NEW MEXICO’S BUSINESS LAWYERS ®

Business Loan Programs, “Essential” Businesses, Questions Regarding Employment, and Changes in Unemployment Insurance

March 27, 2020

“Essential” New Mexico Businesses

On March 23, 2020, Gov. Michelle Lujan Grisham announced additional restrictions to disrupt the spread of the COVID-19 virus in New Mexico and instructed New Mexicans to remain in their homes or places of residence except for outings absolutely necessary for health, safety, and welfare.

Businesses deemed essential that may remain open are:

  • Health care operations including hospitals, walk-in-care health facilities, emergency veterinary and livestock services, pharmacies, medical wholesale and distribution, home health care workers or aides for the elderly, emergency dental facilities, nursing homes, residential health care facilities, research facilities, congregate care facilities, intermediate care facilities for those with intellectual or developmental disabilities, mental health providers**, supportive living homes, home health care providers, and medical supplies and equipment manufacturers and providers;
  • Homeless shelters, food banks, and other services providing care to indigent or needy populations;
  • Childcare facilities necessary to provide services to those workers employed by essential businesses and essential non-profit entities;
  • Grocery stores, all food and beverage stores, supermarkets, food banks, farmers’ markets and vendors who sell food, convenience stores, and other businesses that generate the majority of their revenue from the sale of canned food, dry goods, fresh fruits and vegetables, pet food, feed, and other animal supply stores, fresh meats, fish, and poultry, and any other household consumer products;
  • Farms, ranches, and other food cultivation, processing, or packaging operations;
  • All facilities used by law enforcement personnel, first responders, firefighters, emergency management personnel, dispatch operators, and court personnel.
  • Infrastructure operations including, but not limited to, public works construction; commercial and residential facility construction and maintenance; airport operations; public transportation; airlines; taxis; private transportation providers; water, sewer, trash and recycling collection, processing and disposal; gas; electrical; oil drilling; oil refining; natural resources extraction or mining operations; nuclear material research and enrichment; those attendant to the repair and construction of roads and highways; solid waste collection and removal; processing and disposal; data and internet providers; data centers; and telecommunications systems;
  • Manufacturing operations involved in food processing, manufacturing agents, chemicals, fertilizer, pharmaceuticals, sanitary products, household paper products, telecommunications, microelectronics/semi-conductor, primary metals manufacturers, machinery manufacturers, electrical equipment, appliance, and component manufacturers, and transportation equipment manufacturers;
  • Services necessary to maintain the safety and sanitation of residences or essential businesses including security services, custodial services, plumbers, electricians, and other skilled trades;
  • Media services including television, radio, and newspaper operations;
  • Gas stations, automobile repair facilities, and retailers who generate the majority of their revenue from the sale of automobile repair products;
  • Hardware stores;
  • Laundromats and dry cleaner services;
  • Utilities, including their contractors and suppliers, engaged in power generation, fuel supply and transmission, water and wastewater supply;
  • Funeral homes, crematoriums and cemeteries;
  • Banks, credit unions, insurance providers, payroll services, brokerage services, and investment management firms;
  • Real estate services including brokers, title companies, and related services.
  • Businesses providing mailing and shipping services, including post office boxes;
  • Laboratories and defense and national security-related operations supporting the United States government or a contractor to the United States government;
  • Restaurants, but only for delivery or carry out and local breweries or distilleries but only for carry out;
  • Professional services, such as legal or accounting services, but only where necessary to assist in compliance with legally mandated activities; and
  • Logistics and businesses that store, ship or deliver groceries, food, goods or services directly to residences or retailers.

An expanded list of essential businesses is available on the Governor’s website at https://cv.nmhealth.org/stay-at-home-essential-businesses/. The order is in effect until April 10.

Employers of essential businesses should keep in mind that their employees remain eligible for the protections under the FFCRA. Owners of non-essential businesses should evaluate whether their employees can use paid leave banks or are furloughed or laid off.

*This report regarding the Governor’s announcement of March 23 is provided courtesy of New Mexico Association of Commerce and Industry.

**Mental health providers were not specifically listed, but a member of Sutin’s healthcare law practice group contacted the New Mexico Department of Health for clarification. DOH personnel who answered the non-emergency COVID-19 hotline confirmed mental health providers are essential. That number is (833) 551-0518.

Loan Programs Announced

COVID-19 Business Loan Guarantee Program

The New Mexico Economic Development Department (“NMEDD”) is overseeing the program, which assists businesses with emergency loans or lines of credit. NMEDD Secretary Keyes indicated that the program currently has about 10 participating lenders. Businesses seeking loans from the program need to go through one of the lenders, who then apply directly for the business at the link above. It is important to note that NMEDD is not providing the terms of these loans, the lenders are. The loans can be used for any purpose (including inventory), and the loans are guaranteed by NMEDD for up to two years, up to 80% of the principal, not exceeding $50,000.  Secretary Keyes warned that these loans are taking longer to process—therefore, businesses that need more immediate help should opt for the Small Business Administration’s (“SBA”) loan (below). Secretary Keyes has been advised that the SBA loans are taking about three weeks to process, with funds available in as little as five days.

SBA Loans

These loans are offered by the federal government for up to $2 million, with an interest rates of 3.75% for small businesses without other credit available, and 2.75% for nonprofits. Businesses can apply directly at 1-800-659-2955 or by email at disastercustomerservice@sba.gov. As mentioned, these purportedly are being processed much more quickly than the NMEDD loans.

LEDA Loans

These are zero-percent interest loans limited to use for land, building, and infrastructure purposes. To apply, a business needs to contact its regional representative. Contact information can be found here.

Employment Questions Arising From COVID-19 Measures

The Wage and Hour Division of the United States Department of Labor issued a set of guidance documents on the Families First Coronavirus Response Act (“FFCRA”). These documents include Q & A Fact Sheets and discussions of the Emergency FMLA Expansion Act, the Emergency Paid Sick Leave Act, and Fair Labor Standards Act issues under the FFCRA. A newly created poster, required under the FFCRA for those workplaces still open during the crisis, is now available for free downloading. The site also provides guidance regarding posting requirements.

These documents are available at https://www.dol.gov/agencies/whd/pandemic

Questions Sutin Firm Lawyers Are Most Frequently Receiving

Our lawyers have been fielding dozens of calls, and below is a recap of some of the most frequently discussed topics. Of course, every situation is unique, so please call on your regular Sutin lawyer to discuss the specifics of your case or question.

HIPAA – Sutin has excellent experience in this regard. While the federal government has relaxed some aspects of HIPAA privacy regulations, the relaxation does not apply to all of those who have confidential health information covered by HIPAA. If you have questions, feel free to contact our lawyers. The most conservative approach is to treat any information about an employee’s COVID-19 status, test results, etc., as strictly confidential. It should be used or disseminated only on a strict need-to-know basis.

ADA – When an employee of an essential business insists on wearing full protective gear at work, working from home, or just not working, the ADA should be kept in mind. These could be requests for ADA accommodations if the employee has an existing medical condition which puts him/her at greater risk.

Essential Business Operations – Although guidelines are not totally clear, it is helpful to keep in mind the work being performed. If you have questions regarding your specific business, Sutin lawyers are available to help you navigate this matter.

Employee Financial Support – Employees cannot volunteer or agree to skip a paycheck if the employee will not receive all wages owed within the deadlines set under state law. Unfortunately, this well-meaning sentiment could land the employer in hot water. Wage and hour laws still must be followed.

Salaried Employees – Several essential employers have inquired about reducing the costs of salaried employees by reducing their hours. This is not allowable under the FLSA since salaried employees are not hourly employees. Instead, employers should reduce salaries and make no commitments as to when salaries might be restored. If only some salaried employees receive salary cuts, the employer must be able to defend selections based on then-existing legitimate business needs. The same is true for selection of hourly employees who will be furloughed or laid off. The employer should be able to defend any decisions and make selections based on non-discriminatory and non-retaliatory criteria.

Insurance Coverage – When hours are cut, the employer should try to keep employees at level of time sufficient to preserve health insurance benefits.

Documentation – Even though employers are rushed and stressed, they must keep detailed and contemporaneous documentation regarding any personnel actions taken now. This documentation does not have to be formal or fancy, but it should contain any reasons, selection criteria, etc. This will help employers when the inevitable flood of charges and lawsuits comes after this crisis has passed.

Transferring/Loaning PTO or Vacation – Some employers are considering adopting policies that would allow employees to transfer their accrued PTO or Vacation to other employees and/or making loans to employees against future PTO or Vacation earnings under a company “payroll advance program.” Sutin has forms available for both options. If any employer is interested in pursuing these options, our lawyers would need to work with the client to ensure the policy is compliant with state and federal laws – as well as making sure the policies make good business sense for the employer.

Workplace Posters – Now that the Department of Labor has issued the posters required under the FFCRA, an employer who has some or all of its workforce working from home should distribute these posters electronically where possible.

Unemployment Insurance Changes

Department of Workforce Solutions Secretary Bill McCamley indicated that the Department is not looking into unemployment insurance changes at this time, and that it will likely not do so until at least July 2020. Secretary McCamley indicated that is simply not a priority and that employers need to be reminded that any changes, if any, will not go into effect until January 2021.

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