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FAQ: COVID-19 and the Transportation Industry

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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: 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: 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 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: 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.

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:

  1. 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.
  2. Use the ELD in its normal mode and annotate the ELD record to indicate they were 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.

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: 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: It is unlikely. 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, though if the claimant works in the healthcare industry, it may be easier to establish this link. That said, we anticipate establishing this link will become difficult as the virus becomes increasingly widespread. 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.

 

For more questions about COVID-19 please contact covid19@scopelitis.com.

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News from Scopelitis is intended as a report to our clients and friends on developments affecting the transportation industry. The published material does not constitute an exhaustive legal study and should not be regarded or relied upon as individual legal advice or opinion.

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