By Philip J. Siegel, Partner; Hendrick, Phillips, Salzman & Siegel, P.C.

In today’s world, every employer is certainly aware of the COVID-19 hazard. Knowledge of this serious health hazard has significant legal consequences in the construction workplace, especially when you consider each employer’s obligations under the federal Occupational Safety and Health Act (“OSHA”).  

Can I get a citation relating to COVID-19?

    Under OSHA, employers are required to furnish each of its employees employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees. Most construction employers are familiar with specific OSHA regulations or standards that apply to their trade. These regulations provide a standard of care for the construction employer to follow. Consider the case of a commercial roofing contractor which has its employees working on low-slope roofs exposed to a fall hazard.  OSHA’s regulation for roofing work on low-slope roofs provides various means by which roofing contractors can provide fall protection which meets OSHA’s standard of care, such as the use of a personal fall arrest system and warning line. Notably, there are no such regulations or standards that show employers in the construction industry how to address the COVID-19 hazard in the workplace.  

    When OSHA is left without a specific standard to rely on when alleging an employer has failed to meet its duty to address recognized hazards in the workplace, it instead relies on what is commonly referred to as OSHA’s general duty clause. The general duty clause provides as stated above: “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”  

    In order for OSHA to prove a violation of its general duty clause, it must provide evidence on four elements. OSHA must show the following as part of its prima facie case alleging a violation of the general duty clause: 

1. The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;
2. The hazard was recognized;
3. The hazard was causing or was likely to cause death or serious physical harm; and
4. There was a feasible but useful method to correct the hazard.

Importantly, OSHA has published an alert which provides COVID-19 guidance for the construction workforce. In an effort to reduce the risk of exposure to the coronavirus, OSHA offers the following for those working in the construction industry:  

•    Encourage workers to stay home if they are sick.
• Allow workers to wear masks over their nose and mouth to prevent them from spreading the virus.
• Continue to use other normal control measures, including personal protective equipment (PPE), necessary to protect workers from other job hazards associated with construction activities.
• Advise workers to avoid physical contact with others and direct employees/contractors/visitors to increase personal space to at least six feet, where possible. Where work trailers are used, all workers should maintain social distancing while inside the trailers.
• Train workers how to properly put on, use/wear, and take off protective clothing and equipment.
• Encourage respiratory etiquette, including covering coughs and sneezes.
• Promote personal hygiene. If workers do not have immediate access to soap and water for hand-washing, provide alcohol-based hand rubs containing at least 60 percent alcohol.
• Use Environmental Protection Agency-approved cleaning chemicals from List N or that have label claims against the coronavirus.
• To the extent tools or equipment must be shared, provide and instruct workers to use alcohol-based wipes to clean tools before and after use. When cleaning tools and equipment, workers should consult manufacturer recommendations for proper cleaning techniques and restrictions.
• Keep in-person meetings (including toolbox talks and safety meetings) as short as possible, limit the number of workers in attendance, and use social distancing practices.
• Clean and disinfect portable jobsite toilets regularly. Hand sanitizer dispensers should be filled regularly. Frequently-touched items (i.e., door pulls and toilet seats) should be disinfected.
• Encourage workers to report any safety and health concerns.

Construction employers that follow OSHA’s guidance will certainly be positioning themselves to avoid or defeat any OSHA citation alleging a violation of OSHA’s general duty clause.  However, construction employers must also be sure to provide their employees with training on the COVID-19 hazard itself. Just like with any other safety training provided by a construction company, that training should be documented in the form of an agenda identifying the topics covered, and an attendance sign-in sheet should be maintained identifying the attendees.

Do I need to record cases of employees with COVID-19?

Despite a company’s best efforts to maintain a safe workplace free from the COVID-19 hazard, it may be that an employee reports having tested positive for COVID-19.  A common question arising out of these cases concerns whether the employee’s positive test result presents a recordable event under OSHA’s record-keeping regulations. Importantly, OSHA issued interim guidance for enforcing OSHA’s record-keeping requirements as it relates to recording cases of COVID-19. 

Under OSHA’s record-keeping requirements, COVID-19 is a recordable illness, and employers are responsible for recording cases of COVID-19, if the case: 

(1)   Is confirmed as a COVID-19 illness; 
(2) Is work-related as defined by OSHA regulations; and
(3)   Involves one or more of the general recording criteria under OSHA regulations, such as medical treatment beyond first aid or days away from work.

 OSHA notes that construction employers may have difficulty making determinations about whether workers who contracted COVID-19 did so due to exposures at work. Understanding this difficulty, OSHA states that, until further notice, OSHA will not enforce its recordkeeping requirements to require these employers to make work-relatedness determinations for COVID-19 cases, except where: 

(1)   There is objective evidence that a COVID-19 case may be work-related; and
(2)   The evidence was reasonably available to the employer.

OSHA’s enforcement guidance provides that if a number of cases develop among workers who work closely together, this could be evidence the illness is work-related, if there is no other alternative explanation.

What steps should I take to protect the safety of my workers if an employee reports testing positive for COVID-19?

    Construction companies should be developing an Infectious Disease Preparedness and Response Plan, which addresses how the company is responding to the hazard. Many of the elements from OSHA’s guidance for the construction industry should be incorporated into the Plan. The Plan should also include the steps the company will take when it learns an employee has tested positive for COVID-19.  

    When an employee reports testing positive for COVID-19, construction companies should follow the CDC’s guidance. The CDC provides advice for employees who have had close contact (less than six feet) for a prolonged period of time with a person with symptomatic COVID-19 during the period from 48 hours before symptoms onset until that person meets the criteria to discontinue home isolation. The CDC’s guidance suggests that those who have been so exposed should self-quarantine for 14 days after the last exposure. Therefore, when it is reported to the company that an employee has tested positive for COVID-19, that employee should be instructed to create a list of co-workers with whom the employee had close contact for a prolonged period of time during the period beginning 48 hours before symptoms onset until the employee reports testing positive and begins staying at home. The co-workers on that list should be instructed to self-quarantine for 14 days in an effort to spread the virus.

Conclusion

Unfortunately, the COVID-19 hazard is a real one, and it will remain a hazard for the foreseeable future. Among other concerns for construction company employers in today’s world is making sure the workplace is safe for their employees. By following OSHA’s guidance, not only are companies avoiding an OSHA citation, but they are also taking affirmative steps to make sure their workforce remains safe and healthy.

About the Author

Philip Siegel is a partner and shareholder with the firm Hendrick, Phillips, Salzman & Siegel, P.C., whose practice focuses on labor and employment matters within the construction industry.  Philip has an undergraduate B.B.A. from the University of Michigan, and he obtained his law degree from Emory University School of Law.  Philip can be reached at either (404) 469-9197, or via e-mail at pjs@hpsslaw.com.