Many construction companies are critical businesses and thus exempt from current public health and executive orders. However, there are provisions that even exempt construction companies must comply with. Companies should conduct enhanced cleaning and social distancing protocols. There are many recommended protocols to assist companies to avoid contamination by and prevention of the spread of the virus in the construction workplace. Of course, office personnel should be reduced as per the Governor’s orders, either by permitting/requiring work from home; staggering shifts; or other such measures.  A last provision, which has not yet gotten as much publicity is that construction companies should conduct an inventory of all protective respiratory equipment including masks and ventilators in their possession and be prepared to report that to the state.

There are many questions which come to mind in light of the orders. We have identified many of the most common questions and consensus answers below.

Question: What if the worker refuses to work?

Workers are protected from retaliation from an employer if they refuse to take on what they consider an unsafe work assignment. Employers should listen to employees carefully about their concerns. You can’t discipline someone for complaining about safety. It becomes less straightforward, though, if a “reasonable” employee would otherwise deem the assignment safe.

Question: What if I end up catching Covid-19 at work? Is my employer liable?

It is unlikely an employer would be liable for a worker catching Covid-19 because it’s usually hard to prove. If an employee suffers an injury on the job, the worker is often entitled to workers’ compensation. But with the coronavirus, proof that the contamination occurred on the jobsite could be tough to determine, as determining exactly where and how someone contracted the virus is difficult, but is an element of proof needed to hold an employer responsible for medical costs. Generally, an employee must prove that the disease was caused by “conditions peculiar to the work” and there were no other opportunities for exposure.

Companies do have an obligation to warn those who may have come in contact with someone diagnosed with Covid-19, however. In addition, local health authorities may also want the public to know. Healthcare providers are required to notify federal, state and local health authorities of the diagnosis, and those authorities may provide additional guidance and requirements, including further notification, on-site medical questioning, or examinations. If an organization has not been contacted, the employer may initiate contact and seek further guidance.

You should not, however, identify the employee in question by name. That could violate confidentiality requirements. Instead, you should note something generic – such as that a member of a crew working on the X project or a certain part of the building contracted the virus. Of course, most employees will immediately know you are talking about Joe, but you don’t say Joe. Identify steps being taken to address the issue, along with retraining on its infection control practices, including handwashing and sanitizing workplace areas.

Question: Can I force a sick employee to go home or stay home?

Under OSHA’s “general duty” clause, employers are responsible for assessing the hazards in their workplace and taking appropriate steps to protect employees from those hazards. Given the current pandemic situation, employees with obvious symptoms of acute respiratory illness, including flu-like symptoms, may be required to stay at home or leave work and go home. Make sure and document the reasons, however.

Question: If we have a furlough or temporary layoff due to coronavirus, are employees entitled to receive unemployment compensation?

Unemployment eligibility is determined by the State under individualized statutory and regulatory frameworks. Eligibility generally turns on the reason for the unemployment period, as well as its duration, with funding provided by both the state and federal governments. On March 12, the Department of Labor (DOL) issued new guidance encouraging states to amend their unemployment laws to provide greater flexibility for unemployment arising from coronavirus. Federal law allows states to pay benefits where: 1) an employer temporarily ceases operations due to COVID-19, preventing employees from coming to work, 2) an individual is quarantined with the expectation of returning to work after the quarantine is over, and 3) an individual leaves employment due to a risk of exposure or infection or to care for a family member.

Federal law does not require an employee to resign employment in order to receive benefits due to the impact of COVID-19. In the event of a furlough or temporary layoff related to COVID-19, employers should encourage their employees to apply for unemployment benefits.

We say this with the proviso that, as new regulations are issued by the State the Federal government, more details and guidance will be forthcoming.

Question: May I require temperature screenings of employees and/or a return to work form from a physician for an employee returning from illness?

A temperature screening is likely to be considered a “medical examination” under the Americans with Disabilities Act (ADA). In order to conduct a medical examination for current employees, it must be job-related and consistent with business necessity, unless the employer can demonstrate an undue hardship. However, if a pandemic has reached a community, as assessed by state or local health authorities or the CDC, employers may likely measure employees’ temperatures without violating the ADA, per the Equal Employment Opportunity Commission’s (EEOC) guidance.

Be warned, however, that employers who do implement screening may face the potential of an adverse impact on employee relations. Further, legal questions may arise, such as whether any “waiting time” for such screening is de minimus or arguably compensable under the Fair Labor Standard Act and whether employees waiting together to be screened adds to potential exposure to the virus.

Also, information indicates that a temperature screening would not eliminate all risk to the workforce, as some individuals will contract COVID-19 and not exhibit certain symptoms (e.g., elevated temperature). Employers should evaluate this issue carefully as it plans its pandemic response.

Employers can question employees about whether they are experiencing symptoms consistent with the COVID-19 virust. The CDC also states that, in a pandemic like this, questions about symptoms that are being experienced are acceptable if they are reasonably objective.

Requiring a doctor’s note certifying fitness to return to work is permissible if consistent with your standard practices, but you should be aware that, in light of the expected crush of such cases, such documentation may be delayed due to the high volume of patients being assessed by healthcare providers during this period. Requiring a note might delay the employee’s return to work.

Question: May I ask an employee why they have been absent for work if I suspect it is due to a medical reason?

The EEOC specifically addressed this issue in its Pandemic Preparedness guide in 2009. Asking why an employee has not been at work is not a disability-related inquiry, and therefore, an employer may ask the reason(s) for the employee’s absence.

Question: Are workers that contract COVID-19 eligible for workers’ compensation?

The question of eligibility for workers’ compensation benefits is state-specific. I have not seen any information of use on this issue to date.

Question: What should I do to prepare for or mitigate the spread of the virus?

We recommend that you should take steps to mitigate the potential spread of COVID-19 by educating and reassuring employees and training them on what action to take to limit the potential spread of any virus, including COVID-19.

The CDC recommends the following to prevent the spread of the virus, which have been extensively publicized but should be continually communicated:

1. Wash hands often with soap and water for at least 20 seconds, and if soap and water are not available, use an alcohol-based hand sanitizer

2. Avoid touching eyes, nose, and mouth with unwashed hands

3. Avoid close contact with people who are sick

4. Stay home when sick

5. Cover coughs or sneezes with tissues or cough into the elbow area, then discard the tissues in the trash and follow up with handwashing

6. Clean and disinfect frequently touched objects and surfaces regularly

As the pandemic has reached community spread in the U.S., employers should also give serious consideration to implementing social distancing measures designed to prevent person-to-person spread of COVID-19. The purpose of social distancing is to delay the spread of COVID-19 so that local healthcare facilities are not overwhelmed with seriously ill patients (by flattening out the curve of the anticipated spike in recognized cases of COVID-19). Such measures include, for example, staggering work shifts, evaluating remote work options, limiting group meetings (use of video or telephonic conferencing), distancing workers at work as feasible (6 feet is the current recommendation) and by training employees to avoid social gatherings at work that put them in close proximity.

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