Smith Currie & Hancock LLP Law Firm Answers Members' Questions Regarding Families First Coronavirus Response Act
Question: Are we obligated to pay employees who are waiting on test results?
Answer: The paid sick leave required by the FFCRA applies to an employee under #3 above who is 1) experiencing symptoms of COVID-19 and 2) seeking a medical diagnosis. But depending on why they are out, if due to numbers 1 or 2, they still may be eligible.
For instance, a local health law where the jobsite is located requires all employees to be tested where a positive case has occurred and you have to test your employees at the jobsite, even though they have no symptoms, a conservative approach is to pay them.
If the employee sought testing but has not experienced COVID-19 symptoms, are not under an isolation order, or are not self-quarantining on advice of a health care provider, they are not eligible for FFCRA paid sick leave benefits under that provision. The employee would, however, still be entitled to use any other accrued leave pay in accordance with applicable laws and policies.
Question: Are we obligated to pay employees who missed work because they were sick and awaiting test results which then came back negative for COVID?
Answer: Generally, yes. The provisions for paid sick leave do not require that an employee be
diagnosed with COVID-19 to be eligible for paid sick leave while seeking a medical diagnosis,
as long as their symptoms were consistent with those of COVID-19.
Question: It is our understanding that essential workers should and can work as long as he or she has no symptoms, even with a possible exposure in the same household. If the employee still chooses to stay home, do we have any obligation to pay?
The FFCRA does not distinguish between essential and non-essential employees. Even if an employee is not experiencing COVID-19 symptoms, they may have a basis to stay home under the FFCRA. If an employee does not come to work because they are covered by a legal stay-at-home order, or are self-quarantining on the advice of a health care provider, the employee is entitled to up to 80 hours of sick pay (pro-rated for part-time employees) as described above.
In those cases, the employee is entitled to sick leave paid at their regular rate up to $511 per day and $5,110 in aggregate. However, if they can telework, they can work from home and you would pay them regularly and not under the FFCRA.
Even if the employee is not ill, quarantined, or awaiting test results, they may choose not to report to work because they are caring for someone else subject to a stay-at-home order, are caring for a child if the child’s school or child care is closed due to COVID-19, or is experiencing other conditions specified by the Secretary of Health and Human Services as describe above. In those cases, the employee is entitled to sick leave paid at two-thirds of their
regular rate, capped at $200 per day and $2,000 total.
In addition to paid sick leave, the FFCRA provides for additional family leave benefits under the Emergency Family and Medical Leave Expansion Act (EFMLEA). Under the EFMLEA and the Family Medical Leave Act, a covered employee is entitled to a combined total of 12 weeks of leave. An employee may take leave under the EFMLEA only to care for a child under 18 whose school is closed or whose child care provider is unavailable due to COVID-19.
The first 10 days of EFMLEA leave are unpaid, unless the employee opts to use accrued vacation, personal, or sick leave time. An employer cannot require the employee to use accrued paid leave time during this 10-day period. All EFMLEA days in excess of 10 are to be paid at two-thirds of the employee’s normal rate, with a maximum of $200 per day and $10,000 total.
Question: Is an employer liable for more than 80 hours of paid sick leave per employee? Is a single employee eligible for this multiple times?
Answer: The FFCRA limits an employer’s obligation to 80 hours of paid sick leave through December 31, 2020. An employee may use those hours in increments, such as for multiple absences for covered reasons, but only up to 80 hours through the end of 2020.
Question: We received a Paycheck Protection Program (PPP) loan. Are we entitled to a tax credit for FFCRA payments?
Answer: An employer that received a PPP loan and has paid employees for absences covered by the FFCRA using PPP funds may choose to include those payments in a PPP forgiveness application, or take a tax credit for FFCRA payments, but not both.
Tell us about TU Parks Construction ...
T U Parks in its 76th year and I believe that we are now the oldest construction company in the Chattanooga area. Our business model has us involved in all facets of construction with the exception of highway and heavy industrial. We've had a major focus on health care for nearly 50 years and recently have been working on several renovation projects in the downtown area, including Common House in the former Industrial Y building, the refurbishment of a large warehouse space into offices, and nearing completion of the new rowing center for GPS and McCallie. We also work on high-end residential projects.
TU Parks was started by grandfather, T. U. Parks. His son’s Homer, and my father, C. A. “Red” Parks really built the business. Everyone served in leadership roles of the AGC chapter and were also active industry advocates. We're currently in our 4th generation of leadership at T U Parks with my son, Robert, currently serving on the AGC East Tennessee Board.
How have you been involved in AGC over the years?
Charlie Clevenger (former President of AGC East Tennessee) got me involved on the Board of Directors as Secretary/Treasurer of the Chapter in 1981 and around that time I went to my first national convention in Washington, DC. I then served as the President of the Chattanooga branch during 1985 and 1986 while serving as Vice President of AGC of East Tennessee.
Around that time, Charlie and I first attempted to launch a self-insured workers' comp trust and then in 1994 we partnered with the rest of the state to make it a reality. I served as Vice Chair of CompTrust AGC Tennessee from day one and stepped up as Chair in 2013.
On the national level, I served on various AGC of America Committees and when Jim Lail from Chattanooga was President of AGC of America he asked me to serve on his Executive Committee .
Why are you a member of AGC?
AGC is the leading association in the industry and is a network of the better contractors. The legislative support that the AGC gives the contractors in federal, state and local issues is incredibly important, and I've found connections through industry networking to be a great resource. I attended just about every national convention for decades and state and regional conferences over the years. I also went through AGC's Executive Management Program which was an invaluable learning experience. Through AGC, I've met a lot of people, been a lot places, and have had a lot of fun.
After a year and a half of a concerted effort with construction associations across the state, last week the House and State passed HB0271 adding new payment protections that mitigate risks for GCs and subs. The highlights include:
Click here for a link to the full bill
Click here for a link to the summary
The Chattanooga Land Development Office is rolling out a new permitting software starting on May 11th, 2020. They acknowledged that this is not the ideal time to implement new software, but they did receive positive comments about the ease of use of the software from contractors during their testing phase. To help with the transition, they provided the following instructions found below on the application and further information about the new program, ViewPoint Cloud.
Several members have asked for clarification on culpability if an employee of a subcontractor contracts COVID-19 while working on a jobsite. Tim Gibbons with Chambliss Law has provided guidance for our Chapter members:
The illness should be handled as though it were any other alleged work-related injury/illness and should be subject to the exclusive remedy under the workers' compensation law. Employee would first look to subcontractor's workers' comp policy, but might also try to rope in the G/C as a "statutory employer" if the subcontractor doesn't have workers comp. Remember that, even if the subcontractor has told the G/C it has workers' comp insurance, if it doesn't, the G/C may be regarded as the "statutory employer" for workers' comp purposes.
Conventional wisdom among employment and workers' comp attorneys and insurance adjusters is that it's going to be exceedingly difficult for an employee to demonstrate that contraction of COVID-19 is compensable under Tennessee workers' comp law (and similarly in other states). In TN, an illness is not compensable unless "it has been shown by a preponderance of the evidence that the employment contributed more than fifty percent (50%) in causing the injury, considering all causes." Unless the employee is a recluse living alone and has gone nowhere except his job site, this is going to be a tough standard to meet.
As to what's happening when employees get the virus, that could present a different question. Typically, the employer puts the employee on leave until no longer symptomatic (i.e., recovered). Employer also notifies persons with whom the positive employee was in "close contact." If they are asymptomatic, they can continue coming to work as long as they appropriately monitor (e.g., temperature checks before shift). Employee's work station, tools, etc., should be thoroughly sanitized.
Starting February 17, 2020, the City of Chattanooga's Land Development Office will be requiring a copy of a contractors license, business license, and workman's compensation insurance, if applicable, to be presented at the time of permit issuance. If the contractor has no employees they must present the card the state provides as proof of not needing workers compensation insurance.
This requirement is a result of many contractors applying for permits with expired business licenses , which takes 2 weeks to renew. Valid licenses are required to pull a permit.
Out of 4,779 worker fatalities in private industry in calendar year 2018, 1,008 or 21.1% were in construction — that is, one in five worker deaths last year were in construction. The leading causes of private sector worker deaths (excluding highway collisions) in the construction industry were falls, followed by struck by object, electrocution, and caught-in/between.
These "Fatal Four" were responsible for more than half (58.6%) the construction worker deaths in 2018. Eliminating the Fatal Four would save 591 workers' lives in America every year.
Other Shocking Safety Stats from OSHA:
Top 10 Most Frequently Cited OSHA Standards Violated in FY 2018
The following were the top 10 most frequently cited standards by Federal OSHA in fiscal year 2018 (October 1, 2017, through September 30, 2018):
AGC of East Tennessee can provide your team with top-notch safety training. Click here to fill out our safety training request form, or contact Carol Pond at email@example.com or (423) 265-1111.
Members of AGC of East Tennessee are committed to the principles of skill, responsibility and integrity and support high standards of building practices that respect and protect the environment while balancing unfair, unnecessary over-regulation.
With the development boom in Chattanooga and an increase in construction projects on hillsides, the Regional Planning Agency of Hamilton County recently conducted an analysis of existing steep slope and floodplain regulations in Chattanooga in comparison to peer cities. Upon completion, RPA recently presented a slate of possible regulations to City Council that the organization feels would curb damage to surrounding property during and after construction. Here is a link to the executive summary of their findings and proposals:
A review committee of AGC members determined that, while much of what is included in RPA’s recommendations are good and fair building practices, there are several issues that were cause for concern that were recently voiced at a public meeting with City Council.
Enforcement. A lack of consistent enforcement by the city of the existing regulations may partly contribute to reported steep slope and floodplain development issues. AGC questioned if enforcement of the existing regulations could address the problems, and expressed concerns that if these new regulations are passed without an enforcement plan that we will continue to see more regulations proposed with the misguided hope of correcting bad behavior.
Permitting. Since the permitting process has become more expensive and challenging in recent years, AGC would like to see the process streamlined and expedited before introducing any new regulations that will further backlog the process.
Ambiguity. AGC requested removing any recommendations that involve aesthetics and materials selections by the city, which would be an infringement on private property rights. As an example, the recommendations suggest that the Land Disturbance Office would be authorized to select retaining wall materials, make tree removal decisions and mandate selective design decisions. We believe that those decisions should remain right of the property owner.
Practicality. AGC recommended that City Council consider the creation of a review committee consisting of architects, engineers and contractors to review the recommendations and ensure that what is being proposed is practical in the field.
City Council has stated that they will be reviewing the recommendations and input by the public, taking field trips to the peer cities with similar regulations, and continue receiving input over the next few months.