CARES Act PPP Reform: Paycheck Protection Program Flexibility Act of 2020

The Paycheck Protection Program (the "PPP"), which was established by the CARES Act to provide financial relief to businesses impacted by the COVID-19 pandemic, provides forgivable loans through the Small Business Administration (the "SBA") Section 7(a) loan program to eligible employers to pay for payroll costs and other expenses (e.g., interest on mortgage loans and other secured debt, rent, and utility costs). Recognizing issues with the current program, the Paycheck Protection Program Flexibility Act of 2020 (the "Act") was recently signed into law, enacting the following reforms that will make it easier for current and prospective PPP loan recipients to have their loans fully forgiven:

• Term. The minimum term to repay any non-forgiven proceeds for any new PPP loans is extended from 2 to 5 years (the interest rate remains at 1%). For existing loans, lenders and borrowers will have to agree to an extension.
• Covered Period. Under the prior program rules, for the loan to be forgiven, a borrower needed to use loan proceeds on specified eligible expenses during the 8-week period after receiving the loan or the 8-week period starting on the date of the first payroll cycle after receiving the loan. Now, current PPP borrowers can opt to extend the period to 24 weeks following receipt of loan proceeds, or elect to keep the original 8-week period. Any new PPP borrowers will have a 24-week covered period, but such period cannot extend beyond December 31, 2020. It is unclear at the time how the move to a 24-week covered period will impact the $15,385 cap payment to any individual employee during the 8-week period (i.e. $100,000 annualized for the 8-week period), referenced in the SBA Rules and Loan Forgiveness Application. Updated guidance from the SBA is expected. Importantly, the extension of the covered period does not extend the deadline to apply for a PPP loan, with applications for new PPP loans being accepted through June 30, 2020.
• Payroll Cost. To qualify for loan forgiveness, borrowers now must spend 60% of loan proceeds on payroll costs (previously, the SBA imposed a 75% requirement), and may use up to 40% of loan proceeds on interest payments on mortgage obligations (excluding prepayments of or payments of the principal), rent payments, or utility payments. Importantly, although this 60/40 requirement provides additional flexibility, it now appears to be a "cliff." The borrower must spend a minimum of 60% of its loan on payroll costs or none of the loan will be forgiven (i.e. if you spend 41% of loan proceeds on rent and utilities, the entire loan becomes ineligible for forgiveness).
• Rehire Safe Harbor. Previously, to be eligible for full loan forgiveness, a borrower was required to restore its full-time equivalent employee ("FTE") level and restore reduced wages (reduced by more than 25%) to the February 15, 2020 levels by June 30, 2020. This date is extended to December 31, 2020.
• Employee Availability Exemption. New under the Act, borrowers will be now exempted from a proportional reduction in loan forgiveness due to a reduction in the number of FTEs if, in "good faith," the borrower is able to document that between February 15, 2020, and December 31, 2020, the borrower was unable to (1) rehire employees who had been employed on February 15, 2020, or hire similarly qualified employees for unfilled positions on or before December 31, 2020; or (2) return to the same level of business activity at which such business was operating at before February 15, 2020, due to compliance with federal guidance related to the maintenance of standards for sanitation, social distancing, or any other worker or customer safety requirement related to COVID–19.
• Extended Deferral Period. The Act removes the previous 6-month period to defer PPP loan payments and provides instead for deferral until the borrower applies for forgiveness. However, in the event the borrower fails to apply for forgiveness within 10 months after the last day of the covered period for PPP loan forgiveness, the borrower must then begin making payments of principal, interest, and fees on the loan.
• Defer Payroll Taxes. Borrowers may now defer payment of payroll taxes incurred between March 27 and December 31, 2020 (previously, borrowers were prohibited from both obtaining a PPP loan and utilizing this tax deferral under the CARES Act).

Next Steps

In light of these reforms, current borrowers should consider taking the following steps:

1. Reach out to your lender to request a loan term extension if you think any portion of the loan might not be forgiven.
2. If you elect to use the 24-week covered period, recalculate your payroll costs for the 24-weeks from your loan origination date. If you reduce the amount of loan proceeds you are using on payroll costs, ensure you are still using at least 60% of the proceeds on payroll.
3. If you anticipate difficulties in eliminating the reduction in the number of FTEs by December 31, 2020 (i.e., hiring similarly qualified or re-hiring the same employees to your pre-February 15, 2020 numbers), or you have concerns about the ability for your business to return to the same level of business activities by such time, thoroughly document any evidence supporting these concerns and your related business decisions. For example, document all written job offers, rejections and job postings, and all steps your business is taking to comply with OSHA, CDC, and HHS procedures.

We Can Help

Please contact Maslon's Corporate & Securities Group if you have questions or need assistance taking advantage of the relief provided under the CARES Act, as amended by the Paycheck Protection Program Flexibility Act of 2020.