The NRA/LRA successfully worked to include the following three items in the recent stimulus package.
You may be aware that the Baton Rouge Metro Council planned to vote this Wednesday to repeal the suspension of Alcoholic Beverage Control Board ordinances. In April 2020, the Metro Council suspended their ATC ordinances which allowed restaurants to sell to-go alcoholic beverages given the restrictions in place at that time.
We are pleased to report that after discussions with Mayor Broome and her team along with LRA member outreach to council members, this item has been removed from this week’s agenda and will not be considered or voted upon at this time. We appreciate the timely engagement of Mayor Broome and her staff working with us to address this issue at a time when further restrictions would negatively impact our industry as we operate under extended reduced capacity.
If you have any questions about this or any other issues, please reach out to us at firstname.lastname@example.org.
The Small Business Administration (SBA) and Treasury have released their official guidance on how the second round of PPP will work.
As a reminder, application timing: the PPP reopened on Monday, January 11 for new borrowers and certain existing PPP borrowers. To promote access to capital, initially, only community financial institutions were able to make First Draw PPP Loans on January 11 and Second Draw PPP Loans on January 13, 2021. The PPP will open to all participating lenders shortly thereafter. There are also targeted “set aside” funds for categories such as new and smaller borrowers, borrowers in low- and moderate-income communities, and for community and smaller lenders.
Employer Considerations For Determining Whether To Continue Providing FFCRA Leave After Law’s Expiration
After much heated negotiation in passing Stimulus 2.0, Congress reached a compromise on employee COVID-19 leave, allowing the leave requirements of the Families First Coronavirus Response Act (FFCRA) to expire on December 31, 2020, but continuing tax credits through March 31, 2021 for employers who choose to voluntarily provide paid leave after that date. Now that employers with fewer than 500 employees are no longer obligated to provide FFRCA leave, many are left wondering whether they should continue to provide leave for their employees who are impacted by COVID-19. This article aims to provide an overview of the state of the law and provide employers with the pros and cons of continuing to provide FFCRA leave to make the best decision for their workplace.
Because Stimulus 2.0 does not extend the leave requirements of the FFCRA, employers are no longer required to provide Emergency Paid Sick Leave (EPSL) or Emergency Family and Medical Leave (EFMLA) after December 31, 2020. Additionally, Stimulus 2.0 does not provide any additional leave entitlement for employees who have exhausted their FFCRA leave entitlement (up to 80 hours of EPSL and up to 12 weeks of EFMLA). If employers used all of the leave by December 31, the limits did not reset January 1.
The final legislation simply extended the refundable employer payroll tax credit for both EPSL and EFMLA until March 31, 2021, subject to the applicable caps. Therefore, you may choose to voluntarily continue to provide FFCRA leave, in whole or in part, until the end of March.
In response to “the critical need for American workers and employers to understand this relief program as they deal with the effects of this crisis on the workplace,” as expressed by Department of Labor (DOL) Wage and Hour Division Administrator Cheryl Stanton, the agency issued guidance on December 31 to provide clarity on the issues raised by the expiration of the FFCRA.
The DOL confirmed that the obligation to provide FFCRA leave applies only from April 1, 2020, through Dec. 31, 2020, and that change to extend the requirement to provide leave under the FFCRA would require an amendment to the law by Congress, which has not occurred. Likewise, the DOL affirmed the continued availability of refundable employer payroll tax credit for FFCRA leave through March 31.
Additionally, the DOL cautioned that, despite the FFCRA’s expiration, employers must still pay any FFCRA leave wages owed to employees who used FFCRA leave between April 1, 2020 and December 31, 2020. With that backdrop, employers are now quickly weighing the pros and cons of extending leave as COVID-19 numbers spike to an all-time high, employees are returning to work after the holidays, and some schools are going back to virtual learning.
Pros Of Continuing To Provide Leave
There are several significant reasons why you should consider extending FFCRA leave into 2021.
The Need Remains
The FFCRA was passed, in part, to respond to the issues caused by the significant numbers of employees who were unable to work or telework due to COVID-19. These issues did not resolve with the ringing in of the new year. In fact, COVID-19 numbers are on the rise and showing no sign of slowing. As a result, the need for FFCRA leave is as substantial as when it passed in March 2020.
Leave Slows The Spread
One of the primary purposes of the FFCRA was slowing the spread of COVID-19. By providing paid leave for employees who have been diagnosed with COVID-19, have been exposed to COVID-19, or are experiencing symptoms, employees are encouraged to stay home when sick and avoid the risk of spreading the virus to others in their workplace. Without paid leave, employees are more likely come to work sick or knowingly exposed because they either have no employer-provided paid leave, or they simply do not want to use all of their paid leave when they are ill, preferring to save their paid time off for vacation.
As a result, if you do not continue to offer the leave, you run the risk of employees who should be in quarantine reporting to work and potentially infecting their coworkers or customers, potentially leading to a super-spreader event. The disruption, including having a significant number of employees out of work or being required to shut down the workplace entirely, far exceed any potential adverse impact of eligible employees using up to two weeks of EPSL.
There Is No Significant Financial Loss
While you will initially have to foot the bill and provide the out-of-pocket costs for employee wages while on leave, the wages paid are not a loss, per se, because Stimulus 2.0 provides for continued tax credits. If administered correctly, the financial impact should be a wash, excepting any costs and effort expended in administering the leave. Overall, considering the risks of employees reporting to work sick, the cost of providing and administering leave are miniscule compared to the cost of being forced to close your doors as a result of your workplace being riddled with COVID-19 exposure or infection, loss of business, negative publicity and more.
Issues With Providing Continued Leave
There are several concerns you should recognize, however, before you decide to extend FFCRA past the December 31 expiration date.
Tax Credits Not Guaranteed
Ultimately it is up to the IRS whether your FFRCA wage payments qualify for the tax credit. This was true in 2020, and not just unique to employers who extend the leave into 2021. In order to receive the credit, employers must be diligent in ensuring they meet IRS requirements. If an employer fails to properly administer leave or is unable to substantiate their qualification for the tax credit, they may be left footing the bill.
Time Spent Administering The Leave Balanced Against Employee Usage
In order to obtain the tax credit, you must be diligent in satisfying numerous administrative requirements: confirming that your employees who use FFCRA leave actually qualify, ensuring wages don’t exceed the statutory caps or limits, tracking the leave, maintaining documentation, and meeting other IRS requirements. For small employers, this may be additional work they do not want to take on in the new year, particularly if only a few employees did not use the leave entitlement by December 31. Small employers should consider how many employees may be left to qualify for the leave before March 31.
Potential For Discrimination Claims
Employers who choose to continue to provide FFCRA leave should have a clear and consistent plan. You could draw some lines to limit the leave to certain classes of employees, such as only for non-exempt employees. Or you may choose only to offer up to two weeks of EPSL and not up to 12 weeks of EFMLA. Whatever route you take, you should develop it in an objective fashion, clearly articulate your plan, and ensure it is consistently followed. Arbitrarily picking and choosing who can receive the leave could pose a risk for a discrimination claim on the basis of race, age, sex, etc.
Employees using any form of paid leave for an extended period of time have the potential to cause a business disruption to your operations. Considering EPSL and EFMLA may be taken for up to two weeks and 12 weeks, respectively, there is the potential that such extended leaves may result in significant disruption, depending on the employee’s role and the business circumstances. Given that the two weeks of sick leave is largely designed to slow and curb the spread of COVID-19, you may decide to only offer the emergency sick leave versus the full 12 weeks of EFMLA for childcare and school closures.
What Employers Should Do Next
You need to quickly weigh and determine the benefits and burdens of continuing to provide paid leave created under the FFCRA, and timely communicate the decision to your employees. On balance, for employers that still have a number of employees who could have a qualifying need for leave before March 31, the pro of curbing the spread of the virus by providing at least the emergency paid sick leave is strong.
You should also pay close attention to developments in Congress in the new term. There has already been discussion of a larger stimulus package after President-elect Biden is inaugurated. Under the new administration, paid leave may extend or even expand. You should also stay abreast of state and local paid leave laws that may afford time away from work for COVID-19 related reasons.
We will continue to monitor further developments and provide updates, so make sure you are subscribed to Fisher Phillips’ alert system to gather the most up-to-date information. If you have questions, please contact your Fisher Phillips attorney or visit our COVID-19 Resource Center For Employers.
The Louisiana Restaurant Association regretfully announces its annual “Taste of Mardi Gras” will not take place in 2021 due to capacity and other restrictions related to Covid-19. Historically, this event, held on the Friday preceding Mardi Gras, is a staple for nearly 2,000 carnival enthusiasts in Alexandria and the surrounding area.
“The coronavirus continues to take its toll on our economy and now our Mardi Gras celebrations,” said LRA Cenla Chapter President Scott Laliberte of Diamond Grill. “While this event is an institution in our community, there is no appropriate manner to execute the event within the safety guidelines required to prevent the spread of this virus. The safety and health of our participants, sponsors and the community is front of mind to us all.”
Taste of Mardi Gras is the LRA Cenla Chapter’s largest philanthropic event featuring a sampling of cuisine and beverages from local restaurants, vendors, bars, musicians and caterers. Each year, the LRA’s Cenla Chapter selects a local charitable organization to receive a portion of the proceeds from the event. It also provides financial support to LRA activities including the LRA Educational Foundation which executes the ProStart curriculum in high schools in the area. The LRAEF and ProStart provide skills development to promote the restaurant industry as a career choice through its restaurant management and culinary arts program at three central Louisiana high schools. Event revenue additionally has funded the LRA Cenla Chapter Scholarship, which has provided up to $5,000 in post-secondary financial aid to a qualified student.
“As restaurants, we are required to downsize our dining room guest capacity, practice social distancing and keep our storefronts sanitized,” explained Laliberte. “Deciding that its best to skip our 2021 event and begin to plan for the 2022 Taste of Mardi Gras is another example of stewardship of the hospitality industry.”
Well, well, well.. who could have predicted a year like 2020? To say it came with many challenges for our industry probably is the understatement of the year. I can tell you though, I've never been more proud of the industry that I’ve spent a large portion of my life in. Seeing it from both sides of the business has been both interesting and overwhelming at times. I have watched my fellow restaurant peeps adapt in ways that I would never imagined. We’ve seen everything from outside dining, drive through windows, creative to-go options, and delivery. There are many that have changed their online presence to adapt to the new norm just to keep their doors open. We are the most resilient industry I know!
We have also seen things on the broad line side we never thought we would. Watching the world shut down is a scary thing when you’re sitting on hundreds of millions of dollars of inventory. Many broad liners quickly adapted and moved into new markets as the shutdown continued to progress and people weren't moving around as much. All fresh product quickly sold, was donated, or moved into a freezer. The items they couldn't sell was transitioned over to the retail side to help feed everyone on lockdown. The market has moved in all directions as meat prices quickly skyrocketed, only to have the bottom fall out a few months later with processing plants shutting down because they couldn't find employees. Despite all the craziness, our industry kept fighting.
We have scratched, pulled, punched and kicked to get through 2020. I have learned to never ask, “What else you got 2020?" Many of us have endured everything 2020 has thrown at us, and we are ready for it all to be over and to get back to what we do best. We are in the business of putting smiles on faces, and I pray 2021 will be our year.
I can't wait to give everyone a hug.
LRA Bayou Chapter President
“As is the case with many government regulated practices (i.e. building permits, etc.), the possession of an ATC alcohol permit is a privilege - not a right. When a business owner submits a permit application, he/she agrees to uphold ALL federal, state and local laws and to be otherwise “suitable” to be trusted with selling/serving a controlled product to the general public within the state. The system is set up this way so as to protect the public from unscrupulous vendors and potentially dangerous products. In fact, state law provides that it is a criminal offense if a citizen engages in the selling/serving of alcohol products without a permit.
The Governor’s authority to address this unprecedented public health challenge through proclamation has been challenged, but ultimately upheld in every case. The ATC, as a regulatory arm of the executive branch, has been charged with enforcing COVID compliance measures at ATC permitted locations as part of the overall state emergency response. By law, permit holders are required to follow ATC rules in order to comply with the terms they accepted when the initial application was made. It may be your constitutional right to disagree and express disagreement, but a citizen cannot decide what laws they will follow and which ones they will not.
In most cases, business owners are working very hard under extraordinary circumstances to do the right thing. As a result, our agency has only pursued suspension and fines in the most egregious of circumstances. Recently however, a small group of business owners have taken a position which directly challenges the authority of the agency. These permit holders have chosen to ignore rules and suspension orders issued by the agency. In lieu of arrest, which is authorized by statute, I have made the decision to issue revocation orders in these cases. If upheld after hearing, an offending business will have its permit revoked, will not have the ability to purchase alcohol from wholesalers (as required by law), and will be subject to local authority discretion as to whether they will be arrested and prosecuted for selling alcohol without a permit. These businesses should take note that a revoked permit will not be reissued. “
Ernest P. Legier, Jr.
Louisiana Office of Alcohol and Tobacco Control
The Emeril Lagasse Foundation announce it awarded more than $240,000.00 to eleven nonprofit organizations. The grants will support projects and initiatives aligned with the Foundation’s mission to create opportunities to inspire, mentor and enable youth to reach their full potential through culinary, nutrition and arts education. Emergency funds were also awarded to support hospitality industry workers who are experiencing financial struggles due to COVID-19.
“The need to support the youth in our community has always been a priority of the Foundation. This year, more young people than ever experienced unprecedented hardships,” said Emeril Lagasse Foundation president Brian Kish. “Our grant recipients this December have stepped up to meet increased and evolving needs, even as they faced reduced revenue. We are proud to invest in these organizations, and we are grateful for the tremendous support of our board, generous donors and community partners that make this all possible.”
The Foundation awarded grants to the following beneficiaries:
The Emeril Lagasse Foundation is proud to continue serving youth in need and helping them reach their full potential. Learn more about causes making a difference here.