from two years. While this only applies to new loans, existing lenders may allow existing borrowers to take advantage of this term as well.
4) Businesses may not be penalized if they cannot rehire workers or resume business during the covered period: As mentioned above, the amount of forgiveness depends on a business’s ability to pay covered expenses (60% has to be payroll) and re-hire or maintain its workforce. What if it CANNOT reopen due to mandatory closures? The PPP amendment exempts businesses from being negatively affected by these requirements if the business in good faith
documents: (1) both the inability to rehire individuals who were employees on February 15, 2020 and the inability to hire similarly qualified employees for unfilled positions by December 31, 2020; or (2) the inability to return to the same level of business activity it enjoyed before February 15, 2020, due to compliance with government closures or federal safety and sanitation requirements related to COVID-19.
5) Repayment deferral period has been extended: Instead of it being deferred for six months, the amendment defers repayment until the date the amount of forgiveness determined is remitted to the lender. This is beneficial because business owners won’t have to start repaying the loan without knowing how much they actually have to repay (makes sense, right?). However, if a borrower fails to apply for forgiveness within 10 months of the last day of the covered period, repayment must begin on that date (10 months after the last day of the covered period).
6) Payment of employer payroll taxes delayed: Businesses can delay the payment of employer payroll taxes until December 31, 2021 (up to 50% of the amount due) and December 31, 2022 (the remaining amount due). Prior to this amendment, businesses were prohibited from taking advantage of this benefit if its PPP loan was forgiven in whole or in part.
These changes are certainly welcome to business owners. Keep in mind, though, the Treasury Department and Small Business Administration still have the ability to provide further rules and regulations, so business owners should keep their eyes and ears open in order to fully take advantage of the PPP! Please contact Jesson & Rains with any questions!
By Attorney Kelly Jesson
Business owners around the country are starting to reopen their businesses up to employees and customers. However, regardless of government announced “phases,” businesses owe a duty to their employees and customers to keep them safe while on the premises. Lawsuits are starting to pop up, according to Market Watch.
What can you do to limit your potential liability? Businesses should follow healthcare and government recommendations, such as wiping down surfaces, frequent hand washing, wearing masks, socially distancing, etc. These recommendations sometimes change, so business owners should stay abreast of updates. Keeping your employees from getting sick on the job in the first place is key: in a worker’s compensation case, all the worker has to do is prove they were injured on the job and there’s a causal connection between the two. For example, a grocery store cashier may have a claim due to exposure to the public. A worker’s compensation claimant does not need to prove that the business was negligent.
For businesses that don’t have a large volume of public traffic (such as law firms), owners may ask patrons to sign a document before coming into the premises stating that they do not have COVID-19, are experiencing no symptoms, and they have not been around anyone with COVID-19 or who has otherwise been experiencing symptoms. While patrons can, of course, lie on these forms, at least it’s one additional step that business owners can show that they are taking to
protect their employees and other customers. Showing that you are taking the necessary steps to keep people safe is important in defense of personal injury lawsuits, where the plaintiff has to show not only causation (that they caught COVID-19 at your business) but negligence (that you failed to act with reasonable care).
A defense to a negligence action is “assumption of risk.” Some business owners may ask patrons to sign waivers of claims, saying that the patron is “assuming the risk” of contracting COVID-19 by coming to their establish. For example, someone who voluntarily eats at a restaurant or goes to a nail salon knows that there is a risk that they may be infected, and a business is not guaranteeing 100% that they will not be infected, because there’s no way to do that.
Governor Cooper provided business owners with extra protection a couple of weeks ago when he signed the Coronavirus relief bill. The act provides for limited liability for businesses deemed “essential” under the Governor’s prior stay-at-home order. If an employee or customer gets COVID-19 from spending time at an essential business, the business is not liable for damages unless it is “grossly negligent” or worse. Gross negligence is a higher standard than simple negligence. Instead of a plaintiff showing the absence of reasonable care in a negligence lawsuit, a plaintiff would have to show the conscious disregard for reasonable care to prove that a business was grossly negligent.
While essential businesses should be comforted by this law, we are of the opinion that this should not change how they do business. In fact, if they consciously fail to abide by social distancing and cleaning protocols, they could arguably be grossly negligent.
If you have any questions about how to prepare your business for reopening, give Jesson & Rains a call!
By Associate Attorney Danielle Nodar
During this time of uncertainty, people may question whether they have their affairs in order to better protect themselves, their loved ones, and their assets in the event that a worst-case scenario occurs such as incapacity brought on by illness or death. Below is a short list and description of important documents that can help complete an estate plan.
The documents that deal primarily with distributing assets at death are a will or a revocable living trust. The best type of document for a given individual depends on a variety of factors such as family situations, the type or amount of assets, and overall goals for estate planning, but both documents allow you to have control over who will be responsible for carrying out your final wishes and ensuring that your assets are distributed to the beneficiaries you have named in your documents.
For parents, there are also important decisions relating to caring for your children if you pass away. Unless you have a terminal illness, the only way to name a guardian for your children in North Carolina is to do so in a will. When appointing a guardian for a minor, the court will give preference and priority to the person named as guardian in a will. By law, a child can inherit property outright and with no strings attached upon reaching the age of eighteen, regardless of the amount or type of property. With proper estate planning, your will or living trust can outline specific age restrictions or conditions on when your child can inherit your property while ensuring that all expenses relating to your children’s health, support, maintenance, and education are taken care of by a trustee.
A durable power of attorney allows you to name an agent to act in your place and make financial, business, and legal decisions if you ever become incapacitated (i.e. unable to handle your affairs). In the absence of naming an agent, a loved one would have to petition the court to be appointed as your legal guardian. The guardianship process is much more cumbersome, time-consuming, and costly than executing a durable power of attorney in advance.
A health care power of attorney allows you to name an agent to make medical decisions on your behalf in the event you cannot speak for yourself. This document is not necessarily an end-of-life document, as it can apply in any situation where you are unable to communicate your wishes to a physician, such as being under anesthesia. You may give your agent full authority over decisions relating to your physical and mental health or limit your agent’s authority by providing
explicit instructions in this document.
An advance directive, also known as a Living Will, is an end-of-life document where you will state under what conditions and terms you do not want to be kept on life support such as a ventilator, artificial nutrition, and artificial hydration.
In the absence of a Health Care Power of Attorney or an Advanced Directive, North Carolina law sets forth an order of priority (family members) as to who can consent to medical treatment on your behalf in the event you become incapacitated. This can cause problems for people with interesting family situations or no family at all. There is no default decision maker under North Carolina law for business, financial, and legal decisions, so a durable power of attorney is one of the most important estate planning tools we draft.
With all of these documents, timing is everything, as the signer must have capacity at the time of signing. You cannot “get power of attorney over” someone. If you are interested in discussing your estate planning goals or needs, please contact Jesson & Rains.
By Attorney Kelly Jesson
It’s hard to think about celebrating small businesses this month when so many are suffering due to coronavirus-related closures and illnesses. During this time of crisis, we’re right here with you, navigating these unusual waters.
We thought this would be a great time to feature one of our clients, Help Mask A Hero, who saw a life-or-death need and immediately sprang into action to fill the gap! Help Mask A Hero, Inc., is a North Carolina non-profit corporation, with its 501(c)(3) status pending. Founded by Charlotte’s own Dr. Lakesha Legree, owner of Elev8 MD Wellness Center, PLLC, and several other anesthesiologist colleagues, Help Mask A Hero uses donations to purchase coveted N95 masks to ensure that our frontline healthcare workers are receiving the PPE they need to treat COVID-19 patients AND stay healthy themselves. Help Mask A Hero also accepts donations of masks and other protective equipment. Help Mask A Hero has been featured all over major national news channels. We are so proud to serve them!
If you’d like more information, or to donate yourself, please visit: https://helpmaskahero.com
To honor our healthcare workers, we are offering a discount for those who need their estate planning documents drafted. Please give Jesson & Rains a call for more information!
When considering the emergency law that Governor Cooper just signed Monday, most North Carolinians are excited about the $1.6 billion relief package that will go to heath, education, and small businesses.
However, attorneys (and their clients) are the most excited about video witnessing and notarization! To deal with COVID-19 and social distancing concerns, documents can now be notarized and witnessed through video conferencing software like “Zoom” and “GoToMeeting.”
Unfortunately, the emergency law did not do away with the requirement that some documents be an “original” (with a “wet” signature), so the procedure for will signings is a little clunky, requiring multiple originals to be mailed back and forth. Here’s a breakdown of the new law as it pertains to video notary and witnessing:
The witnesses’ and notary’s acknowledgements must contain special language in light of the emergency law, so do not try this yourself at home! If you need assistance, give Jesson & Rains a call.
By Associate Attorney Danielle Nodar
While the world reels from the impact of government-mandated shutdowns and the threat of illness due to coronavirus, many businesses are reexamining their contracts to determine their obligations and rights during these unprecedented times. Some contracts may contain a force majeure clause excusing the parties from performing under the terms of the contract. A force majeure clause allows parties to cancel or delay the performance of their obligations, or even terminate the contract altogether, if it is impossible for a party to perform due to events that cannot be reasonably anticipated or controlled by the parties.
But not all force majeure clauses are created equally. A sample force majeure clause might look something like this:
"The Parties’ performance under this Agreement is subject to acts of God, war, terrorism, disaster, government regulation, or any other emergency beyond either Parties’ control which makes it impossible for a Party to perform their obligations under this Agreement. Either party may cancel this Agreement for any one or more of such reasons upon written notice to the other Party."
Some force majeure clauses may excuse performance of one party but not the other. Or, perhaps performance is excused by not the payment of money. For example:
"Other than for Tenant's obligations under this Lease that can be performed by the payment of Rent, such party shall not be responsible for any delays due to strikes, riots, acts of God, shortages of labor or materials, war, or acts of terrorism, or any other causes of any kind whatsoever which are beyond the control of such party."
If your contract contains a force majeure clause, is coronavirus a triggering event? Perhaps if the contract explicitly mentions government-mandated closures or pandemics, but what about disasters or acts of God? Before you decide not to perform, you should get advice from an attorney who can interpret the contract for you. If the other party disagrees with you, litigation over whether or not coronavirus is a triggering event will be costly and time consuming. It is normally in everyone’s best interest to negotiate.
If you have questions about how your contractual obligations may be impacted by coronavirus, your rights under a business contract, or your options to alter or terminate a contract, please contact Jesson & Rains.
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