We had a great turnout for last week’s webinar with Intyllus Advisors discussing Employment Provisions of the FFCRA and the CARES Act.

To view the recorded webinar, please click here.

To download the slides, please click here.

Please tune in to our next webinar this Thursday, April 30, where we will discuss Making the Most of SBA Loans.  To register, please click here.

Ivan Golden and Ann Knuth, attorneys at Hahn Loeser & Parks LLP, along with Suhas Shah, partner with Intyllus Advisors join together for this three-part complimentary webinar series to review important guidance for companies impacted by the COVID-19 pandemic. To join, please register for EACH webinar individually via the links provided below.

Part 1: Employment Provisions of FFCRA and the CARES Act

Thursday, April 23, 1 p.m. ET
In this session, we will address:
  • Emergency paid sick leave and expanded paid family and medical leave;
  • Tips for employers for dealing with COVID-19, including how to handle employees who are sick, have been exposed to the virus, or do not want to come to work;
  • Employee retention credit; and
  • Payroll tax deferral

REGISTER FOR 4/23 WEBINAR HERE

Part 2: Making the Most of SBA Loans

Thursday, April 30, 1 p.m. ET
In this session, we will discuss:
  • Allowable uses of PPP loan proceeds;
  • PPP loan forgiveness provisions, including what uses are, and are not, eligible for loan forgiveness; and
  • What happens to PPP loan proceeds that are not forgiven?

REGISTER FOR 4/30 WEBINAR HERE

Part 3: A Review of the Main Street Lending Program

Thursday, May 7, 1 p.m. ET
In this third session, we will provide an overview of this Program, including:
  • Loan terms;
  • Who is eligible; and
  • How to apply

REGISTER FOR 5/7 WEBINAR HERE

With many construction projects being deemed essential and with employees returning to construction sites, it is important to understand OSHA reporting requirements for cases of COVID-19. OSHA has issued interim guidance to its CSHOs regarding recording requirements for cases of COVID-19 as an occupational illness. To trigger these requirements, the case must meet three criteria: (1) the case is a confirmed case as defined by the CDC; (2) the case is work related; and (3) the case involves one or more of the general recording criteria set forth in 29 CFR §1904.7.

A confirmed case is one where the employee has at least one respiratory specimen that tested positive for SARS-CoV-2, the virus that causes COVID-19. CDC guidance on this topic can be found here.

Determining work-relatedness is, practically speaking, very difficult. The criteria for a case being work related are set forth in 29 CFR §1904.5. An illness is considered to be work related if “an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness.” 29 CFR §1904.5(a). OSHA has provided additional guidance on determining “work relatedness” setting forth two circumstances that support a determinate that the illness is work related:

  1. There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation; and
  2. The evidence was reasonably available to the employer. For purposes of this memorandum, examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.

We have recommended that clients maintain records from their own employees, and from subcontractors, confirming that there is daily testing for symptoms of COVID-19. The easiest test will be taking temperatures daily for all employees. Maintaining these records will help address these two circumstances as it constitutes “objective evidence” of whether an individual is exhibiting symptoms of COVID-19.

The recording criteria are set forth in 29 CFR § 1904.7. An employer must consider an injury or illness to meet the general recording criteria, and therefore to be recordable, if it results in any of the following: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness. An employer must also consider a case to meet the general recording criteria if it involves a significant injury or illness diagnosed by a physician or other licensed health care professional, even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness.

OSHA has confirmed that an employer’s focus should remain on enforcement of good hygiene protocols and mitigation efforts to prevent the spread of COVID-19 rather than on attempting to determine work-relatedness. The full memorandum issued to CSHO’s can be found here.

Hahn Loeser’s Construction Group is available to assist with this, and with any other OSHA issues that may arise on your projects.  If you have questions, please reach out to your primary contact at Hahn Loeser, or contact one of the attorneys listed below for more information.

For a PDF of this post, please click here.

Please visit our website for further guidance from our COVID-19 Response Team and to read our related Alerts.  To sign up to receive future COVID-19-related Alerts directly, please subscribe here.

On April 1, Steve Seasly, Kara Williams and Ivan Golden shared insight with members of the Construction Employers’ Association in a webinar that highlighted important guidance related to the Families First Coronavirus Response Act and the Paycheck Protection Program.  You can watch a recording of this webinar below.

COVID-19 Employer Considerations Webinar Link

 

On April 1, 2020, ODOT provided direction on enforcement of COVID-19 social distancing on ODOT projects.  The April 1, 2020 memo is linked HEREODOT project staff are directed to observe contractors’ work to confirm both six foot social distancing and look for visibly sick employees.  The memo directs ODOT project staff to notify the contractor of violations.  Most critical is ODOT acknowledges the need to resequence or temporarily suspend some work to comply with the order.  Contractors forced by the Stay at Home Order to resequence or suspend work should notify ODOT in strict accordance with CMS contract requirements, otherwise contractors risk waiver of their right to an increase in the contract time or price. 

New Plan Note Requires Inclusion of Some COVID-19 Delays

ODOT continues to sell additional work which may now include Proposal Note 095 – Potential Impacts and Delays Due to COVID-19, linked HERE.  Under PN 095, contractors are to include impacts they foresee due to the stay at home order in their bids.  PN 095 does permit a 30 day project extension under CMS 108.02.F, and if that is inadequate, the contractor can seek a termination for convenience.  Those bidding ODOT work now should carefully consider the COVID-19 virus in their estimates and bids. 

 

 

The Family and Medical Leave Expansion Act (“FMLA+”) and the Emergency Paid Sick Leave Expansion Act (“EPSLEA”), set to take effect on April 1st, authorize the Department of Labor (“DOL”) to issue regulations that exempt small businesses with fewer than 50 employees when providing leave would jeopardize the viability of the business as a going concern.

Read the full article here. 

By now it is clear that the coronavirus outbreak in the United States is negatively affecting many commercial tenants and landlords. One of the clearest examples is Cheesecake Factory’s recent announcement that it’s planning a “rent strike” for April across its restaurants, as forced closures and social distancing measures sharply reduced its revenue.

Read the full article here. 

The impact of COVID-19 on international travel seems to be changing day-by-day as travel restrictions are announced at the state, federal and international levels. In addition to travel restrictions, the U.S. Department of State (“DOS”) recently announced that it is suspending all routine visa services at U.S. embassies and consulates abroad, in addition to issuing a Level 4 Travel Advisory discouraging all international travel at this time. These restrictions compliment the U.S., Canada and Mexico border closure announcements and the previously restricted travel for foreign nationals from 26 European countries, China and Iran. Given President Trump’s March 29, 2020 directive to continue social distancing until at least April 30, 2020, the dates provided in the various travel advisories, border closures, etc., are likely to be extended. Here is what we know:

DOS HAS ISSUED A LEVEL 4 TRAVEL ADVISORY

This means:

  • all international travel is discouraged; and
  • U.S. citizens and Law Permanent Residents (Green Card holders) who are currently outside of the country must return to the U.S. immediately or be prepared to reside outside of the U.S. indefinitely. Depending on recent travel history, the returning travel may be subjected to mandatory 14-day quarantine.

U.S. – MEXICO BORDER CLOSURE – IN EFFECT UNTIL APRIL 21, 2020 (LIKELY TO BE EXTENDED.)

On March 20, 2020, President Donald Trump announced that the U.S. – Mexico border will close to all non-essential travel for 30 days.

  • Effective March 21, 2020, the U.S. and Mexico will temporarily restrict all non-essential travel across the U.S.-Mexico land border for 30 days.
  • Trade and commerce will continue.
  • Examples of “Essential Travel” include but are not limited to travel for medical purposes, to attend educational institutions, for emergency response/public health purposes and lawful cross-border trade.
  • Non-essential travel will be temporarily suspended for 30 days.

U.S. – CANADA BORDER CLOSURE – IN EFFECT UNTIL APRIL 21, 2020 (LIKELY TO BE EXTENDED.)

  • Effective March 21, 2020, the U.S. and Canada will also temporarily restrict all non-essential travel across the U.S.-Canada land border for 30 days.
  • “Non-essential” travel is travel that is considered tourism or recreational in nature.
  • Canada announced that U.S. citizens and Canadian citizens who cross the land border daily to perform “essential work” or for other urgent or essential reasons will not be impacted by the closure.
  • Commercial trade and commerce such as supply chains, including trucking, are NOT impacted.

FAQ’S

What if an employee needs to travel internationally while the restrictions are in place?

In all circumstances, avoid travel to travel-restricted countries named above at this time unless you are willing to comply with the restrictions in connection with the foreign government’s requirements, and those established by the U.S. government upon your return. Additionally, ensure you meet the exclusions from the travel restrictions listed above.

What documents should the employer advise its traveling employee to carry if travel is required?

Ensure the traveler has all required documents for re-entry to the U.S. (passport, valid visa, etc.). Advise traveling employees to carry clear travel history documentation that demonstrates compliance with the travel restriction upon entry to the U.S., or when traveling from state-to-state.

If possible, employees should carry Employment Verification letters stating the terms of their employment and the essential nature of their employment (and how their employer may continue to operate under the various “essential business” definitions that may vary by state or country. Employees traveling from one state to another, or traveling from home to the work place would be well-advised to carry with them an Employment Verification letter.

What should a traveler expect while traveling?

Travelers should expect possible secondary inspection upon re-entry to the U.S., as well as possible delays for health screenings in other countries, all requiring extra time and likely creating travel delays. Whether traveling domestically or internationally, one should continue to monitor flight availability. Given the nature of this evolving global pandemic and the frequent cancellation in scheduled flights, you should check in with your airline on a daily basis.

Before traveling, the traveler should check for travel restrictions to the country (s)he is visiting as well as travel restrictions in place in any country through which (s)he will transit.

Be mindful that circumstances could change suddenly or dramatically between the date of departure and date of return, so be prepared with contingency plans.

Should an employer restrict travel to all “affected areas” where there have been confirmed cases of COVID-19 infections, as reported by the World Health Organization (WHO)?

Because employees traveling to affected areas or countries may come in contact with people infected with COVID-19 during their stay or even while in transit, employers should, as a precautionary measure, restrict business travel of employees. Indeed, the government has advised against all non-essential travel.

The travel restrictions currently in place may create barriers for employees returning to India. Employees returning to India may be subject to quarantine for 14 days.

What should an employer do if a traveling employee shares that s(he) plans to travel to an affected area?

If the employee’s travel is for work purposes, the employer should either cancel or postpone such travel to any affected area. However, if the travel is for personal reasons, then the employer should strongly recommend the employee not travel.

Despite the employer’s best efforts to discourage travel, if an employee travels anyway and returns, the employer should ask that employee to self-quarantine and not come to work for 14 days, and/or until the employee tests negative for COVID-19 infection. The employer may also require medical documentation certifying the negative test results before allowing the employee to re-enter the workplace. This might be difficult to enforce given the difficult of obtaining a testing kit, and the state’s guidelines for permitting a test.

How should an employer handle employees who have family members who have travelled to affected areas?

The employer should ask the employees to self-report if any of their family members have travelled to any COVID-19-affected areas. Once the employee reports that their family members have travelled abroad or to highly impacted states or regions of the U.S. where COVID-19 infection is substantial, the employer should ask that the employee self-quarantine and not come to work for 14 days, and/or until the employee tests negative for COVID-19 infection. The employer may also require medical documentation certifying the negative test results before allowing the employee to re-enter the workplace. This might be difficult to enforce given the difficult of obtaining a testing kit, and the state’s guidelines for permitting a test.

WHAT DOES THIS MEAN FOR EMPLOYERS?

Impact of International Travel Restrictions

Employers should prepare for the possibility that employees may be unable to return to the United States because of travel or visa restrictions in response to coronavirus. In this circumstance, employers have the option to allow the employee to work remotely, utilize vacation and sick time, suspend employment or terminate employment.

Employers who allow foreign national employees to work remotely while they are abroad should consider the employment laws of the country where the employee will be performing the work. If an employee is performing the work in their country of citizenship, generally this work should not require additional authorization. However, employers should consult with corporate and tax counsel to confirm that this type of arrangement will not create a “tax presence” in the foreign country, thus subjecting the employer to unanticipated consequences in the future. Employees working in a third country would be subject to the employment and immigration laws of that country.

Employers could also encounter a scenario in which a foreign national who has been offered employment in the United States is not able to enter the United States to begin employment due to travel or visa restrictions. Employers have the option to withdraw the offer, allow the employee to work remotely, or hold the offer open for as long as is practicable. All considerations discussed above regarding these options would similarly apply in this situation.

Before traveling abroad, please review the U.S. Department of State’s up-to-date country-specific list of travel advisories.

If you have any questions, please feel free to reach out to us.

On March 28, 2020, the Ohio Facilities Construction Commission (OFCC) Executive Director Cheryl Lymon circulated a letter to contractors and design professionals detailing the obligations of businesses holding OFCC contracts during the recent COVID-19 pandemic. The letter reiterates the importance of employers complying with Ohio Department of Health Director Amy Acton, MD, MPH’s March 22, 2020 Stay at Home Order. However, the most recent OFCC guidance elaborates on the ways in which contractors and design professionals must conduct themselves on job sites in order to comply with protocol for OFCC-administered state construction projects.

What Does This Mean?

In order to remain in compliance with the OFCC’s protocol regarding safety on OFCC state project job sites, the OFCC has prescribed a number of actions that companies must take. While the protocol is ever-changing, the most recent OFCC guidance does list specific actions that companies must follow. These include:

  • Designate a Workplace Coordinator (which can be a current staff member) who will be responsible for COVID-19 issues and their impact at the workplace for each of the company’s OFCC projects.
  • Comply with the Centers for Disease Control (CDC) Interim Guidance for Businesses and Employer to Plan and Respond to Coronavirus-19 (COVID-19), dated 3/21/2020 or most recent version.
  • Comply with the Occupational Safety and Health Administration (OSHA) Guidance for Preparing Workplaces for COVID-19, “Steps All Employers Can Take to Reduce Workers’ Risk of Exposure to SARS-CoV-2,” OSHA 3990-03 2020.
  • Implement a protocol for testing and ensuring that employees are healthy when arriving on the job-site. This protocol includes taking temperatures of employees and asking appropriate questions concerning employee health. A log for all employees entering the job-site must be maintained and provided upon request. Any employee with a temperature of 100.4 degrees Fahrenheit or greater must be sent home and encouraged to contact his/her health provider. A separate protocol is noted below for employees determined or diagnosed as COVID-19 positive.
  • Conduct all project meetings, including Progress Meetings, remotely. If an on-site meeting is mandated due to on-site circumstances, it should be in open-air environments of less than 10 individuals, with appropriate social distancing.
  • Provide hand washing stations for all project sites that do not have running water. Individuals need to follow appropriate CDC protocols for hand washing.
  • Conduct daily cleaning of project trailers and washroom facilities (temporary or permanent).
  • Conduct daily cleaning of tools and equipment.
  • Institute a mandatory glove policy to limit transfer and/or sharing among employees.
  • Stagger start and end times to allow Projects to proceed and allow more space between workers to comply with Social Distancing requirements in the Order.
  • Limit elevator or hoist limits to no more than 3 employees if Social Distancing cannot be maintained with more employees.
  • Institute heightened protection procedures for employees that necessarily must work in closer contact than the Social Distancing requirements. These procedures should include personal protection equipment, including approved masks, gloves, and clothing.
  • Document compliance with the safety protocols.

Contractors and design professionals currently working on an OFCC project should consider taking all of the following steps:

  1. Reviewing company Policies to ensure compliance with:
    • the OFCC guidelines;
    • CDC Interim Guidelines; and
    • OSHA Guidelines.
  2. Providing and documenting training for the Designated Workplace with respect to these guidelines.
  3. Assigning a Workplace Coordinator to implement and document a protocol for testing and ensuring the health of all employees entering the job site. A Workplace Coordinator must coordinate, monitor and document compliance with the OFCC guidelines, including daily logs, checklists, and project photographs.

The failure to take such measures could lead to claims or administrative penalties.

Please do not hesitate to contact us with any questions regarding these new developments.