GRA Weekly
November 14, 2021
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Latest updates regarding OSHA’s ETS for COVID-19 in the workplace from the National Restaurant Association.
Opportunity for Public Input - Regulatory Comments
The ETS is effective for 6 months. During that time, OSHA is required to engage in a public rulemaking process that allows for input from the regulated community. Following this process, OSHA may finalize the ETS as a permanent standard, with or without modification, or rescind the rule. OSHA has only allowed for a short period of time (30 days) to submit public comments. Given the magnitude of the rule, the Association wrote a letter last week to OSHA Assistant Administrator Doug Parker requesting a 60 day extension of time to file regulatory comments. The Association is planning to file comments and we welcome your continuing input.
Multiple Legal Challenges - What Happens Next?
The future of the ETS remains uncertain due to pending legal challenges and it will likely take several more weeks until the final judicial decision is known. The Association, therefore, recommends that restaurant and foodservice employers continue preparing for the ETS to take effect but wait to implement the ETS until the final judicial outcome is certain. We are closely tracking the litigation and will keep you fully updated.
As you know, a stay halting the ETS was recently granted by the 5th Circuit citing “grave statutory and constitutional issues.” The court is planning to quickly consider whether to issue an injunction.
Similar cases have been filed. To date, petitions for review have been filed in the 5th, 6th, 7th, 8th, 11th, and the D.C. Circuits. Others will soon be filed. We can, therefore, expect to see more rulings, which may follow the 5th Circuit and block the ETS or may side with the DOL and find that the ETS is legally sound.
Because multiple petitions for review have been filed in multiple circuits with more to come and various legal rulings are expected, the Multidistrict litigation rules call for consolidation of all the petitions in one circuit after a 10-day period following publication of the ETS. Early this week (tentatively November 16), the Judicial Panel in Multidistrict Litigation will do a lottery, which is a random drawing to decide which circuit court will hear and decide the various legal challenges to the ETS. By rule, an entry for each circuit court where challenges have been filed is put into a drum and from that drum, one circuit court is selected. All legal challenges are then transferred to that circuit court, consolidated, and decided by the one circuit court.
By early this week, based on the lottery selection, we should know more about the fate of the ETS. It is too soon to tell whether or when the Supreme Court will be involved. So for now, our focus is on the 5th Circuit next steps and the multidistrict lottery.
Compliance Deadlines
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December 5 – Unvaccinated workers will need to adhere to the masking requirements in the workplace. Employers will need to provide up to 4 hours of paid leave for workers to get vaccine shots, and also provide additional leave for workers who need to recover from side effects.
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January 4 – Employers will need to have workers fully vaccinated.
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January 5 - For workers who are not vaccinated, the testing requirement begins. Prior to that date, unvaccinated workers do not need to be tested.
National Restaurant Association Webinar On Demand
On Monday, November 8, we did a webinar with legal experts from Littler Mendelson that covered all aspects of the ETS including subtle nuances about the rule. If you missed the webinar, you can access recorded version with this link.
Resources and Information Links
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City of Atlanta Requires CPA Statement for Alcohol License Renewal - Update
The City of Atlanta has removed the CPA statement guidance from their Alcohol Renewal website. The GRA is working to confirm if this means the CPA statement is no longer required. We strongly encourage you leave public comment about how this impacts you by calling (404) 902-5066 between 4:00PM and 7:00PM on Sunday, November 14. Read more about this issue & what actions you can take here.
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Georgia Special Session Update
The Georgia Senate approved of the House's drawn district map. The legislation will now be sent to Governor Kemp for his signature. Next week the House will debate and vote on the Senate District Map. For more updates or questions about special session, email our Director of Advocacy, Daniel New.
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Grant program to support local restaurants with funds to hire and grow
The Georgia Restaurant Association (GRA) has teamed up with Intuit, the global technology platform that makes TurboTax, QuickBooks, Mint, Credit Karma, and Mailchimp, to support small business growth and grant $100,000 to restaurants in the Atlanta metro area. Through the QuickBooks Restaurant Relief Initiative, restaurants with an annual net revenue of less than $250,000* can apply for a $5,000 grant to cover payroll and operating expenses to help employ and retain staff.
Across the country small businesses are continuing to recover from the pandemic. The restaurant industry saw substantial revenue declines during the pandemic, driven by closures, new rules and regulations and a competitive labor market. However, not all restaurants and all geographies were impacted equally and the recovery has been similarly uneven. In Atlanta, monthly revenues for the city’s surviving restaurants were up 7% in September 2021 compared to September 2019. But for around two in five of these businesses, revenues were down, according to the latest data from Intuit QuickBooks. Overwhelmingly, it’s those with annual revenues below $250,000 that are struggling more.
The QuickBooks Restaurant Relief Initiative aims to help small restaurant owners get access to necessary funds to help them not only survive, but prosper.
“Small, independent restaurants are a driving force in creating the unique fabric of our cities and Atlanta is home to a particularly vibrant and diverse community of restaurateurs. As many of these businesses continue to face challenges driven by the pandemic, these grants are designed to deliver much needed funding that can help them grow,” said Alex Chriss, EVP and General Manager for Intuit QuickBooks. “With our recent acquisition of Mailchimp, an Atlanta-born and based company, we are committed to become even more connected to this community and support our mission of powering prosperity for small businesses.”
“Georgia is known for its southern hospitality and amazing restaurants, yet our small business restaurants are being disproportionately impacted by the pandemic’s economic impact,” said Karen Bremer, CAE, President and CEO of the Georgia Restaurant Association (GRA). “That’s why we’re so excited to partner with QuickBooks to enable restaurants to apply for funding to help manage payroll expenses and survive in today’s changing economy.”
Recipients of the grants will also receive one-year free subscriptions** to QuickBooks and Mailchimp to help manage and grow their businesses.
* Net revenue based on 2020 tax year.
** Additional terms, conditions, and limitations apply with services.
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Q: Is it true that the recently approved Infrastructure Bill makes Q3-2021 the last ERTC eligibility period for most companies?
A: Yes, with the passing of the bill, Q3 2021 will be the last period moving forward that a company may claim the ERTC.
Q: Does this mean my business can no longer claim this credit?
A: Not at all, in fact you still have 3 years (the statute of limitations for amending returns) to claim for 2020, and Q1, Q2 & Q3 of 2021.
Q: Great, so I have three years to file?
A: As of today, yes, but we would recommend filing all CV-ERC refund claims ASAP to avoid any further negative program changes that could be included in upcoming legislation.
For all GRA members, NetTax will provide a Phase 1 Benefit Analysis to determine your eligibility cost free. To see if you qualify, please click here and fill out the confidential survey to get started on the eligibility process. NetTax believes in transparency, feel free to review the service agreement (no retainer fees, no hourly rates, and if you do not qualify for any tax credits, there's no fee at all).
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Latest on Replenishing the Restaurant Revitalization Fund
A group of mainly House Democrats are circulating a letter to President Biden to urge the Biden Administration to advocate to replenish the Restaurant Revitalization Fund (RRF) in any moving legislative vehicle in Congress. The National Restaurant Association has been also been asking additional members of Congress to sign on to the letter. While we do not expect more RRF funding to be included in the Build Back Better (BBB or “reconciliation”) legislation, this letter reaffirms there is still interest in RRF replenishment in a later package specific to COVID relief. Conversations are active with leaders in both chambers about how to approach COVID relief for industries that were and are still the most impacted by COVID. Restaurants remain at the top of this list for additional assistance. Stay tuned for ways to be engaged in our continued efforts to replenish RRF.
DOL Issues Final Rule on Limits for Tipped Employees
The U.S. Department of Labor announced its final rule that places limits on the amount of time tipped employees can work in non-tipped activities when the employer receives a tip credit. Employers can take a tip credit only when a tipped employee is performing tip-producing work, or when the tipped employee performs work that directly supports tip-producing work under the condition that the tipped worker does not spend a substantial amount of time performing tip-supporting work. Under the rule, a “substantial amount of time” is defined as more than 20% of the hours worked during the employee’s workweek or a continuous period of time that exceeds 30 minutes. Therefore, an employer cannot take a tip credit for any of the time an employee performs tip-supporting work that exceeds 20% of the workweek or for any of the time that exceeds a 30-minute period. The rule is scheduled to be published in the Federal Register and becomes effective Dec. 28.
Infrastructure Bill Passes, Cuts Short ERTC
The Infrastructure Investment and Jobs Act passed Friday, and while it notably includes money to improve the nation’s roads and bridges, among others, it cuts short the Employee Retention Tax Credit (ERTC) to pay for the spending increases. Specifically, the legislation ends ERTC for the 4th calendar quarter (Oct.-Dec.) of 2021. Previous ERTC eligibility or payments, either for 2020 or any of the prior three calendar quarters for 2021, should not be affected. The Association will continue to provide updates to members and our state restaurant association partners. After the bill is signed into law, affected businesses are encouraged to contact their accountants or tax professionals for further guidance. Read More.
House passes $1 trillion bipartisan infrastructure bill that includes transport, broadband and utility funding, sends it to Biden
Federal Court Blocks Biden Administration's Vaccination Mandate
A federal court in Louisiana has blocked the Biden administration's mandate that millions of workers get vaccinated against Covid-19 or be tested weekly, ruling in a suit filed by several states, companies, and conservative religious groups. More than two dozen states have filed multiple legal challenges in federal court against the Biden administration’s vaccinate-or-test mandate for private businesses, arguing that the Occupational Safety and Health Administration doesn’t have the authority to issue the requirements.
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USE DATA TO DRIVE GROWTH. |
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