Morning Update - March 25

Two Triiiiillliiion federal dollars, new emergency orders, nuts and bolts on unemployment claims, and self-employed paid leave

Good morning,

I keep predicting (hoping?) that at some point we’re going to settle in to a “new normal” for a few weeks, and I’ll have little to say in these morning writing sessions. But with a new Executive Order from the Governor and a more restrictive “stay at home” order issued in Portland, plus word of a negotiated deal on the $2 trillion federal relief package, there is much to say today. So I’ll get right to it.

This update contains what I know as of 6:00am on Wednesday, March 25.

Deal Struck on Federal Economic Aid Plan

At around 1am this morning, Senate leaders and Treasury Secretary Mnuchin announced that a final deal on the $2 trillion federal aid package had been reached. The details are still not publicly available as the actual bill text still has to be written this morning, so I’ll refrain from trying to summarize the agreement here. I expect I will be able to summarize it tomorrow morning in much greater detail. For this morning, I just thought it might be helpful to note that $2 trillion is a huge amount of money – several hundreds of billions of dollars more than the entire annual federal budget.

Governor Mills Issues New Executive Order

Yesterday, Governor Mills issued a new Executive Order that is somewhat more nuanced that many of the orders in other states. It uses the new Department of Homeland Security list that designates what is considered essential and non-essential. But Governor Mills’s order does not require a blanket closing all non-essential businesses or order Mainers to stay at home. Instead, it orders closure of public-facing brick and mortar locations for non-essential businesses, and orders social distancing strategies for all businesses (essential and non-essential alike). In this way, the order tries to ensure that, if a business remains open, that there is no disease transmission as a result, either among employees or with customers and vendors. The order will remain in place until at least April 8th.

This order continues the previous order prohibiting more than 10 people gathering for non-essential reasons and mandating the closure of dine-in service at restaurants and bars. Take-out, curbside service, and home delivery of food and beverages are considered essential and are permitted to continue with appropriate social distancing precautions.

Social Distancing Requirements for All Businesses That Remain Open:

• Mark six-foot measurements by the cashier stations and reminding customers to remain six feet apart while in store;
• Have hand sanitizer and sanitizing products readily available for employees and customers;
• Offer separate operating hours for elderly and vulnerable customers; and
• Post online whether a facility is open and how best to reach the facility and continue services by phone or remotely.

Additional Rules For Essential Businesses:

• Have employees work remotely to the extent possible;
• Comply with social distancing requirements, including maintaining a 6-foot distance between employees as well as member of the public at all times, including when customers are standing in line; and
• Postpone non-urgent interactions, e.g. routine medical and dental appointments.

For Essential Businesses that remain open and are high-traffic retail stores (e.g. Wal Mart), the Governor urges them to:

• For stores >5,000 sq ft, limit customers to no more than 100 at a time;
• Enhance curbside pick-up and delivery services;
• Set aside hours for shoppers of a certain age;
• Close fitting rooms;
• Caution customers against handling merchandise they are not purchasing;
• Stagger break times for employees and require frequent hand-washing; and
• Frequently sanitize high-touch areas, such as shopping carts.

Under the Governor’s order, non-Essential Businesses can stay open, but must:

• Close their physical locations that are public facing, i.e. be closed to in-person contact;
• Close sites that require more than 10 workers to convene in a space where physical distancing is not possible;
• Facilitate the maximum number of employees working remotely.
Permitted activities include: taking orders by phone, email; preparing and delivering such orders; maintaining inventory; preserving the physical plant and equipment; ensuring security; processing payroll, employee benefits, and related functions.

Examples of non-essential businesses are: shopping malls, theaters, gyms, casinos, hair salons/barber shops, tattoo/piercing parlors, massage facilities, nail technicians/cosmetologist, etc. But the full list of essential business is really what controls the determinations here. That list can be found here. If you believe your business is essential, but it’s not on the list, you can request that it be designated as essential by filling out this form.

Portland Issues More Restrictive Order

On the heels of Governor Mills’s announcement, Portland Mayor Kate Snyder and City Manager Jon Jennings ordered a more restrictive “stay at home” directive for the city of Portland. It was all a bit jarring yesterday afternoon as the Press Herald live stream I was watching yesterday unexpectedly cut over from the Governor’s press conference to the Mayor’s announcement. The city’s website briefly crashed as everyone attempted to find a written copy of the order at the same time. The Portland order makes reference to the same federal list of what is essential and what is not.  

The Portland order goes further than the Governor’s order in two important respects:

1)    All individuals currently living within the City of Portland are ordered to stay at their place of residence. To the extent individuals are using shared or outdoor spaces, they must at all times as reasonably possible maintain social distancing of at least six (6) feet from any other person with whom they don’t share a household when they are outside their residence. All persons may leave their residences only to access COVID-19 Essential Services or as otherwise expressly provided herein. Individuals experiencing homelessness are exempt from this requirement, but are strongly urged to obtain shelter, and be at least six (6) feet from any other person, to the maximum extent practicable and possible.

2)    All businesses with a facility in the City of Portland that do not provide COVID-19 Essential Services, shall close their physical workspaces and facilities (“brick-and-mortar premises”) to workers, customers, and the public as of the effective date and time of this proclamation. Businesses that do not provide COVID-19 Essential Services are encouraged to continue operations through remote means that do not require workers, customers, or the public to enter or appear at the brick-and-mortar premises closed pursuant to this proclamation. With that said, such non-essential businesses may continue to access their brick-and-mortar premises in order to conduct essential business functions including, but not limited to, processing mail, depositing checks, completing payroll and paying vendors; as long as social distancing requirements are being implemented, and the fewest number of employees possible are on premises when conducting such services.

With regard to food and beverage businesses, the rules in the state order and Portland order are the same: “All restaurants and bars shall close their dine-in facilities. Such businesses that offer carry-out, delivery, and drive-through food and beverage service may continue to do so but eating and drinking inside restaurants and bars is still temporarily prohibited.”

Brunswick and Bangor have also issued orders more restrictive than the Governor’s order. I haven’t studied those orders in detail. If you have questions about the Portland order or the Governor’s order, shoot them my way at and I’ll try to get clarity for you.

Nuts and Bolts Advice on Unemployment Claims

I was able to join a call yesterday with the Maine Commissioner of Labor Laura Fortman. Below are some of the key points from the call:

·      Don’t call to ask if you should apply for unemployment. Just apply.

·      Applicants are still getting some messages saying that a waiting period or work search requirement applies. These messages are because the system hasn’t been reprogrammed entirely yet. Waiting periods and work search requirements do not apply right now. You are still required to file a weekly claim stating that you are still out of work. This can be done on-line. If that weekly claim form asks for job search information, you can write “COVID-19” in that part of the form.

·      Applicants are also getting locked out of the system after multiple attempts with the wrong password. To avoid getting locked out, click “reset password” rather than trying more than once to log-in with a password you’re unsure about.

·      Due to an unprecedented volume of claims, at the moment it might take two days for the claim to show up on your account. For your records, please print or take a screenshot of the final confirmation page where the screen says the claim has been successfully submitted for your records so that you have proof that the DOL received it.

·      The DOL is staffing up – they have increased claims processing staffing from 14 people to 30 people and have increased phone staffing from 3 people to 10 people, but they know it’s not enough to handle the volume.

·      I was assured that if a delay in customer service results in a delay in the claim being processed, benefits will still be paid (eventually) for all of the weeks the employee was eligible for benefits.

·      Ways to get help that may work better than calling:

o   Look at the Frequently Asked Questions page, which is being updated and expanded daily. It is much more thorough today than the version that I posted in this space last week.

o   For general help applying for benefits (including if folks don’t have access to a computer to file with), contact the Career Centers. The Career Centers also have a live chat function that may work well.

o   Submit an online request for help to the Department of Labor. It will take several days for you to get a response, but your question will be put in the queue. Don’t submit your request more than once, as that will just slow things down.

o   Check back in your online account after 24 hours have passed. The system updates claims statuses overnight each night.

I have received a lot of questions from business owners wondering what they can do to help expedite their employees’ claims. The DOL recommends that employers establish an online account and then go to the “correspondence” tab to view all of the notices of claim for their employees, rather than waiting for these notices to arrive in the mail. Employers can also remind employees of the importance of filing their weekly claim form.

More Details on Paid Child Care Leave and Paid Sick Leave for the Self-Employed

Digging further into the new federal law on paid child care leave and paid sick leave that I referenced yesterday, there are some helpful provisions in it for folks who are self-employed.

The law provides for a refundable credit against a self-employed individual's federal income tax liability in the following amounts:

For the expanded FMLA leave to care for a child who is home because school or daycare is closed or unavailable: Self-employed individuals can claim the tax credit against their federal income tax in the amount of the lesser of $200 per day or ⅔ of the individual’s average daily income for 50 days (10 work weeks).

For paid sick leave: Self-employed individuals can claim the tax credit against their federal income tax as follows:

·      For self-isolation, quarantine, or seeking medical diagnosis: the lesser of the individual’s average daily income and $511 per day for 10 days; and

·      For caregiving purposes: the lesser of 2/3 of the individual's average daily income and $200 per day for 10 days.

There are the same amounts individuals who are employees of an employer are eligible to be paid and which those employers are eligible for a refundable tax credit. We expect further guidance from the Treasury Department next week on the mechanics and timing of taking this refundable tax credit.

I also had questions after yesterday’s update about the effective date of the federal paid leave provisions. The statute is effective on April 2 and contains no provision I can see to make it retroactive. So unless there is some further guidance on this, I would expect it to apply only to leave that is taken on or after April 2.


The sun is shining again this morning, and we’re in for a run of spring-like days this week, so that helps. I’ll be back tomorrow with more information on how $2 trillion dollars is going to be deployed by the federal government. Stay tuned.

In the meantime, please contact me at if you have questions. (Seriously, please contact me there rather than on Facebook or my other emails!)

Wash your hands, and stay away from each other. But be good to each other from a distance.

With love,