By Benjamin Briggs and Elliot Haney
As the needs of communities shift and change rapidly, governments are continuously implementing new laws and regulations to respond to the outbreak of COVID-19. Many states have declared “State(s) of Emergency,” which typically provides state and local authorities more power and resources to pass legislation quickly in times of disaster. Many states including Iowa, Missouri, Oregon and California have laws regarding paid sick leave differing from those of the federal government, which give employees required to stay home as a result of the COVID-19 outbreak access to paid sick leave or additional unemployment benefits for the time they are absent from the workplace.
Eligibility and exceptions vary amongst states implementing similar policies. It is vital that employers remain vigilant and informed regarding the various responses of the federal, as well as their particular state and local, government to ensure that they are abiding by what is required. The following are some examples of state and local government actions that could affect your business.
Although California has not yet implemented state-wide lockdowns and closures, several California counties — including six in the Bay Area — have instituted a public health order requiring residents to remain in their homes until April 7, with limited exceptions. The order applies to most public and private businesses, unless they fall under an “essential business” exception.
Amongst the “essential businesses” that are exempt from the mandatory workplace closure are those engaged in “essential infrastructure,” which includes public works construction, construction of housing (primarily subsidized affordable housing), operation of public transportation and utilities. Plumbers, electricians and other service providers necessary to maintain the safety, sanitation and essential operation of residences and other essential businesses are also included. Also covered are those in a role that is required to “maintain basic operations” of an essential business, such as security, payroll, human resources, and similar occupations.
However, even those businesses that are considered “essential” and are exempt from the mandatory lockdown must “take all steps necessary for employees to work remotely… to the extent possible.”
As is the case with many states, Florida’s response to COVID-19 has been primarily left to the individual counties and cities to issue procedures and protocols to limit the spread and temper the economic effects of the virus. An executive order issued by Gov. Ron DeSantis on March 9 provides state and local governments and administrative agencies broad powers in determining the appropriate response to COVID-19. That includes the power to suspend budgetary and regulatory rules affecting employment conditions, employer compensation, employment of temporary workers, execution of contracts for public works projects and performance of those contracts.
Accordingly, Florida construction companies must remain up-to-date on the latest developments at the state and local level that may affect work performed on various projects and the terms and conditions of employment for your workforce.
The state of Indiana has issued several “guidelines” designed to prevent the spread of COVID-19 and temper the economic effects of the virus on businesses and workers. While many of the guidelines are not mandatory, compliance is strongly encouraged. Some of the non-mandatory guidelines issued by the state include recommendation that businesses postpone mass gatherings of more than 50 people, that non-essential, in-person business meetings be limited to 10 people, and that employees over the age of 60 with underlying health conditions be advised to work from home. The Indiana Department of Workforce Development has also suspended the requirement that unemployment insurance claimants physically appear at reemployment service centers in order to collect benefits.
The Governor of Iowa announced large-scale increases in the number of employees eligible to receive unemployment benefits, provided an employer confirms that it paid the employee at least $2,500 in six of the last 18 months, the employee was laid off or was required to self-isolate due to a COVID-19 related illness, and the employee meets the minimum requirements for unemployment insurance outlined in the Iowa Workforce Development (IWD) Division’s guidelines. Important for employers, the governor also announced that the claims filed with the IWD for unemployment benefits due to a COVID-19 related incident will not be charged to the employers, and all mandatory fact-finding interviews relating to unemployment benefits will be temporarily waived.
Pursuant to federally-issued guidelines requesting states apply unemployment laws flexibly during states of emergency, Massachusetts has passed a series of emergency regulations that allow employees to collect unemployment benefits if its workplace is closed and expected to reopen in four or fewer weeks and the employee makes themselves available for any work the employer requires during such closure.
The Massachusetts legislature also instituted a 60-day grace period for employers to file quarterly reports and pay quarterly tax contributions.
On March 10, Michigan Gov. Gretchen Whitmer issued an executive order that prohibits gatherings in a “single shared space” of more than 250 people. A “single shared space” includes offices of private employers unless they are in the business of “industrial or manufacturing,” “mass transit,” or “assembly for the purchase of groceries or consumer goods.” Because most construction companies would fail to meet an exception of the executive order, Michigan construction companies with more than 250 employees must limit the number of employees on a particular site or in the workplace pursuant to new Michigan law.
Additionally, Michigan’s Paid Medical Leave Act allows employees to take paid medical leave due to a workplace closure caused by either (i) a public health emergency, (ii) to care for a child whose school has been closed due to a public health emergency, or (iii) the employee’s presence in the community would jeopardize the health of others. Presumably, the COVID-19 outbreak falls under the act. Thus, Michigan employers must ascertain whether they are covered under the act, and, if so, take steps to comply with its requirements.
For employees who do not qualify for benefits under the Paid Medical Leave Act, Executive Order 2020-10, issued in response to the COVID-19 outbreak, suspends Section 48(3) of the Michigan Employment Security Act (MCL 421.48(3)). This allows an individual to receive unemployment benefits if they are required to take a leave of absence due to displaying symptoms of COVID-19, having to care for someone who has contracted COVID-19, or because the person has been in contact with someone in the last 14 days who has a confirmed diagnosis of COVID-19. However, an employee already entitled to paid sick leave or disability benefits cannot apply for additional benefits under the Executive Order.
In a press briefing on March 17, the Governor of Wisconsin issued a statewide prohibition of “mass gatherings” of more than 10 people in both public and private spaces for the duration of the public health emergency. The order defines “mass gathering” as any planned or spontaneous public or private event or convening that is likely to bring together 10 or more people in a single room or confined or enclosed space at the same time. There are broad exceptions to the definition of “mass gathering,” however, including but not limited to: “office spaces and government service centers,” “manufacturing, processing, distribution and production facilities,” “public transportation,” and “utility facilities.”
Disclaimer: 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.
Cotney Construction Law is an advocate for the roofing industry, General Counsel of the National Roofing Contractors Association (NRCA) and several other industry associations throughout the U.S. For more information, contact the authors at 866-303-5868 or go to www.cotneycl.com.