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  • Ted Uppole

March 30 - Employee COVID fears, layoffs and furloughs, and SBA economic injury loan application

Updated: Apr 3, 2020

Good Morning Everyone,

Last night we found out that the Federal guidance on Social Distancing has been extended till the end of April. Of course, we also know that how that’s implemented at the state level is dependent upon the Governor, not the Feds. Either way, its looking more and more like we are in this for the long haul and we’re going to have to nail down process and procedure on how to operate in our new “normal.”

In my last post, I expounded on the issue of whether or not the association should reach out to the Governor to reduce the construction exclusion to his stay-at-home (SAH) Executive Order. Although we haven’t had a large number of responses, I would say that the reaction has been mixed but with a majority in favor of writing the letter. Please send me an email with your thoughts on the subject as soon as you can so I can pass it along to the Steering Committee.

On to our briefing.

How do I deal with all these people leaving my jobs?

As you may or may not know, the additional unemployment benefit afforded by the CARES act went into effect today (before the government even issued guidance to employers I might add). With the Supplemental Unemployment Benefit Fund in Local 481, this means that as things stand, people can get $1490 per week (in 481) and $990 in our other five locals. Needless to say, we are trying to remove the SUB Fund benefit as it was designed to supplement a $390 benefit, not allow people to make more sitting than working.

This begs the question of how you handle it because, in essence, we now have an additional way to classify someone as non-working. Let’s go through them:

  • Fired for cause – generally speaking this one isn’t the issue in play too often right now, but I do want you to be very careful about these types of terminations as now there will be additional defenses available for those who are claiming to have been terminated by employers seeking to avoid federally mandated benefits. DOCUMENTATION IS YOUR FRIEND NOW MORE THAN EVER.

  • Lay-off – No-fault termination due to lack of work. Allows access to unemployment. In 481 also allows for recall rights. Let me be clear. You do NOT have to grant a lay-off if you have work for someone. In 481, this provision also grants access to SUB fund benefits.

  • Quit – A person chooses to terminate their employment on their own. Does NOT allow access to unemployment.

  • Furlough – You do not issue a termination of employment, but due to a lack of available work, a person is sent home due to lack of work. This grants access to unemployment and under NDERA, the employer will not contest this unemployment. In all areas this also allows access to recall rights.

  • Self-Furlough – Under NDERA, there is a single sentence which states, “The employer shall not contest any unemployment claims filed by employees temporarily furloughed as a result of a restricted or closed jobsite due to the coronavirus or similar disease, or who have refused to be present at the jobsite out of a genuine belief that being present would place them in imminent danger of contracting coronavirus, or who have been quarantined, or advised to self-quarantine, due to possible exposure to coronavirus.

The troublesome phrase here is “genuine belief that being present would place them in imminent danger of contracting coronavirus." Generally speaking, imminent danger would seem to indicate that there has been a person who has tested positive or is seeking treatment for COVID-19 on the job. If there is no imminent danger, there is certainly room to contest unemployment for a person choosing to self-furlough. Additionally, this provision does NOT permit a person to access their SUB fund benefit in Local 481.

In Local 481, the SUB Fund Benefit is only available if they have been laid off OR if they are sick (seeking medical treatment for COVID-19 or caring for someone with COVID-19). This does not extend to providing child care.

To be clear - In Local 481, in this circumstance, a person must choose between the SUB Fund’s Wage Replacement provision and unemployment. The Wage Replacement provision precludes them from accessing unemployment. However, they would still have access to benefits under the FFCRA.

We will be issuing a great deal more guidance on these types of issues in the coming days.

  • We are currently working on putting together a piece on the CARES Act SBA Loans, its application process and how to ensure you qualify for loan forgiveness under the Paycheck Protection provisions.

  • We are also working on a guide on how to address various employment scenarios you might encounter in this environment. Both of these efforts are hampered by a lack of information from the government, but we are gradually getting more data each day.

  • Finally, we are working on a step-by-step process for addressing benefits under the FFCRA: Who gets paid what and when, how you’re reimbursed, and how to report it all under our agreements.

You guys are doing fine and all, but what if I want to hear from a lawyer?

You’re in luck. Tomorrow, NECA National’s legal counsel, Jef Fagan will be hosting a webinar on legal matters surrounding COVID-19 and its legislation. It will be on Tuesday at 2 PM EST.

Ok, enough on the benefits and legality, how can I keep my people safe?

Great question. We have a host of resources available on our front page. These are available to anyone and I highly recommend checking them out. We just added two new tools, a Site Risk Assessment Plan and a template for an Exposure Control Plan. Both are incredibly thorough and represent best-in-class practices for you and your employees. Please check them out.

Update 3:00 p.m.

As that last post generated a lot of discussion from 481 contractors, let me provide some additional clarification.

The layoff memorandum we put together is entirely at the employer’s discretion. You don’t HAVE to grant layoffs. Everywhere else, you certainly don’t have to grant furloughs either. The self layoff provision, while being broader than many would like, is still somewhat specific. Let's take a look again.

"...who have refused to be present at the jobsite out of a genuine belief that being present would place them in imminent danger of contracting coronavirus..."

The phrase “at the jobsite” means that their fear of imminent contraction of the coronavirus is specific to conditions on the specific jobsite they were on. That would seem to mean then that an acceptable response to someone wanting to self-furlough due to such concerns would be to send them to another site with no reports of exposure. If they refuse, then that isn’t a fear based on imminent contraction. It pains me to have to make such an argument, but as long as we are required to perform work on all types of construction, we are going to have to interpret this language narrowly. And yes…I would expect this interpretation to be challenged.

For what it’s worth, as of right now in Local 481, the Hall has had 58 people get layoffs since February. About another 50 have been furloughed by employers. Just over 100 are receiving SUB Fund benefits. I have heard reports of an additional 12 self-furloughing today.

Just a reminder, the SUB fund does not offer payments for furlough. There is a provision for wage replacement if an individual is sick (and getting medical attention) or caring for someone who is sick (and getting medical attention). However obtaining this benefit means they are still employed and therefore, ineligible for unemployment benefits.

For other questions specific to unemployment, we did just post a new Q&A from the state. It has some good information on how to respond to claims and once again offers assurance that your rates based on experience in this time won’t go up.

We have also just added to our open safety resources page, a long-form COVID-19 Exposure Prevention, Preparedness, and Response Plan for Construction from the Construction Industry Safety Coalition (CISC). The purpose of this plan is to outline the steps that every employer and employee can take to reduce the risk of exposure to COVID-19. The plan describes how to prevent worker exposure to coronavirus, protective measures to be taken on the jobsite, personal protective equipment and work practice controls to be used, cleaning and disinfecting procedures, and what to do if a worker becomes sick.

Update 4:15 p.m.

The SBA Disaster Assistance Loans are now live. Folks, I would recommend applying for these loans AS QUICKLY AS POSSIBLE! We don’t know if its first come first serve so please submit your application soon. You will be able to apply to both this program AND the Pay Check Protection Loans provided they cover different expenses. At this time, only the Economic Injury Disaster Loan is live. We expect the Payroll Protection Program Loans to go live soon and we will certainly post a link to them ASAP.

To help guide you through this process, we have just finished up a resource on how to apply with what it covers and how to qualify for the loan forgiveness provisions. Again, I would get started on this ASAP.

There are some additional resources just released by NECA National (which you should have received by email) and the SBA on these loans should you need them.

Good luck and stay safe everyone.

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