Many Florida construction companies have spent the past month in varying states of partial operation due to the Governor’s stay-at-home order related to the COVID-19 pandemic. Although restraints are now starting to be lifted, that does not mean things will be right back to business as usual.
In re-opening their worksites, field offices, and home office, construction companies need to ensure that those sites are capable of safely accommodating employees and visitors despite the continuing threat posed by COVID-19. Further, companies may likely have to deal with some employees who will feel endangered, no matter what steps the companies take to create a safe workplace. This article discusses the obligations and rights that construction companies have as they return their worksites to full operation.
CDC Issues New Reopening Guidance
On April 28, 2020, the Centers for Disease Control and Prevention issued its Reopening Guidance for Cleaning and Disinfecting Public Spaces, Workplaces, Businesses, Schools, and Homes (“Reopening Guidance”). This Guidance, which provides recommendations for mitigating the risks of COVID-19 in the workplace, supplements the existing Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019.
The Reopening Guidance includes recommendations for the development of a reopening plan, implementation of the plan, and maintenance/revision of the plan. Regarding the plan development process, the CDC encourages companies to establish a system for risk mitigation based on the nature of the workplace. The Reopening Guidance includes a helpful Cleaning & Disinfecting Decision Tool, which provides recommendations that vary based on answers to the following questions:
- Is the area indoors?
- Has the area been occupied within the last seven days?
- Is it a frequently touched surface or object?
- What type of material is the surface or object?
With respect to outdoor workplaces, which are common in the construction industry, the CDC states that such areas “generally require normal routine cleaning and do not require disinfection.” However, there are certain exceptions, such as with “outdoor hard surfaces and objects frequently touched by multiple people,” where “[t]he targeted use of disinfectants can be done effectively, efficiently and safely[.]” Examples of hard surfaces found in outdoor work areas that should be regularly disinfected include tools, equipment stations, storage containers, tables, doorknobs, light switches, handles, toilets, faucets and sinks.
In addition to cleaning and disinfecting, the Reopening Guidance recommends other actions to ensure the safety of employees and visitors, including:
- Removing hard-to-clean seat cushions;
- Leaving doors open, as security considerations permit, to reduce frequent touching of door handles;
- Keeping windows open to improve ventilation;
- Eliminating the common use of grocery items like coffee creamer containers;
- Requiring social distancing (and the reorganization of chairs, desks and other workplace items as necessary to enable social distancing);
- Requiring frequent hand washing and other personal hygiene measures (including placement of hand sanitizer stations throughout the workplace);
- Requiring the use of face masks or alternative types of face coverings; and
- Removing symptomatic and COVID-19-diagnosed individuals from the worksite.
Of course, developing a plan means nothing if you do not implement it, continue to enforce it, and modify it based on updated guidance and/or to the extent it fails to account for unanticipated obstacles.
While the CDC does not expressly call for businesses to reduce their plans to writing, doing so would have significant merit. First, a written plan would help ensure that the plan is implemented consistently throughout the workforce. Second, the existence of a written plan would likely provide employees with more confidence that the company is taking their health and safety concerns seriously and is prepared to do what is necessary to protect them.
Managing Employees Who are Resistant to Returning to Work
Notwithstanding the above, some employees may likely resist returning to work no matter how safe the worksite may be. Provided there is no local, state or federal law prohibiting the reopening of a worksite, construction companies are not legally obligated to allow employees to stay home from work based simply on a generalized fear of COVID-19 infection. Nevertheless, there may be specific circumstances in which legal obligations would arise.
Occupational Safety and Health Administration
Under the Occupational Safety and Health Act, an employee may legally refuse to return to work if:
- There is an identifiable hazard in the workplace;
- The employee has asked the employer to eliminate the hazard, and the employer has either refused or failed to do so;
- The employee has a good faith belief that an imminent danger exists, and that fear is objectively reasonable; and
- There is insufficient time to get the hazard corrected through the OSHA reporting process.
At the current time, it is unclear what circumstances related to the COVID-19 threat might give rise to an OSHA-protected refusal to work. However, construction companies should ensure that they have implemented a threat mitigation plan as described above, in order to avoid the possibility of a legitimate refusal to work.
Americans with Disabilities Act
A generalized fear of infection does not constitute a disability under the Americans with Disabilities Act. However, employees with underlying medical conditions may have a right to a reasonable accommodation under the ADA.
If an employee notifies his or her employer that he or she has an underlying health condition that makes it unsafe to return to work, the employer would be obligated under the ADA to engage in the interactive process to determine whether a reasonable accommodation can be made that would allow the employee to perform the essential functions of his or her position. Such an accommodation could involve being permitted to continue working from home, or otherwise being isolated from co-workers at the worksite to further reduce the threat of infection (or, in the case of a psychological condition such as generalized anxiety disorder, exacerbation of the underlying condition). In such situations, employers should rely largely on recommendations presented by the employee’s health care provider.
Families First Coronavirus Response Act
Finally, construction companies must remember that even if a government quarantine order has been lifted with respect to their business operations, employees may still have leave of absence rights under the Families First Coronavirus Response Act (“FFCRA”). Under the FFCRA, employees have rights to paid and/or protected leave for a number of COVID-related reasons, including where they are instructed by a health care provider to self-quarantine due to an underlying health condition, or where they are experiencing symptoms of COVID-19 and are seeking a diagnosis from a health care provider. Our article on FFCRA leave protections can be found here.
While government stay-at-home orders appear to be nearing their end for many businesses, an employer’s responsibilities do not end with the lifting of those orders. Construction companies should ensure that the threat of infection is mitigated in their workplaces, and that their employees’ legitimate concerns about returning to work are appropriately addressed. Meeting these obligations is easier said than done, and companies are encouraged to consult with experienced counsel for assistance in navigating the process.