ASA Wins for Subcontractors in Critical “Pay When Paid” California Case

The American Subcontractors Association is pleased to report on a significant win for the Subcontractor community in Crosno Construction, Inc. et al v. Travelers Casualty and Surety of America. Last year, ASA produced a friend-of-the-court brief affirming a California Superior Court’s judgment regarding “pay when paid” provisions used to withhold payment from a subcontractor. On April 17, 2020, the California Court of Appeals ruled in favor of subcontractors to limit enforcement of “pay-when-paid” clauses that delay those payments to subcontractors. Read the full press release.

OSHA Guidance on Recording COVID-19 Cases

           OSHA states that in areas where there is ongoing community transmission, employers may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work. Until further notice, OSHA will not enforce its recordkeeping requirements to require these 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; however, employers of workers in the healthcare industry, emergency response organizations and correctional institutions must continue to make work-relatedness determinations pursuant to 29 CFR Part 1904.  OSHA’s guidance takes effect immediately and remains in effect until further notice, which is intended to be time-limited to the current national public health emergency.  Please read the April 10 announcement.

Under OSHA’s recordkeeping requirements, COVID-19 is a recordable illness, and employers are responsible for recording cases of COVID-19, if the case:

• Is confirmed as a COVID-19 illness;
• Is work-related as defined by 29 CFR 1904.5; and
• Involves one or more of the general recording criteria in 29 CFR 1904.7, such as medical treatment beyond first aid or days away from work.

CDC Fact Sheet: Prepare Your Small Business and Employees for the Effects of COVID-19

CDC recognizes the importance of small businesses and developed guidance to help businesses limit the economic and community impacts of an outbreak of COVID-19. This new guidance provides steps that are recommended to protect employees and prepare small businesses for disruption. The fact sheet also outlines 10 steps small business employers can take now to protect their employees’ health. 

Furthering the Essential Infrastructure Definition

On April 6, 2020, ASA, along with the Construction Procurement Industry Coalition, sent a letter to President Trump and the U.S. Department of Homeland Security urging further guidance to clarify “essential Infrastructure” and “essential businesses and services.” Per the letter, “as the nation and your Administration contend with the real threats presented by COVID-19, we want to encourage the issuance of exemptions for operations and maintenance of ‘essential infrastructure’ that allows individuals to provide such services that are impossible to perform from home. Such infrastructure should include essential design, construction and related services of public works, including airport operations, roads and highways, public transportation, energy, and of critical importance today, expanding, retrofitting, and rehabilitating structures to meet healthcare and other systems and facilities related COVID-19 production needs.”

Finally, the letter respectfully urged the broadest definition of the services, occupations, and projects our organizations represent so that we serve our fellow citizens, operate in a safe manner in accordance with CDC and other relevant protocols, contribute to the effort to combat COVID-19, and sustain our economy in these difficult times. 

ASA Coronavirus Resource Guide

The Center for Disease Control (CDC) is responding to an outbreak of respiratory disease caused by a novel coronavirus (COVID-19) that was first detected in China and has now emerged in almost 90 locations internationally, including 500 confirmed cases within the United States as of March 9, 2020. With the complete clinical picture of COVID-19 not fully known along with the CDC’s expectation that the number of confirmed cases will continue to rise, members of the American Subcontractors Association (ASA) may have concerns regarding the disease and how to handle employment matters during this outbreak. As the situation is emerging and continually evolving, ASA will monitor all federal agency developments and guidance to supply our members with the most up to date information available. The ASA has collected numerous materials from a wide variety of sources and developed this Coronavirus Resource Guide to provide our members with a comprehensive resource to best prepare for employment disruptions as COVID-19 cases continue to be discovered.                                 

Click Here to Download the Full ASA Coronavirus Resource Guide

ASA has also put together the ASA Coronavirus Employer Guide. To access the MEMBERS ONLY ASA Info Hub:Go to the Member Login Page.If you need a Username and Password, create an account.Once logged into the Info Hub, choose “Resources” from the left-hand menu.Choose “COVID-19” from the drop-down menu at the top of your screen.COVID-19 Resources Available from ASA National Sponsors These ASA sponsors have provided resources (sometimes free or at deep discounts) to companies at this time. Click on the company name to be directed to their COVID-19 resources. CNA Rhumbix Foundation Software Tradesmen International Raken    eSUB    Smith Currie    Commerce Bank    NCS    Surety One

CPWR Shares Tips to Help Shield Construction Workers from Exposure

By: Safety and Health Magazine

The Center for Construction Research and Training (CPWR) has released guidance for employees and employers.

CPWR collaborated with North America’s Building Trades Unions, as well as partners in research and government, to develop the guidance. The center said it plans to update its COVID-19 webpage regularly as information becomes available.

Tips for workers include:

• Don’t go to work if you’re feeling sick.
• Don’t shake hands when greeting others.
• Stay at least 6 feet away from others on the worksite, if possible, including during meetings and training sessions.
• Avoid contact with sick people.
• Avoid touching your eyes, nose or mouth with unwashed hands.
• Cover your mouth and nose with a tissue when coughing or sneezing, or do so into your elbow.
• Wash your hands often for at least 20 seconds. Use soap and water or an alcohol-based hand sanitizer that contains at least 60% alcohol.

For employers:

• Plan for office staff to have the ability to work from home.
• Provide soap and running water – and hand sanitizer, if possible – on all worksites to allow for frequent hand washing.
• Wipe down interiors and door handles of machines or construction vehicles, and the handles of equipment and tools that are shared,with disinfectant prior to entering.CDC has issued disinfection recommendations here.
• If a job involves working at a health care facility, provide workers with Infection Control Risk Assessment training.

SLDF Process Guidelines

We want to ensure that all ASA Chapters are updated on the latest processes and procedures for the approval of SLDF cases requesting amicus support.

The SLDF Task Force and ASA National Leadership carefully vet each application for assistance to ensure the maximum legal impact for the subcontracting industry with these funds. Approved cases are offered to ASA member law firms to serve as amicus counsel. Approved counsel accepts a capped and reduced retainer below standard rates, as a service to the ASA community, and in recognition of the far-reaching impact of these Appellate decisions. We are proud of our record of success in these cases.

Please spread the word about the service that SLDF provides our subcontractors, and we also need your support to keep this fund replenished to fight new cases each year. Information on the Fund can be found at www.sldf.net. There is a new link at this site that will connect you to an informative presentation on the history and workings of the Subcontractor Legal Defense Fund as well. Please feel free to use this information as a resource, and do not hesitate to reach out to us with any questions!

Factors and Considerations for SLDF Involvement:

ASA’s Board of Directors requires the SLDF Task Force to consider the following factors: 

(a) Is the issue of specific interest to construction Subcontractors and suppliers?  

(b) Are the issues focused and clearly presented?

(c) Is there a consensus among ASA members on the issue(s)? 

(d) Could ASA have a meaningful impact in the judicial proceedings?

(e) Is the proceeding likely to result in setting favorable judicial precedent (or avoiding the setting of unfavorable judicial precedent) primarily in appellate level court proceedings or other reported formats?

(f) Are the issue or forum of high visibility from a public relations standpoint?

(g) Is the party seeking ASA’s intervention willing to indemnify ASA for its expenses if the case settles before a final decision on the appeal?