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While some industries were effectively shut down in mid-March when federal, state and local government declared COVID-19 a pandemic, the construction industry has been in state of flux. Construction work was labeled as “essential” services depending upon the locality, the status of the project or the type of construction. Aside from the new projects that were temporarily shelved or altogether scrapped, contractors have had to deal with evolving safety concerns and new employment questions. 

As state and local governments around the country begin relaxing social distancing restrictions, employers are faced with a new set of unprecedented challenges. In addition to navigating a labyrinth of inconsistent requirements imposed by local and state authorities, employers must be prepared to implement additional measures to keep employees and customers safe while staying legally compliant. While there is no one-size-fits-all approach—particularly in the construction industry with different projects, sizes of crews and sophistication of work activities—this article outlines some considerations that all contractors should take into account when planning to adjust working crews now in the field, as well as the return-to-work of management and home office.

Government Orders and Guidance

Employers should anticipate that local and state governments may impose requirements on businesses as a condition of re-opening. Employers should carefully review any applicable orders and ensure compliance with the same. Employers should also follow any applicable federal or regulatory requirements, as well as relevant guidance issued by the Centers for Disease Control and Prevention. In addition, each employer should refer to their industry-specific guidance and consider how to incorporate those recommendations and resources into workplace-specific plans.

Employee health screening procedures

 Many state and local orders are either recommending or requiring that employers adopt procedures to screen employees for COVID-19 symptoms prior to allowing them to report for work. Even if such a screening is not required by government authorities, contractors should strongly consider adopting some type of screening protocol to ensure employee safety. Some key considerations include:

  1. Decide what screening methods to use. Screening methods will vary by industry, location, work environment and the requirements of any applicable orders. Options range from daily temperature screening to requiring employees to answer questions about symptoms prior to entering the workplace. Symptom-based screening should be based on CDC guidance and updated regularly if that guidance changes.
  2. Decide who will be subject to what type of screening and how often. Employees who work in close proximity may require more screening than those who do not. Employers who implement daily temperature screening may not need to administer questionnaires each day. Decide if screening measures will apply to all individuals at the worksite or whether different screening will apply to different sub-categories of employees, and decide how often screening will be performed (e.g., once daily or upon re-entry). If different screening methods will be used for different sub-groups of employees, these differences should be based on risk of exposure and not discriminatory criteria.
  3. Decide who will administer the screening and how it will be administered. Employees may be asked to self-report symptoms by filling out a questionnaire form or responding verbally to questions asked by a screener. Employers who ask employees to self-report symptoms should appoint a facilitator to review responses prior to entry. 

The issue of health screening on a construction project may seem like a daunting task, but consider the exercise no different than any other safety policy implemented by the construction company. Just understand that when implementing a screening process, employers must comply with applicable federal, state and local health and safety laws to protect employees from potential workplace hazards. While the CDC and OSHA have yet to issue definitive guidance on temperature screening, employers should comply with existing OSHA requirements regarding personal protective equipment for employees administering screening, including the use of respirators (e.g., N95 masks). 

What about documentation?

Contractors are undoubtedly aware of the role of documentation during the construction process and claim preservation. Equally important is the documentation related to health screening, including what information will be documented, how it will be documented and where such documentation will be confidentially stored. Rather than recording all symptoms/temperatures for all employees, consider recording only those who did not pass the screening and the reasons. For workers sent home, the employer should document: 

  • the person’s name;
  • the date and time of screening; and
  • the elevated temperature recorded and/or symptoms reported. 

Maintaining this documentation may help avoid discrimination claims down the road, as well as help contractors comply with OSHA requirements in the event there is a recordable injury for work-related coronavirus diagnosis. All documentation related to screening must be stored in a separate medical file rather than in an employee’s personnel file.

Employee Considerations for Health Screening

Employers should clearly inform employees of the screening process in advance and provide notice of any implications of being sent home. Any written notice should also be posted on entrances to the workplace and on any internal website or other location where policies are maintained. Additionally, employers should pay employees for their waiting and screening time. Whether employees are entitled to be paid for time spent waiting to be screened is a highly fact-specific inquiry. The conservative approach is to ensure that employees are paid for both screening time and any time they spend waiting to be screened. Employers who elect not to pay employees for this time run the risk of having to defend claims under federal, state and local laws.

Additional Thoughts on Workplace Safety

Appropriate safety measures will vary depending on the project worksite environment and may include providing PPE to classes of workers not traditionally required; enhanced cleaning procedures; continued social distancing on worksites; and vendor and material delivery policies. 

  • Personal Protective Equipment. OSHA has divided job tasks into four exposure levels: very high, high, medium and low. Most workers will likely fall in the low or medium exposure risk categories. Contractors should identify positions, if any, with the potential for occupational exposure to the novel coronavirus and provide appropriate PPE, whether masks, gloves, face shields or respirators. 
  • Enhanced Cleaning Procedures. Follow CDC guidance for cleaning and disinfecting and ensure that EPA-approved disinfectants are used. If cleaning services are contracted through third party, employers are encouraged to review current cleaning procedures with service provider, modify as necessary and audit on a regular basis to ensure compliance.
  • Social Distancing. This remains a challenging measure on the construction site because contractors perform in various environments (indoors versus outdoors), as well as different activities (isolated work by individual machine operators versus larger, group activities). Employers should evaluate physical worksite layout and move work activities where possible to increase physical distance between employees. The goal is to keep workers 9-12 feet apart. If available space does not allow this much separation, evaluate options for staggering schedules as an alternative or adding physical barriers between activities.
  • Vendor and Material Delivery Policies. Contractors should altogether restrict visitors at the worksite. However, where deliveries are required for vendors and material suppliers, written policies should be implemented to require these worksite visitors to adhere to social distancing measures (i.e., no handshakes, cloth face coverings, at least six feet apart). Contractors should modify pick-up and delivery practices to reduce and/or avoid contact person-to-person contact.

The impact of COVID-19 on the construction industry has been far-reaching, including work stoppages, project delays, material unavailability, safety concerns and employment-related challenges. As social distance requirements are relaxed, contractors need to continually adjust to a new environment—whether it is a continuation of work activities or returning to work a group of employees who have been quarantined at home for the past several weeks. Contractors are advised to stay current with CDC and OSHA guidelines and, most of all, use common sense.

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