THE ASSOCIATED GENERAL CONTRACTORS OF ILLINOIS

Covid-19 Resources

 

April 21, 2020

 

Employer Resources & Programs

 

The U.S. Department of Labor announced today the end of the temporary period of non-enforcement of paid leave protections under the Families First Coronavirus Response Act (FFCRA). The non-enforcement period allowed the Department to offer extensive guidance and education about the law’s requirements. The Department offers extensive plain-language guidance on the requirements of the law, including Questions and Answers, a Fact Sheet for Employees and a Fact Sheet for Employers.


April 16, 2020

Our partners at Central Illinois Builders shared the below information with AGCI.  While AGCI is not part of the lead group on this issue we continue to monitor the Rule and will provide updates as they become available.

 

COVID-19 WORKERS COMPENSATION NEW PRESUMPTION

 

In two teleconferences Monday when the original rule was adopted and yesterday Wednesday when the rule was expanded and adopted effective April 16th the Illinois Workers' Compensation Commission met and approved an Emergency Rule effective for the next 150 days.

 

That new rule deals with COVID-19 claims filed for Worker Compensation benefits it creates a rebuttable presumption of the injury or illness arose out of and in the course of employment.  The time frame is also exposure during a COVID-19 related state of emergency. The COVID -19 claim will be rebuttably presumed to be casually connected to the hazards or exposures of the petitioner’s employment. Section 2 which was changed lists the individuals and types of employment including all essential businesses and operations listed in part 12 of Executive Order 2020 - 8. Meaning everyone that is allowed to work.

 

ATTACHED is a fact sheet put together by the ICIC and a copy of the Emergency Rule.

 

Kim Robinson is working with everyone involved in ICIC to engage our lobbyists and coordinating a legal effort to respond to this new emergency rule.  Please note it appears as a First Responder Front line worker rule then it goes further to include all other essential employment.


April 10, 2020

 

New guidelines: CDC and EEOC

The CDC has issued new guidance regarding how employers should handle essential workers who were potentially exposed to COVID -19.

Similarly, the EEOC has updated its guidance with regards to employment law and COVID-19.

CDC's document here.   EEOC here.


AGC of America CARES Act Analysis 3/30/2020.


April 1, 2020

US DOL temporary rule on FFCRA now available

The US Department of Labor has released its temporary regulations for implementing emergency medical leave relating to COVID-19 under the FFCRA. As distinct from the guidelines released up to this point, the regulations reflect DOL’s position on how it will be enforcing the law.

The 124-page document, entitled "Paid Leave Under the Families First Coronavirus Response Act," can be downloaded at this link. The regulations are in effect from April 1, 2020 through December 31, 2020.


April 1, 2020

April 3: AGC of America webinar

On Friday, April 3 at 1pm CST, AGC of America will host a webinar to address legal and labor questions relating to COVID-19.

The webinar is free to AGC members and $499 for non-members.

Topics will include:

  • How to navigate the new paid sick and family leave mandates
  • Expiring collective bargaining agreements
  • How to handle layoffs and furloughs while staying compliant with the National Labor Relations Act, the WARN Act, labor contracts (including benefit fund), etc.
  • Possible future Congressional relief measures
  • Impact on union contractors

Speakers will include AGC of America CEO Steve Sandherr, Associate General Counsel Denise Gold, and others.

Register here.


March 30, 2020

FFCRA: job site closures

USDOL’s Q&A regarding the Families First Coronavirus Response Act (FFCRA) can be downloaded here. Below is an excerpt from that Q&A (pages 11-12) focusing on DOL's interpretation of the act as it relates to job site closures.

23.          If my employer closed my worksite beforeApril 1, 2020 (the effective date of the FFCRA), can I still get paid sick leave or expanded family and medical leave?

No. If, prior to the FFCRA's effective date, your employer sent you home and stops paying you because it does not have work for you to do, 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 is 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.

It should be noted, however, that if your employer is paying you pursuant to a paid leave policy or State or local requirements, you are not eligible for unemployment insurance.

24.          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.

25.          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.

26.          If my employer is open, but furloughs me on or after April 1, 2020 (the effective date of the FFCRA), can I receive paid sick leave or expanded family and medical leave?

No. If your employer furloughs you because it does not have enough work or business for you, you are not entitled to then take paid sick leave or expanded family and medical leave. However, you may be eligible for unemployment insurance benefits. You should contact your State workforce agency or State unemployment insurance office for specific questions about your eligibility.

27.          If my employer closes my worksite on or after April 1, 2020 (the effective date of the FFCRA), but tells me that it will reopen at some time in the future, can I receive paid sick leave or expanded family and medical leave?

No, not while your worksite is closed. If your employer closes your worksite, even for a short period of time, you are not entitled to take paid sick leave or expanded family and medical leave. However, 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 your employer reopens and you resume work, you would then be eligible for paid sick leave or expanded family and medical leave as warranted.


March 27, 2020

FFCRA posting requirements

The Families First Coronavirus Response Act requires notice to be posted “in conspicuous places on the premises of the employer where notices to employees are customarily posted.”

If employees report to the employer’s main base before going to the worksite, then a poster at the main base suffices. If employees go directly to worksites, then a notice at the worksite where other posters (such as prevailing wage notices) are hung.

Other options include electronic dissemination (via text or email or if employees use it, an intranet or external website posting).

The DOL’s FFCRA poster can be downloaded here. A Q&A concerning posting requirements is here.


March 27, 2020

IDOT memo on COVID-19 project delays

IDOT has released a memo detailing procedures for project delays resulting from the COVID-19 pandemic. IDOT is committed to working with all contractors to ensure that contract time is administered fairly and accurately for the duration of the current situation. The memo is here.


March 26, 2020

Families First Coronavirus Response Act: Employer Tax Credits

a Q&A by Andy Martone and HesseMartone staff

Click here for PDF version

QUESTION:   How should an employer document employer-paid leaves under the Families First Coronavirus Response Act (FFCRA) in order to qualify for the tax credits?

ANSWER:   During this crisis, health care documentation will be substantially delayed. When in doubt, err on the side of safety and follow up for documentation later.

The short answer is that it is not yet clear what documentation will be requested as proof for the tax credits because the Department of Labor and the Department of Treasury have not yet issued the regulations or guidance that will flesh out the statutory requirement.  They have committed to putting out regulations on an expedited basis – probably by mid-June – and are issuing guidance even more quickly. 

Attached is a link to the most recent IRS statement, indicating that more thorough guidance will be forthcoming next week.  https://www.irs.gov/newsroom/treasury-irs-and-labor-announce-plan-to-implement-coronavirus-related-paid-leave-for-workers-and-tax-credits-for-small-and-midsize-businesses-to-swiftly-recover-the-cost-of-providing-coronavirus

Based on the type of documentation usually required for FMLA, and the clear intent of the government to liberally provide the tax credit, here’s our current thinking on handling this:

1.    Common to All:  proof of payment of leave through your payroll.  Be sure that your payroll clearly identifies this as COVID-19 leave and shows that the employee’s PTO, sick leave or vacation time was not reduced as a result.

2.    The Employee’s Illness, Treatment (including diagnostic or preventive) or Personal Quarantine for COVID-19:

  • Obtain documentation from the employee’s health care provider or the medical laboratory that tested the employee. 
  • If the employee is self-quarantined due to having a high-risk condition, the employee’s health care provider should at some point issue something in writing to this effect.
  • If the employee has been exposed to someone with COVID-19, make a contemporaneous writing of all the details you know about it, but without personal identifying information concerning the person to whom the employee was exposed.  If possible, have the employee write and sign the statement or email it back to you.  If you wrote it, obtain the employee’s signature on the writing or email it to the employee for a return email confirming the content.
  • Obtain a copy of an order of the government or of a public health agency directing the quarantine or isolation.

3.    The Employee’s Caretaking of Someone Who Has Contracted or is Quarantined for COVID-19:

  • Obtain medical documentation for the person who has contracted or is quarantined for COVID-19 for which personal health information has been redacted but which still clearly links the patient with your employee.  This can be tricky, but the health care providers should work with you because they want the patient cared for by your employee.
  • Obtain medical documentation from the same provider indicating the need for your employee to caretake the patient.

4.    Child Care Leave:

  • Request from the employee a copy of the email or letter s/he received from the school or childcare entity indicating that it would no longer be open or that the child could not return because of COVID-19 exposure.  If this is not provided but you know the name of the school or childcare entity, you may be able to obtain proof directly through the school or entity’s website.
  • Request proof of the age of the child, to show that you were providing leave related to a child under the age of 18.  If this is not provided, you can research the child’s birth certificate online at https://www.vitalchek.com/.
  • If the parent is divorced, you may also want to request written confirmation of the custody arrangement while the child is unable to attend school or childcare.

This is a quickly evolving area of law, so stay posted for future updates and more comprehensive guidance.


March 25, 2020

IDOL Q&A; Seyfarth Shaw FAQ & return-to-work template

IDOL has published a Q&A regarding the Families First Coronavirus Response Act. It can be downloaded here.

Also, Mark Lies of Seyfarth Shaw LLP in Chicago has shared his firm’s COVID-19 FAQ as well as a return-to-work protocol (PDF and Word) which companies can use as a template for their own documentation efforts.


March 24, 2020

COVID-19 recommended best practices

AGC of Illinois has worked with industry partners including IRTBA, IAPA, and others to compile a list of COVID-19 recommended best practices for highway construction worksites. Topics covered include pre-jobsite-access screening, personal protective equipment (PPE), hygienic practices, and many others. The document can be downloaded in PDF format.


March 20, 2020

The Families First Coronavirus Response Act ("FFCRA")

Collective Bargaining Agreement Supplement

The FMLA expansion and the mandatory paid sick leave portions of the FFCRA specifically address the applicability of multiemployer collective bargaining agreements to the mandatory paid leave available under both sections:

FMLA EXPANSION ACT

SEC. 3103. EMPLOYMENT UNDER MULTI-EMPLOYER BARGAINING AGREEMENTS.


(a) EMPLOYERS — An employer signatory to a multiemployer collective bargaining agreement may, consistent with its bargaining obligations and its collective bargaining agreement, fulfill its obligations under section 110(b)(2) of title I of the Family and Medical Leave Act of 1993, as added by the Families First Coronavirus Response Act, by making contributions to a multiemployer fund, plan, or program based on the paid leave each of its employees is entitled to under such section while working under the multiemployer collective bargaining agreement, provided that the fund, plan, or program enables employees to secure pay from such fund, plan, or program based on hours they have worked under the multiemployer collective bargaining agreement for paid leave taken under section 102(a)(1)(F) of title I of the Family and Medical Leave Act of 1993, as added by the Families First Coronavirus Response Act.


(b) EMPLOYEES — Employees who work under a multiemployer collective bargaining agreement into which their employers make contributions as provided in subsection (a) may secure pay from such fund, plan, or program based on hours they have worked under the multiemployer collective bargaining agreement for paid leave taken under section 102(a)(1)(F) of title I of the Family and Medical Leave Act of 1993, as added by the Families First Coronavirus Response Act.


EMERGENCY PAID SICK LEAVE ACT

SEC. 5106. EMPLOYMENT UNDER MULTI-EMPLOYER BARGAINING AGREEMENTS.

(a) EMPLOYERS — An employer signatory to a multiemployer collective bargaining agreement may, consistent with its bargaining obligations and its collective bargaining agreement, fulfill its obligations under this Act by making contributions to a multiemployer fund, plan, or program based on the hours of paid sick time each of its employees is entitled to under this Act while working under the multiemployer collective bargaining agreement, provided that the fund, plan, or program enables employees to secure pay from such fund, plan, or program based on hours they have worked under the multiemployer collective bargaining agreement and for the uses specified under section 5102(a).

(b) EMPLOYEES — Employees who work under a multiemployer collective bargaining agreement into which their employers make contributions as provided in subsection (a) may secure pay from such fund, plan, or program based on hours they have worked under the multiemployer collective bargaining agreement for the uses specified in section 5102(a).


SEC. 5107. RULES OF CONSTRUCTION.
Nothing in this Act shall be construed—
     (1) to in any way diminish the rights or benefits that an employee is entitled to under any—
               (A) other Federal, State, or local law;
               (B) collective bargaining agreement; or
               (C) existing employer policy; or
     (2) to require financial or other reimbursement to an employee from an employer upon the employee’s termination, resignation, retirement, or other separation from employment for paid sick time under this Act that has not been used by such employee.


March 19, 2020

Summary of the Families First Coronavirus Response Act for Construction Contractors

by Andy Martone and HesseMartone Staff
 

The Families First Coronavirus Response Act (Act) was signed into law on March 18, 2020. Here are some of the key points.
 

General Summary
 

The Act covers as an employer any person or public or private entity engaged in or affecting commerce who employs at least 1 person and less than 500. The Act creates two types of emergency paid sick leave, basic sick leave and paid FMLA, both of which are paid for initially by the employer and reimbursed through a tax credit. The provisions all become effective on April 2, 2020 (15 days after enactment) and expire at the end of 2020. This emergency paid leave is for employees who have contracted COVID-19, are quarantined due to COVID-19 (even if they haven’t contracted it), are caretaking for someone who has contracted the virus, or are caretaking their child as a result of a school or other closure caused by COVID-19. Up to 100% of the employer's cost will be reimbursed through a tax credit.

A.     Division C Emergency FMLA Expansion Act.


a. Covers people who were employed or self-employed within the prior 30 days who are absent from work:
     i. For own COVID-19 illness
     ii. Because quarantined for COVID-19, even if they don’t have it
     iii. Due to caretaking of someone with COVID-19
     iv. Due to caretaking of own child under the age of 18 because of a COVID-19 closure.


b. Scope of leave.
     i. Starts 10 days after leave commences (because of other paid leave)
     ii. Is available for 12 weeks, in the same manner as calculated for unpaid FMLA

 

c. Benefit amount. 2/3 of the individual’s daily pay, capped at $200/day and $10,000 in aggregate.1 Hours paid are those the employee normally works or, if the schedule varies considerably, the average hours an employee worked over the last six months.
 

d. This requirement may be satisfied by participation in a multi-employer fund or other multi-employer collectively bargained plan that allows employees to be paid for all of the purposes covered by the Act.
 

e. Notice: the employee must give as much notice as practical if leave is foreseeable.

f. Restoration of Employment: is not required if the employer has fewer than 25 employees and the position no longer exists due to the public health crisis, and the employer makes reasonable effort to place the employee in an equivalent position immediately and within the year following the end of the public health emergency or the year following the 12th week after the commencement of leave, whichever is earlier.
 

g. As an extension of FMLA, an employer is prohibited from interfering with, restraining or denying an employee’s attempt to exercise a right under the Act, and is also prohibited from retaliating against an employee for doing so or for opposing a violation of the Act. Violation of the Act can result in an employer owing an employee back pay and benefits, interest, liquidated damages, attorney fees and costs, as well as having to reinstate or promote the employee. Employers with less than 50 employees are exempted.fees and costs, as well as having to reinstate or promote the employee. Employers with less than 50 employees are exempted.


h. Absence from work includes unavailability to telework. This means, for example, that an employer with employee who is self-quarantining but not showing symptoms of COVID-19 can have the employee to work from home instead of paying the employee sick leave.
 

B.     Division E Emergency Paid Sick Leave Act
 

a. Available no matter how long the person has worked for the employer. An employee may start taking leave on the first date of employment or April 2, 2020, whichever is later.
 

b. Amount and purpose: 10 workdays of leave paid at the rate of:
     i. 100% of employee’s regular wages if used for own COVID-19 illness, quarantine or diagnosis (capped at $511/day);
     ii. 2/3 of employee’s regular wages if used for caretaking as described in Division C (capped at $200/day).
     iii. Full time employees are paid for 80 hours; part-time employees are paid for their average hours over a two-week period.

 

c. Can be used first, even if the employee has other paid leave. This is additional leave.
 

d. The employer may not require the employee to search for a replacement to cover the hours of absence.
 

e. After the first day of leave, the employer can require reasonable notice from the employee to continue the leave.


f. This requirement may be satisfied by participation in a multi-employer fund or other multi-employer collectively bargained plan that allows employees to be paid for all of the purposes covered by the Act.
 

g. Employer Notice Requirement. An employer is required to post the notice provided by the Secretary of Labor, which will be available by March 25, 2020.
 

h. Sick leave is not required to be paid out upon a separation from employment (i.e., if the employee quits, is fired, takes disability, dies).
 

i. Sick leave will not carry over from year to year.
 

j. An employer is prohibited from discriminating against an employee who takes leave under the Act, and is also prohibited from retaliating against an employee for opposing a violation of the Act. Violation of the Act can result in an employer owing an employee back pay and benefits, interest, liquidated damages, attorney fees and costs, as well as having to reinstate the employee.

k. Absence from work includes unavailability to telework. This means, for example, that an employer with employee who is self-quarantining but not showing symptoms of COVID-19 can have the employee to work from home instead of paying the employee sick leave.

 

C.     Division G Tax Credits for Paid Sick Leave and Paid FMLA
 

a. Private employers are granted a quarterly payroll tax credit for leave paid under Divisions C and E.
 

b. Credit amount will be:
     i. 100% of the required payments under the Act (not to exceed the Act’s caps), plus
     ii. 100% of any payment the employer is required to make under its own policies (or a collective bargaining agreement or contract) during
leave to maintain the employee’s health care coverage.
 

c. The credit cannot exceed the amount of payroll tax owed. If it does, the excess will be treated as a tax overpayment, that will first be used to pay off any other tax debt and, if none, refunded by February 15, 2021.
 

d. The tax credits will increase the employer’s taxable gross.
 

e. An employer can choose not to take the credit.

 

 An employee may elect to substitute paid vacation, personal or medical/sick leave but is not required to do so.

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