December 2020

• Congress passed, and President Trump signed into law, a new federal COVID stimulus plan.
• The bill includes $600 stimulus payments, as well as a new round of PPP loan funding.
• There is already talk of increasing the amount of the stimulus payments to $2000.

Well I was all set to write this week about some cool new commercial developments happening because it looked like the President was going to veto the new stimulus bill. Then wouldn’t you know it? President Trump changed his mind and signed the bill into law.

So now we have a new stimulus bill. But what is in it? Are there provisions that directly affect the commercial real estate industry? What about other small businesses? Those are the questions we are looking to answer in this article. And don’t forget to check back in next week – when I actually write that article about cool new developments.

Contents of the New Bill

The bill has a lot of different moving parts in it. But because this blog focuses on commercial real estate, I will focus mostly on the ones affecting our industry. Anyway, the bill includes:

• $600 stimulus checks – This is the most well-known part of the new bill and the reason I thought President Trump was going to veto it (he said he wanted the stimulus checks to be $2,000). According to reports, the Treasury wants to start sending checks to people as soon as this week.

• Unemployment benefits – The federal unemployment benefits of $300 per week will continue until at least March 14, 2021.

• Second round of PPP loans – Congress allocated $285 billion for a “Second Draw” of PPP loans. Specifically, these loans are capped at $2 million per company and are available only to companies with less than 300 employees and who saw a 25% decrease in sales in at least one of the first three quarters of 2020 (as compared to the same quarter in 2019). I talk about some more details of the PPP loans below.

• Eviction Moratorium Extension – As I correctly predicted a few blog posts ago*, the new stimulus plan extends the federal moratorium on evictions until January 31, 2021.

• Other provisions – There are a lot of other provisions – for example, money for education, foreign investment, infrastructure, child care, vaccines, etc.

Second Draw PPP Loans

Congress tried to be much more specific in this bill about who gets the PPP loans and what they can be used for. For example, as I wrote above, they are much more limited on who can collect them. So I wanted to go into the details a little more.

In addition to the eligibility rules described above, the bill contains the following additional PPP terms:

• The funding has many different limits that specifically set out funds for truly small companies (i.e. $25 billion for borrowers with 10 or fewer employees);

• $12 billion for minority owned businesses;

• $15 billion set aside for the entertainment industry, including independent movie theaters, entertainment venues, music clubs, and cultural institutions; and

• Expansion of the allowable expenses and forgivable uses for PPP funding.

Is this the End?

As I mentioned above, President Trump wanted the individual payments to be $2,000, not $600. There is talk, therefore, that there may be another stimulus package in the near future. Also – as with the last stimulus – there will undoubtedly be questions that arise that were not covered in this bill. And clarification will be necessary.

And, as I am writing, this came across the twitter machine –

“BREAKING: US House passes bill that would increase COVID stimulus payments from $600 to $2,000 by 275-134 vote, needing two-thirds majority to pass. Measure now moves to US Senate.”

Today (Tuesday), Senator McConnell has blocked the first attempt to debate the $2,000 stimulus in the Senate. Instead, Senator McConnell acknowledged that President Trump called for not only larger stimulus checks but also curbs on large tech companies and an investigation into the November election. Senator McConnell, therefore, said the “Senate will begin a process to bring these three priorities into focus.”

So there are sure to be new developments this week. When there are, we will try to keep everyone updated through our blog. So check back soon to Tales of Legal Madness.

*Just kidding. I incorrectly predicted that the federal government would not extend the nationwide eviction moratorium. Carnac the Magnificent I am not (to continue my use of 40 year old references).

• There is very good news on the horizon – the COVID vaccine is coming soon.
• Can an employer require its employees to take the vaccine to keep the workplace safe?
• The answer is probably – depending on the specific facts of your workplace.

If you are anything like me, you are following the vaccine news with anxious anticipation. It’s terrific news that there are now two vaccines approved by the FDA. And I cannot wait for one of them to be available to the everyday joes like me.

But as I sit here waiting like a kid on Christmas Eve – I began to wonder how this is actually going to work. And how will it affect our industry? How will companies treat the vaccine? What can they require of their employees? Well I’m smart enough to know that the answer to these questions are way outside my area of expertise. So I turned to friend and fantastic employment lawyer Alana Ackels. In this article, therefore, I recount my discussion with Alana as she educated me on what companies can and cannot require when the vaccine is available.

Best Practices for a Safe Office

Alana and I started our conversation with the question that everyone wants to know – can employers require employees to get the vaccine? We are lawyers, so of course you already know the answer – maybe. Sometimes? Probably.

I’ll unpack that. Alana said that the short answer is employers can probably require employees to get the vaccine – with some exceptions. Ultimately this question is covered by the Americans with Disabilities Act. Specifically, she said that it’s covered under the medical exams guidelines. And the ADA has a lot of rules governing when and how an employer can require its employees to get a medical exam.

To be clear, Alana said requiring the vaccine itself is not a medical exam. But the screening questions are. So if an employer asks an employee if he or she has been diagnosed with COVID, if he or she has a fever, etc. – those questions do qualify as a medical exam.

According to Alana, an employer can ask these questions (i.e., give a medical exam) if they are job related and consistent with business necessities. That’s the key issue – is requiring the vaccine job related and consistent with business necessities? That is a fact based inquiry that will change for every business. And, it can change within a business if circumstances change.

A more specific question to ask, therefore, is if employees do not get the vaccine, do they pose a direct threat to other employees? According to Alana, the answer to this question will be very specific to how your job site works. For certain industries, it may be more important than others. For example, I would think property management companies that deal with the public may have a stronger argument to require the vaccine than a company where everyone works separately in a private office. Also the circumstances surrounding the outbreak may matter. Right now, when the infection rates are sky high, employers may have a stronger case to require the vaccine. But if the numbers level off, that immediacy may subside also.

Alana made clear, however, that there is an exception to all of this. If an employee cannot take the vaccine because of a disability or a religious belief, the employer cannot require the employee to do so. It will then need to find a reasonable accommodation for the employee, if it can.

So What Will/Should Employers Do?

After hearing her great analysis, the question I asked Alana was – ok, what will or should companies do?

Alana explained that what probably makes the most sense is for companies to do something similar to the flu vaccine – strongly encourage it. If it is strongly recommended but not required, the decision is not subject to the ADA. If the vaccine can be administered by a nurse at the office – a company may want to bring in a nurse to administer the vaccine on site to all who so choose. Whatever you can do to make it easier on your employees will be beneficial.

Returning to the Office

Finally, while I was gleaming this great advice from Alana, I asked her what I knew was likely a popular question – what if you have an employee who does not want to return to the office? Can you require it?

Once again – we are lawyers. The answer is probably.

Alana said that under an OSHA analysis, an employee cannot refuse to report to work for fear unless he can show he has a reasonable belief of death or serious bodily harm. This is, obviously, a very high standard. If an employer can show that it is adhering to CDC guidance for making the workplace safer, then the employee will have a hard time showing there is a legitimate fear. This is one of the many reasons that safety protocols are extremely important.

Anyway, I hope that helps answer some questions. Thanks to Alana Ackels for her expertise. If you have questions about this or any other employment law issue, I highly recommend going to her website and then giving her a call.