Paycheck Protection Program: An Overview

Section 1102 of the CARES Act created the Paycheck Protection Program (PPP), which is intended to provide funds for small businesses affected by COVID-19 to maintain their workforce. The loans are forgivable under Section 1106 of the CARES Act if the loan is used for permitted payroll, rent, mortgage interest, and utilities expenses and certain workforce and salary maintenance thresholds are met. To apply for the loans, employers must make a number of certifications, including that economic uncertainty due to COVID-19 makes the loan necessary to support ongoing business operations. Additional certifications are required to apply for loan forgiveness. The use of loan proceeds, as well as whether the loan was necessary, is subject to audit by the Small Business Administration (SBA).

The first round of the program closed on August 8, 2020. On January 11, 2021, the program reopened for a second round of funding, which is now open until March 31, 2021. A bill has passed the House of Representatives with bipartisan support to extend the deadline to May 31, 2021. The Economic Aid to Hard-Hit Small Business, Non-Profits, and Venues Act (Economic Aid Act) authorized this second round of funding, and revises aspects of the covered period, allows forgiveness for additional expenses, adds coverage for more organizations, allows some businesses to receive a second loan (Second Draw Loan), and provides greater flexibility for businesses with seasonal employees. The American Rescue Plan Act (ARPA) made additional modifications to the program, including expanding the types of non-profits that are eligible to participate.

The SBA released an Interim Final Rule - Paycheck Protection Program as Amended by Economic Aid Act (Economic Aid Act Rules) which outlines the key provisions of the PPP related to eligibility of applicants for PPP loans, which lenders are authorized to make PPP loans, the process for making PPP loans, loan increases, and loan forgiveness. The SBA separately published an Interim Final Rule - Business Loan Program Temporary Changes, Paycheck Protection Program Second Draw Loans (Second Draw Loan Rules) establishing the rules for second draws. The SBA has now issued an Interim Final Rule - Loan Forgiveness and Loan Review Procedures as Amended by the Economic Aid Act (Forgiveness Rule) to provide a single point of reference governing all aspects of loan forgiveness and loan review. Thereafter, the SBA modified the formula for calculating loan amounts for certain borrowers, discussed below, and eased some of the restrictions on borrowers with past criminal convictions or student loan defaults through an Interim Final Rule on Loan Calculation Amount and Eligibility (Amended Eligibility Regulations). With the passage of the ARPA, the SBA issued an Interim Final Rule on the PPP as amended by the ARPA.

With the rules applicable to the program changing regularly, it is important always to confirm the latest guidance before moving forward with any decisions about participation in the program or use of the proceeds.

Who Can Apply?

First Draw Loans. Small businesses with 500 employees or fewer, including sole proprietorships, independent contractors and self-employed persons,  nonprofits under 501(c) of the Internal Revenue Code other than 501(c)(4), and certain news organizations may apply for a covered loan. Accommodation and food services businesses that employ 500 or fewer employees per physical location can apply for loans under the original PPP rules as modified by the PPP Flexibility Act passed in June 2020 and Economic Aid Act (First Draw Loans). Housing cooperatives, eligible 501(c)(6) organizations, and eligible destination marketing organizations qualify if they employ 300 or fewer employees. (The maximum number of employees an organization can have and still be eligible for a loan is referred to throughout as the Employee Threshold). The Employee Threshold for Second Draw Loans is discussed below.

General Provisions. Businesses with more employees than the Employee Threshold may be eligible if they meet certain size and revenue rules used by the SBA based on their industry. In addition, businesses who currently have more employees than the Employee Threshold may be eligible if their number of employees is less than the Employee Threshold using the calculation rules discussed below.

Eligibility for businesses with related entities is determined using SBA affiliation rules as modified by the CARES Act.  For more information on the affiliation rules applicable to PPP, see our Private Equity Alert.

Businesses must have been in operation on February 15, 2020 to be eligible to apply for a loan. In the FAQs, which as of the date of this alert, were last updated March 12, 2021, the SBA clarified that a change in the ownership of the business will not prohibit loan eligibility. If the acquiring business has maintained the operations of the pre-sale business, it may rely on the historic payroll costs and headcount of the pre-sale business for purposes of its PPP application, except where the pre-sale business applied for and received a PPP loan. 

The original PPP Interim Final Rule provided that a PPP loan will not be approved if an owner of 20 percent or more of the equity of the applicant has been convicted of a felony within the last five years. On June 12, 2020, the SBA issued Additional Revisions to First Interim Final Rule (Additional Revisions) to limit the disqualifying felonies to those that involve fraud, bribery, embezzlement, or a false statement in a loan application or application for federal financial assistance. The Additional Revisions also reduced the look back period from five years to one year to determine eligibility for applicants, or owners of applicants, who, for non-financial felonies, have (1) been convicted, (2) pleaded guilty, (3) pleaded nolo contendere, or (4) been placed on any form of parole or probation (including probation before judgment). The eligibility requirements with respect to pending charges was revised on June 24, 2020. Previous regulations disqualified an owner of 20 percent or more of the equity of the applicant if they were subject to an indictment, criminal information, arraignment, or other means by which formal charges are brought at the time of the application. Additional revisions made to the eligibility rules limited the disqualifying pending criminal charges to only those for felony offenses. The Amended Eligibility Regulations removed any disqualification for non-financial felonies and for federal student loan defaults.

How Do I Calculate the Number of Employees?

This is one of the areas on which SBA guidance continues to conflict. On April 24, 2020, the SBA issued How-to-Calculate-Loan-Amounts for different types of entities. It directs employers to use their calendar 2019 payroll and benefit expenses. Both before that date and in its FAQs, however, the SBA has given most employers a choice of what time period to use “for the purpose of applying an employee-based size standard.” It appears that the SBA is permitting employers to use alternate calculations to make themselves eligible for PPP loans, even though one calculation method would yield more than the Employee Threshold, provided that another permitted method yields fewer than the Employee Threshold employees.

Determining Who Are Employees. For determining the Employee Threshold, the term “employee” includes individuals employed on a full-time, part-time, or other basis. It also includes student employees, other than state or federal work-study students. Businesses are required to include the employees of all “affiliates,” including foreign affiliates, in their own count. Affiliates is a defined term under existing SBA regulations, which the CARES Act modified in some ways. The term includes entities controlled by the business or under common control with the business (see link above for more details on the affiliation rules). 

Independent contractors of the business cannot be counted as “employees.” Rather, independent contractors may apply separately based on their own compensation and benefits expenses.    

Alternative Counting Methods. Under the FAQs, the number of employees may be measured using any of the following methods: (1) average number of employees for the last 12 months; (2) average number of employees for 2019; or (3) average number of employees per pay period in the 12 completed calendar months before the loan application. 

Seasonal businesses may use the average number of employees from February 15, 2019 or March 1, 2019 through June 30, 2019. Under regulations issued on April 27, 2020, they can also choose to use average total monthly payments for payroll during any consecutive 12-week period between May 1, 2019 and September 15, 2019.

Businesses that have been in operation for less than 12 months can use either their average monthly employees for January 1, 2020 through February 29, 2020 or the average number of employees for each of the pay periods the business has been operational.

It has been, at times, difficult to keep up with the evolving guidance. Accordingly, it appears that some lenders are still permitting employers to use only the 2019 average or only the last 12 months, rather than giving employers the option that the FAQs provides. Borrowers should consult their lenders to understand what documentation the lenders are requiring for the application, as the documentation likely will need to support the number of employees listed on the application.

Employees vs. Full-Time Equivalents (FTEs). In the FAQs, the SBA confirmed that the Employee Threshold for the loan is based on total employees, not FTEs. Loan forgiveness, on the other hand, is based on FTEs, as discussed below. 

Why Does the Calculation Method Matter?

Selecting the number of employees to include on the application is important, as it may impact eligibility for certain businesses. As discussed below, the Loan Forgiveness Applications (there are now three different versions) require employers to list the number of employees at the time of the original application, as well as the number at the time of the Loan Forgiveness Application. The purpose of this requirement is unclear because loan forgiveness is based on FTEs, not employees, and different measuring periods can be used, at the election of the borrower, for determining the number of FTEs for loan forgiveness. It is possible, but by no means clear, that this information is intended to allow the SBA to assess borrower eligibility. The Loan Forgiveness Regulations do not address this issue. The instructions for the Loan Forgiveness Applications direct borrowers to provide the total number of employees at the time of the loan application and the total number of employees at the time of the forgiveness application.

It is worth noting that, although the FAQs permit the same periods to be used to calculate payroll costs for determining the amount of the loan, the guidance suggests that employers could use two different methods for determining the number of employees and the amount of payroll costs. This is particularly important for employers that already have done workforce reductions (prior to applying for the loan), as the time period selected for calculating payroll costs may determine whether they can use the proceeds in accordance with the program’s mandates. Employers with growing workforces, by contrast, may want to use the method that leads to the highest number so that they can use the proceeds to cover as much of their payroll costs as possible. This is discussed further below. 

What Is the Application Window? 

Under the Economic Aid Act, the deadline to apply for a First Draw Loan or Second Draw Loan is March 31, 2021. A bill is pending in Congress to extend the deadline to May 31, 2021.

What Must Borrowers Certify in the Loan Application for First Draw Loans?

In addition to obligations to answer questions within the application truthfully, an applicant must explicitly certify in good faith, among other things:

• that “current economic uncertainty makes this loan request necessary to support the ongoing operations of the applicant;”
• that “funds will be used to retain workers and maintain payroll or make mortgage interest payments, lease payments, and utility payments;”
• that the applicant understands that “if the funds are knowingly used for unauthorized purposes, the federal government may hold [the applicant] legally liable, such as for charges of fraud;”
• that the applicant will provide the lender documentation of the number of FTEs on the payroll as well as documentation for the permissible uses of the loan proceeds;
• that the applicant has not received or applied for another SBA loan for similar reasons during the covered period; and
• that not more than 40 percent of the forgiven amount may be used for non-payroll costs.

Sole proprietors, independent contractors, and self-employed individuals must submit documentation, including payroll tax filings, Forms 1099-MISC, and income and expenses. Borrowers that do not have any such documentation, must provide other supporting documentation, such as bank records, sufficient to demonstrate the qualifying payroll amount. The SBA has issued updated guidance on how to calculate loan amounts and what documentation to submit for First Draw Loans and Second Draw Loans by business type.

If PPP funds are used for unauthorized purposes, the borrower will be required to repay those amounts. Additional penalties will be charged if funds are knowingly used for unauthorized purposes. Further, the SBA fact sheet states, “if the proceeds are used for fraudulent purposes, the U.S. government will pursue criminal charges against you.”

Regulations and guidance by the SBA in the FAQs are focused on whether borrowers, including those with access to liquidity, can make the required certification of necessity for the loan. Borrowers had until May 18, 2020 to repay the loan proceeds without facing penalties if they concluded that the loan was not “necessary” under the FAQs. The SBA will presume that borrowers with loans under $2 million made the certification in good faith. Borrowers with loans in excess of $2 million that have access to other sources of funds should review the emerging guidance on this issue carefully. The SBA has also announced that it will review the files for all loans of $2 million or more (and other files when it deems appropriate) when they are submitted for forgiveness, further increasing the pressure on large borrowers to ensure that they can satisfy the necessity certification. If the SBA determines that the loan was not necessary, it will demand repayment and deem the borrower not eligible for forgiveness. If the borrower repays the loan, the SBA will not pursue criminal or other penalties. The SBA’s review of loans is discussed further, below.

What Are the Loan Period, Interest Rate, and Other Terms of the Loans?

Applicants should view this as a loan program with the possibility, but not the guarantee, of forgiveness. Any loan amounts not forgiven will have a one percent interest rate. Loans made after the enactment of the PPP Flexibility Act have a five-year maturity, instead of the two-year maturity established by the original SBA regulatory guidance. For loans made prior to the PPP Flexibility Act, lenders and borrowers may agree to apply the five-year term. The date that the SBA assigns a loan number to the PPP loan is the date the loan is considered “made” for purposes of determining the applicable maturity period. The PPP Flexibility Act also extended the deferral period, during which interest accrues but no payments have to be made, from six months following the end of the covered loan period to the date on which the amount of loan forgiveness is remitted to the lender or, if the borrower has not applied for forgiveness by this time, 10 months after the covered loan period ends. Interest continues to accrue during the deferral period. The loan is guaranteed by the federal government so a personal guarantee and/or collateral are not required. In addition, the borrower is not subject to any loan fees and there is no prepayment penalty.

Assuming proper use of proceeds, loan amounts, including both principal and deferred interest, are 100 percent forgivable subject to the limitations discussed below.

How is the Loan Amount Calculated?

Businesses can borrow a maximum of 2.5 times their average monthly payroll costs, up to $10 million. The maximum loan amount for Second Draw Loans (reduced to a $2 million maximum) is discussed below. The SBA’s Interim Final Rule, as modified by the FAQs and the Economic Aid Act Rules and Second Draw Loan Rules, provides the following steps for calculating payroll costs:

Step 1: Aggregate payroll costs (defined below) for employees whose principal place of residence is the United States. Most borrowers can choose to aggregate their payroll costs for either the 12 months before the loan application or calendar year 2019 or 2020. Under the Economic Aid Act, seasonal employers must determine their maximum loan amount by using the average total monthly payments for payroll for any 12-week period chosen by the borrower between February 15, 2019 and February 15, 2020. Borrowers who were not in business from February 15, 2019 to June 30, 2019 may use their average monthly payroll costs for January 1, 2020 through February 29, 2020.

Step 2: Subtract any cash compensation paid to an employee in excess of $100,000 annualized. For independent contractors or sole proprietors, subtract any cash compensation earned in excess of $100,000 per year.

Step 3: Calculate average monthly payroll costs (divide the amount from Step 2 by Step 1).

Step 4: Multiply the average monthly payroll costs from Step 3 by 2.5.

Step 5: Add the outstanding amount of an Economic Injury Disaster Loan (EIDL) made between January 31, 2020 and April 3, 2020, less the amount of any “advance” under an EIDL COVID-19 loan (because it does not have to be repaid).

Payroll costs include the following compensation and benefits paid to employees or on behalf of employees:

• the gross amount of salary, wage, commission, or similar compensation (presumably, this includes bonuses, although they are not mentioned in the statute, regulations, or FAQs about calculating loan amounts);
• payment of cash tips or equiva­lent (based on employer records of past tips or, in the absence of such records, a reasonable, good-faith employer estimate of such tips);
• payment for vacation, parental, family, medical, or sick leave;
• allowance for dismissal or sepa­ration;
• payment required for the provi­sions of group health care benefits, including insurance premiums;
• payment of any retirement ben­efit; and
• payment of state or local tax assessed on the compensation of employees.

  The following are expressly excluded from the payroll cost calculation:

• cash compensation paid to an individual employee in excess of an annual salary of $100,000 including payments such as housing allowances, prorated for the period to be covered by the loan (i.e. amounts in excess of $8,333.33 per month). This includes any payments made to an employee, such as a housing allowance, but not contributions for retirement benefits or health care benefits paid on behalf of an employee;
• payments made by a business to its independent contractors;
• payroll, FICA, and other federal taxes imposed or withheld from employee compensation (the FAQs explain that borrowers should not deduct federal taxes withheld from their payroll calculations, but also cannot add the employer tax amounts to their calculations);
• any compensation of an employee whose principal place of residence is outside of the United States;
• qualified sick leave wages for which a credit is allowed under section 7001 of the Families First Coronavirus Response Act (FFCRA); or
• qualified family leave wages, for which a credit is allowed under section 7003 of the FFCRA.

The following are expressly excluded from the payroll cost calculation:

• cash compensation paid to an individual employee in excess of an annual salary of $100,000 including payments such as housing allowances, prorated for the period to be covered by the loan (i.e. amounts in excess of $8,333.33 per month). This includes any payments made to an employee, such as a housing allowance, but not contributions for retirement benefits or health care benefits paid on behalf of an employee;
• payments made by a business to its independent contractors;
• payroll, FICA, and other federal taxes imposed or withheld from employee compensation (the FAQs explain that borrowers should not deduct federal taxes withheld from their payroll calculations, but also cannot add the employer tax amounts to their calculations);
• any compensation of an employee whose principal place of residence is outside of the United States;
• qualified sick leave wages for which a credit is allowed under section 7001 of the Families First Coronavirus Response Act (FFCRA); or
• qualified family leave wages, for which a credit is allowed under section 7003 of the FFCRA.

The amended eligibility calculations changed the definition of payroll costs for independent contractors and sole proprietors who file using IRS Schedule C. These borrowers can choose to calculate the owner portion of payroll costs, which cannot be more than $100,000 in one year prorated, using either net profit or gross income. The change was made to increase the maximum loan amounts for these small borrowers.

To aid borrowers with these calculations, the SBA has issued guidance on How-to-Calculate-Maximum-Loan-Amounts-for-First-Draw-PPP-Loans-and-What-Documentation-to-Provide-By-Business-Type that gives examples of the calculations for different types of borrowers, including self-employed borrowers (with or without employees), partnerships, and corporations, and what documentation should be submitted for different types of borrowers.

The Economic Aid Act provides that borrowers who have not yet received forgiveness and who took less than the maximum loan amount or who returned a portion of their loan may increase the amount of their existing loan up to their original loan maximum eligibility. This is not a Second Draw Loan (described below), but instead offers borrowers an opportunity to use their full loan amount in light of the additional forgivable costs (described below). Seasonal employers that received a PPP loan before December 27, 2020, may submit a request to increase their loan amount if the maximum loan amount would increase under these new calculation rules. This is available to borrowers even if their loan has been fully disbursed and even if the lender’s SBA Form 1502 report to the SBA has already been submitted. Documentation supporting the calculation of the increase must be submitted with the request. The SBA has issued guidance to lenders on these increases in the form of a Procedural-Notice--First-Draw-Paycheck-Protection-Program-Loan-Increases-After-Enactment-Economic-Aid-Act.

What Can The Loan Be Used For?

The PPP Flexibility Act extended the “Covered Period” in which borrowers can use loan proceeds from 8 weeks to 24 weeks. Under the PPP Flexibility Act, borrowers who received their disbursement prior to the enactment of the PPP Flexibility Act may choose to use either the 8 or 24 weeks starting with disbursement of the loan as the Covered Period or, for payroll and benefit costs, an “Alternative Payroll Covered Period” that starts on the first day of the first pay period following disbursement of the loan. The Economic Aid Act allows borrowers to set their Covered Period to be any length between 8 and 24 weeks to best meet the needs of their business, thus eliminating the need for the Alternative Payroll Covered Period established by the PPP Flexibility Act.

The loan may be used to pay for the following costs incurred or paid during the Covered Period on behalf of employees (even if they are furloughed during that time):

• payroll costs using the above definition, except as noted below;
• costs related to the continuation of group health care benefits during periods of paid sick, medical, or family leave, and insurance premiums;
• employee salaries, commissions, or similar compensation which is not in excess of $100,000 per year annualized;
• interest on mortgage obligations that were in place before February 15, 2020 (but not mortgage premiums);
• rent under lease agreements in force before February 15, 2020;
• utilities for which service began before February 15, 2020; and
• payment of interest on certain pre-existing debt obligations.

For new loans under the Economic Aid Act and First Draw Loans whose forgiveness has not yet been remitted as of the passage of the Economic Aid Act, forgivable costs also include:

• covered operations expenditures (payments for any business software or cloud computing service that facilitates business operations, product or service delivery, the processing, payment, or tracking of payroll expenses, human resources, sales and billing functions, or accounting or tracking of supplies, inventory, records and expenses);
• covered property damage costs (costs related to property damage resulting from public disturbances that occurred during 2020 that was not covered by insurance or other compensation);
• covered supplier costs (expenditures to suppliers of goods that are essential to operations and made pursuant to a contract or order in effect before the covered loan period or, for perishable goods, in effect before or during the covered loan period); and
• covered worker protection expenditures (operating or capital expenditures to comply with Department of Health and Human Services (HHS), Centers for Disease Control (CDC), Occupational Safety and Health Administration (OSHA) or state and local COVID guidance for customer and worker safety including creating or expanding drive-thru windows, ventilation and air purification systems, physical barriers like sneeze guards, expansion of indoor and outdoor space, health screening capabilities (on or off site), and purchase of certain types of personal protective equipment (PPE)); and;
• premiums paid for group life, disability, and vision or dental insurance coverage (in addition to medical insurance).

In addition, borrowers who received EIDL loans between January 31, 2020 and April 3, 2020 may use PPP loan proceeds to refinance those loans and must refinance any amounts of the EIDL loan used to cover payroll costs.

Cash compensation is limited to a maximum of $15,385 per individual over an 8-week Covered Period ($100,000 annualized). If the borrower uses a 24-week Covered Period, the maximum total cash compensation that can be counted towards forgiveness for any employee is $46,154. Employers who use a Covered Period of a different length determine the maximum compensation proportionally ($100,000 divided by 52 times the number of weeks in the selected Covered Period). No matter the length of the Covered Period, borrowers can only include compensation for people who were employed during the Covered Period and whose principal place of residence is in the United States. This includes any amounts paid out for sick leave or vacation, as well as any severance amounts. In addition, cash compensation for owner-employees, general partners, and self-employed individuals (including independent contractors) can be no more than the amount they earned on average in eight weeks in 2019, or, for a 24-week Covered Period, the lesser of $20,833 or 2.5 months of 2019 compensation. (discussed further, below).

Utility costs include water, gas, electric, phone, internet, and transportation. Transportation has not been defined; however, in the April 14 Interim Final Rule, which primarily addresses calculations for independent contractors and sole proprietors, the SBA mentioned costs such as gas for a business vehicle. Therefore, it appears that gas for company-owned vehicles are included. It would not appear to extend to the cost of the vehicles themselves or maintenance or insurance, although it may extend to vehicle leases under that guidance. The Loan Forgiveness Applications and Loan Forgiveness Regulations offer no further guidance on defining transportation costs, although the Loan Forgiveness FAQs clarify that it includes transportation utility fees assessed by state and local governments. 

Self-employed individuals who file an IRS Form 1040 Schedule C can use loan amounts for the following, in addition to employee payroll costs and the other non-payroll purposes for which PPP loans can be used by any borrower: (i) owner compensation replacement for those who used net profit to calculate their loan amount or (ii) proprietor expenses (business expenses plus owner compensation) for those who used gross income to calculate their loan amount. For those who have no employees, proprietor expenses equals gross income, otherwise proprietor expenses equals gross income minus employee payroll costs.

Under the PPP Flexibility Act, at least 60 percent of the loan proceeds must be used to pay for permissible payroll costs in order to qualify for forgiveness. This is a proportional limit on non-payroll costs as a share of the borrower’s loan forgiveness amount, rather than a threshold for receiving any loan forgiveness. It is important to note that all use of the loan proceeds remains subject to the permissible uses of the loan, and failure to do so may be considered an improper use of the loan proceeds, subjecting the borrower both to civil and criminal penalties.

What is the Timing of Costs Incurred and Paid?

Payroll Costs. Under the Loan Forgiveness Application and Loan Forgiveness Regulations, borrowers are eligible for forgiveness if they use the loan proceeds for “costs incurred” or paid during the Covered Period.

Payroll costs are considered paid on the day that paychecks are distributed or on the date the ACH credit transaction is originated. For employees who are being paid but not working, the payroll costs are considered to be incurred when the employee otherwise would have worked. Payroll costs incurred but not paid during the last pay period of the Covered Period are eligible for forgiveness if paid on or before the next regular payroll date.

Eligible Non-Payroll Costs. Borrowers can include expenses paid during the Covered Period, and those incurred during the Covered Period and paid on or before the next regular billing date, even if the billing date is after the Covered Period. In other words, covered costs must be “paid or incurred” during the Covered Period. The SBA provides a helpful example in the Loan Forgiveness Regulations:

A borrower that received a loan before June 5, 2020 uses a 24-week covered period that begins on June 1 and ends on November 15. The borrower pays its electricity bills for June through October during the covered period and pays its November electricity bill on December 10, which is the next regular billing date. The borrower may seek loan forgiveness for its June through October electricity bills, because they were paid during the covered period. In addition, the borrower may seek loan forgiveness for the portion of its November electricity bill through November 15 (the end of the covered period), because it was incurred during the covered period and paid on the next regular billing date.

These calculations do not permit prepayment of expenses, such as future rent, mortgage interest, utilities, or other covered expenses that are not yet due (e.g., paying January’s rent in October).

Second Draw Loans

The Economic Aid Act allows eligible borrowers who have used, or will use, the full amount of their PPP loan to apply for a Second Draw Loan. The maximum loan amount for a Second Draw Loan is the lesser of $2 million or 2.5 months of average monthly payroll costs in calendar year 2019, 2020 or the one year before the loan is made (the same calculation as First Draw Loans). For restaurants and accommodations, the maximum loan amount is the lesser of $2 million or 3.5 months of payroll costs. Businesses that are part of a single corporate group may not receive more than $4 million of Second Draw Loans in the aggregate, notwithstanding the continued waiver of the affiliation rules.

Second Draw Loans generally are guaranteed by the SBA under the same terms, conditions, and processes as First Draw Loans, but have narrower eligibility requirements. A borrower is eligible for a Second Draw only if it has 300 or fewer employees (compared to 500 for First Draw loans) and experienced a revenue reduction of 25 percent or greater in 2020 relative to 2019. To calculate the revenue reductions, borrowers must compare the quarterly gross receipts for one quarter in 2020 with the gross receipts for the corresponding quarter of 2019. The SBA provides an example:

A borrower with gross receipts of $50,000 in the second quarter of 2019 and gross receipts of $30,000 in the second quarter of 2020 has experienced a revenue reduction of 40 percent between the quarters and is therefore eligible for a Second Draw PPP loan (assuming all other eligibility criteria are met).

The alternative size standards that allow certain borrowers with more than 500 employees to be eligible for First Draw Loans do not apply to Second Draw Loans. Borrowers who, together with their affiliates, have more than 300 employees are only eligible if the borrower has an NAICS code beginning with 72 (e.g., restaurants) and has no more than 300 employees per physical location or is a news organization or media company that meets certain additional ownership requirements and has no more than 300 employees per physical location.

Borrowers in operation in all four quarters of 2019 are deemed to have experienced the required revenue reduction if annual tax forms substantiate a 25 percent or greater revenue reduction in 2020 compared to 2019. For purposes of the Second Draw Loan, “gross receipts” is defined consistently with the definition of the SBA’s size regulations in 13 C.F.R. § 121.104, as “all revenue in whatever form received or accrued from whatever source, including from the sales of products or services, interest, dividends, rents, royalties, fees, or commissions, reduced by returns and allowances.” Any forgiveness amount of a First Draw Loan is excluded from gross receipts. To aid borrowers, the SBA has issued guidance on Second-Draw-PPP-Loans--How-Calculate-Revenue-Reduction-Maximum-Loan-Amounts-Including-Documentation, which explains how to calculate these revenue reductions, how to calculate loan amounts for different types of borrowers, and what documentation borrowers should provide.

In addition to the restrictions applicable to First Draw Loans, Second Draw Loans are not available to businesses primarily engaged in political or lobbying activities, certain foreign entities, entities in which the President, Vice President, head of an Executive department, a member of Congress, or the spouse of such person owns, controls, or holds 20 percent or more of any class of equity, or a publicly traded company registered as a national securities exchange. The ARPA removed the restriction on borrowers receiving both a PPP loan after December 27, 2020 and a grant for shuttered venue operators under the Economic Aid Act (SVO Grant). Instead, the amount of the SVO Grant will be reduced by the amount of PPP funds borrowed after December 27, 2020. Borrowers cannot receive a PPP loan after they have been approved for an SVO Grant.

Entities may not receive more than one Second Draw Loan. Borrowers are required to provide a Disclosure of Certain Controlling Interests along with their Second Draw Loan Application.

The certification requirements for First Draw Loans apply to Second Draw Loans with the exception that the certification that the applicant has not received or applied for another SBA loan for similar reasons during the covered period is replaced with a certification that the applicant has not and will not receive another Second Draw Loan. In addition, borrowers must make the following additional certifications for Second Draw Loans:

• the borrower has experienced a reduction in gross receipts in excess of 25 percent relative to the relevant comparison time period and has provided, or will provide, documentation to the lender substantiating the decline at the time required based on the amount of the loan (discussed below);
• the borrower received a First Draw Loan and, before the Second Draw Loan is disbursed, will have used the full loan amount (including any increase) of the First Draw Loan only for eligible expenses;
• the borrower is not a business concern or entity (a) for which an entity created in or organized under the laws of the People’s Republic of China or the Special Administrative Region of Hong Kong, or that has significant operations in the People’s Republic of China or the Special Administrative Region of Hong Kong, owns or holds, directly or indirectly, not less than 20 percent of the economic interest of the business concern or entity, including as equity shares or a capital or profit interest in a limited liability company or partnership; or (b) that retains, as a member of the board of directors of the business concern, a person who is a resident of the People’s Republic of China;
• the borrower is not required to submit a registration statement under section 2 of the Foreign Agents Registration Act of 1938 (22 U.S.C. 612); and
• the borrower is not a business concern or entity primarily engaged in political or lobbying activities, including any entity that is organized for research or for engaging in advocacy in areas such as public policy or political strategy or otherwise describes itself as a think tank in any public documents.

The documentation required to substantiate an applicant’s payroll costs calculations is generally the same as for First Draw Loans. No additional documentations is required for a Second Draw Loan if the applicant (i) used calendar year 2019 figures to determine its First Draw Loan amount, (ii) used calendar year 2019 figures to determine its Second Draw Loan amount (instead of calendar year 2020), and (iii) the lender for the applicant’s Second Draw Loan is the same as the lender that made the applicant’s First Draw Loan. The lender may, however, request additional documentation if it concludes additional documentation will be useful in conduct the good-faith review of the borrower’s loan amount calculation.

For loans with a principal amount greater than $150,000, the applicant must also submit documentation adequate to establish that the applicant experienced a revenue reduction of 25 percent or greater in 2020 relative to 2019. Such documentation may include relevant tax forms, including annual tax forms, or, if relevant tax forms are not available, quarterly financial statements or bank statements. For loans with a principal amount of $150,000 or less, such documentation is not required at the time the borrower submits its application for a loan, but must be submitted on or before the date the borrower applies for loan forgiveness.

Borrowers whose First Draw Loan is under review by the SBA for eligibility (Unresolved Borrowers) will not receive an SBA loan number for a Second Draw Loan until the issues are resolved.

Forgiveness terms for Second Draw Loans are generally the same as the terms for First Draw Loans (explained below).

What Documentation is Required for Loan Forgiveness?

The borrower must document the use of the proceeds and make additional certifications in order to apply for forgiveness. The documentation requirements are detailed in the applicable Loan Forgiveness Applications, discussed below. 

Borrowers must submit the following documentation with the Loan Forgiveness Application as it has now been revised:

• PPP Loan Forgiveness Calculation Form or Loan Forgiveness Application 3508EZ (EZ Forgiveness Application) or Loan Forgiveness Application 3508S (3508S Application) (discussed below);
• PPP Schedule A, unless the borrower qualifies to file the EZ Forgiveness Application or 3508S Application (discussed below); and
• Payroll documentation verifying cash compensation and non-cash benefits payments made during the Covered Period, consisting of:
  • Bank account statements;
  • Federal and state tax forms; and
  • Payment receipts, cancelled checks, or account statements documenting employer contributions to employee health insurance and retirement plans that were included in the forgiveness amounts.
• Unless the borrower qualifies to file the EZ Forgiveness Application or 3508S Application, FTE documentation showing:
  • The average number of FTEs on payroll per month between February 15, 2019 and June 30, 2019;
  • The average number of FTEs on payroll per month between January 1, 2020 and February 29, 2020; or
  • In the case of seasonal employers, either of these periods or any consecutive 12-week period between February 15, 2019 and February 15, 2020.
• Non-payroll documentation verifying the existence of obligations/services prior to February 15, 2020 and eligible payments during the Covered Period.

Borrowers who complete the full Forgiveness Application also are required to complete and maintain the PPP Schedule A Worksheet that is included in the Loan Forgiveness Application. Table 1 of the Worksheet requires borrowers to compile a list of each individual employee’s cash compensation, average FTE, and salary or hourly rate reduction, if applicable. Table 2 requires a listing of each individual employee who received cash compensation of more than $100,000 in 2019. The Schedule A Worksheet has a FTE Reduction Safe Harbor section which must be completed, if applicable (discussed below). In addition, the instructions contain a worksheet on the wage reduction calculations and safe harbor (discussed below).

In addition to these specific documentation requirements, borrowers must maintain all documentation submitted with the PPP loan application, supporting the certifications made and supporting material compliance with PPP requirements. Borrowers also must maintain records showing any job offers and refusals, firings for cause, voluntary resignations, written requests by any employee for reductions in work schedule, and documents supporting a decrease in business operations due to compliance with COVID-19 related regulations (discussed below). All documentation must be maintained and available for inspection by the SBA for six years after the date the loan is forgiven or paid in full.

The PPP Flexibility Act extended the deadline for filing a loan forgiveness application to 10 months following the end of the maximum Covered Period of 24 weeks. If the borrower does not apply for forgiveness within 10 months following the end of the maximum Covered Period of 24 weeks, or if the SBA determines that the loan is not forgivable (in whole or in part), the loan is no longer deferred and borrowers must begin paying principle and interest. Borrowers who are applying for Second Draw Loans of $150,000 or more must submit their application for forgiveness of their First Draw Loan before or simultaneously with their Second Draw Loan application.

How Do Borrowers Determine Which Forgiveness Application to Use?

Borrowers with loans of $150,000 or less may use the simplified 3508S Application, which does not require the borrower to show how the funds were spent, but only requires a statement of the amount spent on payroll costs and a certification that the borrower complied with the applicable regulations regarding all uses of the loan proceeds and calculation of the loan amounts, and that all information is accurate. The borrower is required to maintain, but not submit, the documentation of how the loan proceeds were spent.

Borrowers can use the EZ Forgiveness Application if either of the following are true:

• The borrower did not reduce annual salary or hourly wages of any employee (not counting anyone who made more than the equivalent of $100,000 annualized in any pay period in 2019) by more than 25 percent during the Covered Period compared to the most recent full calendar quarter before the Covered Period and did not reduce the number of employees or average paid hours between January 1, 2020 and the end of the Covered Period, ignoring (1) any reductions based on inability to rehire anyone who was employed on February 15, 2020 if the borrower could not hire a replacement by December 31, 2020 (or, for a loan made after December 27, 2020, the last day of the Covered Period) and (2) any reductions in hours that were offered to restore and the employee refused; or
• The borrower did not reduce annual salary or hourly wages of any employee (not counting anyone who made more than the equivalent of $100,000 annualized in any pay period in 2019) by more than 25 percent during the Covered Period compared to the most recent full calendar quarter before the Covered Period and was unable to operate during the Covered Period at the same level of business activity as before February 15, 2020 due to compliance with requirements established or guidance issued between March 1, 2020 and December 31, 2020 (or, for a loan made after December 27, 2020, requirements established or guidance issued between March 1, 2020 and the last day of the Covered Period) by the Secretary of Health and Human Services, the Director of the Centers for Disease Control, or the Occupational Health and Safety Administration for COVID-19 health and safety requirements.

The same certifications are required on the EZ Forgiveness Application as on the Loan Forgiveness Application (discussed below), plus a certification that either of these conditions apply. Borrowers must maintain documentation that supports their ability to use the EZ Forgiveness Application, including the public health orders on which they rely, as well as the documentation required for the Loan Forgiveness Application (discussed above).

How Does Loan Forgiveness Work?

The Loan Forgiveness Application includes the PPP Loan Forgiveness Calculation Form, PPP Schedule A, and the PPP Schedule A Worksheet, borrower certifications (discussed below), and documentation requirements (discussed above). Borrowers are instructed to complete Schedule A and the Worksheet to compute eligible compensation for each employee, the number of FTEs for the covered period, and the applicability of forgiveness reductions and the savings provision. The EZ Loan Forgiveness Application dispenses with Schedule A and the Schedule A Worksheet in favor of a far more streamlined form.

In order to achieve full forgiveness of the loan under the PPP Flexibility Act, employers must do all of the following:  (1) use at least 60 percent of the total amount of the loan on qualifying payroll and benefit costs during the Covered Period, (2) spend the remaining loan proceeds of not more than 40 percent of the total loan amount on qualifying non payroll costs, including rent, mortgage interest, utility payments, and permissible business expenses for loans that were not forgiven before the passage of the Economic Aid Act (Non Payroll Costs), during the Covered Period, and (3) not have their forgiveness reduced based on reductions in FTEs or employees’ wages or salaries, discussed below,  or qualify for one of the safe harbors discussed below. Not satisfying any of these requirements will result in reduction of the loan forgiveness amount.

Use of Loan Proceeds. PPP loans are 100 percent forgivable if all the proceeds are used for qualifying payroll and benefit costs (using the definitions above), and permitted Non Payroll Costs (using the definitions above) during the Covered Period, provided that at least 60 percent of the proceeds are used for qualifying payroll and benefit costs during that period.

Excluded Payroll Costs. The following payroll costs are not eligible for loan forgiveness under the ARPA: (a) qualified wages taken into account in determining the Employee Retention Tax Credit (ERTC) under Section 2301 of the CARES Act or Section 3134 of the Internal Revenue Code or the disaster credit under Section 393 of the ARPA; and (b) premiums for COBRA continuation coverage taken into account in determining the credit under Section 6432 of the Internal Revenue Code. Learn more about the Employer Retention Credit in our Economic Aid Act Tax Alert.

Cash Compensation. Cash compensation paid to an employee cannot exceed $15,385 for an 8-week Covered Period (the equivalent of annual pay of $100,000 for 8 weeks), $46,154 during a 24-week Covered Period, or the applicable proportion of $100,000 based on the length of the Covered Period. That specifically includes wages, commissions, paid time off, and severance. The Loan Forgiveness Regulations further include hazard pay and bonuses in cash compensation. This provides flexibility for employers managing their workforces through this crisis in two ways. First, employers trying to incentive people to work are not limited in their ability to provide hazard pay or make up for lost tips or commissions (subject to the cash compensation cap). Second, if employers need to lay off employees again at the end of Covered Period, they will not risk losing forgiveness by paying those employees severance in a lump sum at the end of the period, so long as the employees’ total compensation, including the severance, does not exceed the cash compensation cap.

The loan forgiveness amount for owner-employees, self-employed individuals and general partners is capped at the lesser of 8/52 of the 2019 compensation (approximately 15.38 percent of 2019 compensation) or $15,385 per individual in total across all businesses if using an eight-week Covered Period. Under a 24-week Covered Period, the cap is the lesser of $20,833 or 2.5 months of 2019 compensation. The amount applicable to other Covered Periods is proportional. C-corporation owner-employees are capped by the prorated amount of their 2019 or 2020 employee cash compensation and employer retirement and health, life, disability, vision, and dental insurance contributions made on their behalf. S-corporation owner-employees are capped by the prorated amount of their 2019 or 2020 employee cash compensation and employer retirement contributions made on their behalf. Schedule C or F filers are capped by the amount of their owner compensation replacement, calculated based on 2019 or 2020 net profit, or proprietor expenses, calculated based on 2019 or 2020 gross income. General partners are capped by the amount of their 2019 or 2020 net earnings from self-employment (reduced by claimed section 179 expense deduction, unreimbursed partnership expenses, and depletion from oil and gas properties) multiplied by 0.9235. No additional forgiveness is provided for retirement or health insurance contributions for self-employed individuals, including Schedule C or F filers and general partners, as such expenses are paid out of their net self-employment income.

Deduction of EIDL Advances. If the borrower also received an EIDL loan advance up to $10,000, the SBA deducted the amount of that advance from the forgivable amount of the loan. This provision was repealed by the Economic Aid Act so no deduction will be made for any loan forgiveness approved by SBA on or after December 29, 2020.  Borrowers who have already had their loan forgiveness applications fully processed will have their loans adjusted by their lenders and, if necessary, will be refunded the amount of the deduction plus interest.    

What Factors Can Result in Reduction of Loan Forgiveness?

Note that these provisions do not apply to borrowers with loans of $50,000 or less, except for borrowers who together with their affiliates received First Draw Loans or Second Draw Loans totaling $2 million or more. The SBA and Treasury have exempted these borrowers from any reductions based on reductions in FTEs or salary/wage reductions.

Workforce Measures. The amount of loan forgiveness is proportionally reduced if employers reduce their FTEs, or if they reduce employees’ salaries or wages by more than 25 percent (not including compensation for employees who earn more than $100,000) against certain pre-loan measures, unless those reductions are restored by December 31, 2020 (or the last day of the Covered Period for loans made on or after December 27, 2020). Under the Loan Forgiveness Application, the salary or wage reductions are calculated first.

In the Loan Forgiveness Regulations, the SBA makes clear that reductions involving the same employee will not be double-counted. For example, reducing an employee from 40 hours a week to 20 hours per week will be considered taking an employee from 1.0 FTE to 0.5 FTE, but will not also be considered a 50 percent reduction in the employee’s salary or rate of pay.

Compensation Reduction and Forgiveness. The amount of forgiveness is reduced by the amount of reduction in total salary or wages for each employee of more than 25 percent during the loan period compared to the pre-loan baseline wages and salary. The baseline is the salary and wages earned by the employee during the last completed calendar quarter before the Covered Period. Employees who earned the equivalent of $100,000 annualized ($8,333.33 per month) during any pay period in 2019 are not included in this calculation.

Under the Loan Forgiveness Application, borrowers compare the average annual salary (for salaried employees) or hourly rate (for hourly employees) during the Covered Period to the average salary or rate in the last completed calendar quarter before the Covered Period. A decrease in loan forgiveness only occurs if that average salary/hourly rate for each employee is reduced by more than 25 percent. These calculations are done on an individual basis and the amount of loan forgiveness is reduced by the amount that each employee’s salary/hourly rate was reduced by more than 25 percent, unless the savings provision discussed below applies. The Loan Forgiveness Regulations provide a helpful example:

A borrower has elected to use an eight-week covered period. This borrower reduced a full-time employee’s weekly salary from $1,000 per week during the reference period to $700 per week during the covered period. The employee continued to work on a full-time basis during the covered period with an FTE of 1.0. In this case, the first $250 (25 percent of $1,000) is exempted from the loan forgiveness reduction. The borrower seeking forgiveness would list $400 as the salary/hourly wage reduction for that employee (the extra $50 weekly reduction multiplied by eight weeks).

The same is true of borrowers using a different length Covered Period (i.e., the weekly reduction amount is multiplied by the length of the Covered Period). The calculations of this reduction for salaried employees and hourly employees are detailed separately in the Revised Loan Forgiveness Application.

Notably, although not specifically defined, the Loan Forgiveness Application’s calculation method suggests that only base salary or hourly wage rate will be considered for calculating reductions, as opposed to a comparison of total cash compensation. For employers that provide significant amounts of compensation through bonuses, commissions, or other revenue sharing measures, this distinction is critical and eliminates the problem posed by bonuses or commissions paid during the reference period (the last completed calendar quarter before the Covered Period) that could have inflated compensation for that time period. Note, however, that the Loan Forgiveness Application does not address this issue directly, nor do the Loan Forgiveness Regulations.

FTE Reduction and Forgiveness. The amount of forgiveness will be reduced by multiplying the otherwise forgivable loan amount (i.e. the amount spent on permissible expenses) by the proportion of employment loss. Employment loss for forgiveness purposes is based on FTEs, not workforce headcount. Employment loss is calculated by determining the quotient of average number of FTEs each pay period during the Covered Period divided by pre-loan FTEs. To calculate its pre-loan FTEs, an employer can use either (a) its average number of FTEs from January 1, 2020 to February 29, 2020, or (b) its average number of FTEs from February 15, 2019 to June 30, 2019. Seasonal employers can use either of these time periods or any consecutive 12-week period between February 15, 2019 and February 15, 2020 to measure their FTEs. For example, if the resulting quotient is 90 percent, the employer’s loan forgiveness is reduced by 10 percent (unless adjusted based on the savings provisions discussed below). 

The Loan Forgiveness Application and Loan Forgiveness Regulations detail how to calculate FTEs. For each employee, take the average number of hours paid per week, divide by 40, and round the total to the nearest tenth. The maximum for each employee is capped at 1.0. Alternatively, a simplified method is to assign a 1.0 for employees who work 40 or more hours per week and 0.5 for employees who work fewer hours. The borrower must pick one of these methods and apply it consistently.

Once the employer calculates FTEs during the Covered Period, they are compared to determine if the total amount of potential forgiveness is reduced. For example, if an employer’s FTEs are 50 percent lower during the Covered Period than they were during the selected pre-loan measuring period, the amount of loan forgiveness is reduced by 50 percent, subject to the additional reductions and the savings provisions described below. Because of the significant impact that it may have on determining the amount of forgiveness, employers should carefully consider how to structure both any changes in their workforce related to the Covered Period and which measuring period and Covered Period to choose. For example, it appears that employers could decide to consolidate part-time positions into full-time positions to maintain or increase their number of FTEs, even as they reduce total headcount and, potentially, benefit costs. From the text of the CARES Act, and the calculation method in the Loan Forgiveness Application, doing so would not appear to trigger reduction in forgiveness. 

Notably, an employee who voluntarily resigned, was fired for cause, or voluntarily requested and received a reduction in hours during the Covered Period is counted as the same FTE that the employee counted before this employment change occurred (i.e., a full-time employee who resigns during the Covered Period is counted as 1.0 FTE for the entire Covered Period). In addition, employees do not count as an FTE reduction if the borrower made a written offer to restore an employee’s hours at the same salary/wages as earned by the employee during the last pay period prior to the reduction in hours and the employee rejected the offer. In either of these circumstances, the borrower must maintain documentation and provide it to the SBA upon request. In each of these cases, the employee does not count as an FTE reduction only if the position was not filled by a new employee. Note that this only provides employers with relief on the reduction in FTEs—it does not allow borrowers to count what the excluded employee would have earned as salary or wages toward the compensation forgiveness reduction component. Finally, these provisions apply only to employees who leave employment or refuse an offer to return during the Covered Period. They do not apply to employee separations or refusals that occur before the Covered Period. The PPP Flexibility Act also added broader “safe harbors” from FTE reduction penalties, discussed below. 

The Loan Forgiveness Regulations make clear that there is no requirement that the employees actually perform work during the loan period. The purpose of the PPP loans is to keep people on payroll and off unemployment so paying people not to work is acceptable.

The reductions in potential forgiveness based on decreased FTEs and on pay reductions are cumulative, which can limit employer options to account for costs that are not covered by PPP while facing revenue reductions. For example, businesses that are struggling to pay for insurance costs, inventory, and other fixed and variable expenses may need to reduce expenses. Yet, seeking to reduce those expenses by reducing employee compensation or headcount may threaten the ability to receive loan forgiveness and, therefore, add to the financial strain on the business.

What “Savings Provisions” and “Safe Harbors” Can Borrowers Use to Ameliorate Forgiveness Reductions? 

Savings Provision for Reduction Window. The CARES Act includes a “savings” provision that allows businesses that conducted layoffs or furloughs or salary reductions for one or more employees between February 15, 2020 and April 26, 2020 (the reduction window) to receive the full amount of forgiveness to which they would otherwise be entitled provided that: (i) any reduction in FTEs that occurs during the reduction window is restored by December 31, 2020 (or, for a loan made on or after December 27, 2020, not later than the last day of the Covered Period) to at least the number of FTEs employed on February 15, 2020; and/or (ii) the reduction in average annual salary or hourly wage for each employee compared to February 15, 2020 has been restored by December 31, 2020 (or, for a loan made on or after December 27, 2020, not later than the last day of the Covered Period). Reductions occurring after April 26, 2020 cannot be “saved” under these provisions, which is consistent with the expectation that PPP funds will be use to preserve employment and compensation for employees.

Notably, the Loan Forgiveness Application contains separate worksheets for employers to determine if they qualify for these so-called “safe harbors” against reductions in loan forgiveness and allows employers to qualify for them separately. In other words, employers can qualify for one or the other or both.

Borrowers are exempt from the reduction in forgiveness for salary/hourly wage reductions that occurred between February 15, 2020 and April 26, 2020, if wage levels are restored by December 31, 2020 (or, for a loan made on or after December 27, 2020, not later than the last day of the Covered Period). The calculation of whether this safe harbor applies and, if not, what impact it has on loan forgiveness is a multi-step process: 

• First, the Loan Forgiveness Application requires borrowers to determine if there was a reduction of more than 25 percent in the salary or wages of any employee (who earned less than $100,000 annualized in 2019, as discussed above). If no employee had their average salary or hourly wage reduced by more than 25 percent, there is no reduction and nothing more needs to be done.
• If one or more employees did suffer such a reduction, the employer next compares that employee’s average annual salary (for salaried employees) or hourly wage (for hourly employees) on February 15, 2020 with the average for that employee during the February 15 to April 26, 2020 reduction window. If the amount during the reduction window is the same or greater, the next step is to calculate the amount of the reduction in forgiveness because the Safe Harbor does not apply.
• If the average annual salary or hourly wage during the reduction window is less than it was on February 15, 2020, it is next compared to the average annual salary or hourly wage on December 31, 2020 (or, for a loan made on or after December 27, 2020, the last day of the Covered Period). If that average is greater than or equal to the average on February 15, 2020, the Safe Harbor has been satisfied, and there is no reduction in forgiveness. If not, the next step is to calculate the amount of the reduction in forgiveness following the separate instructions in Loan Forgiveness Application for salaried and hourly employees.

Note that there is no minimum amount of reduction that disqualifies an employer from taking advantage of the Safe Harbor for any given employee if that employee suffered a reduction in salary/wage rate that triggers the loss of forgiveness, and their average annual salary or hourly rate on December 31, 2020 (or, for a loan made on or after December 27, 2020, the last day of the Covered Period) is less than it was on February 15, 2020.

Safe Harbor for Decreased Business Activity.  The PPP Flexibility Act includes an additional safe harbor that provides that borrowers unable to return to business levels are exempt entirely from a reduction in forgiveness based on FTE levels. The amount of loan forgiveness shall be determined without regard to reduction of FTEs if the loan recipient can document in good faith the inability to return to the same level of business activity it had on February 15, 2020 due to compliance with regulations and guidance issued by the Secretary of HHS, the CDC, or OSHA during the period March 1 to December 31, 2020 (or, for a loan made on or after December 27, 2020, not later than the last day of the Covered Period) related to employee or public health or safety under COVID-19. While on its face, this does not cover compliance with state and local requirements that exceed the federal guidance, the Loan Forgiveness Regulations read this broadly to include both direct and indirect guidance, recognizing that much of the decreased business activity is the result of following state and local public health orders that are based, in part, on CDC, OSHA, and HHS guidance. Borrowers must maintain documentation supporting their inability to operate at the same level of business activity, relevant financial records, and copies of the compliance requirements or guidance that caused the decrease in business activity.

Safe Harbor for FTE Reductions. The PPP Flexibility Act includes another safe harbor that eliminates a reduction in loan forgiveness that would otherwise be required due to a reduction in FTEs. Specifically, the amount of loan forgiveness is not reduced if a borrower is able to document in good faith i) an inability to rehire individuals who were employees on February 15, 2020, and ii) an inability to hire similarly qualified individuals for unfilled positions on or before December 31, 2020 (or, for a loan made on or after December 27, 2020, not later than the last day of the Covered Period). The Loan Forgiveness Regulations add the requirement that, for employees who refuse a written offer to return, the borrower must inform the state unemployment insurance office within 30 days of the rejection. Borrowers must maintain documentation of the written offer to rehire an individual, a written record of the offer’s rejection, and a written record of efforts to hire a similarly qualified individual.

What Certifications Are Required for Forgiveness?

An authorized representative of the borrower must make several certifications on the Loan Forgiveness Application:

• The amount requested for forgiveness was (1) used to pay costs eligible for forgiveness, (2) includes all applicable reductions due to decreases in FTEs and salary/hourly wage reductions, (3) does not include non-payroll costs in excess of 40 percent of the amount requested, (4) includes payroll costs equal to at least 60 percent of the forgiveness amount, and (5) does not exceed 2.5 months’ worth of 2019 compensation for any owner-employer or self-employed individual/general partner, capped at $20,833 per individual.
• All payments for eligible payroll and Non Payroll Costs have been accurately verified.
• All required documentation has been submitted, and that the information provided in the application and supporting documents is true and correct. This section includes an acknowledgement that that making a false statement to obtain forgiveness is punishable under the law, including 18 USC 1001 and 2571 by imprisonment for up to five years and a fine up to $250,000; under 15 USC 645 by imprisonment for up to two years and a fine up to $5,000; and, if submitted to a federally insured institution, under 18 USC 1014 by imprisonment of up to 30 years and a fine up to $1,000,000.
• The SBA may request additional information for evaluating eligibility for the PPP loan and for forgiveness, and that failure to provide such information may result in a determination that the borrower was ineligible for the loan or a denial of the Loan Forgiveness Application.
• If the borrower checked the box for the FTE Reduction Safe Harbor based on reduced business operation, the borrower must certify that they qualify for the Safe Harbor.

Borrowers applying for forgiveness of Second Draw Loans must also certify that they used all of the proceeds from the First Draw Loan before disbursement of the Second Draw Loan.

The application representations and certifications on Page 2 of the Loan Forgiveness Application concludes with the following statement: “The Borrower’s eligibility for loan forgiveness will be evaluated in accordance with the PPP regulations and guidance issued by the SBA through the date of this application. The SBA may direct a lender to disapprove the Borrower’s loan forgiveness application if the SBA determines that the Borrower was ineligible for the PPP loan” (emphasis added.) While the highlighted statement appears to evaluate eligibility in accordance with regulations and guidance issued as of the date the Loan Forgiveness Application was first published, the Loan Review Regulations make clear that eligibility is based on information available at the time of the loan application, which is consistent with FAQ 17, which provides, in part, that “Borrowers and lenders may rely on the laws, rules, and guidance available at the time of the relevant application.”

What is the Timeline for a Decision on Loan Forgiveness?

Each lender must confirm receipt of the borrower certifications on the Loan Forgiveness Application, confirm receipt of the relevant documentation, and confirm the borrower’s calculations. Lenders are to conduct a “minimal review” of the borrower’s calculations that are based on a payroll report by a recognized third-party payroll processor, and a “more extensive review” of calculations and data otherwise. A lender must issue a decision to the SBA on a Loan Forgiveness Application within 60 days after a borrower submits the completed application. The decision may take the form of an approval (in whole or part), denial, or, if directed by the SBA, a denial without prejudice due to a pending SBA review of the loan. In a case of a denial without prejudice, the borrower may request that the lender reconsider its application for forgiveness within 30 days of notice of the denial (unless the SBA has determined that the borrower was ineligible for the loan in the first place). Within five days of the borrower’s request for review, the lender must notify the SBA of the request. The SBA will notify the lender if it declines the request, or if it accepts the request, the SBA will notify the lender and the borrower of the results of the review.

If the lender determines that the borrower is entitled to some level of forgiveness, the lender must request payment from the SBA at the same the decision is submitted. Within 90 days of the submission, the SBA will, subject to a review of the loan or loan application, remit the appropriate forgiveness amount to the lender, plus any interest accrued through the date of payment. If any portion of the loan is not forgiven, the borrower must repay the unforgiven portion within two years or five years of the loan maturity date, depending on the date of the loan and the agreement between the borrower and the lender.

The SBA reserves the right to review the lender’s decision in its sole discretion.

Will Loans Be Audited by the SBA?

The SBA previously announced that it will audit every loan of $2 million or more at the time the lender submits the Loan Forgiveness Application to it. However, this provision does not apply in the most recent Loan Forgiveness Regulations. The Loan Forgiveness Regulations make clear that the SBA can audit any loan within six years after the loan is forgiven or repaid in full. The SBA will review the following: (1) whether the borrower was eligible for the loan based on the law, the rules and guidance issued as of the time of the loan application, and the terms of the loan application, (2) whether the loan amount was correct and whether the loan proceeds were used properly, and (3) whether the borrower is entitled to the loan forgiveness claimed. The SBA can review First Draw and Second Draw Loans together or at different times.

If it appears that a borrower may be ineligible to receive the loan amount or forgiveness amount claimed, borrowers will have the opportunity to respond to SBA questions and requests for information. If the SBA determines a borrower is ineligible for a loan, it will not be forgiven. Similarly, if the SBA determines that the borrower is not entitled to the forgiveness amount claimed, forgiveness will be denied in whole or in part, as applicable.

The SBA has created an appeal procedure for anyone found ineligible.

What Are the Tax Implications of the PPP Flexibility Act?

The PPP Flexibility Act removes the bar in the CARES Act on employers who have PPP loans forgiven from taking advantage of the CARES Act provisions permitting deferral of the payment of payroll taxes due between March 27, 2020 and January 1, 2021. Fifty percent of such deferred taxes are due December 31, 2021 and the other 50 percent are due December 31, 2022. More information about the payroll tax delay may be found in our CARES Act Tax Provisions Alert.

The Economic Aid Act also reverses the IRS pronouncement that expenses paid with forgiven PPP loan proceeds are not deductible for federal income tax purposes. See our Economic Aid Act Tax Alert for more information.

Ballard Spahr’s Labor and Employment Group is well versed in the PPP and is available to assist you with compliance questions and practical advice in the tempestuous times of COVID-19.