Mandatory COVID-19 Vaccines in the Workplace Update: Ruth Binger Interview

Ruth Binger spoke with KMOV Channel4 News about a possible increase in companies requiring the COVID-19 vaccination for their employees.

According to Ruth, the fact that the vaccination does not yet have FDA approval is keeping many companies from considering a mandatory vaccination policy at this time. To date, none of her clients have a mandatory policy in place. “I do think it’s changing a little bit because of the Delta variant, and now [companies are] thinking about whether or not they should have a mandatory policy.”

Ruth said that another concern employers about enforcing a mandatory COVID-19 policy is the national worker shortage. Continue reading »

Mergers and Acquisition Activity: A Post Pandemic Surge?

Many post-pandemic signals indicate that Merger and Acquisition (M&A) activity has increased and is expected to continue to increase. Listings for sales of existing businesses surged in 2021, according to Rob Schmitt, a business broker at the St. Louis Group. Reasons for this increase include:  (1) post-pandemic stability; (2) low interest rates; (3) low capital gain rates; (4) access to government benefits like the PPP program; (4), retiring baby boomers; (5) robust stock values; and (6) the presence of capital on the sidelines waiting to be put to use.

Conditions are favorable for willing sellers and buyers in the M&A arena. Some businesses, including retail and hospitality, have not yet recovered from the pandemic. While some may not consider these to be good subjects for M&A activity, their valuations are low and may present attractive opportunities. There are also sellers who have experienced both the 2008-2009 financial crisis and COVID-19 and have decided that they will not wait any longer to exit. On the other hand, many companies look to expand operations in this favorable environment.

The process typically begins by contacting a M&A specialist, investment banker, business broker or similar advisor to determine how to position your business for sale, or, if you are a buyer, what acquisition candidates exist. After the initial match, Continue reading »

COVID-19 Paid Sick and Family Leave Tax Credits Now Available

The American Rescue Plan of 2021 (ARP) is now providing a tax credit for paid sick or family leave related to COVID-19 and the COVID-19 vaccinations. Employers can claim tax credits for the wages paid to employees for paid leave due to issues arising from COVID-19, including leave taken to receive or recover from COVID-19 vaccinations, from April 1-September 30, 2021.

To be eligible, your business must have fewer than 500 employees. Tax-exempt organizations qualify as well as governmental employers, other than the federal government and any agency or instrumentality of the federal government that is not an organization described in section 501(c)(1) of the Internal Revenue Code. Additionally, self-employed individuals are entitled to similar tax credits.

Under ARP, employers may claim tax credits to cover the following: Continue reading »

High Burden of Proof Established for COVID-19 Exposure, Medical, and Products Liability Actions

The Missouri House voted to pass Missouri Senate Bill 51, which establishes provisions related to COVID-19 exposure liability actions, COVID-19 medical liability actions, and COVID-19 products liability actions, in the final minutes of the 2021 legislative session.  It was signed by Governor Parsons on July 7, 2021.  The new law will become effective on August 28, 2021, and expire on August 28, 2025.

COVID-19 Exposure Liability

Under Senate Bill 51, no business, service, activity, or accommodation will be liable in any COVID-19 exposure action, unless it is proven by “clear and convincing evidence” that “recklessness or willful misconduct” caused an actual exposure to COVID-19 resulting in personal injury.

• “Recklessness” is defined as “a conscious, voluntary act or omission in reckless disregard of a legal duty and the consequences to another party.”
• “Willful misconduct” is defined as “an act or omission that is taken intentionally to achieve a wrongful purpose or in disregard of a known or obvious risk that is so great as to make it highly probable that the harm will outweigh the benefit.”

While we do not know how broadly the courts will interpret these terms, taking actions to prevent the spread of COVID-19, such as requiring mask-wearing, hand sanitizing, and social distancing, could all be helpful in defending a COVID-19 exposure case.  As for vaccinations, the law clearly states, that businesses are not required to establish a policy that requires or mandates vaccination or proof of vaccination to avoid COVID-19 exposure liability.

The new law allows for the presumption that an individual assumes personal risk when the business clearly posts the following message near its entrance: Continue reading »

Recent SEC Rule Amendments Will Make It Easier to Raise Money

“We’re the SEC, and we’re here to make it easier for small businesses to raise capital. . . . Really, . . . we are . . . really . . . trust us.”

Unbelievable?? Yes, except for the past nine years. But its largesse arrived grudgingly under pressure from Congress in the JOBS Act of 2012, which in turn was due to pressure from the business and entrepreneurial community.

Since the adoption of the Securities Act in 1933, sales of investments by companies and entrepreneurs to investors to raise capital have required either registration with the SEC and states (a long expensive process that is not available to most new and/or small businesses), OR qualification for an “exemption” from the requirement.  The exemptions have historically been difficult and expensive to obtain and are also unavailable to many businesses.

But in the JOBS Act of 2012, Congress adopted 1) two new exemptions: Regulation Crowd Funding and an improved Regulation A (called “Regulation A+”); and, importantly, 2) a requirement for the SEC to modify many of the existing exemptions to significantly improve their availability.  The SEC has since structured the two new exemptions and on November 2, 2020 amended a number of the existing exemptions. The November 2 amendments became effective March 15, 2021. Some of the amendments are as follows: Continue reading »

Federal Judge Dabney Friedrich Vacates CDC Nationwide Eviction Moratorium

On May 5, 2021, Federal District Court Judge Dabney Friedrich in Alabama Association of Realtors, et al.  v. United States Department of Health and Human Services, et al., determined the Federal Public Health Service Act, which governs the federal government’s response to infectious diseases such as COVID-19, does not provide legal authority for the Centers for Disease Control (CDC) to impose a nationwide eviction moratorium. Originally set to lapse on December 31, 2020, the eviction moratorium is set to lapse on June 30, 2021. Judge Friedrich reasoned the Public Health Service Act unambiguously forecloses the nationwide eviction moratorium and issued an Order advising that the current CDC nationwide eviction moratorium issued is vacated.

The nationwide eviction moratorium was initially put in place in September 2020 under the Trump Administration and has been extended three times. Judge Friedrich indicated there was “no doubt” Congress intended to empower the CDC to combat COVID-19 through different measures, such as quarantines, but not a moratorium on landlord evictions.  Other federal courts have been divided over the CDC landlord eviction moratorium, with some also finding the CDC exceeded its authority, though none formally blocked its enforcement. The March 25, 2021 blog post “CDC Eviction Moratorium Declared Unconstitutional by Texas Court” discussed other recent rulings in Ohio and Texas: Continue reading »

Illinois Enacts New Restrictions for Considering Criminal History in Employment Decisions and Equal Pay Requirements

Employment law changes regarding human rights and equal pay have arrived in Illinois.  On March 23, 2021, Governor J.B. Pritzker signed into law S.B. 1480, which makes significant amendments to both the Illinois Human Rights Act (IHRA) and the Illinois Equal Pay Act (IEPA), effective immediately.

Criminal Conviction Record and Employment

S.B. 1480 amends the IHRA with more limitations on how an employer may use an employee’s or applicant’s criminal conviction record when making employment decisions. It is now a civil rights violation for any employer to use a criminal conviction record as a basis to refuse to hire, terminate, or take any other adverse employment action against the applicant or employee with two exceptions:

1. There is a “substantial relationship” between one or more of the previous criminal offenses and the employment sought or held; or
2. By granting or continuing employment, an “unreasonable risk” would exist “to property or to the safety or welfare of specific individuals or the general public.”^[1]

To determine whether a substantial relationship exists, an employer should consider whether the employment position “offers an opportunity for the same or a similar offense to occur and whether the circumstances leading to the conduct for which the person was convicted will recur in the employment position.”^[2]

The new law also requires an employer to consider the following relevant factors when making this determination: Continue reading »

2021 Missouri Real Estate Taxes – And Appeals

The COVID-19 pandemic has caused an extreme financial hardship on most, if not all, Missouri families. As such, many owners of real estate are investigating how best to reduce their outstanding financial obligations and save resources wherever possible.

Given this crisis, one obvious area to investigate is real estate tax liability. Missouri reassesses all real estate every odd-numbered year (e.g., 2019, 2021, etc.). In even-numbered years, local Missouri assessors normally allow values to remain unchanged from the prior odd-numbered year. 2021 is a reassessment year for all Missouri local assessors.

Real Estate Assessment

Real estate assessment is the process of local county assessors placing a fair market valuation and classification on all real estate. Missouri properties are divided into three classifications: commercial, residential, and agricultural. If the assessed valuation changes during the reassessment, the assessor sends out a Notice of Assessment to the taxpayer.

Appeal of Real Estate Valuation

Valuations are typically available in late spring to early summer. If you disagree with the county assessor’s valuation, you can appeal the property tax.  Appeals must be filed on or before the second Monday of July. In 2021, all appeals must be filed on or before Monday, July 12, 2021.

To file an appeal, obtain the proper real estate tax appeal forms (generally found on the local Board of Equalization (BOE) website). File the forms and submit evidence to support your opinion of the fair market value on your property to the local BOE.

Assessed Valuation

Once the fair market value of the property has been determined, the assessor must apply the appropriate percentage to the fair market value. In Missouri, commercial property is assessed at 32% of the fair market value as January 1 of the reassessment year. Residential property is assessed at 19% of the fair market value. Finally, agricultural property is assessed at 12% of the fair market value.

Real Estate Taxes 

The tax on real property is determined by the assessed valuation of the property multiplied by the actual tax rate set by the local government where the property is located.  Tax bills are generally mailed out annually in late fall with payment due on or before December 31. If real estate taxes are not paid when due, the taxes become a lien on the property with interest and penalties possibly added after January 1 of the following year.

Real Estate Tax Appeals: The Local BOE and Beyond Continue reading »

PPP Small Business Loan Application Deadline Extended … Again

The deadline for applying for a PPP loan has been extended for another 60 days by the PPP Extension Act of 2021 (“Act”). Previously set to expire on March 31, the deadline is now May 31, 2021. The Act provides the SBA with an additional 30 days –  from June 1 through June 30, 2021 – to  process PPP loan applications submitted  by May 31, 2021.

For additional information on recent changes, click here. Continue reading »

American Rescue Plan Act Brings Changes to Employer Obligations

April 1, 2021 rings in new employer obligations with the enactment of the American Rescue Plan Act of 2021 (ARP). Employers and employees should take note of the recent changes to Consolidated Omnibus Budget Reconciliation Act (COBRA), Families First Coronavirus Response Act (FFCRA), and unemployment benefits to ensure compliance. We have highlighted those changes for you below.

Consolidated Omnibus Budget Reconciliation Act (COBRA)

Between April 1, 2021 and September 30, 2021, employers must offer 100% subsidized COBRA continuation coverage to “assistance eligible individuals” (“AEIs”).  AEIs are any qualifying plan participants who lose, or have lost, health insurance coverage due to a reduction in number of hours of employment or involuntary termination. The government is expected to provide further guidance, but “involuntary termination” is currently defined as termination of employment for any reason other than “gross misconduct.”

Additionally, the following individuals may also be eligible for the subsidy:

• Individuals previously eligible for COBRA continuation coverage which would have extended into the subsidy period under the ARP who:
  • Did not elect COBRA coverage (e.g., an individual involuntarily terminated on March 30, 2020 who did not elect COBRA but would be within their 18-month coverage period if they had elected COBRA), or
  • Dropped COBRA coverage (e.g., an individual involuntarily terminated on March 30, 2020, who elected COBRA, but did not pay premiums after December 31, 2020 but are still within their 18-month COBRA coverage period).

• Individuals who are or become eligible during the subsidy period (e.g., an individual involuntarily terminated on March 15, 2021 or an individual involuntarily terminated on May 1, 2021)

The coverage extends to the employees, their spouses, and their dependent children. Similar to the standard COBRA eligibility, once an AEI becomes eligible for other group health insurance coverage or Medicare, they must notify their employer of their loss of eligibility or face a penalty.

Under ARP, employers are required to provide several new notices to those who become eligible for COBRA continuation coverage by May 31, 2021. (The DOL is scheduled to issue model notices by May 10.)

In addition to the current COBRA notice requirements, the initial notice should include the following information: Continue reading »