As workers return to jobsites, construction companies, like all employers have a responsibility to provide a safe work environment. If workers (including the trades, construction managers, project managers, bank inspectors, superintendents or design professionals) are exposed to the virus or contract COVID-19, employers may face liability under the OSHA General Duty Clause.
On April 24, 2020, the New Jersey Department of Environmental Protection (“NJDEP”) issued a Notice of Rule Waiver/Modification/Suspension under Executive Order No. 103 (dated March 9, 2020 – “EO 103”), regarding the extension of certain timeframes for remediation activities.
Last week, we reported that Executive Order 122, carved out environmental remediation at a site as essential construction that can continue as long as consultants and contractors can abide by social distancing requirements.
On April 9, 2020, the Treasury Department and the Federal Reserve announced the Main Street Lending Program (“Program”) to expand upon emergency loans otherwise provided by the CARES Act and to provide additional funding opportunities for small to mid-size businesses. Access to these funds through the Program is intended to be available from May 2020 through September, 2020. In the interim, it is prudent to understand the Program and be prepared to access as much as $600 billion in loans by working with your participating lender.
The time is now to anticipate and prepare for the fall-out of COVID-19. One of the anticipated consequences is the possible lawsuits that may be the result of this pandemic. Plaintiffs’ lawyers will not miss this opportunity, just as they have missed no other opportunity to blame employers for injuries to their employees and customers.
Generally, project owners, construction managers and some general contractors have been investigating ways to maintain progress on their project in face of ‘social distancing’ and ‘stay at home’ orders from governmental authorities. Many workers and subcontractors have joined in the clamor to continue working. However, financially stable trade contractors may see this issue differently. Many trade contractors perceive significant risk in working during the pandemic.
On April 10, 2020, the United States Environmental Protection Agency (“EPA”) issued interim guidance to its regional offices to evaluate ongoing cleanup activities while maintaining the health and safety of the public during the COVID-19 crisis. The interim guidance “focuses on decision making at emergency response and longer term cleanups sites where EPA is the lead agency or has direct oversight of, or responsibility for, the cleanup work,” including, but not limited to, Superfund cleanups, Resource Conservation Recovery Act corrective actions, Toxic Substances and Control Act PCB cleanups, Oil Pollution Act spill responses, and Underground Storage Tank Program actions.
While many small businesses are researching and applying for relief available under the federal Coronavirus Aid, Relief, and Economic Security (CARES) Act, know that New Jersey is also moving quickly to implement relief programs in response to the COVID-19 pandemic.
Despite the EOs, the Newark Police Department has issued summonses to Newark-based manufacturers and their employees for having too many employees on the floor and at the work place. During one visit, the police told the manufacturer the company could not have over 50 employees on the warehouse floor. At another manufacturer, the manufacturer was told it could not have over 10 employees working at one time. Both times the Newark Police incorrectly interpreted and applied Executive Orders 104, 107, and 108. Other companies and their employees have been fined. These summonses violate the EOs because Governor Murphy has deemed manufacturing companies as essential to the public and supply chain, and stated that they can remain open during the COVID-19 pandemic provided manufacturers reduce staff to the minimum staff required to perform essential functions. Porzio has been working with the manufacturers to address the issues they are facing.
The Small Business Administration (SBA) has published guidance for the $349 billion Paycheck Protection Program (PPP) contained in The CARES Act. The PPP is designed to help small and mid-sized businesses offset the economic impact of the COVID-19 pandemic. Beginning April 3, 2020, small businesses, including nonprofits and sole proprietorships, can apply for and receive loans to cover their payroll and certain other expenses through existing SBA lenders.