FAQ: COVID-19 and the Transportation Industry
The Scopelitis COVID-19 Task Force is monitoring the evolving legal landscape in these difficult times and is addressing questions and concerns unique to the transportation industry. Here are some of the more common and pressing considerations.
Q: Are transportation providers exempt from state-issued "stay at home" orders?
A: Yes, thus far. Generally speaking, these "stay at home" orders mandate the closure of "non-essential" or "non-critical" businesses. Fortunately, each state that has issued a "stay at home" order to date has exempted the transportation industry, in one form or another. That said, workers in the transportation industry may be required to prove to authorities that they are traveling on essential or critical business. Scopelitis has prepared a Notice to Enforcement Officials that could be carried by transportation workers that explains to authorities the exempt nature of the travel. We recommend those working in transportation businesses in states that have issued "stay at home" orders carry a version of this notice while engaged in business-related travel, including commuting to and from the office.
For an updated list of state and local jurisdictions that have entered "stay at home" orders, or whether specific operations qualify under the "essential business" exemptions, please contact us.
Q: If a truck driver travels into Texas from Louisiana, are they required to self-quarantine for 14 days?
A: Texas requires individuals who arrive from certain cities or states, including Louisiana, to remain in quarantine for 14 days. However, commercial activity, such as trucking, is exempted from the quarantine requirement, so it does not apply to truck drivers crossing state lines in connection with their work. If law enforcement questions a truck driver related to potential operation in violation of a quarantine or stay at home order, the driver should present a Notice to Enforcement Officials indicating they are engaged in commercial activity as part of an essential business. If the enforcement officer continues to question the driver's exemption from such orders, the truck driver's supervisor should be called to discuss the matter further. Scopelitis has prepared a Notice to Enforcement Officials that can be carried by transportation workers, which explains to authorities the exempt nature of the travel.
Q: How does the Families First Coronavirus Response Act impact paid sick leave?
A: The Act (effective April 1, 2020) contains a section entitled the Emergency Paid Sick Leave Act, which provides for limited paid sick leave benefits under qualifying conditions. These paid sick leave requirements apply to all employers with fewer than 500 employees. Paid sick leave is available to both full-time and part-time employees, regardless of their length of service. Covered employers are required to provide paid sick leave when an employee is unable to work or telework for any of the following reasons: (1) the employee is subject to a federal, state, or local quarantine or isolation order related to COVID–19; (2) the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19; (3) the employee is experiencing symptoms of COVID–19 and is seeking a medical diagnosis; (4) the employee is caring for an individual who is either under a quarantine or isolation order or who has been advised by a health care provider to self-quarantine due to concerns related to COVID–19; (5) the employee is caring for a son or daughter whose school or place of care has closed due to COVID-19; or (6) the employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.
Full-time employees are eligible for 80 hours of paid sick leave, and part-time employees are eligible for their average number of hours over the prior two-week period. This statutory paid sick leave is to be in addition to any paid sick leave benefits offered by the employer, and the employee can elect to use which category of paid sick leave he/she wants to use first.
Notably, the Act provides that the Secretary of Labor has the authority to issue regulations to exempt small businesses from certain requirements related to paid sick leave "when the imposition of such requirements would jeopardize the viability of the business as a going concern." However, such exemptions are limited to the requirement to provide paid sick leave to care for a child whose school or daycare has closed.
For more insight on the Act and its application, please contact us.
Q: Are employers required to post a notice in the workplace regarding to the Families First Coronavirus Response Act?
A: Employers with fewer than 500 employees are covered by the FFCRA and required to post in a conspicuous place (e.g., breakroom or lounge) on its premises a notice of the Act's requirements. For instance, a motor carrier with multiple terminals is required to post this notice in the driver lounge or a driver-frequented area at each terminal. As a second option, an employer may satisfy the notice requirement by emailing or direct mailing this notice to employees, or posting this notice on an internal or external website accessible to employees. A copy of the U.S. Department of Labor's model notice can be found here. This notice must remain posted until January 1, 2021.
Q: Can compensation paid to independent contractors be included in calculations for purposes of a CARES Act Paycheck Protection Program loan?
A: According to the Interim Final Rule issued by the U.S. Small Business Administration, no. The rationale behind such limitation is because independent contractors can apply for their own PPP loan, they should not be included when calculating payroll. One reason for industry confusion on this point resulted from the text of the Act, which suggested payments to contractors should be included. However, the IFR, which implements portions of the Act, clarified those payments should not.
The following Q&As included in the IFR speak directly to this limitation:
Q: Do independent contractors count as employees for purposes of PPP loan calculations?
No, independent contractors have the ability to apply for a PPP loan on their own so they do not count for purposes of a borrower's PPP loan calculation.
Q: Do independent contractors count as employees for purposes of PPP loan forgiveness?
No, independent contractors have the ability to apply for a PPP loan on their own so they do not count for purposes of a borrower's PPP loan forgiveness.
Q: Are owner-operators (and other independent contractors) eligible for the expanded pandemic unemployment assistance benefits, including the additional $600-per-week payment?
A: Generally yes, assuming they meet the COVID-19 criteria. For states that agree to accept the federal benefit, independent contractors will be eligible for both the state unemployment benefit and the additional $600 payment until it sunsets on July 31st.
Q: What precautions should drivers take if making essential deliveries in cities with high numbers of COVID-19 cases?
A: CDC recently published guidance relating to deliveries in New York City. CDC instructs drivers to stay in their vehicles as much as possible as supplies are loaded and unloaded, avoid being within 6 feet of others as much as possible when they exit their vehicles, and move to electronic receipts if possible (in this regard, Scopelitis has fielded numerous questions from shippers, carriers, and consignees and can provide guidance in ways to decrease exchanged paper). The guidance further instructs drivers who need to spend the night in the greater New York City area to remain in their hotel room or sleeper cab as much as possible and continue to practice social distancing. For more insight on delivery issues or electronic receipts, please contact us.
Q: What should a company do if an employee driver reports a positive COVID-19 test result or develops COVID-19-like symptoms?
A: The company should require the employee driver to:
- Remain at home and self-quarantine if not performing job functions at the time of reporting.
- If driver is under dispatch at the time of reporting, require the employee driver to (1) distance from all other individuals as best as possible (e.g., stay in their truck as much as possible) and return home as soon as possible. Care should be taken to ensuring a driver only continues to operate a vehicle if the driver remains able to safely do so. Where necessary, the vehicle should be driven to the nearest safe resting place, medical attention for the driver should be obtained, and the company should implement its plan regarding recovering and repowering enroute-loads.
- The driver should remain in self-quarantine until the driver is discharged from a hospital following treatment for COVID-19 and a return to work is not inconsistent with the directions of the driver's healthcare provider(s) (if hospitalization is required or occurs), or, if the driver is not hospitalized, until the applicable events and time periods as communicated by the company have occurred or elapsed.
Companies should have a rapid response plan in place to address this and similar situations. The Scopelitis Task Force has developed a guide that addresses various considerations for a company to take into account when developing a rapid response plan.
Q: If a critical-infrastructure worker (e.g., a truck driver or dispatcher) has been potentially exposed to COVID-19, are they required to self-quarantine for 14 days?
A: CDC released interim guidance that provides critical-infrastructure workers who have been potentially exposed to COVID-19 may continue to work so long as the worker remains asymptomatic and the following precautionary measures are implemented:
- Pre-Screening: Employers should measure the worker’s temperature and assess symptoms prior to them starting work. Ideally, temperature checks should happen before the individual enters the facility.
- Regular Monitoring: As long as the worker doesn’t have a temperature or symptoms, they should self-monitor under the supervision of their employer’s occupational health program.
- Wear a Mask: The worker should wear a face mask at all times while in the workplace for 14 days after last exposure. Employers can issue facemasks or can approve workers’ supplied cloth face coverings in the event of shortages.
- Social Distance: The worker should maintain 6 feet and practice social distancing as work duties permit in the workplace.
- Disinfect and Clean work spaces: Clean and disinfect all areas such as offices, bathrooms, common areas, shared electronic equipment routinely.
These ongoing obligations should remain in effect for a 14-day window following the potential exposure. If another potential exposure occurs, this cycle should begin anew for the impacted worker(s).
Q: What if I cannot locate DOT drug and alcohol testing resources, such as collection sites, Breath Alcohol Technicians, or Medical Review Officers, due to the impact of COVID-19?
A: In recent guidance, the FMCSA recognizes that compliance may not be possible in certain areas but encourages DOT-regulated employers to make a reasonable effort to locate these resources. As a current best practice, the Administration recommends that employers consider mobile collection services when unable to complete any required testing at fixed-site collection facilities. If testing cannot be completed, regulated employers should take great care to document the reasons testing could not be completed and, in some instances, testing should be completed at a later date. However, this guidance does not extend to post-accident drug/alcohol test; this testing must be completed within 8 hours for alcohol and 32 hours for drugs. As always, no employee may perform a safety-sensitive function for a DOT-regulated employer until the employer receives verified negative pre-employment drug test results.
Q: Are driver-applicants able to complete CDL knowledge and skills tests during this period of state-government closures?
A: This depends on the state. As a general matter, some state licensing agencies are closed entirely and are not offering any testing, some will allow testing by appointment only, and some allow third-party testers to continue to conduct skills tests. Please contact us if you have questions regarding any specific states.
Q: How should I instruct my drivers on ELD use in light of the FMCSA's Emergency Declaration?
A: The FMCSA's Expanded Emergency Declaration temporarily suspends Parts 390-399 of the FMCSRs (including regulations applicable to hours of service) for motor carriers and drivers providing vital supplies and services in response to the COVID-19 pandemic. The FMCSA recommends three ways to handle ELD use while conducting exempt operations: (1) use the "authorized personal use" (personal conveyance) function of the ELD, which records time as off-duty and will require an annotation; (2) use the ELD in its normal mode and annotate the ELD record to indicate driving under the emergency relief exemption; or (3) turn off the ELD, in which case the carrier would address the unassigned miles in accordance with the current regulation. Each option comes with its own set of benefits and drawbacks. Please contact us to for advice on which option works best for your options.
Q: Under the FMCSA's Emergency Declaration, is vehicle preventative maintenance currently suspended?
A: The FMCSA's Emergency Declaration temporarily suspends Parts 390-399 of the FMCSRs for motor carriers and drivers providing vital supplies and services in response to the COVID-19 pandemic. To this end, if a vehicle is being used to provide direct assistance for the relief efforts, the motor carrier is exempted from the vehicle-related requirements of the FMCSRs. However, the vehicle must be "put back into compliance" by receiving any past-due vehicle maintenance after the declaration ends or before the vehicle is used to perform service unrelated to relief efforts.
Q: Are my expiring annual vehicle safety inspections waived or extended?
A: FMCSA has not provided an extension to expiring annual inspections. For commercial motor vehicles that are domiciled in states with a mandatory inspection programs, motor carriers must ensure the respective state has issued a waiver or extension on vehicle inspections or that the inspection is kept up to date. Many states have already issued such waivers or extensions to commercial vehicle safety inspections and we anticipate there will be more to follow. To the extent any vehicles are providing direct assistance to the emergency relief efforts, these vehicles would fall under FMCSA's emergency declaration and would be exempt from Part 396 in order to continue providing those services notwithstanding an expired annual inspection. However, once the vehicle ceases the emergency relief efforts, the motor carrier would need a valid and up-to-date inspection to resume routine operations.
FMCSA Issues FAQs on Emergency Declaration. On March 18, 2020, FMCSA expanded its emergency declaration from March 13, 2020. The expanded emergency declaration is available here. The declarations temporarily suspend Parts 390-399 of the FMCSRs for motor carriers and drivers providing vital supplies and services in response to the COVID-19 pandemic. Notably, the declaration applies to supplies related to direct assistance under the emergency declaration mixed with other, unrelated materials covered under the declaration so long as the related materials do not constitute a nominal quantity of the load.
On March 19, 2020, in response to industry inquires, the FMCSA posted an FAQ addressing common questions. The following are a few excerpted by the Scopelitis COVID-19 Task Force.
Q: If there is an ELD in the truck, what should a driver do to account for the miles driven?
A: There are three options:
- Use the "authorized personal use" (personal conveyance) function of the ELD to record all of the time providing direct assistance under the exemption. Use of this function will result in the time being recorded as off duty and requires an annotation.
- Use the ELD in its normal mode and annotate the ELD record to indicate they were driving under the emergency relief exemption; or
- Turn off the ELD, in which case the carrier would address the unassigned miles in accordance with the current regulation.
Q: What does a driver need to do if taking a backhaul not covered by the exemption after transporting an exempt load?
A: Upon completion of the direct assistance activities and prior to returning to normal operations, the driver is required to take 10 consecutive hours off duty before driving. All the time the driver spends engaged in work-related activities that are not associated with providing direct assistance must be counted under the HOS rules.
Q: Is a 34-hour restart required after providing direct assistance under the emergency declaration?
A: No, however, upon completion of the direct assistance and prior to returning to normal operations, the driver is required to meet the requirements of §§ 395.3(a) and (c) and 395.5(a), which include, for example, the requirement to take 10 hours off duty (8 hours for passenger carriers) and to comply with the on-duty limit of 60/70 hours in 7/8 days before returning to driving.
Q: What do I need to know if I'm an IAC or a 3PL tendering cargo to a passenger airline operating an all-cargo flight?
A: Due to the steep reduction in domestic flights, several passenger airlines are now flying cargo-only flights. However, bear the following in mind:
- Security: Passenger air carriers operate under TSA's passenger airline security program. Unless the air carrier specifically notifies otherwise, all cargo tendered to the air carrier must meet that program's security requirements.
- Dangerous Goods: Passenger air carriers may obtain approval to transport "Cargo Aircraft Only (CAO)" Dangerous Goods on all-cargo flights. The air carrier can provide additional guidance regarding its individual rules for unusual or out-of-the-ordinary shipments.
Q: If a shipper requests an assurance of uninterrupted service, what should a motor carrier do in response?
A: In light of the many state and local stay-at-home/shelter-in-place orders and sharp increases in demand of certain freight, some shippers may seek assurances from motor carriers that they will be able to meet their service-level commitments. To help address these concerns, one measure carriers can implement is to have drivers maintain (in both the truck and on their person) a notice to enforcement officials that makes clear they are conducting "essential business" consistent with the applicable state or local order. Carriers can then provide a copy of such notice to the shipper as an example of steps taken to avoid service interruptions. The Scopelitis Task Force has developed this notice in two versions to account for employee and owner-operator drivers.
Q: Is the COVID-19 pandemic a "force majeure"?
A: Many transportation providers are wondering if the COVID-19 pandemic constitutes a force majeure. Force majeure is a legal defense to nonperformance of a contractual obligation. This defense is quite limited. It only applies when performance is essentially impossible. Nonperformance that results from economic hardship is generally not enough to fall within a force majeure provision. In other words, if performance is possible but it won't be as profitable (or profitable at all), this is likely insufficient to constitute a force majeure.
That said, federal, state, and local authorities are responding to the COVID-19 epidemic in ways that could give transportation providers viable force majeure defenses. For example, if a state were to prevent a motor carrier from delivering into a certain city or residential area, and the motor carrier was otherwise able to make the delivery, it may be able to invoke force majeure. Or consider the air-freight industry. With the imposition of international travel bans and the decision of many passenger airlines to drastically reduce the number of flights they operate, the market for air-cargo services has been severely disrupted in ways that go beyond the control air-freight forwarders, which may have agreed to pricing before the crisis unfolded.
The Scopelitis COVID-19 Task Force has prepared a FAQ for force majeure issues specifically for transportation providers, guiding them through the nuances of this doctrine (which varies from state-to-state). Please reach out to your Scopelitis attorney for a copy if you are interested.
Q: My company is involved in litigation – what will happen to my case?
A: Scopelitis litigators, including our Transportation Class-Action Defense and Highway-Accident Teams, report that most federal and state courts across the country have cancelled all jury trials and personal appearances through May 1, 2020. At this time, most civil deadlines remain in place. Although some courts (particularly those in California, Pennsylvania, and New York) are closing off access to court facilities entirely (with limited exceptions), courts nationwide have restricted physical access to court facilities. In particular, counsel or their clients will not be permitted entrance if they have travelled to China, South Korea, Japan, Italy, Iran, and/or Europe in the last 14 days; are affected by COVID-19; or are experiencing symptoms of the virus. It is likely the same limitations will apply to counsel and clients who live in close proximity with anyone who falls into these categories. Each court has published its own guidelines; look for updates from the Scopelitis attorney handling your case regarding court-specific measures.
Q: Can a transit operator subject to Americans with Disabilities Act requirements deny transportation to a passenger that has COVID-19, or is suspected of having it?
A: On March 19, 2020, the EEOC, which administers the ADA, released guidance stating the COVID-19 pandemic meets the "direct threat" standard. In this context of transit operators, the so-called "direct threat" doctrine provides that services may be denied where there is "a significant risk to the health or safety of others that cannot be eliminated or reduced by reasonable accommodation." However, unique circumstances may add complexity and nuance to this doctrine's application; please contact us with questions.
Q: Is a diagnosis of COVID-19 a compensable workers' compensation claim?
A: As more disciplined isolation occurs throughout the US, the facts patterns where a compelling case can be made that the driver's work environment is the most highly probable environment for COVID-19 exposure will create more compensable workers' compensation claims. Of course, this will be highly dependent on the circumstances of each claim. The analysis on compensability is highly fact-specific and would generally require the claimant to establish that he or she contracted the virus in the course of employment. In the case of workers who may have been exposed to the virus in a variety of settings, proof of such a link may be very difficult. However, claimants who work in the healthcare industry or who are providing essential services and who would not be otherwise exposed to the virus (e.g., they and their family observe strict self-quarantine practices when not working) may more easily to establish this link. Prior case law (involving SARS/MERS/H1N1) reveals no extrapolation of coverage based on holdings indicating cause between disease and workplace. Please contact your Scopelitis attorney if you have specific questions concerning COVID-19.
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