COVID-19 Update Information

April 3, 2020

This COVID-19 Update page is a service to our PMCA members. We will update this page as new information comes available. Please contact us if you have any questions or have something to include on this page.

IMPORTANT – Social Distancing

Reminder on the Importance of Maintaining Social Distancing on Jobsites
We need to continue to make sure our operational jobsites are in compliance with social distancing guidelines as much as possible.  There have been reports of certain companies, projects, and individuals ignoring safety guidelines, and as the Governor has been very clear they want to keep construction moving through this health emergency, work can’t be at the expense of public health.

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Family First Coronavirus Response Act (FFCRA)

IRS Guidance on Tax Credits for New Federal Sick Pay Requirements
The Families First Coronavirus Response Act (the “FFCRA”) provides small and midsize employers refundable tax credits that reimburse them, dollar-for-dollar, for the cost of providing paid sick and family leave wages to their employees for leave related to COVID-19. Eligible Employers may claim tax credits for qualified leave wages paid to employees on leave due to paid sick leave or expanded family and medical leave for reasons related to COVID-19 for leave taken beginning on April 1, 2020, and ending on December 31, 2020. Eligible Employers will claim the credits on their federal employment tax returns (e.g., Form 941, Employer’s Quarterly Federal Tax Return), but they can benefit more quickly from the credits by reducing their federal employment tax deposits. If there are insufficient federal employment taxes to cover the amount of the credits, an Eligible Employer may request an advance payment of the credits from the IRS by submitting a Form 7200, Advance Payment of Employer Credits Due to COVID-19. The IRS expects to begin processing these requests during April 2020.

For more information, see https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs.

New Federal Sick Leave and FMLA Provisions Take Effect April 1
Be prepared for your new obligations under the Family’s First Coronavirus Response Act (FFCRA), which take effect this Wednesday, April 1. Here are a few resource documents.

How To Apply For An Exemption From The New Federal Sick Leave And FMLA Requirements
Businesses that employ fewer than 50 employees may apply for a hardship exemption from FFCRA. Here is guidance from the Department of Labor:

“Q: If providing child care-related paid sick leave and expanded family and medical leave at my business with fewer than 50 employees would jeopardize the viability of my business as a going concern, how do I take advantage of the small business exemption?

A: To elect this small business exemption, you should document why your business with fewer than 50 employees meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations.”

For more information, see https://www.dol.gov/agencies/whd/pandemic/ffcra-questions.

Helpful Flowcharts:
To help you wade through the new regulations on paid sick time and emergency FMLA leave, here are a couple of flowcharts:

DOL Issues More Guidance on New Federal Sick Leave and FMLA Requirements

Last week, the DOL issued guidance for employers and employees on implementing the Families First Coronavirus Response Act (FFCRA). It’s list of Families First Coronavirus Response Act: Questions and Answers continues to grow. Employers who have questions about implementing FFCRA should check the DOL website regularly as the Department continues to clarify and provide additional valuable guidance.

The DOL’s Questions and Answers document covers a wide-range of questions that employers and employees are asking about FFCRA. Newly released Q&A’s include:

What records do I need to keep when my employee takes paid sick leave or expanded family and medical leave?

Private sector employers that provide paid sick leave and expanded family and medical leave required by the FFCRA are eligible for reimbursement of the costs of that leave through refundable tax credits. If you intend to claim a tax credit under the FFCRA for your payment of the sick leave or expanded family and medical leave wages, you should retain appropriate documentation in your records. You should consult Internal Revenue Service (IRS) applicable forms, instructions, and information for the procedures that must be followed to claim a tax credit, including any needed substantiation to be retained to support the credit. You are not required to provide leave if materials sufficient to support the applicable tax credit have not been provided.

If one of your employees takes expanded family and medical leave to care for his or her child whose school or place of care is closed, or child care provider is unavailable, due to COVID-19, you may also require your employee to provide you with any additional documentation in support of such leave, to the extent permitted under the certification rules for conventional FMLA leave requests. For example, this could include a notice that has been posted on a government, school, or day care website, or published in a newspaper, or an email from an employee or official of the school, place of care, or child care provider.

If your employer provides group health coverage that you’ve elected, you are entitled to continued group health coverage during your expanded family and medical leave on the same terms as if you continued to work. If you are enrolled in family coverage, your employer must maintain coverage during your expanded family and medical leave. You generally must continue to make any normal contributions to the cost of your health coverage.

If you do not return to work at the end of your expanded family and medical leave, check with your employer to determine whether you are eligible to keep your health coverage on the same terms (including contribution rates). If you are no longer eligible, you may be able to continue your coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA).

If you elect to take paid sick leave, your employer must continue your health coverage. Under the Health Insurance Portability and Accountability Act (HIPAA), an employer cannot establish a rule for eligibility or set any individual’s premium or contribution rate based on whether an individual is actively at work (including whether an individual is continuously employed), unless absence from work due to any health factor (such as being absent from work on sick leave) is treated, for purposes of the plan or health insurance coverage, as being actively at work.

If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but before I go out on leave, can I still get paid sick leave and/or expanded family and medical leave?

No. If your employer closes after the FFCRA’s effective date (even if you requested leave prior to the closure), you will not get paid sick leave or expanded family and medical leave but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because it was required to close pursuant to a Federal, State or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility.

If my employer closes my worksite while I am on paid sick leave or expanded family and medical leave, what happens?

If your employer closes while you are on paid sick leave or expanded family and medical leave, your employer must pay for any paid sick leave or expanded family and medical leave you used before the employer closed. As of the date your employer closes your worksite, you are no longer entitled to paid sick leave or expanded family and medical leave, but you may be eligible for unemployment insurance benefits. This is true whether your employer closes your worksite for lack of business or because the employer was required to close pursuant to a Federal, State or local directive. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility.

May I take leave under the Family and Medical Leave Act over the next 12 months if I used some or all of my expanded family and medical leave under the Emergency Family and Medical Leave Expansion Act?

It depends. You may take a total of 12 workweeks of leave during a 12-month period under the FMLA, including the Emergency Family and Medical Leave Expansion Act. If you take some, but not all 12, workweeks of your expanded family and medical leave by December 31, 2020, you may take the remaining portion of FMLA leave for a serious medical condition, as long as the total time taken does not exceed 12 workweeks in the 12-month period. Please note that expanded family and medical leave is available only until December 31, 2020; after that, you may only take FMLA leave.

For example, assume you take four weeks of Expanded Family and Medical Leave in April 2020 to care for your child whose school is closed due to a COVID-19 related reason. These four weeks count against your entitlement to 12 weeks of FMLA leave in a 12-month period. If you are eligible for preexisting FMLA leave and need to take such leave in August 2020 because you need surgery, you would be entitled to take up to eight weeks of FMLA leave.

However, you are entitled to paid sick leave under the Emergency Paid Sick Leave Act regardless of how much leave you have taken under the FMLA. Paid sick leave is not a form of FMLA leave and therefore does not count toward the 12 workweeks in the 12-month period cap. But please note that if you take paid sick leave concurrently with the first two weeks of expanded family and medical leave, which may otherwise be unpaid, then those two weeks do count towards the 12 workweeks in the 12-month period.

If I take paid sick leave under the Emergency Paid Sick Leave Act, does that count against other types of paid sick leave to which I am entitled under State or local law, or my employer’s policy?

No. Paid sick leave under the Emergency Paid Sick Leave Act is in addition to other leave provided under Federal, State, or local law; an applicable collective bargaining agreement; or your employer’s existing company policy.

If I am a small business with fewer than 50 employees, am I exempt from the requirements to provide paid sick leave or expanded family and medical leave?

A small business is exempt from certain paid sick leave and expanded family and medical leave requirements if providing an employee such leave would jeopardize the viability of the business as a going concern. This means a small business is exempt from mandated paid sick leave or expanded family and medical leave requirements only if the:

  • employer employs fewer than 50 employees;
  • leave is requested because the child’s school or place of care is closed, or child care provider is unavailable, due to COVID-19 related reasons; and
  • an authorized officer of the business has determined that at least one of the three conditions described in Question 58 is satisfied.

The Department encourages employers and employees to collaborate to reach the best solution for maintaining the business and ensuring employee safety. 

You can read the DOL’s full Families First Coronavirus Response Act: Questions and Answers document here.

Additionally, a PowerPoint presentation with more questions than answers is available here, as well as a bio for the attorney who prepared the presentation.

Enforcement Deadline Extended
The new federal Families First Coronavirus Response Act (FFCRA) mandates employer-paid leave for certain COVID-19 related reasons for all employers with fewer than 500 employees. The Department of Labor’s (DOL) Wage and Hour Division has updated its COVID-19 response webpage to include Field Assistance Bulletin 2020-1, “Temporary Non-Enforcement Period Applicable to the Families First Coronavirus Response Act (FFCRA),” which provides that DOL will not bring enforcement actions against any public or private employer for violations of the leave requirements in the FFCRA for a 30-day period ending on April 17, 2020, provided that the employer has made reasonable, good faith efforts to comply with the Act.

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Emergency Business Funding

What emergency funding is available for my business?

Local and federal funding may be available. Prosper Portland developed an emergency grant program for small businesses and entrepreneurs in the Portland area. All locally-owned small businesses should apply. The process is simple and takes a few minutes.

You can find out more information and apply on the Prosper Portland website.

Click here for information about funding available under the new Federal CARES law, which was signed last Friday.

Click here for the CARES Act Small Business Guide

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Construction Lockdowns

Washington Construction Lockdown
Washington Gov. Jay Inslee issued guidance stating that construction is generally not allowed under Washington’s stay-home order, except in special circumstances. View Washington’s guidance list of “the essential critical infrastructure workers.”

If I have employees who live in Washington, can they travel to Oregon to do construction or service work?
Because Oregon’s stay-home order does not prohibit construction or service work, work can continue on Oregon jobs. However, a Washington resident traveling to Oregon to work could be considered in violation of the Washington order. If a Washington resident gets stopped by Washington authorities and is told to go home, they should do so. The most prudent course of action is to tell employees that it is up to them to decide whether they wish to drive from Washington into Oregon to work.

Does Oregon Have Plans to Shut Down Construction?
Our lobbyists spoke to the governor’s office this afternoon, and there are no plans to shut down construction in Oregon. As a reminder, Oregon’s stay-home order only closes down specific businesses in which it is impossible to maintain effective social distancing. It does not follow model Washington and other states have used, which have shut down all businesses except “essential” services or infrastructure. The Oregon governor’s office advises there are no plans to move toward that more restrictive structure.

 

Can I take employees’ temperatures or ask them questions about their exposure to coronavirus?
Yes, if done in a way that doesn’t violate the Americans With Disabilities Act. Please see the attached “Pandemic Preparedness In the Workplace and the Americans with Disabilities Act” issued by the Equal Employment Opportunities Commission (EEOC). However, for legal and practical reasons, you should contact Local 290 before implementing a program of this nature, whether or not it has been required by an owner or general contractor.

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Stay-Home Order

Who Can Continue to Work Under the Stay-Home Order?
Gov. Brown issued a stay-home order today (link to the order and a summary are located in the sidebar). The order requires office work to be done via telecommuting as much as possible. Construction has not been shut down under the order. For the moment, we believe service work can remain operational, as well. Please stay tuned for further guidance on the issue. In the meantime, attached are form letters you can use to put on your letterhead to give to employees in case they are stopped by law enforcement officials attempting to enforce the stay-home order.

Also attached are some guidelines on sending people home if they appear to be ill, proper social distancing practices, and cleaning surfaces potentially exposed to coronavirus.

Guidance from Oregon State Police on Stay-Home Order
The Oregon State Police have released a FAQ on the state’s new stay-home order. You can read the FAQ here or click the link on the sidebar. Please note, this guidance makes clear that employees continuing to work do not need any kind of “pass” or other documentation from their employer, at least for the time being. However, the form letters I circulated earlier this week will remain on PMCA’s website in case that situation changes.

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Furloughs

Temporary Furloughs Due to Coronavirus
PMCA and Local 290 finalized a Memorandum of Understanding allowing for temporary furloughs to address the coronavirus crisis. Click here to download the MOU.

Here are some frequently asked questions and answers:
    • How do I go about furloughing an employee?
      For journeymen, contact Local 290’s dispatch office. For apprentices, email Director of Training Dominic DePiero at dominic.depiero@290tech.edu.
    • How long can a furlough be?
      Local 290 is allowing furloughs of four weeks with a date of return specified, and will allow furloughs to be renewed if necessary. Employees should make sure they list the same date of return that is listed on their furlough notice when applying for unemployment benefits. Attached is a form you can adapt to your needs.
    • Is a furloughed employee eligible for unemployment insurance?
      Yes. See the attached update from our lobbyists regarding what the unemployment rules are for furloughed employees.
    • Is a furloughed employee eligible for the paid sick leave and FMLA leave required by the new federal law?
      The answer depends on the specific circumstances. When contemplating furloughs and any other layoffs or terminations, you should seek advice from an employment attorney. One such attorney is Allyson Krueger of the Dunn Carney firm, whose contact information is: (503) 417-5461, akrueger@dunncarney.com.The Department of Labor issued some general guidance on the new paid sick leave and FMLA leave law today, which is available here: https://www.dol.gov/newsroom/releases/whd/whd20200324
    • Other Adjustments to the Master Labor Agreement or Hiring Hall Rules?
      PMCA is an ongoing discussions with Local 290 regarding other potential temporary changes to our Master Labor Agreement and Hiring Hall rules to allow people to keep working as safely as possible. If there are specific changes you would like to see on the table, please email a summary of specific language changes you would like discussed to lauri.rollings@gmail.com.
    • What Are You Doing With Your Office Staff?
      PMCA has received a request for information about what contractors are doing with regard to office staff to comply with the governor’s stay-home order and the new federal requirements for paid sick leave and FMLA leave. If you have best practices you’d like to share, please email them to lauri.rollings@gmail.com.
    • New Paid Sick Time and Family Medical Leave Obligations
      Please note, the temporary change to allow furloughs does not exempt you from providing emergency paid sick leave or emergency family or medical leave to employees who are eligible for them and request them under the federal law that passed last week. Attached are some memos providing general guidance on these issues. Please note these are general guidelines and should not be construed as legal advice. For assistance with specific scenarios, you should contact an employment attorney. One such attorney is Allyson Krueger of the Dunn Carney firm, whose contact information is: (503) 417-5461, akrueger@dunncarney.com.

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Expiring Licenses

Our lobbyists continue to work with the state on extensions to expiring plumbing and contractor licenses. Please stay tuned for further developments.

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Training Center

Instructors will begin contacting apprentices over the next few weeks to start virtual classroom studies.  THERE IS NO DEFINED DATE YET. The Training Center is sending regular updates to apprentices. 

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