It is not business as usual for Florida’s construction industry despite being considered an “essential service” under Florida’s safer-at-home order. Employers should always – but especially now – ensure that all onsite workers are aware of and are following all available health and safety guidance available from sources such as the CDC, OSHA, and construction trade groups.
Workplace Safety Guidelines
The Occupational Safety and Health Administration (OSHA) has issued non-industry-specific guidance on preparing workplaces for COVID-19. In addition to universal tips on handwashing, cleaning surfaces and monitoring symptoms, the guidance recommends staggered schedules for pre-shift meetings, new employee orientations and other in-person meetings. It also suggests telephonic or outdoor meetings when a group has to convene.
OSHA is also enforcing the Occupational Safety and Health Act, which pre-dates COVID-19. Relevant clauses from the Act include:
- General Duty Clause: Employers must furnish a work environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”
- Protective Equipment (PPE) Standard: Employees must use gloves, eye, and face protection when necessary.
- Respiratory Protection Standard: Employers must implement a full respiratory protection program (including medical fit testing) when respirator usage is mandated by the employer. N-95 “dust masks” are classified as respirators per this standard.
Employers are also encouraged to follow CDC guidelines, including that employees wear fabric face coverings if social distancing of six feet or more is difficult to maintain.
Lastly, Employers should follow their own state and local laws, which may require additional health and safety protocols and are being updated regularly.
What if you Fail to Implement the Safety Guidelines?
The problem is obvious – social distancing may be impossible at many construction sites as workers are often in close quarters in areas that are not well-ventilated.
Failing to comply with these guidelines may lead to legal risk and liability. Claims may include allegations of exposure resulting in bodily injury and property damage as well as failure to implement an appropriate plan in response to the global health crisis and associated risks.
The first lawsuits are already trickling in. OSHA is investigating an Amazon warehouse following complaints from workers that the company is not doing enough to prevent the spread of COVID-19 at the facility. A similar lawsuit has been filed against Walmart by the family of an employee who died after contracting COVID-19 at work. The complaint alleges that Walmart failed to follow relevant guidelines for maintaining safe workplaces and hired new workers without properly screening them for symptoms of COVID-19.
While it remains to be seen how these investigations will resolve, employers found liable for OSHA violations can be assessed penalty fees. The penalty amount depends on the nature and severity of the violation, ranging from several hundred to hundreds of thousands of dollars, including a failure to abate penalty which accumulates for up to 30 days.
Separately, employers may be subject to private lawsuits by employees who claim they were retaliated against for complaining about unsafe work environments. OSHA just released a press release explaining how workers can file OSHA whistleblower claims if they believe “their employer is retaliating against them for reporting unsafe working conditions.”
While anyone may allege exposure to COVID-19 due to the actions or omissions of an employer, the key to defending against such allegations is demonstrating the organization took reasonable precautionary measures.
What if a Worker Tests Positive?
Case law on COVID-19 exposure doesn’t exist yet, but the courts consistently held that workplace illnesses, such as HIV needle sticks, are covered by worker’s compensation. Thus, if a worker tests positive and it can be proven that the virus was contracted on the job (which is fairly simple to uphold if multiple employees become infected at the same time), the worker will be eligible for worker’s compensation.
Additionally, President Trump recently signed into law the Families First Coronavirus Response Act. This law requires private employers who employ fewer than 500 employees (and government employers) to provide paid sick time to employees to the extent that the employee is experiencing symptoms of COVID-19, caring for someone that is experiencing symptoms of COVID-19, or they are unable to work because they are in quarantine.
Insurance premiums may also be implicated. Most standard commercial general liability and builder’s risk policies require damage to physical property to obtain coverage (“direct physical loss of or damage to property”); the battleground on those policies is whether viral contamination of premises constitutes direct physical loss or damage. to make a proper determination, you’ll need to review the specific language in your actual insurance policies coverages provided, exclusions to coverage, etc.
State and Local Enforcement
State and local governments are responsible for enforcing the safety guidelines. The city of Miami Beach issued stop work orders at three active construction sites for failing to comply with coronavirus safety requirements. Also, the Mayor of the City of Miami recently signed an Emergency Order requiring that construction workers wear masks of some kind when working on projects. Additionally, work on two major projects — a $300 million Royal Caribbean Cruise Lines headquarters building at the Port of Miami and a University of Miami UHealth Care center in North Miami — was voluntarily delayed indefinitely due to COVID-19 uncertainty.
Other municipalities are cracking down more seriously. For example, Los Angeles Mayor Eric Garcetti authorized his Department of Building and Safety to visit construction sites in order to enforce social distancing and personal protective equipment. He also threatened to shut down construction sites that do not comply with the guidelines.
At this point, Florida has not enacted any strict, state-wide policies against the construction industry. However, public pressure is growing for Florida to follow Washington, Pennsylvania, New York, New Jersey, and Michigan, which have all halted non-essential construction. Plus, similar measures. For instance, Sergio Pino recently issued a public plea for the construction industry to shut down construction sites after two of his workers tested positive for COVID-19.
Are You Worried That Workers are Already Infected?
If so, you should note the following:
- You are permitted to force an employee to take their temperature while at work.
- Do not disclose any employee’s COVID-19 status – positive or negative – to any other person.
- You are permitted to ask your employees about their potential exposure to COVID-19 (including travel history and symptoms).
- You cannot ask employees about their family’s exposure.
Nonetheless, many employers with traditionally few recordable work-related illnesses must now educate themselves on their obligations under federal and state health and safety laws or face expensive fines from regulators and greater exposure to workers’ compensation claims and liability lawsuits. Given the uncertainty surrounding this situation, the best way to protect you and your company is to take proactive steps regarding workplace safety and follow all public health orders as best as possible.