Reflecting on Best Practices for COVID-19

Anyone following the news surrounding COVID-19 knows that the construction industry has been mentioned often, both because of its essential nature as well as the difficulties contractors and their employees face in executing work while observing required and recommended safety practices.  Extensive discussions took place at the federal, state and local level regarding what procedures companies must follow to protect their employees and the public from the spread of the novel coronavirus.  Many businesses have been in pandemic operations for months now, and much less discussed is what complaints are being made regarding the handling of coronavirus in the field.  In short, how has the construction industry been handling its COVID-19 obligations, as evidenced by Occupational Safety & Health Administration data on complaints by industry sector?

Common Complaints Regarding COVID-19

According to one labor watchdog, Strikewave, the largest number of COVID-19-related complaints nationally, by far, are in health care, manufacturing and retail, respectively.  When categorized by industry sector, construction is eighth on the list of COVID-19-related complaints to OSHA, both open and closed.  Given the media coverage of the construction industry, that’s a positive sign, especially with construction operating as an essential business since the start of the pandemic.

That said, what types of complaints are being fielded in the construction sector in Texas?  The most common are a failure to provide adequate handwashing stations or sanitizer, a failure to regularly clean and sanitize shared surfaces and areas such as bathrooms and a failure to establish and follow proper procedures for social distancing.  Notably, each of the major metropolitan areas in Texas have issued orders regarding how to address these exact types of issues (e.g., Houston, Dallas, Austin, San Antonio).  As complaints continue to roll into OSHA, inspectors are highly unlikely to accept excuses from businesses incurring these types of violations.

By contrast, businesses that have adhered to state and local orders should be commended, but they still need to be vigilant regarding the latest changes in the law.  In addition to constantly evolving local orders, businesses that want to be aware of developments in best practices, as recommended by the federal government, can stay up to date by visiting the following sites:

Observing Your General Duty of Care

While the OSHA/CDC-developed booklet on COVID-19 guidance isn’t mandatory, part of an employer’s general duty of care, as mandated by OSHA, is to provide employees with a workplace free from recognized hazards likely to cause serious physical harm.  Violations of an employer’s general duty of care are subject to enforcement actions and civil penalties.  Deaths caused by willful violations of applicable regulations can also lead to criminal liability.

Although common understanding of the specifics of the coronavirus is constantly being updated, the threat of “serious physical harm” from COVID-19 has been established in OSHA’s eyes.  Basic protections against the virus described in the OSHA/CDC guidance are a starting point for making sure that an employer is meeting its general duty of care.  These include the oft-repeated messages to wear face masks, maintain at least six feet of social distance as appropriate, clean and disinfect common areas and shared surfaces and facilitate routine handwashing and sanitizing.  In addition, some aspects of the OSHA-recommended guidance may be mandatory under separate state or local orders, as discussed above.

It is critically important not only to review and implement recommended guidance, but to prepare and update a written COVID-19 response plan that documents workplace protocols for prevention, triage and reporting of COVID-19.  Doing so will help employers meet their OSHA obligations, and it will also help them understand what areas of the plan need improvement so that the company can be ready for unique issues that may arise when an employee contracts the virus.

Reporting COVID-19

Per OSHA requirements, covered employers must record a confirmed COVID-19 diagnosis that is work-related and meets general OSHA recording criteria.  A condition is work-related if “an event or exposure in the work environment either caused or contributed to the resulting condition.”  An illness involves OSHA general recording criteria if it results in days away from work or medical treatment beyond first aid, among many factors.  A confirmed COVID-19 diagnosis in the workplace falls under OSHA general recording criteria because it requires days away from work.  A determination of whether a case is work-related may be more problematic, but an employer is responsible for reporting a confirmed COVID-19 case if there is evidence that the spread may be work-related, such as a cluster of cases among workers in close proximity to each other, and that evidence was reasonably available to the employer.  OSHA recently revised its FAQs to provide less public guidance on reporting than it previously had, leaving observers wondering if changes are on the way and serving as a reminder to be informed and aware of the latest updates.

Other common complaints made to OSHA since the start of the pandemic are the presence of coworkers with suspected COVID-19 symptoms or that an employee who was known to have contracted COVID-19 has returned to work.  These types of complaints raise a separate issue.  Employers have specific obligations regarding timetables for a worker’s return, and separate obligations to inform coworkers who have been in close proximity to someone with a positive diagnosis (without revealing the identity of the employee with COVID-19).  A comprehensive response plan for coronavirus would not only address these issues, but would also provide for training of company employees to be aware of their expected adherence to safety obligations, how the company is handling diagnoses and the return to the workplace after recovery, and how employees will be informed of possible exposure.

With COVID-19 not going anywhere for the foreseeable future, administrative enforcement and litigation regarding workplace exposure are only expected to rise.  Protecting your company and your employees goes hand-in-hand.  As always, if you have specific questions related to your business’s handling of the coronavirus – whether developing written, preventative workplace guidance, dealing with documented exposure of employees or addressing litigation related to workplace exposure – it’s a good idea to reach out to an experienced lawyer for more assistance.

Patrick A. Caballero