Category: Archived

Are Vaccinated Workers Exempt From COVID-19 Infection Control Measures?

OSHA is reviewing recent CDC guidance and will update their website accordingly. However, until those updates are completed, the agency is referring affected employers to the “CDC guidance for information on measures appropriate to protect fully vaccinated workers.” The highlights of the guidance published by the CDC follow.

If you’ve been fully vaccinated:

  • You can resume activities that you did prior to the pandemic.
  • You can resume activities without wearing a mask or staying 6 feet apart, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.
  • If you travel in the United States, you do not need to get tested before or after travel, or self-quarantine after travel.
  • If you’ve been around someone who has COVID-19, you do not need to stay away from others or get tested unless you have symptoms.
  • You should still watch out for symptoms of COVID-19, especially if you’ve been around someone who is sick. If you have symptoms of COVID-19, you should get tested and stay home and away from others.
  • People who have a condition or are taking medications that weaken the immune system, should talk to their healthcare provider to discuss their activities. They may need to keep taking all precautions to prevent COVID-19.

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Loosening of CDC’s Face Covering Recommendations Do Not Alter Employer Compliance Obligations

The CDC recently changed its COVID-19 recommendations regarding the use of face coverings for fully vaccinated individuals. Under the new guidance, fully vaccinated individuals, in most cases, no longer need to wear face coverings indoors or out, or practice social distancing. However, the loosening of the recommendations does not change affected employers’ compliance obligations. Masks and distancing are still mandatory “where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.” Employers should be aware that OSHA recently implemented a special emphasis program to enforce worker COVID-19 protections.

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What to Consider Before Requiring Workers to Get COVID-19 Vaccinations

In most states employers may legally require their workers to get COVID-19 vaccinations, provided that they make reasonable accommodations for medical or religious objections. However, doing so could result in negative consequences, so there are several items your company should consider before deciding whether to require their workers to get vaccinated.

  • If your company requires a worker to get vaccinated and that worker has an adverse reaction to the vaccine, and the results of the adverse reaction meet the criteria for an OSHA recordable injury (medical treatment beyond first aid, days away from work, etc.), OSHA considers the case to be “work-related.” Employers are required to treat the case as a “recordable illness;”
  • If your company requires a worker to get vaccinated and that worker has an adverse reaction to the vaccine, in some states the case could result in a worker’s compensation claim. Be sure to check with your worker’s compensation carrier before you proceed;
  • If your company requires a worker to get vaccinated and that worker has an adverse reaction to the vaccine, and the case is not covered by worker’s compensation the employer may be subject to a lawsuit;
  • Some states may prohibit employers from mandating the vaccines; and
  • Mandating vaccines may violate local collective bargaining agreements.

Adverse Reactions to Employer Mandated COVID-19 Vaccines Are OSHA Recordable Cases

If your company is requiring its employees to get vaccinated against COVID-19 it runs the risk of acquiring recordable illness cases. Recent revisions to OSHA’s frequently asked questions (FAQs) and answers related to the coronavirus disease 2019 (COVID-19) pandemic indicates that OSHA considers employees’ negative reactions to the COVID-19 vaccines to be “work-related” and therefore, subject to recordkeeping and reporting mandates when an employer “requires” the vaccination. The question and answer from the updated FAQs follows.

If I require my employees to take the COVID-19 vaccine as a condition of their employment, are adverse reactions to the vaccine recordable? If you require your employees to be vaccinated as a condition of employment (i.e., for work-related reasons), then any adverse reaction to the COVID-19 vaccine is work-related. The adverse reaction is recordable if it is a new case under 29 CFR 1904.6 and meets one or more of the general recording criteria in 29 CFR 1904.7.

Updated FAQs

Post COVID-19 Vaccine Jobsite Safety Guidelines

According to the CDC, COVID-19 vaccines are safe and effective. Some individuals may experience side effects, but they are typically short lived. For the most part, the benefits of the vaccine far outweigh the short lived side effects. With more Americans receiving the vaccines every day it is important to start planning for the post vaccine era. These guidelines are intended to help you do just that, but it is likely that they will change several times over the coming months, so please continuously watch for updates from MCAA.   

What We Do NOT Know About the Vaccines

There is still much that we do not know about the vaccines, so even fully vaccinated individuals need to follow COVID-19 safety protocol while working just about anywhere. Here is why:

  • We do not know whether the vaccines keep vaccinated individuals from spreading the virus;
  • We do not know how long the vaccine protects vaccinated individuals against the virus; and
  • We do not know how effective the vaccines are against variants of the virus.

Fully Vaccinated Individuals

An individual is “fully vaccinated” when he or she has had both doses of the Pfizer or Moderna vaccines, or a single dose of the Johnson & Johnson vaccine, AND two full weeks have passed since the last injection.

Fully Vaccinated Individuals at Work

Fully vaccinated employees on jobsites, in fabrication shops, in office buildings and in other public areas performing regular duties that do not require specialized or additional personal protective equipment should:

  • Wear a two-ply face covering that completely covers the nose and mouth;
  • Practice proper hand hygiene by frequently washing hands and/or using hand sanitizers; and
  • Maintain a social distance of at least 6 feet from all other individuals.

When social distancing requirements must be suspended, such as when two workers are needed for the safe manual handling of materials, the affected workers should continue to wear their face coverings, don face shields, wear work gloves, and limit the amount of time they will be working together closer than 6 feet to less than 15 minutes.

Employers

Affected employers should:

  • Require all employees to comply with the protocol;
  • Enforce employee compliance with the protocol; and
  • Ensure that routine environmental cleaning is performed on affected surfaces at least once daily and more frequently when needed.

More frequent cleaning or disinfection should be performed if/when:

  • There is a high transmission of COVID-19 in or around a workplace;
  • The workplace is in an area where people are not wearing masks;
  • The frequency and/or quality of hand hygiene is inadequate for any reason; and/or
  • Individuals with increased risk of severe illness from COVID-19 are working in the area.

Fully Vaccinated Individuals Not Working

Once fully vaccinated, individuals outside the workplace can start to do some of the things that have not been acceptable since the pandemic began, such as:

  • Visit inside a home or private setting without a mask with fully vaccinated people of any age;  
  • Visit inside a home or private setting without a mask with one household of unvaccinated people who are not at risk for severe illness;
  • Travel domestically without a pre-or post-travel test;
  • Travel domestically without quarantining after travel;
  • Travel internationally without a pre-travel test depending on the destination; and
  • Travel internationally without quarantining after travel.

GUIDELINES PDF

Congress Expected to Pass Stimulus Package. Watch Withum’s December 23rd Webinar Covering Package Details On-Demand.

Experts from Withum’s SBA Financial Services and Tax Services teams navigate through the myriad of provisions included in the more than 5,000 page legislative package finalized mid-December. Withum’s team covers in detail the provisions of the legislation which cover the following topics:

  • PPP Loans: Another Round of Funding
  • PPP Loan Forgiveness Process (Round 1 and Round 2)
  • PPP Loan Forgiveness Deductibility

Withum also covers the basics of the following provisions, but expect to have more detailed communications on these as guidance becomes more clear:

  • Unemployment Provisions
  • Stimulus Checks
  • Employer Focused Tax Credits

WATCH ON-DEMAND

OSHA Provides New COVID-19 Guidance Regarding Workplace Ventilation

OSHA recently issued new guidance on how to use workplace ventilation systems to reduce exposures to the coronavirus, including efficiency targets for air filters and recommendations for fan use. The guidance calls for employers to install HVAC filters with minimum efficiency reporting value ratings of “13 or higher, where feasible,” and to “consider using” high-efficiency particulate air fan and filtration systems, “especially in higher-risk areas.”

It also urges several stems to increase the flow of outdoor air into indoor areas, including increasing HVAC systems’ outdoor air intake; taking steps to verify that exhaust air is not being pulled back into a building, such as by traveling through open windows or nearby intakes; ensuring exhaust fans in restrooms specifically are “fully functional, operating at maximum capacity, and are set to remain on”; and opening windows and “other sources of fresh air” when possible.

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A PAC Update from MCAA Government Affairs Committee Chairman, Jim Gaffney

In March, as a majority of the country slowed down, the MCAA Government Affairs Committee continued to work tirelessly meeting with countless Congressional and Senate office’s remotely to push our agenda forward. The committee has been working on COVID-19 cost increases on Federal projects, change orders in the NDAA, pension issues, and the PBGC just to mention a few.

What has helped the committee through this period has been PAC donations. The reality we face during today’s political time is the need for donations. MCAA’s PAC fund has been hit hard as many political fundraisers have been cancelled and political leaders have requested help.

Today, we ask for your help.

I, Jim Gaffney, am making a donation to the MCAA PAC fund, and have asked the M&SCA of Eastern PA to match my donation. If each association and member contractor could make a donation to the PAC we can continue to fight for the political needs of our association. I know times are hard for many, but please realize the organizations against our issues are not letting up and many have deep pockets. For those who have and continue to support the PAC, I want to personally thank you for your help. The PAC makes a difference for all of us and our industry.

MCAA’s 2020 advocacy efforts need your help. Donate to the MCAA PAC, a critical factor to our success in moving forward legislation that positively affects your business.

(Note: In order to comply with campaign finance laws, you will need to complete a solicitation authorization form before making a contribution. Find additional details and both the solicitation authorization and contribution forms via the button below.)

Contribute

Withum COVID-19 Bill Update – 5/14/2020

Guidance on Eligibility – FAQ 46 was released on May 13 (full text below) which provided additional guidance on eligibility. Withum has released an article on this FAQ as well given its importance. Shortly after that, FAQ 47 was released which extended the deadline for those who wish to return their PPP funds to May 18th.

So what are the highlights?

  • Safe Harbor for loans below $2M: The big news is that the FAQ indicates that any borrower who received a loan that was less than $2M is “deemed to have made the required certification concerning the necessity of the loan request in good faith.”  This means that there is effectively a safe harbor in place for loans under $2M and those borrowers should NOT expect to have their eligibility questioned.
  • What about those who gave back proceeds?:  Many Company’s returned their PPP loans because they were concerned or frightened by what they were reading and hearing about eligibility. This new Safe Harbor begs the question:  Can I (and if so Should I) re-apply for my PPP loan if I returned it? We recommend if you want to explore that, you should discuss with your bank. We don’t know if borrowers can re-apply but certainly this FAQ allows for borrowers to feel more comfortable with the process.
  • Important clarity for companies above $2M of loans:  The FAQ provides relief for loans above $2M as well by indicating that while these Borrowers may still be subject to scrutiny regarding eligibility, the recourse for being found ineligible will be repayment of the loan (the SBA will NOT refer the borrower for civil or criminal penalties). Of course, the DOJ could always institute criminal charges on its own initiative, but the SBA is saying they won’t refer the case if the loan is repaid within the safe harbor period. This allows borrowers to at least have the confidence that the penalty is economic (repayment of the loan) rather than punitive. That is a big win for borrowers whose officers/employees have been stressed about this decision while having limited or unclear guidance. Certainly criminal penalties can still be in play for those who did not act in good faith.

“If SBA determines in the course of its review that a borrower lacked an adequate basis for the required certification concerning the necessity of the loan request,SBA will seek repayment of the outstanding PPP loan balance and will inform the lender that the borrower is not eligible for loan forgiveness. If the borrower repays the loan after receiving notification from SBA, SBA will not pursue administrative enforcement or referrals to other agencies based on its determination with respect to the certification concerning necessity of the loan request”

  • Extension of repayment date: The SBA extended the date in which Borrowers can repay their PPP loan to May 18th if they have concluded that they are ineligible. The question now is, why would you? If the penalty for being ineligible is repayment in the future (and is not criminal), and the loan is not personally guaranteed, perhaps the only reason to repay it would be to not saddle the Company with debt.

46. Question: How will SBA review borrowers’ required good-faith certification concerning the necessity of their loan request?

Answer: When submitting a PPP application, all borrowers must certify in good faith that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.” SBA, in consultation with the Department of the Treasury, has determined that the following safe harbor will apply to SBA’s review of PPP loans with respect to this issue: Any borrower that, together with its affiliates,20 received PPP loans with an original principal amount of less than $2 million will be deemed to have made the required certification concerning the necessity of the loan request in good faith. SBA has determined that this safe harbor is appropriate because borrowers with loans below this threshold are generally less likely to have had access to adequate sources of liquidity in the current economic environment than borrowers that obtained larger loans. This safe harbor will also promote economic certainty as PPP borrowers with more limited resources endeavor to retain and rehire employees. In addition, given the large volume of PPP loans, this approach will enable SBA to conserve its finite audit resources and focus its reviews on larger loans, where the compliance effort may yield higher returns. Importantly, borrowers with loans greater than $2 million that do not satisfy this safe harbor may still have an adequate basis for making the required good-faith certification, based on their individual circumstances in light of the language of the certification and SBA guidance. SBA has previously stated that all PPP loans in excess of $2 million, and other PPP loans as appropriate, will be subject to review by SBA for compliance with program requirements set forth in the PPP Interim Final Rules and in the Borrower Application Form. If SBA determines in the course of its review that a borrower lacked an adequate basis for the required certification concerning the necessity of the loan request, SBA will seek repayment of the outstanding PPP loan balance and will inform the lender that the borrower is not eligible for loan forgiveness. If the borrower repays the loan after receiving notification from SBA, SBA will not pursue administrative enforcement or referrals to other agencies based on its determination with respect to the certification concerning necessity of the loan request. SBA’s determination concerning the certification regarding the necessity of the loan request will not affect SBA’s loan guarantee.

Reminder Section:  (what should I be doing):

  • Call your payroll company about claiming the payroll tax deferrals and employee retention credits that were made available in the CARES Act.
  • Talk to your payroll company about the Sick Pay Bill (passed prior to the CARE Bill).
  • Be in constant communication with your bank (about status of your PPP application).
  • Consider speaking with your bank to discuss changes to terms of existing debt facilities. The banking system remains strong.
  • If you have already applied for the PPP, start forecasting how you intend to spend the funds and how to qualify for the highest amount of forgiveness possible.

4/17 Alston & Bird Coronavirus Flash Update

Alston & Bird have released their April 17 COVID-19 update, including the latest news on emergency funding, administrative and regulatory actions, workplace and home issues, and many other topics, as well as to links to all their past updates.

Webinar #7: The Effects of COVID-19 on Construction Contracts – Notice, Contract Clauses, Schedule and Productivity Impacts – Paul Stynchcomb, William Ibbs and Douglas L. Patin

Panelists Paul Stynchcomb, CCM, PSP, CFCC, of The Ibbs Consulting Group, Professor William Ibbs, Ph.D. of The Ibbs Consulting Group and Douglas L. Patin, a partner at Bradley Arant Boult Cummings, a national construction law firm that serves mechanical trades, discuss ways to maneuver through contract clauses and analyses of various impacts that may arise due to COVID-19. The panel discusses pandemic-related subjects of contractual rights and remedies, force majeure clauses, proper and timely notice, applicable case law, impacts to the procurement chain, schedule impact analyses and potential adverse effects of the pandemic on labor productivity caused by crew disruption, absenteeism, materials and equipment unavailability and other potential effects of the pandemic.

Additional Resources:

This webinar was recorded Wednesday, April 15, 2020.

4/15 Alston & Bird Coronavirus Flash Update

Alston & Bird have released their April 15 COVID-19 update, including the latest news on emergency funding, administrative and regulatory actions, workplace and home issues, and many other topics, as well as to links to all their past updates.

Webinar #6: HVACR/Plumbing Best Practices during COVID-19 Pandemic

A panel of leading contractors discuss important strategies to help companies deal with the current coronavirus situation. Panelists will discuss the role of HVACR/plumbing companies as essential services, crucial safety issues, impact on customers, the financial realities and a number of technical recommendations for mechanical/plumbing systems.

This webinar was recorded Friday, April 10, 2020.

4/13 Alston & Bird Coronavirus Flash Update

Alston & Bird have released their April 13 COVID-19 update, including the latest news on emergency funding, administrative and regulatory actions, workplace and home issues, and many other topics, as well as to links to all their past updates.

OSHA Addresses COVID-19 Recordability Issue

The Occupational Safety and Health Administration (OSHA) released enforcement guidance for recording cases of COVID-19. Until further notice, OSHA will not enforce its record-keeping requirements to require employers to make work-relatedness determinations for COVID-19 cases, except where: (1) There is objective evidence that a COVID-19 case may be work-related; and (2) The evidence was reasonably available to the employer.

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Working Together Is Key to Addressing COVID-19 Labor-Management Issues

In a video message, UA General President Mark McManus and MCAA President Brian Helm discuss how cooperation, communication and common sense are fueling joint efforts to adapt to new working conditions as a result of the COVID-19 pandemic. The two organizations are working together and innovating to address changing conditions while at the same time protecting our workforce and our industry’s future.

4/10 Alston & Bird Coronavirus Flash Update

Alston & Bird have released their April 10 COVID-19 update, including the latest news on emergency funding, administrative and regulatory actions, workplace and home issues, and many other topics, as well as to links to all their past updates.

Paycheck Protection Program Loans FAQs

The Small Business Administration (SBA), in consultation with the Department of the Treasury, intends to provide timely additional guidance to address borrower and lender questions concerning the implementation of the Paycheck Protection Program (PPP), established by section 1102 of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act or the Act). Borrowers and lenders may rely on the guidance provided in this document as SBA’s interpretation of the CARES Act and of the Paycheck Protection Program Interim Final Rule (“PPP Interim Final Rule”). Published on April 6, 2020.

CAMPC Shares Paid Leave Eligibility Chart

The Colorado Association of Mechanical and Plumbing Contractors has shared their Paid Leave Eligibility chart with MCAA’s members to help determine an employee’s paid sick leave, paid family medical leave and unemployment insurance eligibility. This chart has been reviewed by CAMPC’s legal team.

Updated FAQs: Employers Regulated by the Families First Coronavirus Response Act

On April 1, 2020, the U.S. Department of Labor (DOL) issued temporary regulations implementing the paid leave requirements under the Families First Coronavirus Response Act (FFCRA). The DOL has also been adding new guidance to its more informal Questions & Answers webpage. Alston & Bird has been monitoring the DOL webpage, and shared their Updated FAQs for Employers Regulated by the Families First Coronavirus Response Act.