ASA is Dedicated to Making Sure its Members Have the Latest Information Regarding COVID-19
From the ASA President:
The emergence of COVID-19 in the United States is undoubtedly impacting our members both personally and professionally. Please know that the ASA is a resource to you during this difficult time and is working diligently to ensure you have the most up to date information available from federal agencies along with all pertinent developments related to Congress' response. Please utilize this webpage to stay up to date on the latest COVID-19 information as we all work through this together.
RETURNING TO WORK
Both OSHA and CDC regularly update their webpages with reopening guidance relevant to the business community. We encourage you to regularly check for update guidance at:
OSHA has also released general guidance for preparing workplaces for COVID-19:
For all workers, regardless of specific exposure risks, it is always a good practice to:
- Frequently wash your hands with soap and water for at least 20 seconds. When soap and running water are unavailable, use an alcohol-based hand rub with at least 60% alcohol. Always wash hands that are visibly soiled.
- Avoid touching your eyes, nose, or mouth with unwashed hands.
- Practice good respiratory etiquette, including covering coughs and sneezes.
- Avoid close contact with people who are sick.
- Stay home if sick.
- Recognize personal risk factors. According to U.S. Centers for Disease Control and Prevention (CDC), certain people, including older adults and those with underlying conditions such as heart or lung disease or diabetes, are at higher risk for developing more serious complications from COVID-19.
Industry-Specific Guidance Documents: In addition to the general guidance above, OSHA frequently issues specific guidance tailored to specific industries. View the construction industry guidance here.
OSHA Issue’s New FAQ’s on COVID-19 and the Workplace
The Occupational Safety and Health Administration (OSHA) released answers to nearly 40 frequently asked questions (FAQs) on protecting workers during the ongoing COVD-19 pandemic. OSHA’s FAQ’s now speak to key issue areas including employee testing, employer requirements, use of personal protective equipment, return to work protocols, and cleaning guidelines in the workplace. The FAQ guidance is part of a series of OSHA publications on workplace safety during COVID-19. Click here to review the FAQ’s (insert link: https://www.osha.gov/SLTC/covid-19/covid-19-faq.html)
Department of Labor
SBA Loan Programs
Click Here for Information on the SBA Paycheck Protection Program
(Application is in the COIVD-19 section of InfoHub)
(NOTE: Question #46 addresses PPP loan self-certification and review of loans over $2 million)
Click Here to review the Small Business Legislative Council's memo outlining the PPP Loan Forgiveness Application! (NOTE: The ASA is a member of the SBLC)
FFCRA New Paid Leave Provisions
ASA Members Only Resources
- ASA Families First Coronavirus Response Act Leave Provisions
- ASA Employer Guide
- ASA Attorneys Council Legal Guidance
- CISC COVID-19 Exposure Prevention, Preparedness, and Response Plan (available in English and Spanish)
These resources are only available within the MEMBERS ONLY ASA Info Hub.
To access the MEMBERS ONLY ASA Info Hub:
1. Go to the Member Login Page.
2. If you need a Username and Password, create an account.
3. Once logged into the Info Hub, choose "Resources" from the left-hand menu.
4. Choose "COVID-19" from the drop-down menu at the top of your screen.
ASA Government Relations Updates
ASA COVID-19 Advocacy Communications
- Letter to the Senate Small Business Committee Chairman and Ranking Member along with the leaders of the Senate urging additional PPP funding.
- Coalition letter to House Ways And Means Committee Chairman and Ranking Member on the latest COVID-19 Package
- Coalition letter to Congressional Leadership urging immediate funding for state Departments of Transportation
- Coalition Support Letter on improvements to the Employee Retention Tax Credit
- Coalition Letter to President Trump urging infusion of DOT Funding
- Construction Safety Industry Coalition (CSIC) to Senate HELP Committee leadership to express our concern
for proposals to compel OSHA to issue an emergency temporary standard in response to the COVID-19 pandemic
- Coalition Letter Urging Congressional Leadership to Take Action and Modify the PPP
- Transportation Construction Coalition Press Release Announcing Campaign to Urge Congress to Take Action on a Transportation Infrastructure Package
- ASA signs on to letter urging President Trump to support investment in infrastructure in the wake of COVID-19
- ASA signs onto support letter to Congressional leaders urging them to preserve the United States Postal Service
- The ASA spearheaded a letter to the Attorney General, which was signed by 15 organizations recommending to the Department of Justice to "temporarily suspend operations" by Federal Prison Industries (FPI), a Federal government corporation operating under the trade name UNICOR, that uses inmate labor to produce goods and services. Click here to review the letter.
- On Friday, April 17, 2020, the ASA signed on to a letter with the Construction Safety Industry Coalition seeking OSHA guidance and information in two areas: (1) reportability of COVID-19 cases, and (2) the recommended approach to social distancing and face coverings in construction. Click here to review the letter.
- On Friday, April 17, 2020, the ASA signed on to a letter with the Small Business Legislative Council (SBLC) urging Congress to take swift action to support small businesses affected by COVID-19 through additional funding to the SBA Paycheck Protection Program (PPP) and the Emergency Injury Disaster Loan (EIDL) Program. The SBLC also urged Congress to expand eligibility to 501(c)6 organizations which would allow trade associations to apply for funding. Click here to review the SLBC letter
- SFAA-NASBP Congressional Request for Emergency Order Letter
- Coalition Letter to President Trump on Essential Infrastructure
- On March 23, 2020, the Construction Industry Safety Coalition (CISC) wrote a letter to OSHA expressing its concerns with the Agency's position on the recordability of COVID-19 cases and the flexibility of respiratory protection. In response to the CISC's letter, OSHA issued a memo on April 10, 2020, updating its guidance on recording COVID-19 cases as a recordable illness. OSHA WILL NOT ENFORCE their COVID-19 recordkeeping requirements until further notice except where:
- There is objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation; and
- The evidence was reasonably available to the employer. For purposes of this memorandum, examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees.
To review the CISC's March 23rd letter to OSHA, click here!
To review OSHA's updated guidance on COVID-19 recordkeeping, click here!
- Click Here to Download the ASA Gubernatorial Statement on the Construction Industry as an Essential Service
COVID-19 IV Stimulus Funding Bill
On Monday, July 27, 2020, Senate Majority Leader McConnell introduced the Republican version of the next stimulus package, the Health Economic Assistance Liability Protection & Schools Act “HEALS Act,” totaling approximately $1 trillion and Democrats stated the package was insufficient. The package includes:
- Direct payments: Up to $1,200 per adult and $500 per dependent.
- Unemployment insurance: Benefits until September would be at a rate of $200 each week, down from the $600 benefit that expires this week. Starting in October, the benefit would be calculated so that a jobless worker's combined state and federal benefits would amount to 70 percent of lost wages, with a $500 cap on federal benefits.
- Paycheck Protection Program: Small businesses that meet the requirements could apply for a second round of forgivable loans from the program, with about $190 billion available.
- Liability protections: Businesses that open during the pandemic would be protected from coronavirus-related medical claims through Oct. 1, 2024, if they make "reasonable efforts" to comply with public health guidelines and don't engage in "willful misconduct or grossly negligent behavior."
- Health funding: $306 billion in emergency funding for federal agencies, the Department of Health and Human Services would take the largest share, $118.4 billion, for vaccine research, testing and other medical needs.
PAYCHECK PROTECTION PROGRAM (HEALS Act): Senate Republicans propose some modifications as well as additional funding for the Paycheck Protection Program (PPP) as part of their proposal.
- Additional funding – After some moving around of funds, PPP is ultimately provided an additional $90 billion.
- Lower loan cap – All new PPP loans moving forward are capped at $2 million, below the previous $10 million cap.
- Expansion of acceptable and forgivable expenses – PPP funds may now be used on the following expenses, with spending on the following also qualifying for forgiveness:
- Additional operations expenses, including certain software, cloud computing, and payroll, human resources, and accounting expenses
- Property damage costs resulting from damage related to public disturbances that occurred during 2020 and that are not covered by insurance
- Supplier costs resulting from a contract for goods in effect prior to February 15, 2020 that are essential to a business’s current operations
- Worker protection expenses, including personal protective equipment for employees and other adaptive investments to help a loan recipient comply with federal health and safety guidelines related to COVID-19 during the period between March 1, 2020, and December 31, 2020.
- Employer-provided “other group insurance” benefits are included in payroll costs (more of a clarification provision)
- Borrower selection of loan forgiveness spending period – Borrowers can choose the forgiveness covered period with no length limitations, but the period must begin on the loan origination date and end between 8 weeks after the loan origination date and December 31, 2020. This effectively means any PPP loan monies spent according to forgiveness rules through December 31 can qualify for forgiveness.
- Simplifies the forgiveness application process – The forgiveness application process is simplified for all loans up to $2 million, with loans of $150,000 or less only requiring the borrower attest to a good faith effort to comply with PPP loan forgiveness requirements, retain relevant records for three years, and submit demographic information (no SBA approval for loan forgiveness required). All borrowers accepting loan forgiveness may be audited by SBA, and SBA must submit to Congress a report 30 days after enactment detailing their review and audit plan.
Please note: As of now, the bill is currently opening up PPP for small businesses to take a second loan if they meet certain requirements, with these second loans called Paycheck Protection Program Second Draw Loans. One such requirement is that the business demonstrate at least a 50% loss in gross revenue when comparing gross revenue for a specific 2020 period to that of 2019.
U.S. Department Of Labor Publishes Additional Guidance on Wage And Hour Rules, Family and Medical Leave As Workplaces Reopen
The U.S. Department of Labor today published additional guidance for workers and employers on how the protections and requirements of the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), and the Families First Coronavirus Response Act (FFCRA) affect the workplace as workplaces reopen amid the coronavirus pandemic. The guidance from the Department’s Wage and Hour Division (WHD) includes commonly asked questions and answers that address critical issues in all three laws.
“The U.S. Department of Labor understands how critically American workers and employers need this information as they return to work. Continuing to provide it remains a top priority for the Wage and Hour Division,” said Wage and Hour Division Administrator Cheryl Stanton. “With so many workers and employers committed to the greatest comeback the American workforce has ever seen, we are providing ongoing guidance to help them better understand their rights and responsibilities to protect workers and help ensure a level playing field for employers as our economy recovers.”
Today’s guidance is the latest addition to compliance assistance materials the WHD has published. These materials include a Fact Sheet for Employees, a Fact Sheet for Employers and a Questions and Answers resource about paid sick and expanded family and medical leave under the FFCRA. WHD has also produced two guidance posters, one for federal workers and one for all other employees, that fulfill notice requirements for employers obligated to inform employees of their FFCRA rights; Questions and Answers about posting requirements; and simple Quick Benefits Tips to determine how much paid leave the FFCRA allows workers to take.
FFCRA will help the U.S. combat and defeat the coronavirus by reimbursing, through tax credits, American businesses with fewer than 500 employees for the cost of providing employees with paid leave taken for specified reasons related to the coronavirus. The legislation enables employers to provide such paid leave, while at the same time ensuring that workers are not forced to choose between their paychecks and the public health measures needed to combat the virus.
WHD provides additional information on common issues employers and employees face when responding to the coronavirus and its effects on wages and hours worked under the Fair Labor Standards Act and job-protected leave under the Family and Medical Leave Act at https://www.dol.gov/agencies/whd/pandemic
SBA ISSUES UPDATED IFR ON PPP LOANS
On Friday, June 11, 2020, the Small Business Administration (SBA) released revisions to their original Interim Final Rule (IFR) on the Paycheck Protection Program following the enactment of the Paycheck Protection Flexibility Act on June 5, 2020. The IFR update's key program guidelines including the following:
- Loan Maturity Date
- Deferral Period
- Loan Forgiveness minimum payroll costs and amounts
Paycheck Protection Program Flexibility Act Signed Into Law
HR 7010, the Paycheck Protection Program Flexibility Act, passed the House 417-1 and the Senate by Unanimous Consent. President Trump signed the legislation into law on Friday, June 5, 2020. The legislation provides the following:
- Extending the minimum maturity of PPP loans to five years. This would take effect on the date of the bill’s enactment and apply to any PPP loan made on or after such a date; however, lenders and borrowers would not be prohibited from mutually agreeing to modify the maturity terms of prior-disbursed PPP loans.
- Extending the covered period for using PPP loan proceeds from June 30, 2020, to December 31, 2020.
- Extending the covered period for PPP loan forgiveness from eight weeks from the date of origination to the earlier of 24 weeks from the origination date or December 31, 2020. A borrower who received a loan before the bill’s enactment could elect to continue using the 8-week covered period set forth in the Coronavirus Aid, Relief, and Economic Security (CARES) Act.
- Extending the deadline for the re-hire exception to forgiveness reduction in the loan forgiveness provisions from June 30, 2020, to December 31, 2020.
- Providing that the amount of loan forgiveness will not be reduced by a reduction in the number of full-time equivalent employees, if, with respect to the period February 15, 2020, to December 31, 2020, the borrower is able to document in good faith (A) an inability to rehire employees who had been employed on February 15, 2020, and an inability to hire similarly qualified employees for unfilled positions by December 31, 2020, or (B) an inability to return to the same level of business activity at which the borrower was operating before February 15, 2020, due to compliance with federal governmental requirements or guidance set forth between March 1, 2020, and December 31, 2020, relating to standards of sanitation, social distancing, or other worker or customer safety requirements due to COVID-19.
- Providing that at least 60 percent of PPP loan proceeds should be used for payroll costs to receive loan forgiveness (overturning the 75 percent standard set forth by the Small Business Administration (SBA) and U.S. Treasury Department).
- Eliminating the six-month deferral of payments due under PPP loans and replacing it with deferral until the date on which the amount of forgiveness determined under the CARES Act is remitted to the lender. If a borrower fails to apply for forgiveness within 10 months after the last day of the PPP loan forgiveness covered period (i.e., the earlier of 24 weeks from origination or December 31, 2020), the borrower must then begin to make payments of principal, interest, and fees on its PPP loan.
- Allowing all employers to take advantage of the CARES Act deferral of the 6.2 percent employer portion of social security payroll taxes, regardless of whether they have had a PPP loan forgiven.
ASA Issues Amicus Brief Opposing OSHA Lawsuit
This past Saturday, May 30, 2020, ASA joined the National Home Builders, the ABC, along with a few others, who are members of the Construction Industry Safety Coalition, in filing an amicus curiae brief in opposition to the AFLCIO’s Petition for a Writ of Mandamus to compel the Occupational Safety and Health Administration (“OSHA”) to issue an emergency temporary standard for infectious diseases (“ETS”), in order to protect employees from SARS-CoV-2 (“COVID-19”). Per the brief, “guidance on how to maintain the spread of COVID-19 in the aviation industry would naturally be quite different from guidance directed at the banking industry, or the construction industry.”
On May 18th, the AFL-CIO sued OSHA to force the agency to issue an Emergency Temporary Standard (ETS) for Infectious Diseases/COVID-19 covering all employees. The petition cites general data on COVID-19 cases and highlights certain industries: healthcare; customer-facing industries; and meat and poultry processing. Also, the AFL-CIO cites as a framework the CalOSHA airborne transmissible disease standard and a similar standard that has been under development at OSHA for the last few years. It was important for ASA and the construction industry to participate as an amicus in this case for several reasons:
- The AFL-CIO Petition would be broadly applicable to all workers, but there is no evidence included in the Petition that a significant risk exists in construction or that construction employers are not taking the required actions to protect employees. More broadly, the AFL-CIO cites just a few industries, but then extrapolates to say that all industries should be covered.
- Mandating OSHA to put out a COVID-19 standard in thirty days, applicable to all industries, would not allow OSHA to really understand how such a standard would apply in all industries. There would be no time for site visits, stakeholder input, etc.
- It was important for construction to lend a separate voice.
- This is just the first of what will likely be multiple efforts to force OSHA to do a standard.
SBA Issues New Rule on the Paycheck Protection Program
On Friday, May 22, 2020, the Small Business Administration (SBA) released two new interim final rules on the Paycheck Protection Program (PPP) clarifying some aspects of the program including general eligibility qualifications and payback provisions. One rule addresses the requirements for loan forgiveness and the other outlines PPP loan review procedures and related borrower and lender responsibilities. With the first funds disbursed under the PPP on April 3, the first 56-day period of payroll protection is expected to end this week for the first batch of loan recipients.
House Passes CARES Act II
PPP Loan Eligibility Would CHANGE Under House Proposal
Senate Passes Legislation for Additional COVID-19 Funding for Small Businesses
On Tuesday, April 21, 2020, the Senate passed H.R. 266, the Paycheck Protection Program and Health Care Enhancement Act, to provide $484 billion in COVID-19 aide small businesses, hospitals and to expand testing.
The $484 billion aid package negotiated by congressional leaders and the administration would include:
• $310 billion in additional lending authority for the Paycheck Protection Program, with some funds set aside to support loans issued by smaller lenders.
•$60 billion for separate disaster loans to small businesses.
• $75 billion for hospitals.
• $25 billion for virus testing.
The legislation will next go to the House and Speaker Pelosi has indicated that the measure will pass. President Trump is expected to sign the legislation into law.
President Trump's Reopening Plan
Last evening President Trump released guidelines for “Opening Up American Again”. The plan proposes that States should only begin lifting the restrictions when they can maintain a downward trajectory of new COVID-19 cases, symptom free for 14 days, have robust testing for health care workers, and can treat all patients without needing crisis care. Health care experts say the phased re-entry the White House has outlined is the right approach, but warn that more widespread testing may be necessary before most people can safely return to work or school, which is not spelled out in the guidelines. The White House also shared a release on President Trump convening Members of Congress to serve on the “Opening Up America Again” Congressional group.
OSHA Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to COVID-19
The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has issued interim enforcement guidance to help combat supply shortages of disposable N95 filtering facepiece respirators (N95 FFRs). The action marks the department’s latest step to ensure the availability of respirators and follows President Donald J. Trump’s Memorandum on Making General Use Respirators Available. Click here to view the guidance.
U.S. Department of Labor Issues Regulation for New Paid Leave Programs
On Thursday, April 2, 2020, the U.S. Department of Labor (DOL) issued their regulations regarding how American workers and employers will benefit from the protections and relief offered by the Emergency Paid Sick Leave Act and Emergency Family and Medical Leave Expansion Act, both part of the Families First Coronavirus Response Act (FFCRA). The department’s Wage and Hour Division (WHD) posted a temporary rule issuing regulations pursuant to this new law, which went into effect on Wednesday, April 1, 2020. Click here to view the new paid leave regulation.
IRS Guidance on COVID-19 Tax Credits for Businesses Through Required Paid Leave Programs
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. For a more detailed overview of these tax credits, click here. For basic FAQ's, click here.
Coronavirus Aid, Relief, and Economic Security (CARES) Act
On March 25, 2020, the Senate passed the $2.2 trillion Coronavirus Aid, Relief, and Economic Security (CARES) Act unanimously (96-0). The House passed the CARES Act on Friday, March 27, 2020 by a vote of 419-6 and the legislation was immediately signed into law by President Trump. The CARES Act is the third economic stimulus package passed by Congress in response to the outbreak of coronavirus (COVID-19) and its size and scope makes it the largest stimulus package in U.S. History.
DOL Issues FFCRA Paid Leave Poster for Employers to Post
The Department of Labor has released further guidance on the new employee paid leave benefits enacted under the FFCRA. Below is a link to a poster that employers with 500 or fewer employees should post at their business locations.
Please stay tuned for additional guidance from the Department of Labor
DOL Guidance on New Paid Leave Provisions
Senate Passes Families First Coronavirus Response Act
On Wednesday, March 18, 2020, the Senate voted 90-8 passing the Families First Coronavirus Response Act. Please see the Member Benefits section of ASA InfoHub for a memo regarding the Act's Paid Sick Leave Provisions. The President is due to sign this legislation immediately and the Act's provisions will not become law until 15 days after it is signed.
Despite ASA's opposition to this Act, we would like to thank the 144 ASA members across 15 states, who took action and emailed 30 Senators to oppose it. Well done and please remain safe.
ASA Opposed H.R. 6201, the Families First Coronavirus Response Act
ASA opposed the House-passed H.R. 6201, the Families First Coronavirus Response Act (FFCRA), which was voted on by the Senate on Wednesday, March 18th. While we appreciate the efforts of Congress and the Administration to provide necessary and timely relief to small businesses and their employees during the Coronavirus Pandemic (COVID-19), FFCRA would impose unsustainable mandates on subcontractors.
Additionally, we are concerned that employers with fewer than 500 employees would be required to provide employees with 10 days of fully paid sick leave and provide up to 12 weeks of family leave at two-thirds pay. Although this legislation does permit the U.S. Department of Labor (DOL) Secretary to exempt small businesses with fewer than 50 employees from the paid leave requirements, the process to achieve such a waiver is ambiguous on how companies could apply or what process the DOL would use to evaluate requests. Placing this mandate on the backs of subcontractors in an uncertain economy would exacerbate a precarious situation for small employers already struggling to stay in business during these unprecedented times.
Even though FFCRA’s paid family and medical leave requirements sunset one year after enactment, many subcontractors already facing cash flow and supply chain issues simply cannot afford the cost of this new government mandate.
COVID-19 Resources Available from ASA National Sponsors
We would like to thank the ASA National Sponsors for doing their part to support the subcontracting community during these difficult times. Please click on the company name to be directed to their COVID-19 resources.