As builders and trade contractors start to get back on track following the impact of COVID-19 and its restrictions, there are legal concerns to consider
Construction is an industry where general contractors regularly hire third parties, or subcontractors, to do the bulk of the on-site work, so home builders sometimes are deemed the primary contractor. As a result, the home builder could be considered a joint employer, potentially making them liable for employment law violations by a trade partner or for negligence or an injury caused by a subcontractor’s employees.
Standard practice in construction contracts is for builders to push that responsibility to their subcontractors and to certify that those crews are working in a correct and safe way. As jobsites reopen or open up as COVID-19-related restrictions relax, those contracts are being amended to include precautions against further spread of the virus.
“We’re seeing companies going to their vendors and subs seeking to amend or add language to contracts to include certifications that they will be complying with relevant public health guidance and to clarify who is responsible for what and also, to the extent possible, to try to get indemnification in case there is a claim,” says Jessica T. Travers, a labor and employment attorney and partner in the Jacksonville, Fla., office of Akerman.
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Make the Rules Regarding Your COVID-19 Response
The better course of action, Travers says, is to have policies and procedures available as opposed to trying to avoid the responsibility.
As builders take the lead to reduce the risk of contagion at work, superintendents and project managers will be the ones on the front lines implementing policy. They’ll need training, at the very least to recognize the general symptoms of COVID-19 and to answer employee questions about the company’s workplace safety practices, Travers says.
“The topic the front line manager really needs to be aware of is: What is our COVID response plan?” she says. “There has to be one person within the company who has to stay abreast of the changes and implement those across the company.”
With that, she advises builders to be aware of the most likely place or circumstances for an employee to contract COVID-19 in the workplace; in other words, a hazard assessment. “The greatest risk is where you can’t engage in social distancing [6 feet away from others] for a prolonged period of time and where there are high-touch surfaces and other issues that need more frequent environmental cleaning.”
How employees are getting to work is another issue. Those who rely on public transportation may be exposed to another potential source of infection. As such, employers should have a plan for that scenario, understand where the hazards are, and have protocols in place to mitigate those hazards.
“Consider ... Are you going to require hand washing for entry and exit? Will you require cloth-based covering or N95 masks?” Travers asks.
If your front-line managers aren't comfortable with having those conversations, Travers says, then make sure there is someone in your company's human resources department or in administration who can help employees by being the point person. “Knowing the answers to those questions is going to help keep those managers out of trouble and to maintain a safe, healthy, and productive work environment,” she says.
COVID-19 Testing: At What Cost Privacy?
What about privacy and protecting the confidentiality of employees’ medical records? If a tradesperson is turned away from the jobsite for having a suspected fever, does that action signal to other crew members that that person may be infected?
Travers notes there is no robust case law suggesting that an employer accused of compromising medical confidentiality will give rise to an actionable claim. A discrimination claim could be more likely if an employee with the coronavirus charges that he or she felt stigmatized upon returning to work.
But even if they think there won’t be the consequence of a monetary judgement, employers should strive for medical confidentiality by instilling dignity and confidentiality in the process. They can take steps such as staggering start times and temperature checks so all workers are not screened at the same time or that they are screened in a private space on the jobsite. While employees may be able to figure out through the grapevine who is the infected employee, that scenario is beyond the employer’s control and probably will not be deemed an exposure to liability.
“It's a balancing act,” Travers says. “While employers do have this obligation to keep employee medical records confidential, they have a public health obligation to inform employees who are in close contact with an infected employee that somebody tested positive for COVID-19,” and they should take appropriate steps, such as self-monitoring for symptoms or staying isolated for 14 days.
Don’t Forget OSHA Inspections
Another reason to have a policy and protocols in place to address the novel coronavirus is the federal Occupational Safety and Health Administration (OSHA). The agency has said that trying to mitigate for spread of COVID-19 is the responsibility of employers under the general duty clause of the Occupational Safety and Health Act. While the virus is a hazard that exists in the general population (read: not a specific workplace hazard), employees could file an OSHA complaint if they believe they weren't adequately protected from the virus at work.
That being said, OSHA hasn't been carrying out extensive inspections in relation to COVID-19, Travers says, though that practice could change. “You may feel great about your COVID-19 compliance, but the invitation of an OSHA inspector to your workplace for a COVID-related complaint could lead to additional exposure and liability for other issues during that inspection.”
Travers also advises complying with employees who request absences per the Families First Coronavirus Response Act, the federal law that obligates private employers with fewer than 500 employees to provide paid sick leave under certain conditions related to COVID-19, and the Family and Medical Leave Act, which grants eligible employees unpaid leave under certain circumstances. Failing to handle absence requests properly could expose employers to liability under those laws.
Company Policy Related to COVID-19: Talk It Out
Finally, clarify your company's sick leave and short-term disability benefits, if any, with your employees. If you offer employee assistance programs, remind them of those resources and how to access them.
Also, as (or if) you bring back furloughed employees, be prepared to face complex questions about continued health insurance coverage and how premiums that weren’t paid during the furlough will be made up. Those answers will vary depending on the insurance plan.
“This is a great time of distress across the nation for many different reasons, and employees may be struggling, so refreshing those benefits and making sure employees are aware of them is important,” Travers points out.