Empire State Chapter Members,

Yesterday, Governor Cuomo announced that effective tomorrow at 8:00 PM all non-essential workers must remain home and work remotely.  It’s called the “New York State on PAUSE” Executive Order . While that provided clarity to those businesses deemed non-essential, it left great confusion for our industry. We're working hard to help you get clarity on how this impacts you, your company, your employees and your projects. 
 
In the Governor’s original Executive Order, construction was identified as an essential service . The definition of essential reads as follows: “essential businesses or entities, including any for profit or non-profit, regardless of the nature of the service, the function they perform, or its corporate or entity structure, are not subject to the in-person restriction.” A further clarification of "essential" within the construction industry was released Thursday by Empire State Development (ESD) and can be found HERE .
 
In the clarification, public infrastructure was identified as essential. Overall construction was defined in the following manner:
·       skilled trades such as electricians, plumbers 
·       other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes”
 
The language in the original guidance has raised a number of questions and uncertainty from the industry and within our membership. Our staff have been aggressively pursuing additional clarification so that we can provide you more guidance. We have been advised that individual agencies are providing guidance and direction to contractors on how to proceed. 
 
Some agencies and authorities are already out with direction. The New York State DOT issued an early notice stating that, “the Executive Order provides that essential businesses and services not subject to the in- person restrictions include transportation infrastructure including vendors that provide essential services needed to ensure the continuing operation of government. The Department is continuing implementation of its capital program as an essential government function and will continue to let and construct projects. The companies awarded such contracts including subcontractors, suppliers, vendors and specialty firms are all exempt for work to support the capital program.”
 
Its quite clear that traditional public work and infrastructure are moving on. But what about private work? Where does that stand? There is language contained in the clarification that we believe applies to construction and private work. It reads: “With respect to business or entities that operate or provide both essential and non-essential services, supplies or support, only those lines and/or business operations that are necessary to support the essential services, supplies, or support are exempt from the restrictions.”
 
At this time, we are continuing to seek additional clarification about how that language applies to private construction. There are conflicting reports about particular private projects being told to proceed, while others are apparently being told to stand down. However, we believe that unless there is a greater clarification of construction and/or a limitation of construction in any current or future issued guidance, that a reasonable interpretation gives a contractor firm a rational argument that they are exempt from any in-person restrictions. 
 
However, we would be remiss in our role as your association if we didn’t provide you with some advanced consideration. If you are working on a standalone project, with standalone being the key, that is for an industry deemed non-essential, you may be asked to stop construction. That may include things like hotels, fitness centers, restaurants or other retail projects. That is some of the clarification we’re seeking.
 
There is an opportunity for you to request a waiver should you want individual clarification. You can file that waiver HERE .
 
As we continue to get more clarification, we recommend that you remain in close contact with your project owner. This is a very fluid situation but we can help control and lead things to a more positive outcome. That would include doing the following:
 
  • Continue to monitor your workers for signs of illness. When found, send them home and continue to monitor their health
  • Implement best practices to keep sites clean and workers safe CLICK HERE
  • Consider staffing density levels that are greater than the 6 ft recommended by the CDC
 
In all cases, we should be following all guidelines. We’ve included links and access to those not only in this Merit Messenger but others that you can find HERE , HERE and HERE , as well as many Toolbox Talks for you to share.
 
Please know that we are actively monitoring communication from the Governors Office and state agencies and authorities. We will share any additional information deemed relevant.




Brian Sampson, President
Associated Builders and Contractors, Empire State Chapter
As part of the PAUSE initiative, New Yorkers have been directed to maintain six feet of distance from others. If you have to go out in public for an essential activity such as grocery shopping, keep six feet of distance between yourself and others. Public transportation will continue running. However, New Yorkers are being advised to limit the use of public transportation to only when absolutely necessary.
 
To protect our vulnerable populations, the Governor announced "Matilda's Law." Matilda's Law, provides new protections for the most vulnerable populations: New Yorkers age 70 or older, people with compromised immune systems and those with underlying illnesses. The law includes new rules: These groups should remain indoors (they can go out for solitary exercise) and pre-screen all visitors/aides by taking their temperature. Everyone in the presence of vulnerable people should wear a mask and keep six feet of distance.
 
New York State has a critical need for medical supplies. If your business or company has or can make Personal Protective Equipment (PPE) such as gowns, gloves, or masks, please email covid19supplies@esd.ny.gov
 
In an effort to help New Yorkers suffering financially, the Governor announced a 90-day moratorium on any residential or commercial evictions. 
 
New Yorkers who feel sick to use telehealth services before going to an ER or the doctor's office. Individuals should consult a telehealth medical professional and discuss if leaving the home is in the best interest of their health.

Coronavirus Guidance for Contractors 
Contracts, Compliance and Costs
The potential impacts of the Coronavirus to the construction industry are wide reaching. Consequences on a project site can include quarantines or other governmental actions resulting in impacts to the project work force. Offsite impacts can cover a much broader scope of issues including labor shortages at factories of manufacturers or fabrication facilities, resulting in production delays, transportation embargoes causing project supply issues, or governmental actions which inhibit manufacturing and production causing supply chain shortages and inabilities to service existing demands. 

Long known for leadership and innovation in construction law, Peckar & Abramson has issued guidance for Empire Chapter members trying to navigate contracts in the wake of the Coronavirus. Click here to view the document.
Federal Government Passes Sick Leave Law
On March 18, President Donald Trump signed the  Families First Coronavirus Response Act  into law.

The legislation is an emergency intervention to provide paid leave and other support to millions of workers sidelined by school closures, quarantines and caregiving.

If your employer has 500 or more workers, it is excluded from the new law. Instead, workers at those companies will need to rely on any remaining sick leave benefits available under company policy or state law.

If your company employs fewer than 500 people, you should be covered by the new law. However, businesses with fewer than 50 employees can make use of a hardship  exemption ,  if providing leave might put them out of business.

Lawmakers Pass Emergency Coronavirus
Paid Sick Leave Bill
New York now requires all private and public sector employees be eligible for sick leave and wage replacement while they are quarantined, regardless of whether it's mandatory or precautionary.

The degree of paid leave depends on the size of the employer:

  • Small sized employers, which includes employers with 10 or fewer employees and that have a net income of less than $1 million, would receive unpaid sick leave and immediately become eligible for Paid Family Leave and Temporary Disability Insurance (TDI) benefits.

  • Medium sized employers, which includes employers with 10 or fewer employees that have a net income of greater than $1 million and employers with between 11 and 99 employees, would receive at least five days of paid sick leave, followed by eligibility for Paid Family Leave and TDI benefits.

  • Employers with 100 or more employees, as well as all public employees, would receive a minimum of 14 days of paid sick leave.

Please contact the Empire Chapter with any questions you may have about the new sick leave and wage replacement.
NYC Department of Buildings COVID-19 Update
New York City Department of Buildings has released more information concerning how the industry will be progressing forward during this uncharted time. Please see attached service bulletins and best practices. Further, they are continuing to reduce in-person interactions between industry professionals and Department personnel in response to the COVID-19 Virus. Beginning Tuesday, March 24, 2020, there will be no in-person appointments with plan examiners. 

*The recording is available to ABC members in management positions on the  Academy site *

Length: 60 minutes
Speakers:  Maury Baskin, Littler Mendelson P.C.; Brad Hammock, Littler Mendelson P.C.
WEBINAR DESCRIPTION
ABC Members Only
The World Health Organization declared COVID-19 a global pandemic, and we are already hearing about construction employees testing positive on jobsites. Join ABC general counsel Maury Baskin and ABC OSHA counsel Brad Hammock for a webinar providing guidance to ABC members and chapter staff on employer and employee responsibilities as well as OSHA reporting and recording.

*The recording is available to ABC members in management positions on the  Academy site *

Length:60 minutes
Speakers:  Anirban Basu, ABC Chief Economist
WEBINAR DESCRIPTION
ABC Members Only
Get the latest data on the spread of COVID-19, market responses and economic consequences from ABC Chief Economist Anirban Basu.

*The recording is available to ABC members in management positions on the  Academy site *

Length: 60 minutes
Speakers:  Aron Beezley, Bradley; James Collura, Bradley; David Pugh, Bradley
WEBINAR DESCRIPTION
ABC Members Only
The World Health Organization declared COVID-19 a global pandemic, and we are already hearing of employees testing positive on projects across America. Do you know what the impact of COVID-19 is on your contracts? Join David Pugh, partner at Bradley, for a webinar providing guidance to ABC members and chapter staff on the impact of coronavirus on contracts.

*Hosted by Littler Mendelson P.C., ABC General Counsel Maury Baskin's firm*

Date: Tuesday, March 24, 2020
Time: 12 p.m. EDT
Length: 90 minutes
Speakers:  Alexis C. Knapp, Littler Mendelson P.C; Jeff Nowak, Littler Mendelson P.C; Jim A. Paretti, Jr., Littler Mendelson P.C

WEBINAR DESCRIPTION

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act, which aims to provide initial relief to American workers of certain covered employers in the wake of the coronavirus pandemic. This new law requires covered employers to offer emergency paid leave in the form of a new mandatory paid sick leave benefit and expanded paid leave under the FMLA.
Targeted for an effective date of April 2, 2020, this new law raises just as many questions as answers. The speakers will offer an analysis of the new FMLA and paid sick leave provisions of the law and deliver practical counsel for employers navigating the requirements of the law.


Date: Tuesday, March 24, 2020
Time: 3 p.m. EDT
Length: 60 minutes
Speakers: Mike Bellaman, ABC National, Joel Pickering, Lend Lease; Frank Trujillo, Miller & Long; Jorge Vasquez, Marek; Steve Wiltshire, ABC National (Moderator: Greg Sizemore, ABC National)

WEBINAR DESCRIPTION
ABC Members Only
ABC National Safety and Health Committee members discuss proactive approaches and share best practices employers and employees can implement to maintain a safe and healthy jobsite during the coronavirus pandemic.


Date:Thursday, March 26, 2020
Time: 3 p.m. EDT
Length: 60 minutes
Speakers: David Chapin, Willmar Electric Service; Chuck Goodrich, Gaylor Electric; Mike Holland, Marek; Brett McMahon, Miller and Long (Moderator: Mike Bellaman, ABC National)

WEBINAR DESCRIPTION
ABC Members Only

Hear how leaders from ABC’s Top Performers list are leading their organization, addressing employee and jobsite health and safety challenges and managing their client concerns related to coronavirus.