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The post DEADLINES FOR NOTICE AND LIEN FILINGS first appeared on Elms Law.

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We believe that the true economic impact of COVID-19 is still coming. We caution our clients not to approach business opportunities with a “feast or famine” mentality. Do not over-extend credit, and do not over-extend bidding or workforce pledges beyond what your business would normally do in an effort to “make up” or “get ahead” for lost time and work. We anticipate that in 2021, many of the contractors and subcontractors who are now furiously accepting as much work as possible, overextending their companies and resources, will experience financial difficulties that may severely hamper business. Overextended businesses will not be able to fully honor contracts, and lawsuits will ensue with additional devastating financial consequences. Material providers who overextend credit and fail to timely collect will be faced with attempting collections from bankrupt businesses. Companies who fail to file liens timely and properly will be unable to collect on debt.

We advise that each business take the proper protective measures. Materials providers should be proactive in collection and not allow for continued purchases/rentals to be made when past balances have not been paid as owed and agreed. Businesses should ensure that all work pursed and accepted can be performed within the existing resources of the company.

If you have any questions, please contact our office.

The post Taking a Mesaured Approach in Business first appeared on Elms Law.

This update pertains specifically to the federal emergency loans to small businesses, which was part of the $2 trillion stimulus package Congress recently passed. Of that money, approximately $350 billion has been set aside for The Coronavirus Aid, Relief, and Economic Security Act, or CARES Act. In part, this money is allocated to assist small businesses (those with less than 500 employees) in keeping their workers employed and on the payroll during this challenging time. This is the Paycheck Protection Program loan incentive, which may be forgiven. This Act may enable your business to survive this difficult period without employees having to apply for unemployment benefits. Applications will be accepted starting tomorrow, April 3, 2020, at SBA approved lending banks. Please contact your financial institution.

Many businesses across the country will be vying for these limited funds. If your business is eligible, and if you are confident that you can meet the requirements for forgiveness, we strongly encourage you to apply for these funds and to do so as soon as possible.  Details are available here: https://www.sba.gov/funding-programs/loans/paycheck-protection-program-ppp

There is another relevant federal act, The Families First Coronavirus Response Act (FFCRA). This Act affects how certain employers must handle sick leave for a sick employee, or an employee who is caring for someone else, affected by COVID-19. This Act expands the rights of employees’ paid sick leave and family and medical leave due to COVID-19 related illness.

The attached documents provide a useful overview of the two Acts:

·     CARES Act Brochure – prepared by the U.S. Chamber of Commerce

·     The Small Business Owner’s Guide to the CARES Act – prepared by the U.S. Senate Committee on Small Business & Entrepreneurship

·     Paycheck Protection Program Borrower Information Sheet – prepared by the U.S. Department of Treasury

·     Employee Rights Under FFCRA Poster – prepared by U.S. Department of Labor

Please check our website www.elmslaw.com for updates and relevant documents. Updates are occurring daily and we will keep you informed of those most pertinent to your business’ legal needs. While the above information is general and not legal advice for any specific situation, we are available if you would like to discuss your situation further.

We are all in this together and will all get through it together.

Elms Macchia, PLLC

The post A Message About Coronavirus first appeared on Elms Law.

Almost every construction contract has a notice provision regarding labor availability, delivery, material availability, jobsite access and related issues. These notice requirements typically require notice be sent in order to preserve claims or defenses. The knowledge of the condition giving rise to the claim is the key.

On Friday March 13, 2020, the President declared that COVID-19 was a National Emergency and the CDC declared that COVID-19 was a Public Health Emergency. On Sunday March 15, 2020, the CDC issued guidance that stated that gatherings of greater than 50 people should be cancelled.

It is reasonable to think that we now have knowledge of the condition giving rise to claims related to COVID-19. You may wish to consider some sort of notice of potential impact to your customers on each project.

Construction contracts also contain force majeure clauses. The force majeure clause can create an excusable delay for events outside of the contract of an upstream or downstream party. The COVID-19 situation seems to fit within most force majeure clauses although the clause may be somewhat vague. You may wish to consider notice based on your force majeure clause.

Last, but certainly not least, safety concerns. To the extent project sites are still open and have not been closed (due to employee size, quarantine or upstream directive) we suggest that construction companies have a safety talk and immediately discuss what is currently known about COVID-19, and the recommendation from the CDC and other governmental agencies concerning preventing transmission of same. We also suggest discussions with employees regarding the symptoms of COVID-19. This safety talk must be a high priority to protect employees and those of other contractors/subcontractors on the project site.

In short, if someone is sick, they do not need to be at the job site. If they suspect they are sick or have been around someone who is sick, they do not need to be at the jobsite. Comply with the recommendations of the CDC and governmental authorities as to when and how to seek medical attention if someone feels they are ill.

You should also be prepared to address Personal Protective Equipment (“PPE”) issues regarding continued work on project sites. While we are aware of no specific OSHA guidance at this time, if employees request PPE to continue work on the project site, employers should be prepared to address those concerns. Many trades will already have access to respirators, face shields and other forms of PPE. However, it is unknown at this time the preventive ability of common construction industry PPE against the COVID-19 virus and no representations should be made to employees where the CDC has not provided supporting information. We caution that if employees request PPE, and you cannot provide same, that it could easily create a legal risk to your company if you force them to work in that situation.

We do not mean to be pessimistic; however, these times do require a degree of caution.

Thank you.

Lee Elms

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