04/08/2020
As a follow up to our ZOOM meeting last week I’ve listed a variety of questions that were raised along the responses from our SAM General Counsel-
1. If an essential business employee is told to work in an area that is currently under a shelter in place / stay home order, would this be a WC claim if they caught COVID 19?
Answer: Yes, if the employee could prove that he/she caught the CV as a result of carrying out his/her job duties.
2. If a company is deemed an essential business, does that apply to all employees even if some employees can do their work from home?
Answer: Yes. As a general rule, an employee of an essential business can't dictate where he/she works. There would be exceptions to this, like an employee with a disability covered under the ADA might be able to insist upon working from home, depending upon the type of disability involved.
3. Employees in essential businesses need a letter / card to travel. Would they need one card for each state they potentially work in, or would just from the residency state work?
Answer: It would depend up the requirements of each state, but common sense dictates that one card from his/her hone state should suffice.
4. Do we know of any loans / programs that might be available to very small subcontractors who don’t necessarily file quarterly returns such as a sole proprietor?
Answer: Yes, the PPP forgivable loan program administered by the SBA applies to all businesses with 500 employees or less. Additionally, there is an emergency forgivable loan program, with loan up to $10,000, which applies to sole proprietors who don't have employees. The SBA website should provide all of the requirements/eligibility for both programs.
5. Do we know how liquidated damages will be handled if the job stays open, but a company either doesn’t have employees to continue working on it, or that particular subcontractor isn’t considered essential?
Answer: This depends upon the contract language, particularly the force majeure clause.
6. Does a company need to continue to pay employee benefits if employees are not laid off but also aren’t working?
Answer: Yes, unless the company suspends payment of benefits to all full-time employees. I do not believe a company can provide, for example, group health coverage to some full-time employees but not all. This is what I have been advised as to my own law firm.
7. Does the loan program require employee payment of 40 hours per employee weekly or should the hours be averaged over a period of time to calculate pay since construction employees often don’t have consistent hours?
Answer: I'm unsure about this question. The PPP is based on an average monthly payroll. I do not believe it depends upon the consistency of hours worked by the employees.
8. What about pay for employees who may have some of their pay based on commission when it is assumed when they were hired that their actual pay would be significantly higher than their base wage?
Answer: See response to no. 7. Now, to be completely forgivable, at least 75 feet percent of the loan proceeds from the PAP must go towards payroll. If payroll dramatically decreases because employees aren't earning commissions during the pandemic, only base salary, this could be an issue
