Construction Industry FAQ

Construction Industry FAQ

By Laura Fowler of The Fowler Law Firm

Disclaimer to readers: Answers provided here by the fowler law firm pc licensed Attorneys are not legal advice and are not attorney client Privileged. Consultation with a texas licensed attorney with Knowledge of your particular facts is strongly encouraged. Please Note relevant law and rules cited change rapidly. Recheck links Before relying upon the information discussed. References are to Powerpoints slides found below: Webinar: “Rights and Realities of Business Owners, Employers, Landlords and Tenants During Corona Virus 2020″(3.25.20)

Powerpoint Download      Recording Download

Effective April 3, 2020,  Texas Governor Abbott’s Executive Order 14 declared  homebuilding to be an Essential Business. HBA Leadership efforts to advocate on their members behalf played an important role in favorably resolving the conflict and confusion that had existed for over a week with the governing authorities of several cities and counties in disagreement about whether residential construction was an Essential Business whose operations could continue.  

March 28, 2020, U.S. Department of Homeland Security Guidance on the Essential Critical Infrastructure Workforce, Version 2.0, provides an advisory list of critical-infrastructure sectors, workers, and functions that may continue to operate during the COVID 19 response. Residential construction is included in that list. Executive Order 14 expressly adopts that list.

The order of the Texas Governor controls over any conflicting order of any mayor or county judge.

Same answer. Travel to perform work for an Essential Business or to support an Essential Business is exempt from the prohibition against non-essential travel.

https://www.hbaaustin.com/wp-content/uploads/2020/04/Gov.-Orders-3.31.30.pdf; https://www.cisa.gov/publication/guidance-essential-critical-infrastructure-workforce

Because residential construction is an Essential Business, your drivers and project superintendents should be directed to say to anyone inquiring : “Our crew is traveling to a residential construction site to perform work or transport construction materials”.  We recommend using this template as a guide.

March 27, 2020 all employers regardless of size were obligated to post or notify all employees of their FFCRA rights. If you have not already done so, you should post or send to your employees the following immediately:

https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

Effective April 1, 2020 employees may be entitled to certain Coronavirus specific sick leave. Employers are entitled to dollar for payroll tax credit for amounts paid. Employers with fewer than 50 employees are eligible to apply for a waiver for some portions of the FMLA Coronavirus sick leave pay.

https://www.dol.gov/agencies/whd/pandemic/ffcra-employee-paid-leave

For a more detailed discussion and FAQ see: 

April 3, 2020, business owners, sole proprietors and charitable organizations with fewer than 500 employees may apply for a forgivable loan of up to $10,000,000.00 which may be spent for two months  of W2 wages, rents  or commercial mortgages, and other  operating expenses.  Contact the bank that handles your business accounts for an application. Application period ends  June 30, 2020.

The application is simple to complete. Required supporting documentation is what most businesses typically maintain, i.e.;  payroll records, three years of tax returns, Profit and Loss Statements and Balance Sheet.

https://www.hbaaustin.com/wp-content/uploads/2020/03/USChamber-Small-Business-ELA-Loan-Guide.pdf

SBA Disaster Loan Assistance offers loans with  low rates of interest which but are  not forgivable. You may apply for both CARES Paycheck Protection Program and SBA Disaster  Loan Assistance.  Funds applied for through SBA Disaster Loan Assistance Program cannot be used  for the same expenses as the CARES Paycheck Protection Program funds received. Seek guidance from your bank loan officer before submitting applications for both. https://covid19relief.sba.gov/#/

CARES Paycheck Protection Program authorizes weekly payments of $600.00 to the worker, disbursements administered by Texas Workforce Commission (TWC), in addition to the traditional  TWC weekly payments of from $69.00 to $521.00. The $600.00 payment is for  up to four months to workers who have been laid off or are unable to work for a Coronavirus specific reason.  

TWC CARES PPP program administration is still in development.   https://www.twc.texas.gov/news/covid-19-resources-job-seekers#unemploymentBenefits

“Furlough” is not a legal term with a precise meaning.  The term often is used to refer to Employee whose Employer has halted  payment of wages but continues some group employee benefits. Furlough agreements should be in writing with exact terms and conditions of employer’s contributions, beginning  and end date of entitlements, terms of return to full employment, etc.  Furlough agreements should  be carefully drafted by an attorney with skill in employment law who has reviewed the employer’s handbook, employee policies and employment contracts.

https://www.twc.texas.gov/businesses/unemployment-benefits-basics-employers

You should give written notice of intent to terminate stating the date of termination,  to enable your employee to obtain unemployment payments through Texas Workforce Commission.

How much you will owe to any employee you propose to terminate and the length of time of notice before you can halt wages is entirely dependent upon the promises the Employer has made which typically are contained in the employee contract, employee handbook and employee policies. Notice of termination of employment contract should  be carefully drafted by an attorney with skill in employment law who has reviewed the employer’s handbook, employee policies and employment contracts.

 YES. Rehiring employees who were laid off or furloughed was and is a primary purpose of CARES Paycheck Protection Program.

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