Andrews Myers | We Mean Business in Texas

City of Houston Letter to Contractors

by Ben Westcott On March 30th, The City of Houston sent a letter to contractors working with the City on recommended safety, distancing and hygiene practices for its projects, and included guidelines from AGC of Houston on recommended practices for construction jobsites during COVID-19. Click here for the COH Letter.

City of Austin and Travis County Release Additional Guidance on Construction

by Carson Fisk Yesterday, the City issued yet another a guidance memorandum. Still inconsistent with the language of the actual order (which remains intact with its ambiguities, circular references, and undefined terms), this 4-page “Supplemental Guidance for the Construction Industry” memorandum provides that, as an overarching matter, “construction work by a single worker who is the sole employee/worker on a job site may proceed.” It sets forth a number of provisions, including a description of a newly created administrative process to decide whether any given project can proceed.

A new “Construction Exemption Review Committee” has been formed to assess “whether specific construction projects and activities in the City of Austin meet the criteria to continue development under the City’s Stay Home – Work Safe Order.” The committee includes representatives from multiple City departments, and an online form is to be submitted to begin any such assessment. Apparently seeking to correct some of the ambiguities in the order due to lack of definitions, the supplemental guidance memorandum offers definitions concerning “Public works construction,” “Construction of Affordable Housing,” and “Construction work supporting Essential Businesses” and “Construction work supporting Critical Infrastructure,” which, in both instances, “includes completion of current construction work and new construction work….” Non-exempt projects must wind-down, and “the City will not cite a construction business or operator for a violation of the Order” if the project is being wound-down and requirements and recommendations in the Order and supplemental guidance memorandum are being followed. Additionally, certain employer requirements are set forth for all ongoing construction work, including signage requirements, pre-screening processes, and setting the required quantity of soap or hand-washing stations.

As with the City’s initial guidance memorandum, the City’s supplemental guidance memorandum is simply a staff-issued memorandum—not an amendment to the order or an independent order, and the language of the actual order controls (or should control). But the City’s intent continues to be expressed in restrictive and limiting terms, albeit at odds with the language of the Order.

However, overlaying all of the above is the newly issued “Guidance for the Construction Industry” memorandum issued by Travis County, also generated yesterday. In that memorandum, also not an amendment to the County’s order or an independent order, the County largely mirrors the position of the City. Namely, “[i]n general, commercial and residential construction activities are prohibited under the Order except in the very limited situations where the construction involves one of the specific types of essential and critical facilities” listed in the order. The County’s memorandum points to a finite list (also at odds with the language of the County’s order), including “Construction in support of Essential Businesses.” The County, however, takes the matter one step further, noting that: “For purposes of clarification, ‘construction in support’ refers to necessary repairs and maintenance for the essential business to safely remain open and operational.” In an apparent attempt to avoid any doubt, the County’s order further states “Residential and commercial construction ARE PROHIBITED under the Order.”

Thus, while the City may permit “completion of current construction work and new construction work,” it appears that that County may not—at least based on a memorandum. Click here for the entire summary.

More Answers on the Emergency Paid Leave Act

by Tony Stergio Late last week, the Department of Labor issued new expanded regulations to the Families First Coronavirus Response Act that was passed in mid-March. These expanded regulations answer additional questions, which many employees have asked concerning the new paid leave acts which I previously summarized here and here.

Requests for Information/Documentation: The DOL regulations establish that employees requesting leave must provide employer with an explanation of the qualifying reason for leave and a statement that the employee is unable to work or telework. Employees must also supply employer documentation (1) from a healthcare provider requiring quarantine or self-isolation; or (2) documentation supporting a school or daycare closure.

Leave Only if Unable to Work or Telework: The DOL explains that being “unable” to work or telework means that an employer has work available, but the employee cannot perform the work in person or through telework due to one of the reasons set out in the Act. If an employer offers the ability to work the same number of hours per day but different hours, the employee is able to work and leave is unnecessary unless: 1) the reason for leave prevents the employee from working that schedule; 2) the employee has a qualifying paid sick leave absence; or 3) the employee cannot telework due to the need to care for a child.

Intermittent Leave with Employer’s Agreement: Intermittent leave may be taken under the Act only if the employer agrees to intermittent leave.

Layoffs/Furloughs: No protected leave is available if an employee is let go due to lack of available work or worksite closure before or after the Act’s April 1 effective date. This is true whether or not an employer closes its worksite for lack of business or because it is required to close pursuant to a Federal, State, or local directive ...Read More

Federal Judge Halts Dallas Paid Sick Leave Ordinance

by Elaine Howard Dallas, Austin and San Antonio all passed paid sick leave ordinances, but courts stopped Austin’s and San Antonio’s from going into effect. Dallas’s went into effect last August, but per the ordinance, Dallas could not enforce it until April 1, 2020.

However, last night, a federal judge ruled that the Dallas paid sick leave ordinance was unenforceable, and prohibited any Dallas officer, employee or agent from enforcing it. The Dallas order can be found here.

This means that employers in Dallas, or with a mobile work force that works part of the year in Dallas, will not have to navigate both the new federal paid leave law (Families First Coronavirus Response Act) and the Dallas paid time off ordinance. The new federal paid leave law goes into effect on April 1.

Mediation Can and Should Continue

There is no reason any mediation should halt due to the fallout from COVID-19. Remote mediation works due to the innovative, widely available technology that is relatively simple to access and use. The advantages of remote mediation include greater accessibility for users; with the convenience and ease of phoning in, if computers or web cams are not available or possible.

Our firm’s technology is state-of-the-art. We can create joint sessions and breakout rooms within the videoconferencing platform as well as allow counsel to make PowerPoint presentations and the exchange of documents. Our experience confirms this type of mediation is as effective as those done in person. A mediator’s experience, knowledge and skill set, together with parties and stakeholders committed to and prepared for the mediation process, are primary drivers of a successful mediation. Andrews Myers has six mediators, all of whom bring those necessary qualities to any mediation regardless of locale :

New Travel Restrictions Between Texas and Louisiana

by Lisa Norman On March 29, 2020, Governor Abbott signed an order imposing additional restrictions on entering Texas from Louisiana. The new restrictions for drivers expand the Governor’s previous order imposing restrictions on those traveling by air from Louisiana into Texas.

Travelers driving into Texas from Louisiana will be subject to a mandatory 14-day quarantine. The order includes an exception for people traveling in connection with commercial activity, military service, emergency or health response and critical infrastructure functions.

Texas Department of Public Safety officers have been dispatched to monitor traffic coming into Texas from Louisiana. Individuals who are stopped must prove they fall into one of the exceptions to the order. If they cannot prove they are an exempt traveler, they must complete a form to be provided by the DPS and identifying their designated quarantine location. Such non-exempt travelers must then immediately travel to their quarantine location and remain there for 14 days. If quarantined travelers violate the 14-day quarantine order, they will be subject to a $1,000.00 fine or 180 days in jail.

If you have questions about the Governor’s order or you anticipate any of your employees will need to travel to Louisiana and may need proper documentation to reenter Texas, please contact us for assistance.

A copy of the order is available here.

Frequently Asked COVID-19 Questions in the Real Estate Market

by Scott McKaig By now likely everyone in the real estate market has been impacted in some manner by the spread of COVID-19 across the country and the world, and real estate lawyers have begun receiving a surge of questions from panicked tenants, landlords, and lenders concerned about how they will be impacted by the constantly-changing federal, state, and local restrictions and guidelines, as well as the resulting changes in consumer activity. Below are a few of the most frequently-asked questions we have received amidst the pandemic.

Rent The main issue that is understandably front and center on many minds is rent. Various municipalities have required many businesses to shut down entirely, and others that remain open have still seen a drastic reduction in customer activity as more and more individuals heed the advice from the CDC and other government officials to stay home. Restaurants, bars, retail, and service industries have all been significantly impacted by this pandemic.

Both tenants and landlords are worried about the next month’s rent payment, which for many tenants is due April 1. Parties on both sides of leases have asked what could happen if a tenant is unable to pay rent, and unfortunately there is no easy answer. Many tenants have already asked their landlord for rent deferment or abatement options, and some tenants have gone even further to simply inform their respective landlords that rent will not be paid, potentially risking default. A landlord may have some flexibility on working with tenants to arrange some type of rent relief, though many landlords have their hands tied due to their own loan agreements with their lenders, which often prohibit any form of rent relief or related lease amendments without the lender’s consent. On that level, those lenders often have their own hands tied based on how the loan is packaged or due to some other restriction. In my experience, local banks can often have a bit more flexibility than their national counterparts to work with landlords on these issues.

Before having a conversation with your lender or your landlord (if you are a tenant), be sure to read your lease or loan agreement, as applicable, to become familiar with your rights and obligations. Admitting that you cannot pay your monetary obligations when due, for example, may by itself constitute a default under some agreements. Courts may ultimately be sympathetic on a defaulting party considering the seriousness of the situation and its national effects, but there are no guarantees and it is always best to avoid litigation if possible.

Click here to read more on Force Majeure and Financing questions.

Celebrating 30 Years in 2020

Founded in 1990, with offices in Houston and Austin, Andrews Myers, Attorneys at Law, is a corporate law firm and recognized market leader in Texas construction law. The firm focuses on the concentrated disciplines of commercial litigation, construction, commercial real estate, corporate and business transactions, with additional emphasis on related issues including bankruptcy and insolvency, energy, employment and capital formation. A seasoned team of attorneys provides timely and cost-effective solutions to the most complex problems facing entrepreneurs and middle-market industry leaders throughout the state and the nation. For more information please visit www.andrewsmyers.com.