COVID-19: Frequently Asked Questions For You and Your Business

Laws and regulations are changing rapidly. After the publication of this article they are subject to change. Check back regularly for updates.

I. GENERAL INFORMATION

Is my business required to shut down because of the statewide Stay-at-Home order issued by Governor John Bel Edwards?

The Stay at Home order issued by Governor Edwards on March 22, 2020 provides that all individuals within the State of Louisiana are under a general stay-at-home order, and are directed to stay home "unless performing an essential activity." The Proclamation lists "essential" activities, including obtaining food, medicine and similar goods, as well as going to and from an individual's workplace to perform a job function deemed as essential workplace functions. Essential workplaces include those providing food, medicine and similar goods, as well as non-elective medical care and similar vital services. Additional guidance as to what constitutes "essential" workplaces can be found at www.cisa.gov. The Proclamation further closes all state office buildings to the public, as well as all places of public amusement, including parks, aquariums, museums, playgrounds, concert venues and other similar businesses. All personal care and grooming businesses are also closed. See Proclamation Number JBE 2020-33, March 22, 2020, by Governor John Bel Edwards, for more information.

Is my small business eligible for COVID-19 business aid?

Yes, small businesses in all 64 Louisiana parishes are eligible to apply for federal Small Business Administration disaster aid in the wake of the COVID-19 crisis. Small businesses can visit www.SBA.gov/Disaster to begin the application process. Louisiana Economic Development is also offering an online guide regarding the assistance available for impacted businesses on its website at www.OpportunityLouisiana.com. Economic Injury Disaster Loans may include up to $2 million in assistance per small business, and may be structured with long-term repayments up to a maximum of 30 years in certain cases.

What are the requirements regarding employee emergency leave for child care?

Under the Families First Coronavirus Response Act (HR 6201) signed by the President, which takes effect as of April 2, 2020, employers with fewer than 500 employees must provide both paid and unpaid public health emergency leave to certain employees through December 31, 2020. Generally, this emergency leave is available when an employee (employed for at least 30 days) is unable to work or telework due to the need to care for a son or daughter under the age of 18 because a school, place of care or childcare has been closed or is otherwise unavailable due to the COVID-19 emergency as declared by federal, state or local authorities. The first 10 days of leave may be unpaid, and then paid leave is required. Compensation for such leave is calculated based on an amount not less than two-thirds of the employee's regular rate of pay, and the number of hours the employee would otherwise normally be scheduled to work, not to exceed $200 per day and $10,000 in the aggregate. Certain conditions, exemptions, exceptions and special rules apply, and a tax credit may be available. For more information, see Division C of the Families First Coronavirus Response Act.

What are the rules regarding employee emergency paid sick leave?

Under the Families First Coronavirus Response Act (HR 6201) signed by the President, which takes effect as of April 2, 2020, employers with fewer than 500 employees, and public employers of any size, must provide 80 hours of paid sick leave to full-time employees who are unable to work or telework for specific reasons related to the COVID-19 virus. Additionally, such employers must provide part-time employees with sick leave based on their average hours worked over a two week period. Note that employers are prohibited from requiring employees to find a replacement worker or use other sick time before this sick leave. For more information, see Division E of the Families First Coronavirus Response Act.

Can I ask an employee to leave work or stay home if they show symptoms of the coronavirus?

Yes, you are permitted to request that an employee leave work or stay at home if they show symptoms of the coronavirus. In a recent release from the US Equal Employment Opportunity Commission (EEOC), the EEOC asserts that the Americans with Disabilities Act (ADA) does not conflict with employers following the advice of the Center for Disease Control (CDC) advising employees who become ill with symptoms of COVID-19 to leave the workplace. The EEOC has indicated that an ADA-covered employer may take the body temperature of employees during the COVID-19 pandemic as a precautionary measure. See What You Should Know About the ADA, the Rehabilitation Act, and COVID-19, March 19, 2020, from the EEOC (www.eeoc.gov/eeoc/newsroom) for more information.

How do I know if my business is a critical infrastructure business?

The Department of Homeland Security has issued guidance as to what may be considered an essential critical infrastructure workforce. While this list is advisory in nature, and not considered to be a federal law or standard, it provides some direction as to the workers and businesses that may be considered critical. Healthcare and public health workers of various types are described on the list, as well as law enforcement, public safety and first responders. Certain workers in the food and agriculture industry are listed, as well as certain workers in the energy, utility, transportation, communication, information technology, manufacturing, financial services and other related sectors. More information can be found at the Cybersecurity and Infrastructure Security Agency of the Department of Homeland Security: www.cisa.gov.

Can I terminate my employees?

Generally, you are not prohibited from terminating at-will employees for a legitimate business reason, so long as you comply with all generally applicable employment laws, including the WARN Act and COBRA. You must also timely pay the employees all wages, compensation, commissions and accrued benefits that are owed as of the date of termination. However, Families First Coronavirus Response Act (H.R. 6201) includes an anti-retaliation provision which prevents the employer from discharging, disciplining, or in any way discriminating against an employee who takes leave under the Act or seeks to enforce the Act against his or her employer. And, under the legislation, an employer cannot require employees to find a replacement worker or require them to use other paid time off

Can I take a hardship distribution from my retirement plan or IRA to cover COVID-19 issues?

The proposed Coronavirus Aid, Relief and Economic Security Act (CARES ACT), as currently drafted, has certain provisions intended to allow individuals impacted by COVID-19 more access to funds via retirement plan hardship and loan rules. These revisions have not yet been passed by Congress, but we are continuing to monitor the draft legislation.

Should I track my COVID-19 costs and expenses separately?

Business and individuals should consider tracking their costs and expenses associated with the COVID-19 pandemic separately from ordinary costs and expenses. Because of the declaration of the COVID-19 pandemic as a national emergency, federal funds, including monies from FEMA and other federal sources, may be available at some point in the future, and separate accounting could help ease your application for such resources. Additionally, tracking such expenses could also make filing insurance claims more expedient.

Can a law be suspended in an emergency?

According to guidance[1] published by the Louisiana Attorney General, the Louisiana Constitution vests the Louisiana Legislature with the authority to suspend laws via joint resolution.

Have legal deadlines been extended?

Under Proclamation Number JBE 2020-30, issued on March 16, 2020, by Governor John Bel Edwards, all legal deadlines have been suspended until April 13, 2020. This includes all liberative prescription and preemptive periods applicable to legal proceedings, as well as tax legal proceedings, and legal proceedings of administrative agencies and boards.

How do I know if I am a critical infrastructure worker?

The Department of Homeland Security has issued guidance as to what may be considered the essential critical infrastructure workforce. While this list is advisory in nature, and not considered to be a federal law or standard, it provides some direction as to what workers and businesses may be considered critical. Healthcare and public health workers of various types are described on the list, as well as law enforcement, public safety and first responders. Certain workers in the food and agriculture industry are listed, as well as certain workers in the energy, utility, transportation, communication, information technology, manufacturing, financial services and other related sectors. More information can be found at the Cybersecurity and Infrastructure Security Agency of the Department of Homeland Security: www.cisa.gov.

What about school testing, accountability and assessment requirements?

The provisions of state law and regulation that mandate annual administration of testing by public and private schools have generally been suspended for the 2019-2020 school year. See Proclamation Number JBE 2020-32 on March 19, 2020, by Governor John Bel Edwards, for more information.

II.        INSURANCE

Will my business interruption insurance cover my business losses from COVID-19?

The answer to that question depends upon the specific language of your business interruption insurance policy, as well as how the courts eventually sort out the facts of any COVID-19-specific factors. If your business interruption insurance only covers losses incurred as a result of actual "physical damage" or similar language, some insurance carriers may take the position that the closing of a business as a result of precautionary measures by the state or federal government is not covered, without any actual physical damage. However, a court may find that because the COVID-19 virus could be present on the surfaces of business equipment and facilities for several days, such could constitute "physical damage" and trigger insurance coverage. Additionally, other forms of business insurance may also be implicated in such a case. We recommend you have your policy reviewed by an experienced insurance attorney to help you determine what factors may be at issue with your specific insurance coverage.

Is insurance an "essential" part of the workforce?

The Department of Homeland Security has issued guidance as to what may be considered the essential critical infrastructure workforce. While this list is advisory in nature, and not considered to be a federal law or standard, it provides some direction as to what workers and businesses may be considered critical. With respect to financial services, the guidance indicates that the following may be considered essential critical infrastructure workers:

Workers who are needed to process and maintain systems for processing financial transactions and services (e.g., payment, clearing, and settlement; wholesale funding; insurance services; and capital markets activities)

More information can be found at the Cybersecurity and Infrastructure Security Agency of the Department of Homeland Security: www.cisa.gov.

III.       TAXES

Has the April 15th deadline for federal taxes been extended for individuals?

Yes. The deadline for both income tax filings and payments has been pushed back from April 15, 2020, until July 15, 2020. Suggestion: Even though payment is being extended, if you are not a W-2 employee and must pay estimated tax, this is just a loan from the IRS. If you have the money, pay the normal quarterly payments. If you are expecting a tax refund, however, the IRS is encouraging you to file your return as soon as possible in order to receive your refund sooner. 

Has the April 15th deadline for federal taxes been extended for businesses?

Yes. The deadline for both income tax filings and payments has been pushed back from April 15, 2020, until July 15, 2020.

What about Louisiana state taxes?

The Louisiana Department of Revenue has issued guidance[2] to provide filing and payment extension relief for income and franchise tax returns and payments. The following income and franchise tax returns and any payments due with the returns has been extended to July 15, 2020:

This is an automatic extension and no extension request is necessary. No penalties or interest will be assessed provided that the return and payment are submitted to the Department of Revenue by the July 15, 2020 extension date.

Are there tax credits available with respect to the provision of sick leave and emergency leave under the Families First Coronavirus Response Act?

Yes, the Families First Coronavirus Response Act establishes certain employment tax credits for employers to cover amounts paid to employees for emergency paid sick leave and emergency leave for child care. Section 7001 and Section 7003 of the Families First Coronavirus Response Act provide more information. Employers can offset their qualified sick leave and qualified Family and Medical Leave Act of 1993 (FMLA) leave payments against their federal employment tax deposits, including income tax withholdings and employment tax withholdings (employee portion) and the employer match tax. The refund procedure for when the qualified sick leave and qualified FMLA leave payments exceed the 941 taxes is not yet finalized, but the Internal Revenue Service (IRS) expects to process these refunds in two weeks or less. Self-employed individuals can receive an equivalent credit. With respect to the FMLA small business exemption (fewer than 50 employees), the IRS states that the exemption will be available on the basis of simple and clear criteria that make it available in circumstances involving jeopardy to the viability of a business as a going concern.

Are there tax credits available for self-employed individuals?

Yes, under the Families First Coronavirus Response Act, certain refundable tax credits are available for self-employed individuals against the self-employment tax. Generally, these credits cover all of a self-employed individual's sick leave equivalent amount, or 67% of the individual's sick leave equivalent amount if the individual is taking care of a sick family member or child following the child's school closing for up to 10 days. See Section 7002 of the Families First Coronavirus Response Act for more information.

Have the deadlines for unemployment taxes been extended?

Yes, the payment deadline has been extended but not the filing deadline. On March 19, 2020, the Louisiana Workforce Commission (LWC) announced a deferral for payment of first quarter state unemployment taxes. Employers will still be required to make appropriate filings by April 30, 2020, but any payments associated with unemployment taxes will be deferred until June 30, 2020. In the announcement, LWC also clarified that an employer’s unemployment insurance experience tax rate will not be impacted by claims related to COVID-19.

Has the deadline been extended for sales and use taxes?

The February 2020 sales tax returns and payments were originally due on March 20, 2020. The filing and payment deadline for the February 2020 sales tax period is extended to May 20, 2020. This is an automatic extension and no extension request is necessary. The Louisiana Department of Revenue will waive delinquency penalties and compromise interest associated with delinquent sales tax remittances as long as the return and payment are received by the extended due date of May 20, 2020. Taxpayers cannot utilize the Parish E-File or Sales Tax Online filing systems to take advantage of this filing and payment extension relief. Sales tax returns and payments must be submitted via LaTAP or by paper filing. All electronic filing and payment mandates contained within Title 61 of the Louisiana Administrative Code relative to sales tax are temporarily suspended. No penalties will be assessed for a taxpayer’s failure to file a sales tax return electronically or remit sales tax by electronic funds transfer.

IV.       PUBLIC BODIES

Have the attendance and quorum requirements of public bodies changed in light of COVID-19?

According to the guidance[3] published by the Louisiana Attorney General, the answer is yes and no. The quorum requirements applicable to public bodies (as defined by La. R.S. 42:13), remain in effect, and a quorum of members must be present to conduct business, as required by the Open Meetings Law (La. R.S. 42:11, et seq.). Members are generally not permitted to attend public meetings remotely via teleconference or video conference. However, Proclamation Number JBE 2020-30 on March 16, 2020, by Governor John Bel Edwards, purports to allow all state agencies, boards, commissions and local political subdivisions of the state to permit attendance at essential governmental meetings via teleconference or video conference during the pendency of the COVID-19 emergency. All other provisions of the Open Meetings Law remain in effect, including the quorum requirements and the requirement to prepare written minutes of the proceedings, which must be made available to the public within a reasonable time after the meeting. For more information, see Proclamation Number JBE 2020-30, March 16, 2020, Governor John Bel Edwards.

Are notice requirements applicable in an emergency?

In an extraordinary emergency, written public notice shall not be required, according to the guidance[4] published by the Louisiana Attorney General, although the public body should give notice as it deems appropriate and circumstances permit. However, if the public body is conducting a meeting via teleconference or video conference, under Section 4 of Proclamation Number JBE 2020-30, March 16, 2020, by Governor John Bel Edwards, the public body shall provide reasonable notice in the form of a written certification that the public body will otherwise be unable to operate due to the quorum requirements. This certification must be posted in the same manner, place and time as it would post a normal agenda, in compliance with La. R.S. 42:19. For more information, see Proclamation Number JBE 2020-30, March 16, 2020, Governor John Bel Edwards.

Can a public body enter executive session and restrict attendance?

Under La. R.S. 42:16-17, a public body is allowed to hold an executive session and restrict attendance upon an affirmative vote of two-thirds of the constituent members present at a duly noticed and held open meeting. Executive session may be held for the specific reasons enumerated in La. R.S. 42:17, including matters of extraordinary emergencies such as the threat of an epidemic. For more information, see Memorandum Re: Additional Open Meetings Guidance in light of COVID-19; Jeff Landry, Attorney General; March 19, 2020.

Do the public comment requirements change during an emergency?

No, according to guidance[5] published by the Louisiana Attorney General. La. R.S. 42:14 requires public bodies to allow a public comment period before acting on an agenda item upon which a vote is to be taken. Reasonable rules and restrictions are allowed regarding such comment periods, such as limiting the amount of time for each speaker, or limiting the number of people in a meeting room to comply with Proclamation Number JBE 2020-30, March 16, 2020, Governor John Bel Edwards. For more information, see Memorandum Re: Additional Open Meetings Guidance in light of COVID-19; Jeff Landry, Attorney General; March 19, 2020.

Are public bid laws suspended?

The Louisiana Public Bid Law (La. R.S. 38:221, et seq.) and its corresponding rules and regulations relating to deadlines for advertisement for bids and public works contracts are suspended during the COVID-19 emergency. The provisions of La. R.S. 39:124 through 126 regarding periodic meetings and/or inspection of capital outlay projects and prior approval of change orders are also suspended. See Proclamation Number JBE 2020-32, March 19, 2020, Governor John Bel Edwards, for more information.