Martin Milita

What new State financial support programs is my business eligible for? How do I use the Eligibility Wizard?

Tomorrow, March 30, a package of new initiatives from the New Jersey Economic Development Authority including a grant program for small businesses, a zero-interest loan program for mid-size companies, support for private-sector lenders and Community Development Financial Institutions (CDFIs), funding for entrepreneurs, and a variety of resources providing technical support and marketplace information will kickoff.

Together, they will provide more than $75 million of State and private financial support, with the opportunity to grow to more than $100 million if additional philanthropic, State, and federal resources become available. The initiatives will support between 3,000 and 5,000 small and midsize enterprises and are meant to complement recently announced federal economic recovery initiatives.

Applications are anticipated to be opened during the week of March 30th. To see which of these programs you are eligible…

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What new State financial support programs is my business eligible for? How do I use the Eligibility Wizard?

Tomorrow, March 30, a package of new initiatives from the New Jersey Economic Development Authority including a grant program for small businesses, a zero-interest loan program for mid-size companies, support for private-sector lenders and Community Development Financial Institutions (CDFIs), funding for entrepreneurs, and a variety of resources providing technical support and marketplace information will kickoff.

Together, they will provide more than $75 million of State and private financial support, with the opportunity to grow to more than $100 million if additional philanthropic, State, and federal resources become available. The initiatives will support between 3,000 and 5,000 small and midsize enterprises and are meant to complement recently announced federal economic recovery initiatives.

Applications are anticipated to be opened during the week of March 30th. To see which of these programs you are eligible for, use the NJ COVID-19 Business Support Eligibility Wizard.

Please click on each program below for more information, including full eligibility criteria.

Small Business Emergency Assistance Grant Program – A $5 million program that will provide grants up to $5,000 to small businesses in retail, arts, entertainment, recreation, accommodation, food service, and other services – such as repair, maintenance, personal, and laundry services – to stabilize their operations and reduce the need for layoffs or furloughs.

Small Business Emergency Assistance Loan Program – A $10 million program that will provide working capital loans of up to $100,000 to businesses with less than $5 million in revenues. Loans made through the program will have ten-year terms with zero percent for the first five years, then resetting to the EDA’s prevailing floor rate (capped at 3.00%) for the remaining five years.

Community Development Finance Institution (CDFI) Emergency Loan Loss Reserve Fund – A $10 million capital reserve fund to take a first loss position on CDFI loans that provide low interest working capital to micro businesses. This will allow CDFIs to withstand loan defaults due to the outbreak, which will allow them to provide more loans at lower interest rates to microbusinesses affected by the outbreak.

CDFI Emergency Assistance Grant Program – A $1.25 million program that will provide grants of up to $250,000 to CDFIs to scale operations or reduce interest rates for the duration of the outbreak.

NJ Entrepreneur Support Program – A $5 million program that will encourage continued capital flows to new companies, often in the innovation economy, and temporarily support a shaky market by providing 80 percent loan guarantees for working capital loans to entrepreneurs.

Small Business Emergency Assistance Guarantee Program – A $10 million program that will provide 50 percent guarantees on working capital loans and waive fees on loans made through institutions participating in the NJEDA’s existing Premier Lender or Premier CDFI programs.

Emergency Technical Assistance Program – A $150,000 program that will support technical assistance to New Jersey-based companies applying for State and US Small Business Administration programs. The organizations contracted will be paid based on SBA application submissions supported by the technical assistance they provide.

How does Executive Order No.108 on closures and social distancing affect your New Jersey business?

The governor of New Jersey on Saturday issued a stay-at-home order for nearly all of the state’s 9 million residents in the fight against the spread of the coronavirus.

And yet there is still confusion as to the Executive Order’s scope.

What the executive order does:

Prohibits certain activities where people traditionally gather together such as: Parties, celebrations, or social events;

Closes certain “Brick-and-mortar” premises of all non-essential retail businesses.

Non-retail businesses:

Non-retail businesses appear to have latitude to continue operating if telework is not feasible.  The Order recognizes that certain businesses and non-profit institutions will need to have employees at the work site in order to maintain essential business operations. There are examples given that are not exhaustive but illustrative, among them, “information technology maintenance workers.”

But all businesses, both retail and non-retail, must use “best efforts” to reduce staff.

All businesses, “must accommodate their workforce, wherever practicable” for telework and work-from-home, and use “best efforts” to reduce staff to the minimal necessary to ensure essential operations continue.

Travel Letter:

The Order does allow people to travel to and from their places of business and recommends that employers provide “a letter indicating that the employee works in an industry permitted to continue operations.”

Although the Order doesn’t directly reference federal  government guidelines recently issued by the Cybersecurity and Infrastructure Security Agency (CISA) with respect to critical infrastructure industries, it appears to be safe to conclude that those businesses that fall within those categories are permitted to continue operating if telework is not feasible.

State Director of Emergency Management:

If you are a retail business or operation  and believe that by your “uniqueness ” you should be included as “essential,” you may submit it to the State Director of Emergency Management, who is the Superintendent of State Police. The Director has the discretion to make additions, amendments, clarifications, exceptions, and exclusions to these lists.

COVID-19 Forces Closure of Most New Jersey Retail Businesses; Others Encouraged to Maximize Remote Operations

New Jersey Governor Murphy issued Executive Orders 107 and 108, effective at 9:00 p.m., March 21, 2019, closing non-essential retail businesses operating in the state to the public, requiring all businesses to implement “social-distancing” procedures, and invalidating any conflicting county or municipal restrictions, as part of the state’s continuing efforts to mitigate the impact of the COVID-19 pandemic.  Executive Order 107 also directs NJ residents to stay at home except for certain exempt activities (obtaining food, medical care, reporting to work, etc.), and cancels social gatherings and events unless otherwise authorized by the Order.

Executive Order 107 supersedes prior Orders – to the extent they conflict – and addresses business operations  in the state as follows:

  1. “Brick-and-mortar” premises of all non-essential retail businessesmust close to the public.   Online and telephonic delivery services are permitted to continue if otherwise authorized, and pick-up may be authorized.
  2. Identifiedessential retail businesses are exempt and may operate during normal business hours with certain restrictions, generally designed to implement social distancing.  Such retail businesses are identified as: grocery/food, convenience, and liquor  stores; pharmacy and alternative treatment centers dispensing marijuana; medical supply stores and ancillary stores with healthcare facilities; gas stations; hardware and home improvement stores;  retail banks and financial institutions; laundromats and dry-cleaning services;  stores selling supplies for children under 5 years old; pet stores; car dealerships for maintenance, repair and auto mechanic services only; retail printing and office supply shops; retail mail and delivery stores.
  3. Restaurants, cafeterias, dining establishments, food courts, bars, and liquor stores, and establishments holding a liquor license for retain consumption  are  permitted to continue to operate during normal business hours but are limited to food delivery and/or take-out in accordance with their existing licenses, with certain other restrictions relating to liquor sales.
  4. All recreational and entertainment businesses, including casinos, retail sports wagering lounges, entertainment venues, racetracks, gyms, indoor portions of shopping malls, amusement parks, all personal care facilities (including barber and beauty shops, nail salons, spas, tattoo parlors, etc.), social clubs and community service organizations,  and libraries must close to the public for so long as the order is in effect.  Mall stores with separate external entrances may remain open in compliance with the other directives of the order.  Healthcare facilities that provide medically necessary or therapeutic services are exempt.
  5. All colleges, universities, and schools (all levels and all types) are barred from in-person classes.  Exemptions may be made by the appropriate authority under certain circumstances.
  6. All businesses, both retail and non-retail, “must accommodate their workforce, wherever practicable” for telework and work-from-home, and use “best efforts” to reduce staff to the minimal necessary to ensure essential operations continue.   The Order recognizes that certain businesses and non-profit institutions will need to have employees at the work site in order to maintain essential business operations, and specifically identifies the following as examples of those required to be physically present at work.  They include businesses who employ the following:
  • First responders
  • Cashiers and store clerks
  • Construction workers
  • Utility workers
  • Repair workers
  • Warehouse workers
  • Lab researchers
  • IT maintenance workers
  • Janitorial and custodial staff
  • Certain necessary administrative staff

Non-retail businesses appear to have latitude to continue operating if telework is not feasible.  Although the Order doesn’t directly reference federal  government guidelines recently issued by the Cybersecurity and Infrastructure Security Agency (CISA) with respect to critical infrastructure industries, it appears to be safe to conclude that those businesses that fall within those categories are permitted to continue operating if telework is not feasible.

The Order does allow people to travel to and from their places of business and recommends that employers provide “a letter indicating that the employee works in an industry permitted to continue operations.”

The New Jersey Office of Emergency Management has the discretion to make additions, amendments, clarifications, and exceptions to these lists.  If you believe that your retail business should be considered an essential business, you may submit an appeal to the State Director of Emergency Management.

The Order specifically allows employees to continue to work if they are:

  • providing health care or medical services;
  • enabling access to essential services for low-income residents, such as food banks
  • involved in the operations of the media;
  • providing law enforcement
  • operating as part of the federal government.

In addition, Governor Murphy’s Executive Order 108 states that any municipal or county ordinance that conflicts with the state Executive Order 107 is invalid, and  further ordered municipalities and counties from enacting any rules or ordinances that conflict with the provisions in Executive Order 107.

Dealing with Agencies during COVID-19-Regulatory and Employment-related issues

 

Think of administrative agencies, and you often think of their efforts to enforce the law, such as environmental regulators fining polluters or financial regulators taking inside traders to court. In fact, agencies sometimes do just the opposite: They excuse parties from compliance. Agencies can use either prospective waivers or exemptions to excuse regulated entities from compliance.

Now that the coronavirus disease (dubbed “COVID-19” by the World Health Organization) has been designated a Pandemic clients are increasingly encountering a variety of regulatory and employment-related issues. Here are some specific steps employers-especially in highly regulated industries can take and general guidelines to keep in mind. The simple truth is that no one knows what will happen next. Every business needs to develop an infectious disease response plan. For many businesses that means protecting employees and satisfying regulators on compliance matters. Many regulated business now find they need to move quickly. They can’t wait for an agency to rule on proposed operational changes.

But, the topic can be tricky. On the one hand, waivers and exemptions can be good things. After all, agencies often need to grant flexibility when circumstances require. Emergencies like Hurricane Sandy, for instance, prompted the Federal Transit Administration to issue “blanket waivers for several statutory and regulatory provisions.” New technologies, like “unmanned aircraft systems,” or drones, similarly demand adaptability. In more established settings, such as energy, waste removal, construction and mining operations, general rules do not always fit particular situations. And agencies sometimes just do not have the resources for full enforcement. In still other instances the law is silent on whether an agency can even grant a waiver or exemption. For instance in New Jersey many environmental laws make no mention at all of waivers or exemptions.

In those instances a business must be prepared to make a case for deviating from accepted practices and convince an agency that the circumstances warrant the deviation. During the pandemic it means doing some very practical things to convince an agency of the correctness of your operational changes.

Review the Public Health Information

Employers should familiarize themselves with the public health information published by the CDC, OSHA, and state and local health departments in their area. These materials provide useful information about the coronavirus, how it can be spread, and preventive measures.

The CDC has published general guidance for businesses; specific guidance for organizations with specialized concerns, such as healthcare facilities and schools; and guidance addressed to specific issues, such as travel to and from areas where the coronavirus has spread widely. OSHA has also published guidelines, available.

The EEOC has issued guidance about the coronavirus, available that incorporates the EEOC’s 2009 guidance regarding flu pandemics and also specifically states that the antidiscrimination statutes do not interfere with or prohibit employers from following the recommendations in the CDC’s guidance on the coronavirus.

Understand an Employer’s Obligations

OSHA’s General Duty Clause requires employers to take reasonable steps to keep the workplace free from recognized health hazards that are likely to cause death or serious physical harm.

Practical Steps to Minimize Risk and Protect Employees

There are many practical steps employers can and should take while honoring all of these obligations.

Share Public Health Information with Employees

Circulate the public health guidance to employees, particularly the CDC’s recommendations on precautionary measures, described below. This will not only provide employees with useful information, but also let employees know that their employer is monitoring the situation and taking steps to address it.

Take Precautionary Measures

The CDC’s guidance recommends that employers take certain steps, including the following:

  • Encouraging employees to wash their hands frequently and to avoid touching their noses, mouths, and eyes.
  • Encouraging employees to cover their noses and mouths when coughing or sneezing, preferably by coughing or sneezing into a tissue or the crook of their elbow. Having tissues and hand sanitizer available to employees in the workplace is highly advisable.
  • Employees should avoid close contact with co-workers, especially those who have been traveling in areas where the coronavirus is present or who are experiencing flu-like symptoms. Shaking hands should be avoided as well.
  • Meetings in close quarters should be limited.
  • Work surfaces like telephones and computer equipment should be regularly disinfected. Employees should be discouraged from using another’s phone or computer equipment.
  • Encouraging employees who are sick to stay home.
  • Employers should be flexible about granting leave, even if the leave would not ordinarily be required under the law or the employer’s policies. Denying leave may cause employees to feel compelled to come to work even if they are sick or to bring their children to work even if the children may be sick.
  • Consider modifications to work arrangements to minimize contact in commuting, work, or social settings. Permit or encourage tele-working where feasible. Consider allowing modified arrival and departure times to reduce interaction with crowds during commuting.

The CDC guidance addresses how to assess the risk when employees have traveled to areas where the coronavirus is widespread or have been exposed to an individual who has tested positive for the coronavirus. Depending on whether the risk is high, medium, or low, the employer may require the employee to take steps ranging from self-isolation to self-monitoring to self-observation. These guidelines can provide answers about how to deal with many different employee situations.

In situations where answers are not readily apparent from the guidance materials, consult with public health officials or counsel to obtain proper guidance.

Addressing Specific Situations

Employers should designate an individual or committee to deal with specific situations. The EEOC recommends that employers identify a pandemic coordinator or committee for preparedness and response planning. While employees are to be protected from direct threats to their safety from other employees, the existence of a direct threat must be based, in part, on the severity of the illness. Committee members may also be called upon to determine when and how reasonable accommodations need to be made for employees who have disabilities or medical conditions that may be exacerbated by exposure to COVID-19, such as weakened or suppressed immune systems, who may seek permission to work from home or to limit travel on public transportation. These issues must be carefully considered under the patchwork of laws that may be implicated, including state and federal antidiscrimination laws, state and federal leave laws, and state and federal workplace safety laws.

Conclusion

Waivers, exemptions and programmatic changes in response to emergencies present a significant challenge. Even when waivers and exemptions may be available health and safety may require more immediate action. This requires diligence on the part of business owners and a thoughtful appeal to fairness. Most state courts recognize an agency’s authority to waive rules in certain circumstances and relax rules to achieve sensibility and consistency with legislative intent. (Robison v. New Jersey Dep’t of Human Services, 270 N.J. Super.191,636 A.2nd 1066 (App.Div.1994)).   Agencies may have authority to relax rules, channel reviews and constrain time limits in furtherance of agency responsibilities, but you must provide the arguments to achieve a fair result. Fairness is a continuum. Marshal your facts so that agencies can act closer to fairness than unfairness.