Center for Family Enterprise
Family Business Resource Guide
NH BIA Resource Page for NH Employers
The NH Business & Industry Association has created a COVID-19 Information & Resources for Employers webpage, breaking down federal and state resources COVID-19 Impact.
The Small Business Development Center
The Small Business Development Center (SBDC) provides individualized, advising and education, to NH businesses at no cost. They are helping businesses navigate the myriad of challenges they’re facing as a result of COVID-19. SBDC’s team of advisors can help businesses apply for SBA Economic Injury Disaster Loans, prepare for relief measures as they are introduced, and discuss concerns related to cash flow, staffing, marketing, accounting, supply chain interruptions, and more. https://www.nhsbdc.org/covid-19-assistance
CPA Advice, Baker Newman Noyes
Baker Newman Noyes has created a COVID-19 Resource Page with updates on tax relief, and resources from agencies at the federal, state and local levels and overall actions recommended by their experts. Their COVID 19 Resource Page can be found here, Be sure to sign up for their e-newsletter for regular updates and best practices. Here is their latest newsletter and a link to the CARES Act SBA loan.
Legal Updates, Orr & Reno
Questions Members have asked:
What liabilities do I face by keeping my business open if it is not listed as Essential per government orders?
- On March 27, 2020, the New Hampshire Department of Justice issued a Law Enforcement Memorandum. It stated that a person who violates an Executive Order of the Governor, including Executive Order #17 which addresses the essential businesses that can remain open, shall be charged with a misdemeanor (RSA 21:47-P). The person may also be charged with disorderly conduct under RSA 644:2. A business charged and convicted of a misdemeanor could be fined up to $20,000 under RSA 651:2, IV (b). Law enforcement can also seek injunctive relief to effectively close the business.
- The Department of Justice has stressed that the primary objective of law enforcement with respect to enforcing Executive Orders, however, is to inform the public, stress the importance of health measures and seek voluntarily compliance. Thus, in all likelihood, in the event of a violation, law enforcement may not initially seek to file criminal charges.
- Non-essential businesses that remain open are also at risk that their insurance carriers will not provide coverage for incidents that occur while a government order is in place instructing the business not to be open. This would likely be the case for premises liability carriers and workers compensation insurance, as well as other insurance carriers depending on the specific industry. Non-essential businesses should also strongly consider the negative press they may receive as a result of remaining open. Employees working during this pandemic have been very active on social media, often expressing anger towards their employers. Businesses should consider the impact their choice to remain open may have on their reputation.
If I am an essential business, one of my employees feels that puts them in danger to work in place, how do I respond?
- First, an employer should find out if the employee has an underlying medical condition that puts that employee at higher risk, such as a respiratory issue or other underlying medical condition, which condition may constitute a disability and require the employee to stay home. If the answer is yes and the employer has 15 or greater employees, then the employer needs to follow the Americans with Disabilities Act in providing a reasonable accommodation to the employee, which may be a temporary unpaid leave. If the employer has less than 15 employees, then the employer may still have such obligations under New Hampshire state law, RSA 354-A , and needs to determine if a reasonable accommodation of temporary leave is necessary based on a disability.
- Furthermore, if the employee is told to say home by a medical professional or governmental official, then the employee is entitled to up to 80 hours of paid sick leave under the Families First Coronavirus Response Act (FFCRA).
- If the employee is simply afraid to come to work, the employer must allow the employee to take any leave (paid or unpaid) that the employee has accrued and then make a determination, once the leave is exhausted, whether to place the employee on unpaid leave, paid leave, or terminate if the employee is unwilling to return to work.
- The NH Department of Employment Security appears to be taking the position that an employee can self-quarantine without the instruction of a health care provider, employer or government official and still qualify for unemployment benefits under Executive Order 5.
What if down the road someone claims they were infected while at work, and wants to sue over that? What do I need to know, and what should I do?
- An employer cannot stop a suit by an employee who claims that he or she was infected at work. As COVID-19 is more widespread, however, the success of such suits become more unlikely because the community transmission of the disease will make causation (i.e. the employee contracted the virus at the place of employment) almost impossible to prove. This analysis may be different, however, for health care workers and first responders.
- An employer can and should take reasonable steps now to ensure both compliance with any local, state or federal order or law regarding COVID-19 to ensure that any such suit filed can be aggressively defended on the basis that the employer acted with reasonable care as required under the common law, and acted properly to provide a safe workplace as required under OSHA. Thus, if an employee has a fever or other signs of COVID-19, an employer should send the employee home. In addition, if a worker has recently traveled to an area that the Centers for Disease Control and Prevention (CDC) has determined is subject to a travel advisory or quarantine orders for the population, such as New York, the employer should consider requiring the employee to quarantine for 14 days prior to returning to work. The employer should also provide employees with necessary protective personal equipment to the extent necessary and available. In general, the employer should follow all CDC and other governmental guidelines for its workplace to defend against any future suit by an employee.
What do I need to know about Workers’ Compensation, beyond the fact that if an employee becomes sick at work, it may be covered under our Workers’ Compensation?
- Worker’s compensation claims for COVID-19 are more likely to be allowed for health care providers and first responders. Other claims will be considered on a case-by-case basis, but it is not clear that they would be covered under an employer’s workers’ compensation plan, most likely because it will be difficult to show that the employee can identify a specific source or event at work that resulted in the employee contracting COVID-19 while on the job. If an employee is in an office setting and contracts COVID-19, the claim is most likely to be denied.
- As an employer, you can work with your workers’ compensation carrier to address any claims by employees. Often times if there is exposure to COVID-19 on the job, the workers compensation carrier will pay for the test to determine whether there is a positive COVID-19 diagnosis.
Can my employees sue me if I only lay some employees off, but keep others working?
- An employer can make decisions to lay off some workers and keep others. An employer, however, needs to make these determinations of who will be laid off/terminated/furloughed based on non-discriminatory reasons, meaning that if the majority of workers laid off are in a protected class, such as over 40 years old, married, female, etc., then the layoffs may be questioned as discriminatory.
- An employer also needs to be careful not to discriminate when conducting layoffs against those who qualify for the new paid sick leave or paid family and medical leave under the FFCRA. For example, an employer should avoid implementing terminations that predominately impact workers with children under the age of 18 who may need leave due to school and daycare closures due to COVID-19. Such terminations could arguably be discriminatory against those workers who may qualify for protected paid leave under the FFCRA.
Can I ask my employees to volunteer or defer wages?
- No. An employer can furlough an employee, but an employer must pay an hourly employee for all hours that the employee worked and must pay a salaried employee for any pay period in which the employee performed any work under New Hampshire law. An employer must pay employees weekly and within eight days of the end of the pay period, unless the New Hampshire Department of Labor has authorized the employer to pay less frequently, with the maximum permissible pay period being once per month.
- Employees may volunteer to be furloughed, but the employer will still be bound by any applicable FMLA requirements. If the employee is eligible for unpaid FMLA leave, the employer must be sure to process the furlough as such.
Can I keep my family members employed, but layoff everyone else?
- Again, an employer needs to determine layoffs/termination/furloughs in a non-discriminatory manner. Being, or not being, in a particular family does not on its face implicate a protected class under federal or state law, so an employer could keep family members employed and terminate other employees. Employers, however, should be cognizant that to terminate all non-family workers is not an action that will likely have employees wanting to return to work after this pandemic ends and the employer could lose valued employees in the long run.
- Orr & Reno Employment Law BLOG.
We will be hosting a live, interactive webinar about Understanding The Paycheck Protection Program with a panel of industry experts this Thursday, April 9th from 12:00 – 1:00pm to dive into the details of the program and outline how businesses can make the most of this opportunity. If you would like to join, please click here.
Restoration/Commercial Cleaning – Soil-Away
CFE Member Soil-Away shares what companies should be asking and doing during this unprecedented time. The company is working hard as a leader in the Sanitization space.
- What can I be doing proactively to reduce contamination in my building?
- I am an essential service and staying open. What plan can I put into place if we have to temporarily close in the event we have a positive case of COVID-19?
- Everyone is working remotely and my building is empty. What can/should I do prior to the staff re-entering?
- What are the pros and cons of doing the cleaning myself or hiring an outside firm, such as a restoration company?
- How can we know that the cleaning has been effective?
- What are the best products to use for cleaning and disinfection?
- How can I manage a situation that is evolving so quickly? What is true today, may be different tomorrow.
The CDC has released very specific cleaning and disinfectant instructions for companies, visit here to learn more.
NH Charitable Foundation unveils new Community Crisis Action Fund
The New Hampshire Charitable Foundation has announced the Community Crisis Action Fund, which will provide grants to nonprofits who are working to reduce the impact of COVID-19, such as food for children and seniors, shelter for homeless and families, and transportation. Grants will also help longer-term needs like health care, emergency response, childcare, and food security. Additional grants will be used to support local emergency funds. Click for the latest on their blog page and their COVID response page.
Our member UBS would like to share the following resources that they are sharing with their customers/clients.
- Loans for small business owners: https://www.sba.gov/page/coronavirus-covid-19-small-business-guidance-loan-resources
- Coronavirus tax relief and stimulus payment checks: https://www.irs.gov/coronavirus
- Student loans (coronavirus and forbearance information): https://studentaid.gov/announcements-events/coronavirus
- Unemployment (includes information on each state's unemployment program as well as a COVID FAQ): https://www.dol.gov/general/topic/unemployment-insurance
Our member Baldwin & Clarke would like to share the following resources that they are sharing with their customers/clients.
Residents of New Hampshire: As of this time, the State of NH has not extended the due date for filing or payment of 2019 Business Tax and Interest & Dividends Tax or the 2020 Estimated Tax Payments due on April 15, 2020. The state of NH has however granted an automatic 7-month extension for filing your 2019 tax return if all tax due is paid in full by April 15, 2020. Also, there may be additional relief for certain taxpayers that extends the tax payment due date until June 15, 2020. For detailed information, please see the New Hampshire Department of Revenue Administration website.
Residents of Massachusetts: The State of Massachusetts has extended the filing date for personal income tax returns and payments due from April 15, 2020 to July 15, 2020. For detailed information, please see the Massachusetts Department of Revenue website.
Residents of Maine: The State of Maine has extended the filing date for personal income tax returns and payments due from April 15, 2020 to July 15, 2020. For detailed information, please see the Maine Revenue Services website.
Please note the summary above is a general overview, so we encourage you to consult with your tax professional to discuss your specific situation in advance of April 15, 2020.
Disclaimer: All information shared among our member network is with best intentions, and is not to be considered legally binding.
The Center for Family Enterprise and CEO Excellence consists of four distinct programs: The Center for Family Enterprise, the CEO Forum, CEO Peer Groups and a Leadership Development program. The collective goal of all programs are to strength and support c-level executives in all areas of industry. All programs are run out of the Center, which is associated with and is housed at the Peter T. Paul College of Business & Economics.
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