The construction industry is known for its toughness and resilience, working through physical and economic challenges to get the job done. As construction firms  continue to work throughout the COVID-19 crisis, the question isn’t whether to work, but rather how to work effectively while keeping the risks of the virus at bay. 

While contractors manage risk on a daily basis, the changes in worker compensation and lawsuits due to employees contracting COVID-19 is a new ball game. Fortunately, data is one area that contractors can use to understand potential risks of exposure and better control those risks so they may continue to work through the crisis while still keeping everyone safe. 

How COVID-19 has opened up construction firms to worker’s compensation claims and lawsuits

Construction workers are taking on a higher risk of exposure from COVID-19, which requires construction companies to act with reasonable care to protect their workers from being exposed while on the job site. Reasonable care is the degree of concern for safety that an ordinarily prudent and rational person would take under similar circumstances. The absence of acting with reasonable care is required for the fault to be placed on a contractor for a work-related lawsuit. 

Defining “reasonable care” and determining whether it is breached will be difficult under the unprecedented circumstances posed by workplace COVID-19 infections. But it is always wise to put forth the greatest effort possible. There are a number of resources from the Center for Disease Control as a guide for contractors to utilize. There are also other resources provided by local and state governments, trade organizations and medical organizations to provide additional guidance. 

When determining the origin of an infection, causation will always be a part of the equation. Causation is the relationship between the defendant's conduct and the end result. The nature of COVID-19 as a highly contagious virus with potential asymptomatic transmission will complicate the process of determining a point of infection. Because of this, a number of states, including California, Alaska, Kentucky, Illinois, Minnesota, Wisconsin and Missouri, have passed laws presuming that if a person contracts COVID-19 and they are working onsite somewhere the infection was due to their work. This allows worker’s compensation to immediately begin paying them during their recovery period. Employers are able to refute the claim, but only if they have ample evidence for rebuttal. 

Worker’s compensation may protect many employers from lawsuits, but worker’s compensation can be a double-edged sword, since high incidence rates dramatically increase coverage costs. Worker’s compensation claims will increase premiums but there are other costs associated with a claim. Contractors also have to take into account the lost productivity, risk of missed deadlines and potential OSHA fines. If a case can be made for negligence, a contractor could still be sued, especially if the infection results in death. The average wrongful death case can settle for anywhere from several hundred thousand dollars to upwards of tens of millions of dollars.

How data can protect employees, job sites and the bottom line

Data is the protection that contractors need in this new world of rapidly changing rules, guidelines and regulations. Being able to remain on track and confidently protect worksites from COVID-19, no matter what happens, can help keep contractors out of court and in business. Three ways data can protect employees, job sites and ultimately, the bottom line include:

• Medical testing and tracking. New COVID-19 guidelines call for testing for all employees when necessary and prudent. Mandatory pre-shift health and wellness screenings keep employees with symptoms from entering job sites. Resource management apps can provide real-time data from safety screenings to members of the management team while keeping the data secure and confidential, maintaining the required level of protection for employees. For example, employees clocking in on a mobile app must answer a custom health screening questionnaire that assures compliance with health screening submissions. These mandatory screening questions can follow the new OSHA guidelines for recordable illnesses for all industries where any positively tested COVID-19 employee and the work-relatedness of their infection using data from a resource management app to submit the required OSHA 300 log. Live field data allows a quick response to any positive case or symptoms of COVID-19. If an employee is health-screened and then tests positive, GPS tracking of all employee clock-in locations can identify anyone who worked in the same areas  with the positively-tested employee. This process gives contractors data to proe that infection doesn’t exist on their job site or that reasonable care was used to prevent transmission of COVID-19. 

• Documented safety training. Toolbox talks and other onsite safety training can be done through video within the same software used to track employees. This includes built-in date tracking with employee signatures directly from their own phones confirming that they watched the training and acknowledged that they understood it. 
  As of now, there are no new obligations for providing safety training for COVID-19, it’s a continuation of the same safety training requirements included in the Occupational Safety and Health Act of 1970. Pairing the required OSHA training with videos and the ToolBox Talks with a resource management app makes it easy to deploy updated training for evolving situations like the COVID-19 pandemic. New videos can be active within minutes of being filmed and can also be attached to the clock in function, gaining almost immediate compliance and training continuity for the entire workforce. This compliance greatly increases worker safety, substantiates proactive safety management, and reduces the appearance of any employer negligence. 

• Employee movement and personal protective equipment. Using the same resource management app, employees can be presented with a personal protective equipment checklist created specifically for their tasks. These checklists can require workers to acknowledge that they are wearing the proper equipment, maintaining proper social distance and confirm their surroundings and adherence with video or pictures. Employers receive confirmation and documentation that the checklist was completed by the right employee from the face recognition on the clock in.

Tracking the movement, social distance, task type and protective equipment usage provides proof that management is working to maintain proper CDC and OSHA guidelines. This protects the company from worker’s compensation claims and negligence lawsuits, and aids in reducing or eliminating potential OSHA fines by documenting reasonable care on the job site to prevent COVID-19 infections. Video recordings and job site photos can be embedded into safety forms to demonstrate that proper social distancing was observed, required PPE usage was executed, and that there was appropriate access to handwashing stations. Allowing management to proactively mitigate safety risks protects contractors from worker’s compensation claims. While using a resource management app to reduce COVID-19 risks, contractors that track their employee’s tasks or activities throughout the day can also mitigate their financial liability for worker’s compensation premiums. With the right worker’s compensation provider, leadership can even decrease costs associated with covering low-risk employees by tracking their actual activities and job classes in real-time. 

OSHA complaints from the construction industry for COVID-19 related cases are up 92% since April 2020. Contractors not only need to know who has been on their job site and where; they also need to prove how they’re protecting their employees and keeping them as safe as possible from COVID-19 risks. Live field data can help them with compliance and managing legal risks COVID-19 presents. 

As death rates for COVID-19 skyrocket in the U.S., the risk for wrongful death lawsuits has also increased. Safeguarding employees, job sites and bottom line from COVID-19 are not mutually exclusive. The best line of defense is proactively tracking live field data for safety to mitigate the risk for COVID-19 lawsuits, OHSA fines and workman’s compensation.