Category Archives: COVID-19

On August 8, 2020, President Trump issued a memorandum directed toward providing “further temporary relief … to support working Americans” by enabling the deferral of employee Social Security taxes for specific individuals.

Specifically, the “Memorandum on Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster” directs the Secretary of the U. S. Department of the Treasury to defer the withholding, deposit, and payment of the employee component of Social Security on wages paid during the period of September 1, 2020, through December 31, 2020.

This deferral is to be made available only to employees whose biweekly compensation is “generally … less than $4,000, calculated on a pre-tax basis.” The equivalent in other payroll frequencies is $2,000 weekly; $4,333.33 semi-monthly; and $8,666.66 monthly. Any amounts deferred in accordance with this memorandum will not be subject to either penalties or interest.

Further Clarification is Needed

The IRS may also need to clarify whether employers would be expected to adjust the deferral as employees fluctuate above and below the limit.

Another question is whether the deferral applies strictly to wage income. For example, employees may be eligible for the deferral based on wages, but they may have significant non-wage income, which could disqualify them from the deferral.

The Secretary of the Treasury is instructed to issue guidance to implement the memorandum and to “explore avenues, including legislation, to eliminate the obligation” for taxpayers to repay the deferred taxes.

Additional guidance is still required from the Secretary of the Treasury and/or the IRS on how to implement the deferral.

Possible Employee Concerns

The memorandum does not include any deferral of the employee portion of Medicare tax or federal income tax.

Employees may be concerned that they may have to repay the deferred tax amounts, though there is no clarity on when (if ever) such a repayment would be required.

Employer Concerns

Currently, it remains unclear if employers may be subject to penalties for failing to withhold the employee component of Social Security taxes. During an employment tax audit, employers are obligated to pay any unpaid taxes to the IRS.

If implemented, the relief provided in the memorandum would be in addition to that given under Section 2302 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, which made allowances for the deferral of the employer portion of Social Security taxes.

The IRS will need to advise employers if there will be reporting requirements associated with the deferral. Employers may need to separately report qualified Social Security wages paid during the deferral period on the Form W-2 and Form 941, and possibly other information.

Employers will need to pay attention to updates concerning the rights and responsibilities put forth by this memorandum as more information and guidelines become available.

On May 15, 2020, the US House of Representatives passed the Health and Economic Recovery Omnibus Emergency Solutions Act, or the HEROES Act. This act seeks to amend the Fair Credit Reporting Act (FCRA) with the goal of aiding struggling consumers. Although well-intentioned, there are multiple consequences on the horizon if the currently proposed act is made into law.

First, the bill seeks to prohibit Consumer Reporting Agencies (CRA) from reporting any adverse information that occurred during a “major disaster” as declared by the President. Only information related to a felony criminal conviction could be mentioned in a consumer report during such a period. The proposed act does not clarify how CRA’s are meant to identify whether adverse information was a direct result of the declared “major disaster” and there is no identified procedure for such a determination. Since most actions have multiple root causes, it is unclear how CRA’s could be positive that a missed payment or default was a direct outcome of the “major disaster”.

Second, the HEROES Act would require the Consumer Financial Protection Bureau (CFPB) to create a website for consumers to self-report their economic hardship and identify the cause as the “major disaster”. CRA’s would then be required to check this website on a weekly basis and amend their own records accordingly, deleting the adverse items so identified. However, the proposed reporting does not directly align with CRA records, and CRA’s would still not be able to fully conclude which adverse items were directly caused by the “major disaster.” Further, consumers would not be required to provide documentation supporting their claims.

Third, CRA’s will be faced with the problematic possibility of indirectly reporting adverse information. Rather than directly stating that a consumer missed certain payments, the record would show gaps during those months, indicating payments were missed. An incomplete record would be tantamount to reporting of adverse information and leave creditors to fill in the blanks on their own.

Fourth, if CRA’s are not allowed to notify debt collectors of bankruptcy that arises as a cause of a “major disaster”, debt collectors may run afoul of the Fair Debt Collections Practices Act or the bankruptcy injunction under the Bankruptcy Code. The impact goes beyond the work of CRAs and has more wide-reaching impacts than the HEROES Act recognizes.

Finally, creditors would find themselves unable to make an accurate determination of risk because of the incomplete records they would receive. CRA’s would be unable to provide detailed credit information regarding consumers, and creditors would be forced to draw negative conclusions about any gaps in the information provided. Creditors might, therefore, increase the cost of obtaining credit.

The HEROES Act would make compliance with the FCRA virtually impossible, a situation that would lead to untold lawsuits. Since one predicted consequence of this bill is an increased cost of obtaining credit, the bill could actually end up hurting the very people it intends to help.

The Senate is not expected to issue its own iteration of the bill until June, and we can only hope that they reject it in its current form and that the revised form removes the proposed amendments to FCRA.

Following Governor Gretchen Whitmer’s recent executive order on May 19, Michigan is starting to open back up. As businesses look to reopen after almost three months of the shutdown, there are a number of new requirements to keep in mind.

Businesses should introduce daily self-screening protocols for their employees, including the use of a questionnaire. Sanitation and social distancing practices should continue. This includes providing all employees with non-medical-grade face coverings and making cleaning and sanitizing supplies available to all employees.

Further, businesses need to designate at least one COVID-19 control supervisor. A COVID-19 supervisor must remain on-site at all times when employees are on-site. Supervisors have the responsibility of implementing, monitoring and reporting on the COVID-19 preparedness and response plans formed by the business.

All employees will need training that covers, at a bare minimum: workplace infection-control practices; the use of personal protective equipment; reporting on unsafe work conditions; and the process for notifying employers of any symptoms of COVID-19, suspected symptoms, or confirmed diagnosis.

Business-related travel should be limited to essential trips only. Employers should encourage employees to use hand sanitizer when using public transportation.

Businesses need to adopt reasonable infection-control measures in light of the work performed on-site and the region’s rate of infection. Protocols must be determined in case the facility needs to be disinfected in the event of a positive COVID-19 case in the workplace. Plans should be formed in advance so that all employees know the process for dealing with confirmed infection, including protocols for sending employees home and temperature closures to allow for deep cleaning.

When an employee receives a positive COVID-19 diagnosis, within the first 24 hours businesses should notify the local public health department and any coworkers, contractors, or suppliers who may have come into contact with that person.

Employers are required to maintain records of their COVID-19 trainings, daily self-screenings, and any notifications to local public health departments, employees, contractors, or suppliers as detailed above.

Specific businesses have further specialized requirements along with complying with the above.

Outdoor work:

Businesses whose work is primarily performed outdoors also have restrictions. The order prohibits gatherings of any size in which people cannot maintain a six-foot distance. In-person interactions with clients and patrons must be limited to the maximum extent possible. Employers need to provide and require the use of personal protective equipment such as gloves, goggles, face shields, or other face coverings appropriate to the activity being performed. Businesses need to adopt policies to limit the sharing of tools and equipment to the maximum extent possible and oversee frequent, thorough disinfection of tools, equipment, and frequently touched surfaces.

Manufacturing:

All manufacturers must train employees on how COVID-19 is transmitted. This includes the distance the virus can travel in the air and the amount of time it remains viable, both in the air and on surfaces. Manufacturers must also train employees in the proper use of personal protective equipment.

Retail:

Retail stores opening for in-store shopping must create signs or pamphlets informing customers of the changes to store practices and explain what precautions the store is taking to prevent the spread of infection. This includes signage at the entrances instructing customers of their legal obligation to wear a face covering. The in-store space should be designed to encourage employees and customers to maintain a six-foot distance, and physical barriers should be installed at checkout as appropriate. Stores need to establish enhanced cleaning and sanitizing procedures and train all employees on cleaning procedures, as well as how to manage symptomatic customers who enter the store. Employers will need to notify employees if an asymptomatic individual has entered the store, including customers or suppliers. Staffing should be limited to the minimum number necessary for operation.

Office Spaces:

Offices that reopen must assign dedicated entry points for employees and provide visual indicators of appropriate spacing at all anticipated points of congestion. When possible, congestion should be mitigated through policies such as staggered start times. Face coverings should be required within shared spaces, and workspaces should be distanced and staggered as much as possible. High-touch surfaces should be constantly disinfected with sanitizing equipment available to employees, and public water fountains should be turned off. All non-essential visits should be suspended.

Restaurants:

Restaurants and bars that reopen need to limit capacity to 50% of their normal seating and require six feet of separation between parties. Customers should be provided with pamphlets informing them of these new practices and should be asked to wait in their cars for their table to be called rather than congregating inside. All self-serve food and drink options should be closed. Hosts and servers should be required to wear masks in the dining area. Employees should be trained on what to do if an asymptomatic customer enters.

Any challenge to penalties imposed by a department enforcing the regulations set forth in the first order establishing reopening requirements will proceed through the same administrative review process as any challenge to a penalty imposed by the department or agency for a violation of its rules. Further, any business or operation that violates a rule set forth in the Order has “failed to provide a place of employment that is free from recognized hazards that are causing or are likely to cause, death or serious physical harm to an employee” within the meaning of Michigan Occupational Safety and Health Act, MCL 408.1011.

In regard to the Order reopening Regions 6 and 8, any willful violation of the Order is a misdemeanor offense pursuant to the Emergency Powers of Governor, MCL 10.33, and Emergency Management Act, MCL 30.405.

Thank you for your interest in downloading the checklist to safely reopen your business. I hope you find that it has useful information pertaining to your company’s needs, and if it covers something you hadn’t thought about yet, I’m glad to contribute a little to your peace of mind.
Here’s to a safe return to our new normal and keeping our employees and customers safe!

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Earlier this month the CFPB released a statement on Supervisory and Enforcement practices regarding the Fair Credit Reporting Act and Regulation V in light of the CARES Act.

The Bureau recognizes the serious impact the COVID-19 pandemic is having on the financial well-being of many consumers and on the operations of many supervised entities, including actors in the consumer reporting system, and the challenges of this unique and rapidly evolving situation. The Bureau reiterates its prior guidance encouraging financial institutions to work constructively with borrowers and other customers affected by COVID-19 to meet their financial needs.

While companies generally are not legally obligated to furnish information to consumer reporting agencies, the Bureau encourages them to continue furnishing information despite the current crisis. Furnisher’s providing accurate information to consumer reporting agencies produces substantial benefits for consumers, users of consumer reports, and the economy as a whole.

The FCRA generally requires that consumer reporting agencies and furnisher’s
investigate disputes within 30 days of receipt of the consumer’s dispute. The 30-day period may
be extended to 45 days if the consumer provides additional information that is relevant to the
investigation during the 30-day period.

The Bureau is aware that some consumer reporting agencies and furnisher’s may face significant
operational disruptions that pose challenges for them in investigating consumer disputes. For
example, some consumer reporting agencies and furnisher’s may experience significant
reductions in staff, difficulty intaking disputes, or lack of access to necessary information, rendering them unable to investigate consumer reporting disputes within the time frames the
FCRA requires.

Please be patient as CRA’s get the information out to you. We are committed to releasing the most accurate information during these times and after this crisis is over knowing consumer’s credit will be affected.