Are COVID-19 Liability Waivers Enforceable?

The novel coronavirus, or COVID-19, has fundamentally changed the way Americans do business. Because of the pandemic, business owners now face the dilemma of either trying to keep up with constantly changing orders, rules, and guidelines to keep their doors open, or staying closed and possibly losing their businesses forever.

In this ever-changing world, businesses, especially those providing essential services, need to be proactive to limit the risks associated with the pandemic. This requires businesses to not only protect their employees and customers; it also requires them to protect their bottom line. In addition to complying with all applicable government rules and regulations, many companies are seeking to limit their potential exposure to COVID-19 related claims by seeking liability waivers from their customers.

A liability waiver is a contract between a business and a customer that educates the customer about the risks he or she is undertaking when participating in an activity and seeks to limit the business’s liability for such risks. When customers sign a liability waiver, they acknowledge that they understand the risks associated with the activity and agree to accept them. The customer also typically agrees to waive or limit the right to sue the business for injuries sustained as a result of the activity. Most people have been presented with a liability waiver at some point or another before participating in a potentially risky activity, such as sports, scuba diving, skydiving, or outdoor adventures. However, due to the risks associated with COVID-19, these waivers are now becoming increasingly prevalent for more common and traditionally less risky activities, like dining in a restaurant, shopping in a store, or simply entering business establishments as they begin to reopen.

At this point, it is too soon to tell how much weight these waivers will carry in court. Ultimately, the effectiveness of the waivers may vary from state to state. For example, Virginia and Montana do not allow any liability waivers. New York law provides that a liability waiver is only enforceable so long as it does not violate the public’s interest, it is clear and coherent, and the intention of the parties is unambiguous. (See Gross v. Sweet, New York 1979.) Illinois courts strictly construe liability waivers against the party that drafted them (i.e., the business). (See Harris v. Walker, Illinois 1988, which held “exculpatory clauses are not favored and must be strictly construed against the benefitting party, particularly one who drafted the release.”) And Connecticut courts rarely uphold liability waivers in personal injury claims. (See Hanks v. Powder Ridge Rest. Corp., Connecticut 2005, where a liability waiver was found unenforceable for snow tubers who had no ability or right to control the activity.)

While there may not be a common set of rules for liability waivers among the states, there are some basic legal principles that are almost universally accepted. One is that waivers that limit actions arising from intentional or grossly negligent conduct are unenforceable. (See Mero v. City Segway Tours of Washington DC, D.C. 2013: “Because District of Columbia law prohibits release from liability for grossly negligent, reckless, or intentional acts, the Agreement will not be held to indemnify defendant with respect to such conduct.”) This means parties cannot immunize themselves from claims where they have acted intentionally or with gross negligence. (See Restatement [Second] of Contracts § 195 [1981]: “A term exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy.”) Although states and jurisdictions may define gross negligence and intentional acts differently, the overarching premise is its intended conduct, reckless activity or, at the very least, something more egregious than simply failing to act with ordinary care. Depending on how the laws are interpreted and applied to the facts of a particular situation, there is certainly a possibility that exposing someone to a known risk of contracting coronavirus could be considered intentional or grossly negligent, thereby negating the effect of any liability waiver that may have been signed.

Additionally, courts generally will not enforce liability waivers that are considered to be contrary to public policy. In other words, most jurisdictions will not enforce a waiver that involves a matter of great interest to the public. Given the contagiousness of the disease and its potentially deadly impact, it is certainly possible that courts will find that COVID-19 claim waivers are against the public’s interest. However, a counterargument could also be made that these waivers are essential and mandated by public policy because without them, coronavirus-related personal injury or wrongful death claims could potentially force businesses into bankruptcy.

The federal government is currently considering legislation that will create a safe harbor for businesses and nonprofit organizations that follow federal and state guidelines for COVID-19 to protect them against lawsuits. Perhaps they should also consider a COVID-19 compensation fund, similar to the one created by Congress following the 9/11 attacks, to compensate victims and insulate businesses from liability. It is unknown whether any such legislation will pass and even if it does, what protections it will provide — particularly if it requires compliance with the ever-changing and often confusing federal and state guidelines to be effective. Unless or until there is clear legislation and legal precedent governing COVID-19 liability for businesses, business owners may want to seriously consider obtaining liability waivers from their customers to create an additional legal hurdle to bringing a claim or, at the very least, to try and mitigate their liability by providing proof that the customers signing the waivers acknowledged the risk associated with the activities they voluntarily agreed to participate in.

About the authors: Brian Oblow is a Partner at Cotney Construction Law who represents clients in all aspects of construction law and arbitration. Cotney Construction Law is an advocate for the roofing industry and serves as General Counsel for NRCA, FRSA, RT3, NWIR, TARC, WSRCA and several other roofing associations. For more information, visit www.cotneycl.com.

Author’s note: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

New LEED Guidance from USGBC Helps Expand Resilience Efforts in Response to COVID-19

The U.S. Green Building Council (USGBC) has released two new Safety First pilot credits as part of the LEED for Cities and Communities rating system. The new credits are designed to help local governments and development authorities better prepare for and respond to future pandemic events. The guidance includes strategies for planning, risk assessment and training, as well as evaluating equity implications and impacts to vulnerable communities. Between the increasing risks associated with climate change and the current public health crisis, the new LEED credits provide additional ways to integrate public health and social equity into sustainability and resilience efforts.

The Safety First pilot credits are part of USGBC’s economic recovery strategy introduced in May that centers around a reimagined vision that healthy people in healthy places equals a healthy economy. The new LEED credits, called Safety First: Pandemic Planning and Safety First: Social Equity in Pandemic Planning, are available to LEED for Cities and Communities projects.

“The key to a better future lies in our ability to create places that support human and environmental health,” said Mahesh Ramanujam, president and CEO of USGBC. “LEED-certified cities and communities are already moving in that direction and they understand that effective planning is critical to tracking performance and making improvements. The current pandemic is revealing new lessons every day and LEED’s Safety First pilot credits provide a roadmap for taking action and bringing a more integrated and inclusive approach to rebuilding a healthier economy.”

The Safety First: Pandemic Planning credit is intended to help cities and communities prepare for, control and mitigate the spread of disease during a pandemic that poses a high risk to people. The plan must include a task force representing diverse backgrounds that is responsible for evaluating possible impacts and advising decision makers on short- and long-term challenges. It must also identify risks and vulnerabilities to health by outlining historical, geographical, epidemiological and other factors, and assess preparedness. The plan evaluates healthcare system readiness, domestic response, incident management and other existing policies and procedures. Education and training for community partners and other stakeholders must also be included.

The Safety First: Social Equity in Pandemic Planning credit systematically considers equity implications across all phases of the pandemic preparedness, planning and response process. The local government or development authority must have a local equity officer in place and responsible for building equity into the structure of the emergency command and response system. The plan must also convene a Pandemic Community Advisory Group to gather input on an on-going basis and the group must reflect the demographic and socio-economic diversity of the city or community. Public communications, outreach and educational campaigns must also be included in order to share relevant information about the pandemic, public health and health care facilities available. Project teams are also encouraged to demonstrate how policy, procedures, infrastructure and facilities impact low income, vulnerable or at-risk groups.

In the U.S., the coronavirus is expected to reduce GDP by nearly $8 trillion through 2030 putting tremendous strain on local economies, businesses and people. Those losses will be even more acute when coupled with mounting costs associated with climate events. Last year, just 14 weather and climate disasters cost the U.S. more than $45 billion. LEED has long supported resilience planning and the new Safety First pilot credits expand those efforts to ensure local governments and development authorities are also planning for and considering public health threats and social equity challenges. As projects pursue the new credits, USGBC will collect feedback and refine the guidance.

These and other new LEED credits will be discussed during USGBC’s Healthy Economy Forum August 4-5. The forum will address a wide range of building sectors and examine how green building plays a role in ensuring people feel safe and healthy returning to buildings and spaces. The presentations and discussions will identify changes that may be needed in the short term and those that may be permanent while helping to rebuild the economy and replace unprecedented job losses. Registration for the virtual forum is currently open.

For more than 20 years, USGBC has defined global best practices for designing, constructing and operating sustainable, resilient and healthy buildings, cities and communities through LEED. LEED, or Leadership in Energy and Environmental Design, is the world’s most widely used green building rating system and promotes strategies that reduce environmental harm, enhance human health and support economic development. Third party verification systems like LEED encourage transparency and confirm that a project has met the highest sustainability standards. Nearly 200 cities and communities, and over 103,000 buildings and spaces are currently participating across nearly 180 countries and territories.

For more information, visit usgbc.org 

Construction Contracts and Coronavirus Complications

As a result of the novel coronavirus (COVID-19), many construction projects around the United States have been, and are being, significantly delayed or curtailed. In many instances, the delays have arisen from supply chain disruptions, state or local government stay-at-home orders, new safety protocols, and workforce disruptions on every level of the construction project — design, field construction, manufacturing, and inspection.

One thing certain to change in the post-COVID-19 world will be protection clauses in construction contracts. Boilerplate legal terms typically couched in fine print, such as “force majeure” and “frustration,” will be closely reviewed by contractors, owners, and their attorneys in the future.

Depending on the circumstances and the terms of the construction contract, the effects of COVID-19 may allow a party to invoke different rights to relief and compensation, or otherwise excuse delays or non-performance. Whether a party to a construction contract will be relieved, compensated, or excused from performance will depend on, among other factors, the language of the force majeure clause, the facts at issue, and the law governing the contract.

Construction businesses should consider the following with regard to current and future contracts:

  • Does the COVID-19 disruption constitute a force majeure event under the contract?
  • Is epidemic, pandemic, or illness specifically identified in the force majeure clause?
  • If not, does COVID-19 fall under some other event often referenced in force majeure clauses, such as an “act of God,” a “natural disaster,” or something beyond the contractors’ control?
  • Does the force majeure clause entitle parties to extensions, termination, or some other form of relief or modification?
  • Does the law that controls the contract — federal, state, or international — reinforce or limit how the force majeure clause is applied?
  • Are there alternate avenues for relief outside of the force majeure clause, such as commercial impracticability or impossibility?
  • How should parties impacted by COVID-19 reserve their rights or document their position?

Force Majeure Clauses: Events and Interpretation

Force majeure clauses set forth certain conditions under which a party is permitted to extend, suspend, or terminate a contract as a result of unexpected and unavoidable events. Under U.S. common and civil law, force majeure protection generally extends to natural and unavoidable catastrophes that impact the parties’ ability to perform their contractual obligations and allocates the risk in such events.

So, what constitutes a force majeure event? Generally, a force majeure event exists where said event is unforeseeable and outside of the contractor’s control. In addition to the specific facts at issue, determining whether a force majeure clause offers relief for such an event will likely depend on three factors: (1) whether the language in the force majeure clause specifically references the event as beyond the parties’ control; (2) whether the force majeure event was unforeseeable; and (3) whether the force majeure event caused the party’s non-performance.

In analyzing the contract language, look to see if the force majeure clause specifically references events like “epidemic,” “pandemic,” or “outbreak of disease.” If so, then COVID-19 is almost certainly covered by that cause. Courts will generally construe the precise language of the force majeure clause to exclude events that are not specifically identified. To that end, if the force majeure clause limits covered events to those involving nature, such as “severe floods,” “hurricanes,” or “earthquakes,” the court may be less likely to find that the parties intended to cover the COVID-19 pandemic.

Analysis of specific language used in construction contracts is critical. Standard form contracts, such as AIA and ConsensusDocs, do not have specific force majeure clauses but do, however, contain excusable delay clauses that could likely be applied to COVID-19 delays. For example, AIA forms generally contain language concerning excusable delays, termination, and suspension of work while ConsensusDocs expressly provide relief for “epidemics” as well as termination and suspension of work.

In some instances, the force majeure clause may contain both specific and broad forms of events and include a catchall provision intended to cover potential scenarios other than specific events. Some courts have deferred to common law principles such as unforeseeability to determine whether the event in question is covered by the contract. There, the determination would ultimately depend on what the parties contemplated and if the parties voluntarily assumed the risk of COVID-19, or, more likely, a general pandemic.

Finally, the force majeure clause may reference “acts of God” as an excusable delay or grounds for suspension or termination of the contract. Whether COVID-19 falls under the definition of “acts of God” is dependent on the state where the contract was entered into or where the contract will be performed. Where a state defines an “act of God” to include wars, riots, floods, epidemics, and natural disasters, COVID-19 would likely be covered. However, where a state more narrowly defines “acts of God” as something caused by nature, COVID-19 may not be covered and the court will likely defer to what the parties contemplated with regard to risk allocation.

Other Force Majeure Considerations

A construction business seeking to invoke a force majeure clause must follow the contractual requirements for doing so. A party should pay particular attention to the form and substance of any required notice as well as time limits to provide such notice as required by the contract. Many states demand strict adherence and compliance with the notice requirements, and failure to adhere to even one aspect could render a claim or request for extension void or result in a waiver of entitlements to relief. Parties should keep in mind that a force majeure event that is continuing in nature, or otherwise evolving, such as COVID-19, the contract may require regular updates and reporting of extra costs in order to obtain relief.

COVID-19 will likely not be interpreted as an event that completely relieves a party from its contractual obligations. As such, the general principal of construction contracts that all parties to the contract must mitigate and minimize the impact of adverse events, will apply. Depending on the circumstances and the terms of the contract, the duty to mitigate could include incurring extra costs as the affected party or serve as a condition to relief.

Generally, a force majeure event will only temporarily excuse performance of those obligations impacted by the event, meaning both the affected party and unaffected party must continue to perform contractual obligation not impacted by the event. Upon the occurrence of a force majeure event, an affected party may, however, claim extension of time for performance based on the impact of the event or as long as the event prevents performance, provided that the contract permits such extension. In drastic situations, the contract may also permit termination of the contract should the event continue for a certain extended period of time. Such clauses may require that all or substantially all of a party’s obligations be affected for a specific period of time before termination is permitted. In these situations, parties generally agree to share the costs of the delay.

Planning for the Future

Contractors entering into construction contracts in the future should take necessary steps to minimize the likelihood of disputes, claims, and litigation resulting from the occurrence of force majeure events. When seeking to limit exposure, contractors must be specific and clear in their contract language when defining the scope and effect of a force majeure clause to protect themselves from unexpected liabilities. Moving forward, parties to a construction contract should address future concerns by drafting more precise force majeure definitions, develop flexibility in supply chains to reduce risk of disruption, maintain appropriate records of cost increases, and consider the inclusion of a well-drafted termination clause.

About the author: Keith A. Boyette is an attorney with Anderson Jones, PLLC in Raleigh, North Carolina, a law firm with attorneys licensed in North Carolina, South Carolina, and Georgia. For more information or questions about this article, please email him at kboyette@andersonandjones.com.

Author’s note: This article is intended only for informational purposes and should not be construed as legal advice.

The Right Protocols to Protect Your Roofing Teams from COVID-19

Surgical masks and other face coverings can prevent others around you from becoming exposed to any respiratory droplets you may exhale.

In the roofing industry, proper safety protocols are of paramount importance when it comes to protecting our most valuable assets: our people and our profits. And though many of us have long had training programs and procedures in place, it is crucial that we continue to adapt them in the wake of the coronavirus pandemic.

Below are best practices that can help you mitigate the risks of COVID-19 and ensure the protection of your employees and customers. Though we have a team of safety coordinators at our company, you do not necessarily need a dedicated safety department to implement the prevention protocols outlined in this article. Additionally, some tools — such as online training courses — are available at no cost. Read on to find out how to best keep your roofing workers safe amid this ever-evolving situation.

Expand Safety Education

As mentioned above, various remote training programs have already been developed in response to the pandemic, with some of them provided free of charge. One such program is the COVID-19 Safety Guidelines for Home Inspectors and Contractors Course. Offered by the International Association of Certified Home Inspectors, this online course is designed to educate contractors and other construction industry professionals on the best practices and safety guidelines regarding COVID-19 protection. We chose to enroll our 19 authorized Occupational Safety and Health Administration (OSHA) Outreach Trainers on staff in the course, which they have all now completed.

Our OSHA Outreach Trainers play a pivotal role in our safety training, which has long been a priority for this company. They have completed the Trainer Course in OSHA Standards for Construction and other necessary requirements as mandated by the OSHA Training Institution (OTI) Education Centers. This certification enables them to teach both the 10-hour and 30-hour OSHA Construction Safety and Health training programs, which are offered to our frontline employees and supervisors to educate them about jobsite hazards and risk reduction. Since the roofing industry is constantly monitored by the federal government through OSHA, we work closely with Fed OSHA and, in California, the California Division of Occupational Safety and Health (CAL/OSHA) inspectors who are an integral part of our safety culture and are proud of the fact that we have earned recognitions of our safety records.

Neck gaiters are made from a closed tube of fabric that is worn around the neck and can be pulled up over the nose.

To ensure that we are able to continue to provide OHSA training to our employees while following the social distancing practices recommended by the Centers for Disease Control and Prevention (CDC), we began offering the 10-hour and 30-hour training programs via Zoom video conferencing in June. This digital format eliminates any coronavirus transmission risk since attendees will not be gathered in the same space, while the live video aspect enables them to interact with their instructors in much the same way as an in-person course. Employees can access the training courses via phone, computer or tablet. Tailored to the requirements of the OSHA programs, the training includes a specific module on COVID-19 and infectious diseases.

We have also incorporated COVID-19 into our regular list of tailgate safety topics. We distributed our coronavirus tailgate pamphlet for two consecutive weeks in March and have sent it to our crews the first week of every month since. The pamphlets contain information on how to prevent coronavirus exposure, how to detect COVID-19, and the proper protocol to follow if you think you have been exposed to the virus or infected with it. One important point to remember when communicating with employees via written materials is that they may not all have the same level of reading comprehension, due to language barriers or other factors. To that end, our coronavirus tailgate pamphlets are available in both English and Spanish and feature explanatory images to accompany the text.

As for the tailgate talks, which usually involve a crew of four individuals or less, they now take place with the proper social distancing and face coverings worn. To further reinforce the coronavirus safety information shared in the tailgate talks, we also posted the tailgate pamphlet on an informational board in the break room, along with our company’s coronavirus preparedness plan and a COVID-19 infographic explaining how to break the chain of infection.

Safety training is required not only for our frontline workers, but also for our division and operations managers, and general superintendents. To that end, we have a team of 24 employees who serve as dedicated, full-time safety coordinators in place. They oversee safety-related operations and lead monthly training seminars. Our corporate policy is to provide whatever funding it takes to fulfill our motto that “at the end of the day we will send every employee home safe.”

Review Federal Recommendations and Local Regulations

As a national roofing and solar installer, we have looked to guidance from federal agencies when creating our own safety procedures specific to COVID-19, though it is crucial that all companies also monitor the locally mandated protocols in every region where they work.

The CDC offers comprehensive recommendations regarding proper hand hygiene as an important protocol designed to protect employees from COVID-19. According to the CDC, “with appropriate hand hygiene, you do not need gloves to protect you from COVID-19. When possible, wash your hands regularly with soap and water for at least 20 seconds or use an alcohol-based hand sanitizer containing at least 60 percent alcohol.” The CDC further outlines the key times to clean hands, which include the following: before and after work shifts and breaks; after touching tools, equipment or other objects handled by coworkers; before putting on and after taking off work gloves; after putting on, touching or removing face coverings; before putting on or taking off safety glasses, goggles or other eye protection; after blowing your nose, coughing, or sneezing; after using the restroom; before eating and before and after preparing food.

To make it easier for our employees to comply with hand hygiene requirements, we have distributed hand sanitizer to them. Additionally, we have asked the general contractors on each site to provide handwashing stations for them. We have also been mindful of how we now approach heat exhaustion prevention. Instead of getting water from a shared water source like a five-gallon jug, employees are now supplied with individual water bottles.

Social distancing is another recommendation of the CDC (and Fed OSHA) that should be practiced at all times to reduce the risk of COVID-19 exposure, starting with when your crews leave for their worksites. At our company, we no longer allow employees to carpool together in a company truck. Instead, they are required to drive to the site in separate vehicles. Once at the site, crew members must remain a minimum distance of six feet apart from each other, as advised by the CDC. Social distancing measures are further implemented by having employees take breaks at staggered intervals to prevent groups from gathering in the same space. 

Coordinate Safety Measures on the Jobsite

It cannot be emphasized enough how important it is to communicate with employees, builders, general contractors and all the other subcontractors on a project to ensure that coronavirus prevention is a coordinated effort. To that end, any information relevant to COVID-19 protocols and precautions should be shared with all parties.

Before we dispatch our teams to any site in Northern California’s Bay Area, for instance, we do a preliminary check to make sure all crewmembers are symptom-free. We then send the names of the cleared employees to the worksite, where a COVID-19 inspector is posted at the gate, courtesy of the general contractor. Every individual must undergo a temperature check before entering the site, which aligns with the CAL/OSHA guidance. According to the agency’s recommendations pertaining specifically to COVID-19 infection prevention in the construction industry, “employers may choose to prohibit employees with a high temperature (e.g., above 100.4 degrees F) from entering the worksite.” In addition to the temperature check conducted at the Bay Area sites, employees must also fill out a questionnaire asking if they have traveled, if they have been in contact with any confirmed COVID-19 patients and lastly, if they are exhibiting any symptoms. If it is discovered that an individual known to have COVID-19 has been on a work site, it will be communicated to the entire network — builders, general contractors, subcontractors — so that all are aware of the situation and can protect their teams accordingly.

Invest in Effective Face Coverings

One essential way of protecting your teams is to have them wear face coverings. By covering your face, you prevent others around you from becoming exposed to any respiratory droplets you may exhale, which can spread COVID-19 to others if you are infected — even if you are asymptomatic. Though face coverings are an effective tool when it comes to COVID-19 prevention, the subject has been a source of some confusion, as noted by the National Roofing Contractors Association. “When roofers are exposed to hazardous gases, vapors, fumes, dusts and mists, OSHA’s respiratory requirements are triggered,” according to the NRCA. “However, these scenarios aside, roofing workers fall into OSHA’s low to medium risk category of occupations for COVID-19 exposure — meaning required use of N-95 respirators is likely unwarranted. Shortages of N-95 respirators (and surgical masks) resulting from the pandemic have caused the Centers for Disease Control and Prevention to recommend wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain—especially in areas of significant community-based transmission.”

However, surgical masks and similar face coverings are rendered ineffective by facial hair in most cases. Neck gaiters are an ideal solution for your crews, since unlike a mask, each one is made from a closed tube of fabric that is worn around the neck and can be pulled up over the nose. The price per piece can range anywhere from $3 to $14, but the investment is well worth the protection it provides.

We have given two neck gaiters to each of our employees, so that there is always a spare to wear while the other one is being washed after each use. They are mandated to wear them at all times during the workday except when eating lunch. Made from polyester microfiber and manufactured by Hoo-rag, these neck gaiters wick away moisture and can be dipped in water for a cooling effect, thus offering additional protection against heat illness. Looking ahead, we are currently investigating options for a face covering that adds a third layer of protection as well: silica filtration.

Implement Stay-Home Policies to Limit the Spread

Even when all preventative measures are put in place, there is still a risk that asymptomatic patients may go undetected and unknowingly spread the virus to others at the worksite. One way to decrease that risk is to require that any employees who have been in close contact with a confirmed COVID-19 patient stay home from work.

We are following CDC recommendations when it comes to protocol concerning confirmed exposure to the coronavirus, so any employee who may have been put at risk is not permitted to return to work for two weeks. “It is important to remember that anyone who has close contact with someone with COVID-19 should stay home for 14 days after exposure based on the time it takes to develop illness,” according to the CDC.

And if any one of our employees starts to feel sick, whether there has been known COVID-19 exposure or not, that person is also required to call out from work. Our number one rule in response to the pandemic is to stay home if you feel ill. Regarding a safe return to the jobsite, the CDC recommends that “sick employees diagnosed with COVID-19 shouldn’t return to work until the criteria to discontinue home isolation are met, in consultation with healthcare providers and state and local health departments.”

As we in the roofing industry continue to navigate this challenging situation, it is vital that we stay vigilant. The number of COVID-19 cases in the United States had climbed past 1.9 million as of press time, according to the CDC, with 37 jurisdictions reporting more than 10,000 cases. And total deaths from the disease had eclipsed 112,000. By closely monitoring conditions and modifying our safety measures as warranted, we can beat the statistics and keep our workers and customers safe.

About the author: Travis Post is the National Director of Safety at Petersen-Dean, Inc. Founded in 1984 by Jim Petersen, Petersen-Dean, Inc. is the largest, full-service, privately-held roofing and solar company in the United States. Specializing in new residential and commercial construction, the company works with some of the nation’s largest builders and developers. For more information, visit www.petersendean.com.

Roofing Industry Unites to Form ‘Back to Work’ Coalition

Since the COVID-19 pandemic began, the buzzwords we keep hearing seem to be “unprecedented” and “uncertain.” However, some things are still certain even during the current calamity: every building needs a strong, reliable roof, and the work that the roofing industry does is essential.

These facts are the essence of the Back to Work on America’s Roofs coalition, which formed in March in response to the pandemic’s impact on the roofing industry and is comprised of the Asphalt Roofing Manufacturers Association (ARMA), Chemical Fabrics & Film Association (CFFA), EPDM Roofing Association (ERA), International Institute of Building Enclosure Consultants (IIBEC), Metal Construction Association (MCA), National Roofing Contractors Association (NRCA), National Women in Roofing (NWiR), Polyisocyanurate Insulation Manufacturers Association (PIMA), Roof Coatings Manufacturers Association (RCMA), Single Ply Roofing Industry (SPRI), Slate Roofing Contractors Association (SRCA), Spray Polyurethane Foam Alliance (SPFA) and the Tile Roofing Industry Alliance (TRI).

Most construction was brought to a halt by state orders enacted early in the pandemic that closed or restricted all non-essential businesses. Recognizing the long-term harm this would cause, these 13 associations came together to advocate that the roofing industry be recognized for its essential role in ensuring home and business safety. The coalition sent letters to the White House, Congressional leaders and the National Governors Association that detailed why the roofing industry was crucial during this public health crisis and asked that any updates to state orders allow roofing work to resume.

As states began allowing construction to resume, our priorities shifted to focus on recovery. The roofing industry was already struggling with a backlog of work due to the ongoing labor shortage, which now has been exacerbated by the pandemic. As the unemployment rate hovers in the double digits, the Back to Work on America’s Roofs coalition is promoting four key policies to create jobs, support homeowner investments and encourage business owners to invest in capital improvement projects.

1. Recognize the importance of roofs for protecting homes and businesses.

Physical infrastructure investments made by Congress as part of COVID-19 response and recovery should reflect the protections that roofs offer to new and existing buildings.

2. Address skills gaps and provide opportunities to expand hiring.

The federal government should support efforts to expand career and technical education and address skills gaps in the roofing industry. Congress should provide incentives to businesses that increase their workforce above where it was before the pandemic by hiring unemployed individuals.

3. Provide short-term relief in order to enable long-term success.

Provide additional funding for programs created under the CARES Act, which have been a lifeline for small businesses in many industries, including roofing. Enable entrepreneurs to serve as the economic engine of the recovery by improving access to critical programs.

4. Adopt tax policies that incentivize improvements to existing homes and buildings.

Expand small business tax credits to allow for immediate expensing of capital improvement projects and accelerated depreciation for resilient, energy-efficient roof replacements. Provide targeted tax relief to homeowners to make home improvement projects more affordable, similar to what was successfully implemented after the 2008 financial crisis.

To advance these policies, the coalition has distributed a press release to publications in the broader building and construction industries and developed a media kit for all roofing industry professionals to participate in this advocacy. We encourage you to download the media kit and get involved in our outreach efforts by utilizing these resources, including social media collateral, the coalition’s position paper, a copy of the press release and an infographic that provides a visual overview of our policies.

A common rallying cry has emerged since the pandemic began: we are “all in this together.” The coalition is the embodiment of this statement. We are working together to navigate these unprecedented, uncertain times and overcome the challenges that lie ahead, starting by helping the individuals employed in our industry — more than 1.1 million Americans — get back to work on America’s roofs.

The coalition’s advocacy efforts are only part of the work that is currently being done. Keep reading to learn how these associations are supporting their members during the COVID-19 pandemic.

Asphalt Roofing Manufacturers Association (ARMA)

When states and local jurisdictions started issuing “stay at home” orders and other mandates in response to COVID-19, ARMA began providing members with regular comprehensive updates on local, state and federal regulations and initiatives regarding roofing as an essential industry, sometimes multiple times in a single day. ARMA’s Spring Committee Meetings shifted from an in-person event to a virtual format, ensuring that members were able to participate in key meetings from the comfort and safety of their homes.

Reed Hitchcock

ARMA also held two town hall meetings for members to share practices for keeping asphalt roofing plant employees healthy and safe during the pandemic. Members discussed their experiences on a variety of topics, including increasing personal and professional sanitizing, ensuring social distancing, implementing procedures for bringing employees safely back to work and developing enhanced measures for maintaining cleanliness. During both events, tools and resources were shared to help members comply with local, state and federal guidelines related to COVID-19.

– Reed Hitchcock, Executive Vice President

EPDM Roofing Association (ERA)

ERA dedicated a prominent portion of its website to information about the pandemic, focusing on the impact of COVID-19 on the roofing industry and potential legislative and regulatory sources of help for our members and their customers. Additionally, ERA joined other industry leaders to send a letter to the White House urging the Trump administration to “issue guidance that clarifies essential businesses, services and workers, and that this guidance recognize the role of the roofing industry in protecting U.S. families and employers.”

Ellen Thorp

ERA closely followed the status of the construction industry as an essential business and urged the passage of federal legislation to provide financial relief to families and businesses. Further, we worked through a range of industry outlets to publicize our efforts and linked our website to other industry sites to provide a broad spectrum of information about the pandemic and its impact on our industry.

– Ellen Thorp, CAE, Executive Director

International Institute of Building Enclosure Consultants (IIBEC)

IIBEC’s primary focus has been pivoting our International Convention and Trade Show to a virtual format. Our virtual meeting was held June 12-14, and featured 24 education sessions, a trade show with 65 exhibitors, and two live general sessions, including a roundtable of building industry association CEOs that is available for viewing on our website. We have also been adding new educational offerings to our online learning portal, including an eight-week course, Exterior Wall and Technology Science.

Brian Pallasch

IIBEC has joined with other roofing industry associations to advocate on a variety of COVID-19 public policy issues. Letters were delivered to governors in Connecticut, Delaware, Massachusetts, Michigan, New York, New Jersey, Pennsylvania, Rhode Island, and Washington underscoring the ability of the industry to operate safely in the face of the pandemic and the significant role the construction industry will play in leading the nation’s economic recovery.

– Brian Pallasch, CAE, CEO/EVP

Metal Construction Association (MCA)

Jeff Henry

MCA is committed to providing updated and relevant information to its members and the public via our COVID-19 resource hub. We also transformed the 2020 MCA Summer Meeting (June 15-18) into a virtual learning experience. This was a unique and cost-free opportunity for everyone in the metal construction industry to hear the latest industry updates and connect with association leaders.

– Jeff Henry, Executive Director

National Roofing Contractors Association (NRCA)

NRCA has offered valuable information and resources to members and the overall roofing industry during the COVID-19 crisis via our website, including Occupational Safety and Health Administration (OSHA), legal and insurance guidance. We are actively lobbying for federal legislation to help small business owners survive the crisis and also sent a letter to President Trump urging the administration to recognize roofing as an essential business.

Reid Ribble

NRCA issued surveys to gauge the experiences of roofing contractors during the pandemic to provide better assistance to members and the industry. We also hosted informative webinars, including “How to navigate crisis management in an ever-changing world,” which featured NRCA General Counsel Trent Cotney sharing steps employers can take to prepare and help their businesses thrive during and after modern crises. NRCA is committed to carrying on its mission to support and advocate for roofing professionals, address member questions and concerns, and keep the industry moving forward.

– Reid Ribble, CEO

National Women in Roofing (NWiR)

Renae Bales

While several industries have slowed down, resulting in unemployment for many American workers, the roofing industry is looking for employees. NWiR has partnered with RoofersCoffeeShop to launch a recruiting website for the roofing industry that will attract new talent and offer opportunities for companies to increase visibility for their job postings. NWiR also launched a series of online-based meetings focused on providing knowledge and supporting other women in roofing as we navigate this new normal. There are 1-2 webinars/virtual meetups each week, which alternate between substantive educational content and light-hearted chatting about common issues. Topics range from transitioning to working from home, to building your business through self-empowerment, to understanding federal legislation designed to help small and medium-sized contractors. These webinars and meetups are publicized on the NWiR calendar, sent to members via email and shared on social media.

– Renae Bales, Chair and Ellen Thorp, CAE, Executive Director

Polyisocyanurate Insulation Manufacturers Association (PIMA)

PIMA plays a critical role in the ongoing monitoring, analysis, and dissemination of key information about the responses to the COIVID-19 pandemic at the local, state, and federal levels. Since March, PIMA’s Board of Directors has been holding weekly meetings to track the impacts of the pandemic on manufacturing operations and construction activities across Canada and the United States. Board members are sent daily updates about pertinent stay-at-home orders and provided with health and safety resources to help evolve existing practices to address the potential risk of COVID-19 infections.

Justin Koscher

PIMA is collaborating with allied roofing and insulation industry organizations while also transforming planned in-person association gatherings, such as its annual Mid-Year Meeting, into virtual events that are designed to deliver critical updates and offer valuable perspectives about the impact of current events on the building industry.

– Justin Koscher, President

Roof Coatings Manufacturers Association (RCMA)

At the start of the pandemic, RCMA staff was on the front lines of an ever-changing landscape of policies designed to slow the spread of COVID-19. As the pandemic continued, we remain committed to mitigating the impact these policies had on the roofing industry and providing continued, uninterrupted support for our members. Staff provided remote support for advocacy initiatives that were unaffected by the pandemic and provided updates related to decision making at local, state, and federal levels.

Dan Quinonez

Our membership in the Back to Work on America’s Roofs coalition is an opportunity to foster consumer confidence in the roofing industry and advance our goal of safely providing uninterrupted service to roofs, the first line of defense against the elements. We will continue to serve the needs of our members as we move forward in the economic restart of the United States.

– Dan Quinonez, Executive Director

Single Ply Roofing Industry (SPRI)

Linda King

The SPRI office has remained open to support our members. Quarterly meetings were changed to WebEx meetings that membership felt were very effective, and committees have continued to have conference calls and online meetings to advance the association’s work. SPRI hosted a conference call for members where Tom Saeli, CEO of Duro-Last, shared how his company pivoted a manufacturing facility to produce PPE gowns and masks, which provided ideas and inspiration for other manufacturers to explore how they may also be able to assist in the ongoing COVID-19 relief efforts. Through the SPRI website and its e-newsletter, we continue to share information as our members head back to work under drastically different conditions then what they left a few months ago.

– Linda King, Managing Director

Tile Roofing Industry Alliance (TRI)

In addition to collaborating with the Back to Work on America’s Roofs coalition, TRI has provided real-time information on COVID-19 legislation and administrative actions to our members. This has been done through special reports on new paid leave requirements, Paycheck Protection Program loans, tax breaks, federal augmentation of state unemployment insurance program benefits, and guidelines and enforcement memos from OSHA on dealing with COVID-19 in construction.

Rick Olson

In addition, TRI belongs to the Construction Industry Safety Coalition (CISC), which produced a COVID-19 Exposure Preparedness and Response Plan. TRI also voiced concerns to Congress with other CISC members that forcing OSHA to issue an Emergency Temporary Standard for COVID-19 would not help workers and would hurt the economic recovery. TRI continues to develop best practices for installation that prioritize worker safety.

– Rick Olson, President

USGBC Releases New LEED Guidance to Address COVID-19 and Support Buildings with Reopening Strategies

The U.S. Green Building Council (USGBC) has released four new Safety First Pilot Credits in response to the Coronavirus Disease 2019 (COVID-19). The credits outline sustainable best practices that align with public health and industry guidelines related to cleaning and disinfecting, workplace re-occupancy, HVAC and plumbing operations. The credits can be used by LEED projects that are certified or are undergoing certification. 

The Safety First credits are part of USGBC’s economic recovery strategy released last month, which focuses on sustainable solutions to rebuild a stronger and healthier economy by prioritizing healthy people in healthy places. The credits were created in direct response to COVID-19 and focus on the safety of those working in a building. These credits are available to all LEED 2009, LEED v4 and LEED v4.1 projects. 

“These new credits are a first step in helping the building and construction industry demonstrate its commitment to sustainable strategies as part of building a healthier, more resilient future,” saidMahesh Ramanujam, president & CEO of USGBC. “Supporting environmental and occupant health is a critical part of supporting community health and, as we look ahead, we know LEED and the USGBC community will play a role in delivering solutions that lay a better foundation for our economic and environmental well-being.”

The Safety First: Cleaning and Disinfecting Your Space credit requires facilities to create a policy and implement procedures that follow green cleaning best practices that support a healthy indoor environment and worker safety. Unlike the need to develop new vaccines and medical treatments for COVID-19, current disinfectants and cleaning processes are effective against the Coronavirus, and sustainable options exist. In addition to product considerations, the credit also requires procedures and training for cleaning personnel, occupant education and other services that are within a management team’s control. 

The Safety First: Re-Enter Your Workspace credit is a tool to assess and plan for re-entry, as well as measure progress once a space is occupied. It identifies sustainable requirements in building operations and human behavior that take precautions against the spread of COVID-19. It aligns with the American Institute of Architects (AIA) Re-occupancy Assessment Tool and requires transparent reporting and evaluation of decisions to encourage continuous improvement.

The Safety First: Building Water System Recommissioning credit helps building teams reduce the risk that occupants are exposed to degraded water quality. Building and business closures over weeks or months reduce water usage that can potentially lead to stagnant water and water that is unsafe to drink or use. The credit integrates recommendations from industry organizations and experts, including the U.S. EPA and CDC. It requires buildings to develop and implement a water management plan, coordinate with local water and public health authorities, communicate water system activities and associated risks to building occupants and take steps to address water quality from the community supply, as well as the building. 

The Safety First: Managing Indoor Air Quality During COVID-19 credit builds on existing indoor air quality requirements and credits in LEED. Building teams should ensure indoor air quality systems are operating as designed and determine temporary adjustments to ventilation that may minimize the spread of COVID-19 through the air. Additional considerations include increasing ventilation and air filtration, physical distancing of occupants and following measures outlined in public health and industry resources, as well as guidance found in the Re-Enter Your Workspace credit. The guidance also encourages monitoring and evaluating indoor air quality on an ongoing basis.

These credits are based on current, known information. USGBC will refine its recommendations and is looking for feedback on the new credits.  

In addition to these new LEED pilot credits, projects can also take advantage of Arc Re-entry, a set of resources launching tomorrow to help facility teams assess and communicate recovery efforts, as well as the WELL Health-Safety Rating. GBCI will be providing third party certification support for the WELL Health-Safety Rating. 

For more than a quarter century, USGBC has defined global best practices for designing, constructing and operating sustainable buildings and spaces through LEED. LEED, or Leadership in Energy and Environmental Design, is the world’s most widely used green building rating system and promotes the use of strategies that reduce environmental impact, enhance human health and support economic development. Currently, there are over 102,000 projects across nearly 180 countries and territories participating.

With much of the country entering into an initial reopening phase, businesses and government must rebuild people’s trust and demonstrate how the estimated 5.6 million commercial buildings in the U.S. are focused on health and committed to positively impacting communities moving forward. Third party verification systems like LEED provide guidance on best practices and encourage transparency. USGBC is focused on sharing its recommendations with all projects, regardless of whether they are pursuing LEED certification, in an effort to continue to support economic recovery while also laying the foundation for society to be more sustainable, healthy and equitable.

For more information, visit usgbc.org.

OSHA Issues Frequently Asked Questions About Face Coverings, Masks and Respirators in the Workplace

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has published a series of frequently asked questions and answers regarding the use of masks in the workplace.

“As our economy reopens for business, millions of Americans will be wearing masks in their workplace for the first time,” said Principal Deputy Assistant Secretary for Occupational Safety and Health Loren Sweatt. “OSHA is ready to help workers and employers understand how to properly use masks so they can stay safe and healthy in the workplace.”

The new guidance outlines the differences between cloth face coverings, surgical masks and respirators. It further reminds employers not to use surgical masks or cloth face coverings when respirators are needed. In addition, the guidance notes the need for social distancing measures, even when workers are wearing cloth face coverings, and recommends following the Centers for Disease Control and Prevention’s guidance on washing face coverings.

These frequently asked questions and answers mark the latest guidance from OSHA addressing protective measures for workplaces during the coronavirus pandemic. Previously, OSHA published numerous guidance documents for workers and employers, available at https://www.osha.gov/SLTC/covid-19/, including five guidance documents aimed at expanding the availability of respirators.

For further information and resources about the coronavirus disease, please visit OSHA’s coronavirus webpage.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit www.osha.gov.

OSHA Issues Guidance to Help Construction Workers During the Coronavirus Pandemic

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has launched a webpage with coronavirus-related guidance for construction employers and workers. The guidance includes recommended actions to reduce the risk of exposure to the coronavirus.

Employers of workers engaged in construction (such as carpentry, ironworking, plumbing, electrical, heating/air conditioning/ventilation, utility construction work, and earth-moving activities) should remain alert to changing outbreak conditions, including as they relate to community spread of the virus and testing availability. In response to changing conditions, employers should implement coronavirus infection prevention measures accordingly.

The webpage includes information regarding:

  • Using physical barriers, such as walls, closed doors, or plastic sheeting, to separate workers from individuals experiencing signs or symptoms consistent with the coronavirus;
  • Keeping in-person meetings (including toolbox talks and safety meetings) as short as possible, limiting the number of workers in attendance, and using social distancing practices;
  • Screening calls when scheduling indoor construction work to assess potential exposures and circumstances in the work environment before worker entry;
  • Requesting that shared spaces in home environments where construction activities are being performed, or other construction areas in occupied buildings, have good air flow; and
  • Staggering work schedules, such as alternating workdays or extra shifts, to reduce the total number of employees on a job site at any given time and to ensure physical distancing.

Visit OSHA’s coronavirus webpage frequently for updates. For further information about the coronavirus, please visit the Centers for Disease Control and Prevention.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit www.osha.gov.

U.S. Department of Labor Adopts Revised Enforcement Policies For Coronavirus

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has adopted revised policies for enforcing OSHA’s requirements with respect to coronavirus as economies reopen in states throughout the country.

Throughout the course of the pandemic, understanding about the transmission and prevention of infection has improved. The government and the private sector have taken rapid and evolving measures to slow the virus’s spread, protect employees, and adapt to new ways of doing business.

Now, as states begin reopening their economies, OSHA has issued two revised enforcement policies to ensure employers are taking action to protect their employees.

First, OSHA is increasing in-person inspections at all types of workplaces. The new enforcement guidancereflects changing circumstances in which many non-critical businesses have begun to reopen in areas of lower community spread. The risk of transmission is lower in specific categories of workplaces, and personal protective equipment potentially needed for inspections is more widely available. OSHA staff will continue to prioritize COVID-19 inspections, and will utilize all enforcement tools as OSHA has historically done.

Second, OSHA is revising its previous enforcement policy for recording cases of coronavirus. Under OSHA’s recordkeeping requirements, coronavirus is a recordable illness, and employers are responsible for recording cases of the coronavirus, if the case:

Under the new policy issued today, OSHA will enforce the recordkeeping requirements of 29 CFR 1904for employee coronavirus illnesses for all employers. Given the nature of the disease and community spread, however, in many instances it remains difficult to determine whether a coronavirus illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace. OSHA’s guidance emphasizes that employers must make reasonable efforts, based on the evidence available to the employer, to ascertain whether a particular case of coronavirus is work-related.

Recording a coronavirus illness does not mean that the employer has violated any OSHA standard. Following existing regulations, employers with 10 or fewer employees and certain employers in low hazard industries have no recording obligations; they need only report work-related coronavirus illnesses that result in a fatality or an employee’s in-patient hospitalization, amputation, or loss of an eye. 

For further information and resources about the coronavirus disease, please visit OSHA’s coronavirus webpage.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit www.osha.gov.

How Employers Should Respond to COVID-19

As COVID-19 (coronavirus disease) continues to affect our daily lives, it is crucial for employers to be aware of the measures the government is taking to reduce infection, how those measures affect your business, and the protocols your business needs to implement to ensure you are complying with what is required. Because the national response is changing daily, it is important to remain up-to-date on new laws, regulations, and government mandates as they rapidly begin taking effect.

Employer Screening and Examinations

In response to the COVID-19 pandemic, the Equal Employment Opportunity Commission (EEOC) referred employers to an advisory opinion the EEOC published in 2009 amidst the H1N1 (“swine flu”) outbreak. In its 2009 advisory opinion, the EEOC implemented a temporary waiver of certain provisions of the Americans with Disabilities Act (ADA), taking the position that illnesses related to global pandemics are dissimilar to the disabilities that the ADA was designed to protect, and calling for more flexibility in allowing employers to conduct medical examinations and screenings in the workplace provided the employer reasonably believes such action is necessary to address a direct threat to the health or safety of the workplace.

The EEOC subsequently announced that the spread of COVID-19 qualifies as a “direct threat” allowing employers to conduct employee examinations and screenings to ensure the health and safety of others in the workplace. During these examinations, an employer may ask an employee if he or she is experiencing any COVID-19 related symptoms or has been in contact with anyone who has been diagnosed with COVID-19 or is experiencing COVID-19 related symptoms. The employer may also inquire about the employee’s recent travel history or the reason for any recent work absence. The EEOC has also authorized employers to take employee’s temperatures to determine if their employee has a fever, which is a symptom of COVID-19.

Ultimately, any medical information employers receive from an employee during one of these screenings, examinations, or otherwise, must remain confidential. If an employee is confirmed to have COVID-19, employers should inform other employees about their potential exposure to the virus, but the identity of the infected employee must remain confidential to the extent possible.

With that being said, employers must be careful not to violate any state, federal, or local laws when implementing new protocols designed to prevent the spread of COVID-19. For instance, employers should implement all such protocols uniformly amongst all employees to avoid violating anti-discrimination laws (e.g., if an employer chooses to send an employee home for exhibiting COVID-19 symptoms, it should also send home all other employees exhibiting such symptoms). Further, any questions asked during employee screenings must be related solely to the possibility of workplace exposure to COVID-19, and must avoid inquiries into unrelated health conditions or disabilities.

Workplace Safety Standards

The General Duty Clause of the Occupational Safety and Health Act (OSHA) requires employers to keep their workplaces free from recognized hazards that are causing, or are likely to cause, death or serious physical harm. While it remains to be seen whether OSHA considers COVID-19 to be a “recognized hazard,” employers would do well to treat COVID-19 as such, and take reasonable steps to mitigate or eliminate the hazard. Accordingly, employers must be cognizant of potential health risks posed by certain employees and implement protocols for employees to remain safe during a potential outbreak. Additionally, COVID-19 may be considered a recordable illness pursuant to 29 C.F.R. 1904 – Subpart C. For example, an outbreak of an infectious disease or similar illness occurring at a medical facility may be considered a recordable illness, under the Code of Federal Regulations, if such an outbreak is an illness resulting from events or exposures occurring in the work environment. Please note, however, that the Bloodborne Pathogens standard found in 29 C.F.R. 1910.1030, which requires employers take certain measures during the outbreak of a bloodborne pathogen, does not apply in the response to COVID-19.

Employers may visit OSHA’s website (https://www.osha.gov/SLTC/covid-19/standards.html), which provides an employer’s guide to COVID-19 for more general guidelines and tips for maintaining a safe workforce during this outbreak.

Additionally, the Center for Disease Control (CDC) has issued guidance to employers regarding when to send employees home and/or prohibit them from returning to work for COVID-19 related reasons. While the CDC guidelines are discretionary for many employers, they represent valuable resources and standards for employers to utilize amidst this unprecedented pandemic.

Employee Pay and Benefits

The recently enacted Families First Coronavirus Response Act (FFCRA) includes two significant laws of which employers should be aware: the Emergency Paid Sick Leave Act and the Emergency Family Medical Leave Expansion Act.

Emergency Paid Sick Leave Act: Under the Emergency Paid Sick Leave Act, private sector employers with fewer than 500 employees are generally required to provide employees paid sick leave if the employee is unable to work because the employee is:

  1. Subject to a government quarantine or isolation order;
  2. Following the advice of a healthcare professional to self-quarantine;
  3. Experiencing symptoms related to COVID-19 and is seeking a medical diagnosis;
  4. Caring for an individual subject to a government order set forth in (1) above, or who has been advised by a healthcare professional to self-quarantine as set forth in (2) above;
  5. Caring for a child whose school or childcare is closed due to COVID-19 precautions; or
  6. Is experiencing “any other substantially similar condition specified by the secretary of Health and Human Services in consultation with the secretary of the treasury and the secretary of labor.” (While the Secretary of Health and Human Services has not yet specified conditions it considers “substantially similar,” the FFCRA empowers the Secretary to do so in the near future.)

The amount of emergency paid sick leave you must pay an employee depends on the employee’s reason for leave. If the employee is entitled to leave under reasons 1 through 3 above, the employee must receive his or her regular pay rate, capped at $511 per day (and $5,110 in the aggregate). On the other hand, if the employee is entitled to leave under reasons 4 through 6 above, you are only required to pay the employee two-thirds of his or her regular rate of pay, capped at $200 per day (or $2,000 in the aggregate).

Full-time employees are entitled to up to 80 hours of emergency paid sick leave, while part-time employees are entitled to the equivalent of the average hours they work during a two-week period.

Employers may not require an employee use any accrued sick leave or paid time off in lieu of, or before, using the paid sick leave to which an employee is entitled under the Emergency Paid Sick Leave Act. Employers must also post in a “conspicuous” workplace location a notice containing information regarding the requirements of the Emergency Paid Sick Leave Act. Copies of the notice are available on the DOL’s website.

Emergency Family Medical Leave Expansion Act: The Emergency Family Medical Leave Expansion Act (EFMLEA) amends the pre-existing Family Medical Leave Act (FMLA) to add one new qualifying reason for job-protected leave: when employees are unable to work (or telework) because they must care for their child whose school or childcare is closed due to COVID-19 precautions. Generally, this new basis for family leave applies to all private employers with fewer than 500 employees and to any employee who has worked for the employer for at least 30 days.

An employee receiving emergency family leave under this new law is entitled to up to 12 weeks of job-protected leave with continuing group health insurance coverage. The first two weeks of emergency family leave is unpaid, after which the employer must pay the employee two-thirds of the employee’s regular pay rate, capped at $200 per day (or $10,000 in the aggregate), for any additional emergency family leave the employee takes.The employee’s emergency family leave will end when the employee’s need for leave ends or when the employee has exhausted his or her 12 weeks of leave. When the employee’s emergency family leave ends, the employer generally must reinstate the employee to either his or her same position or an equivalent position.

Small Business Exemption: Companies with fewer than 50 employees may be exempt from the requirement to provide paid leave to employees who seek leave to care for a child whose school or childcare is closed due to COVID-19 precautions. While this represents a limited exemption to the Emergency Paid Sick Leave Act (small businesses must still provide paid sick leave for the remaining five qualifying reasons), it represents a complete exemption to the Emergency Family Medical Leave Expansion Act. To qualify for the small business exemption, an authorized officer of the company must determine that one of the following is true about the employee’s leave request: (1) payment of leave will cause the business’ expenses/liabilities to exceed available revenues; (2) the employee requesting leave has specialized skills, knowledge, or responsibilities, such that their absence would entail substantial risk to business operations; or (3) there are insufficient workers available to perform the work of the employee requesting leave and the work is essential to operations.

Mass Layoffs

If your business is covered by the Worker Adjustment and Retraining Notification (WARN) Act, you are generally required to provide affected employees at least 60 days’ notice before a mass layoff or plant closure as defined by the Act. However, the normal 60 days’ notice may not apply if the mass layoff or closure is due to the effects of COVID-19 if that reason meets the “unforeseeable business circumstances” exception to the WARN Act. However, even where the unforeseeable business circumstances exception applies, a covered business is still required to give its employees as much notice as is reasonably practicable. Employers should also be mindful of potential state laws similar to the Federal WARN Act, and ensure that any mass layoff or closure complies with any such analogous state law.

About the authors: Benjamin Briggs is a Partner at Cotney Construction Law who represents clients in all aspects of labor and employment law. Elliot Haney is an Attorney at Cotney Construction Law who practices in all areas of construction law. Cotney Construction Law is an advocate for the roofing industry and serves as General Counsel for NRCA, FRSA, RT3, NWIR, TARC, WSRCA and several other roofing associations. For more information, visit www.cotneycl.com.

Author’s note: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.