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August 03, 2020 Workplace Chatter & On In-House Counsel’s Desk

Our New Normal: Dealing with COVID-19 Concerns in the Workplace

Jessica A. Hill, Danny W. Jarrett and Andrea G. Woods

The COVID-19 pandemic has dropped a bomb on how workplaces function.  Employers are questioning whether their businesses can even survive in this “new normal” atmosphere.  If able to continue operations, there are lots of things companies must now examine and consider on a daily basis that previously were not on their radar.  For example, employers must determine how the new federal Coronavirus Aid, Relief, and Economic Security (“CARES”) Act and the Families First Coronavirus Response Act (“FFCRA”) affect its employees.  What type of leave is available under the new legislation and how does it intersect with the Family and Medical Leave Act (“FMLA”) as well as other local leave ordinances?  Other now routine conversations include exposure policies, PPE, workers compensation, unemployment, privacy issues, employees’ safety concerns as well as protocols intuited by project owners, etc.  COVID-19 has changed our lives for the foreseeable future.  So how do we proceed in the “new normal” as businesses and states start to reopen?

Cares Act, FMLA, and FFCRA 

The CARES Act, which provides more than $2 trillion dollars in relief to employers and employees impacted by COVID-related shutdowns, layoffs, and other economic stressors, is the largest economic stimulus package in U.S. history.  It provides direct relief to citizens, loans to businesses to help them pay their bills and cover payroll despite mandated federal, state, or local shutdowns.

The CARES Act amends and clarifies the FFCRA, the companion federal legislation that was recently passed, which provides for emergency family and medical leave expansion as well as emergency paid sick leave for certain employees affected by the COVID-19 pandemic.

In terms of family leave, CARES and FFCRA supplement, and do not replace, existing FMLA laws.  The Acts extend eligibility for assistance to those who must stay home to care for themselves, ill family members, or for children who have not been restricted from attending school as a result of the COVID pandemic.  Note that if you are able to work from home, then you likely do not qualify.

The new legislation does not provide for every possible scenario.  Although it seems to be pretty clear cut at first glance, when you dive into the issues, it's not.  For example, under FFCRA, an employee taking care of a spouse who tested positive for COVID-19 qualifies for paid sick leave assuming that employee is caring for that spouse.  However, an employee living with his mother and stepfather where his/her stepfather tests positive likely does not qualify because the employee is likely not "caring for an individual" who is subject to a quarantine.  Each case must be independently analyzed to determine whether an employee is covered, and whether the employee is entitled to full pay or partial pay.

Preventive Measures for COVID-19 Exposure

Construction has been halted or slowed in cities and states hard hit by COVID-19; however, in most states, construction is deemed essential and is moving forward with social distancing and other preventive measures in place.  Construction companies are asking employees to take their temperature every morning.  At some jobsites, employees' temperatures are taken before they are allowed to enter.  Employees are asked that if they have a fever, even if it is mild, or if they are sick for any reason whatsoever, to stay at home and contact their supervisor and management immediately.  Additionally, if an employee is confirmed to have COVID-19, fellow coworkers must be informed of the possible exposure but in a way that does not violate the health-related privacy rights of the worker who tested positive. Coworkers in close proximity are likewise sent home to quarantine. 

There are warranted concerns over how much information should be divulged regarding diagnosed cases of COVID-19.  While employers must maintain confidentiality of the names of those who have contracted the virus, employees are not similarly gagged, and news of infections often spreads quickly among employees.  Small companies are particularly vulnerable to breaches of confidentiality.  Despite privacy laws, employees are pushing companies to reveal the identities of who has been infected.  Despite these urges, companies are warned to not reveal the identity of the employee with the virus.

Other preventive measures include giving construction superintendents the authority to limit the size of on-site workforces to maintain prescribed social distancing as well as to implement any safety measures.  This includes the authority to discuss whether a jobsite should be shut down or whether a crew should be removed from that site.  For example, how many workers should be working on one floor of a hotel?  Should the various trades be split up so that there is not overcrowding?  Even within trades, is it possible to divide workers into small teams so that one positive COVID-19 test does not force an entire jobsite full of workers into quarantine.  Who is responsible for making sure there is a limited number of individuals at a jobsite?  How many port-o-lets should be provided at a jobsite?  Are tools being disinfected and how often?  Safety must come first.  Involve your safety directors and be sure that they have the latest information from both OSHA and the CDC.  Request that your safety director assess the jobsite and note any unsafe practices.  Discuss it with all necessary project participants.  Although communication is key, you should remove your crew off a jobsite if you deem it to be unsafe or unsanitary, especially if recommendations and orders from the CDC and the state of the project site are not being followed.  Involve OSHA if necessary.

Project superintendents should also consider bringing in more equipment to maintain the social distancing guidance of six feet or more.  Some project sites may require that a designated individual serve as a COVID-19 compliance coordinator.  Requirements regarding COVID-19 are varying from site to site (daily COVID-19 exposure questionnaires, temperature checks, wearing gloves, sanitation booths, or even periodic mandatory COVID-19 testing in limited cases).

Employers have also had to restructure lunches, meetings, and carpooling.  Lunches are spaced out to minimize contact.  Meetings are held virtually if possible, and office doors are locked to the public.  Companies are also discouraging employees from carpooling or using public transportation to get to and from work.  Where carpooling is a must, consider implementing policies that require limits to the number of occupants depending on vehicle size, mandatory wearing of masks as well as assurances of proper ventilation.   As a result, it may be necessary to consider allowing for more room for onsite parking.  Finally, employers have increased the number of on-site hand washing stations.  Employers are now providing masks or even respirators, gloves, and hand sanitizer.

Unemployment and Employee Concerns

Some workers are opting to collect unemployment rather than risk exposure or have chosen unemployment because they feel it provides more of a monetary cushion than taking paid leave. This is exacerbated by the additional $600 per week that employees are currently able to receive in addition to standard unemployment benefits, where their unemployment is COVID-19 related.   If those workers stay out for an extended period of time, it could exacerbate worker shortages that were mounting even before the pandemic.  In other cases, construction companies are struggling, but are hesitant to lay off workers with whom they have developed long-standing, productive relationships.  Some companies are opting to maintain employees' health insurance during an employee furlough, even if they cannot afford to pay their salaries. 

While most employees want to continue working, they are concerned about a host of issues.  Employees are questioning why they've been deemed essential, i.e., why are we risking our health and safety for the construction of this building, road, etc.  Others are concerned about co-workers not staying at home if they are sick.  In fact, some employees are reporting when other employees are sick where such sick employee failed to do so.  Employees are also hesitant to work in or near a hospital or nursing home and are afraid to work with fellow employees who live with someone who works in the medical field.  Most do not want to bring the virus home to their children or other family members.  To elicit buy-in, clear, consistent communication is vital.  A key part of communication is first listening and understanding the concerns of your employees.   Management should reach out to all employees directly to show them that everyone is being looked after and everyone is on the same team.

Tips for Coping with COVID-19 and New Normal:

  1. Familiarize yourself with state and local laws, regulations, and orders in your area.  A county ordinance, such as a travel ban, may be stricter than a state "stay at home" order and reopening plan.  Or, if you are a multi-state construction company, one state may have more stringent requirements than another state.
  2. Carefully craft a pandemic exposure policy so that you know how you are going to handle employee exposure as well as when/if an employee tests positive for COVID-19.  You will be bombarded with all kinds of questions from your employees.  Having a plan in place will help mitigate exposure while allowing you to deal with questions in a more orderly fashion.
  3. Create a policy on remote working so employees have guidance on what they should be accomplishing while working from home as well as how they are to track their time worked.
  4. Craft a plan on how you will disseminate information to your employees.  Take into consideration the best way to reach all employees, i.e., a corporate level individual and a construction field individual may have differing ways that they communicate.  E-mail is widely used; however, you might consider creating a text message chain as well.  Epidemic-related information can change daily so you must implement new procedures quickly.  Clear and timely communication is vital.
  5. The COVID-19 pandemic was unanticipated; thus, project disruptions are likely to occur.  Although not discussed in detail above, you should give notice early and often of delay or disruptions.  Require more detailed records regarding any project disruptions, such as scheduling impacts and potential delays.  Communicate and put necessary project participants on notice of all disruptions, including any disruptions due to safety concerns at a project site.  Maintain these records in the event of any dispute.
  6. Discuss projects with your insurance and bonding companies to make sure you are following any guidance from those sources on the COVID-19 pandemic.  Consider whether to put your insurance company on notice for any delays or disruptions to a project due to COVID-19.
  7. Maintain a good supply of PPE.  Think outside of the box as many industries are shaking things up to provide things that they did not provide in the past, such as breweries making hand sanitizer, tool and engineering manufacturers making face shields, etc.
  8. Several public agencies, private law firms, and trade organizations have posted valuable information on their websites, such as the US Department of Homeland Security, the Equal Employment Opportunity Commission, US Department of Labor and Treasury Department, the Small Business Administration, Associated General Contractors of America, Associated Builders and Contractors.
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Jessica A. Hill

Dave O’Mara Contractor, Inc., North Vernon, IN, Division 6 (Labor & Employment),

Danny W. Jarrett

Jackson Lewis, P.C., Albuquerque, NM, Division 6 (Labor & Employment)

Andrea G. Woods

Nabholz, Conway, AR, Division 6 (Labor & Employment) and Division 11 (In-House Counsel)