As the country recovers from the COVID-19 pandemic, construction industry employers confront many challenges. Recognized as an essential industry in a majority of states throughout the crisis, many contractors have continued to perform work and provide jobs, while others were shut down in whole or in part. Every aspect of the industry has been affected not only by the virus itself, but by the economic and regulatory pressures imposed by government reactions to the crisis, to include federal, state and local. The ground rules going forward are conflicting and confusing, and more legal challenges lie ahead.
The first challenge for every construction industry employer is to perform work safely in the new COVID-19 environment. The primary source of guidance throughout the pandemic has been, and remains, the guidelines of the Centers for Disease Control. The Occupational Safety and Health Administration has largely deferred to and reinforced the CDC guidance, though OSHA itself has not yet imposed a COVID-19-specific health and safety standard. As of this writing, however, OSHA is under increasing pressure to issue a temporary emergency standard. The AFL-CIO has petitioned the U.S. Court of Appeals for the D.C. Circuit to force the agency to issue such a standard. A bill passed in the U.S. House of Representative (but not the Senate) contained a similar demand.
But many in the business community, including representatives of the construction industry, have opposed compelling OSHA to issue a new standard. They are concerned that the costs of engaging in the effort will distract the agency and employers from ongoing compliance efforts, and that a rushed effort will give insufficient attention to the unique circumstances of the construction industry.
Meanwhile, OSHA is stepping up efforts to investigate complaints about unsafe workplaces. Contractors that fail to adhere to the CDC and OSHA guidelines will place themselves at risk of liability. Contractors whose employees test positive for the virus need to follow OSHA-recommended protocols for isolation, sanitizing and contact tracing in order to avoid greater liability concerns. OSHA has also recently clarified its requirements for reporting and recording COVID-19-related workplace occurrences, stating that employers must make a determination whether any employee who contracts the illness did so while at work, and if so, to record it and report it on the OSHA 300 forms, assuming the coverage requirements are met.
Construction employers are also required to comply with a patchwork of state and local safety requirements regarding such issues as face mask mandates, social distancing and sanitizing stations, among others, even if the CDC/OSHA guidance does not mandate such safety standards to the same degree. Failure to comply may also lead to increased likelihood of workers compensation findings of job-related coronavirus exposure. Indeed, an increasing number of states are imposing presumptions that COVID-19 illness claims should be treated as work-related.
Another negative effect of unsafe workplaces results from recent changes to unemployment compensation benefits under the federally enacted CARES Act. Under that law, employees who reasonably fear for their safety on the job may refuse to work and receive unemployment benefits. Union organizers are also seeking to take advantage of unsafe workplace claims. Going forward, employers should train their supervisors on a clear and compliant response plan to deal with workplace exposures, and otherwise take all steps necessary to ensure a safe workplace.
Many construction contractors have established screening systems designed to protect their jobsites from infection, including temperature checks, screening questionnaires and (where available) testing for infections before allowing entry to the work site. Guidance issued by the Equal Employment Opportunity Commission states that employers can administer COVID-19 tests, temperature checks, and otherwise screen even asymptomatic employees before allowing them onto worksites, without violating the Americans with Disabilities Act.
Employers should remain sensitive to the ADA and other rules against discrimination, and the EEOC guidance is not a “blank check” in the absence of definitive judicial rulings. Even the EEOC guidance may vary depending on the need to know specific information to avoid a “direct threat” of infection. Employers must also take steps to insure the privacy and confidentiality of the testing process and recordkeeping, and under some circumstances employers may have to pay employees for the time spent in the screening process, whether at work or at home.
Emergency Paid Leave and Wage Requirements
It is widely anticipated that employers will confront increased risk of employment lawsuits as more courts reopen in the coming months, particularly with regard to paid leave and wage requirements. Already, a lawsuit has been filed by the State of New York against the U.S. Department of Labor’s enforcement of the Families First Coronavirus Response Act emergency paid leave guidelines. If the state’s suit succeeds, and if the DOL guidance is overturned by a federal judge, then employers that relied on that guidance to deny paid leave will be threatened with more class action litigation. Employers are advised to err on the side of caution in responding to paid leave requests, particularly as to coverage questions, documentation requirements and intermittent leave issues.
Wage and hour class actions had already reached epidemic proportions before the COVID-19 virus struck the economy. The emergency measures undertaken to reduce and then reinstate construction workforces will likely increase the potential for new claims of wage underpayments. This is true not only for field employees but for remote telecommuting office staff. Wage and hour issues include notice requirements in many local jurisdictions regarding changes in hours and pay rates; changes in work duties which could affect exempt status of some salaried employees; timekeeping systems that fail to capture all remote working time; compliance with meal and rest break laws; claims for computer and internet expenses; and joint employment claims arising out of increased temporary staffing arrangements.
Of particular concern are the new and often overlapping state and local paid leave and wage requirements that have been enacted during the pandemic. Combined with the already burdensome state and local requirements that existed before the emergency, employers doing business in multiple jurisdictions are at greater risk than ever before of violating employment laws as they reopen or expand their workforces to deal with hoped-for increases in demand.
The challenges posed by the COVID-19 pandemic are in many ways unprecedented. In order to succeed in the “new normal,” construction contractors must pay greater attention than ever before to a dizzying array of new workplace requirements, at least so long as the emergency continues, and perhaps for the long term.
Originally published June 11, 2020 by Construction Executive, a publication of Associated Builders and Contractors.