Return-to-Work Safety and Health Issues for Contractors

Return-to-Work

Safety and Health Issues for Contractors

BY PHILLIP B. RUSSELL AND DEE ANNA D. HAYS, SHAREHOLDERS OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.

First, let us say, “Thank you!” Thank you for staying in business and surviving (perhaps thriving) through an unprecedented time in our industry, state and nation. We are not only FTBA members, but we believe in business. Business provides jobs, opportunity, and in our industry, it provides individuals and families a way to connect with others across the state and nation.

Roads and bridges matter, your businesses matter, and the jobs you have helped create and sustain matter. We have been honored to support and guide you as best we can through webinars, updates, phone calls, e-mails, and even a few in-person meetings (properly distanced, of course!). We will continue to support you and your business now and as this crisis and its impacts linger.

Thank you for also keeping your employees safe and healthy. Our industry was not hit as hard by COVID-19 infections or deaths and remains a low-risk industry during the pandemic and its aftermath. Yet, FTBA members stepped up, led by the heart of our industry and many, many experienced and determined safety directors and professionals serving contractors and employees.

The COVID-19 pandemic posed novel workplace safety and health legal issues for employers in the industry and nation. The transportation construction industry was deemed “essential” and continued to operate, but not at full strength and with new workplace safety and health challenges we never faced. Federal, state and local governments issued executive orders that affected contractors and employees in ways we have never experienced.

Even when your operations have fully resumed, contractors will remain concerned about workplace safety and health in new ways. Many protocols implemented immediately before and during the COVID-19 outbreak will remain relevant as operations fully resume. Before determining what safety measures to implement, employers should evaluate the most recent guidance from the CDC, OSHA, the EEOC, local health departments and other government authorities. ARTBA and FTBA also have continued to provide industry-specific suggestions and best practices.

What Does OSHA Require?

General standards. OSHA does not have a specific standard or regulation that requires employers to take any particular actions regarding COVID-19. However, employers must comply with Section 5(a)(1) of the OSH Act (the “general duty clause”) that requires employers to maintain a “workplace that is free from recognized hazards.”

Employer risk categories and our in

dustry. OSHA has issued guidance for employers regarding COVID-19, which divides employers into risk categories. Most job sectors have a low risk of exposure. Notably, construction employers are not in the medium or high-risk categories. Nonetheless, OSHA issued a series of tips tailored to construction work to help reduce the risk of exposure to the coronavirus.

Besides encouraging workers to stay home if they are sick and implementation of the usual measures regarding personal protective equip ment, in “COVID-19 Guidance for the Construction Workforce,” OSHA recommends that construction employers take these actions: • “Allow workers to wear masks over their nose[s] and mouth[s] to prevent them from spreading the virus.” • “Advise workers to avoid physical contact with others, and direct employees/contractors/ visitors to increase personal space to at least six feet, where possible.” Even in work trailers,

“workers should maintain social distancing.” • “Keep in-person meetings (including toolbox talks and safety meetings) as short as pos sible, limit the number of workers in attendance, and use social distancing practices.” • “Encourage workers to cover their mouths and noses when coughing or sneezing, and to follow other forms of what OSHA calls “re spiratory etiquette.” • “If workers do not have immediate access to soap and water for handwashing, 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.” • “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.”

OSHA’s guidance is not as detailed as other niche-specific industry recommendations. The only OSHA recommendations actually specific to the construction industry are those about work trailers, toolbox talks and equipment and tools. ARTBA and FTBA developed much more detailed and helpful best practices and tips for employers, which transportation construction industry employers may find helpful.

For example, ARTBA provides more specific practice tips on how to conduct toolbox talks and minimize the number of workers in a vehicle. FTBA’s best practices list suggests no ride sharing, no tool sharing, and conducting job interviews by electronic means.

Is OSHA’s guidance “the law?” OSHA’s guidance documents are not legally binding, but they could establish knowledge for an alleged violation or be the foundation of a General Duty Clause violation. Employers may find it helpful to consider guidance from OSHA, and other government health agencies, and spe cific recommendations from industry associations in determining how best to protect the safety and health of their workers.

Recordkeeping requirements. Employers are required under OSHA’s recordkeeping regulation (29 C.F.R. §1904) to record illnesses that are “work related” and meet one of the recording criteria, which include days away from work, job transfer and medical treatment.

A work-related illness that meets these criteria must be recorded on the employer’s OSHA Form 300, and a Form 301 also must be completed. An illness is work-related if it is more likely that a factor or exposure in the workplace caused or contributed to the illness. An employee who contracts COVID-19 from a family member or while on a personal trip has not experienced a work-related illness. However, if that employee infects a coworker, the coworker has suffered a work-related illness if one of the recording criteria (e.g., medical treatment or days away from work) is met.

OSHA’s recordkeeping regulation exempts the “common cold and flu” from the recordkeeping requirements. However, COVID-19 is not a common cold or flu. OSHA’s guidance states “COVID-19 is a recordable illness when an employee is infected on the job.” OSHA issued enforcement guidance excusing non-healthcare employers from making a difficult “work-related” determination and allowing them to presume there is no work relatedness to an infection when the case involves a single infected employee at

An illness is work-related if it is more likely that a factor or exposure in the workplace caused or contributed to the illness. An employee who contracts COVID-19 from a family member or while on a personal trip has not experienced a work-related illness. However, if that employee infects a coworker, the coworker has suffered a work-related illness if one of the recording criteria (e.g., medical treatment or days away from work) is met.

a worksite and no other objective evidence suggests the infection was work-related.

Reporting infections. Employers may have to report an employee’s COVID-19 infec tion to OSHA. If the employee tested positive for COVID-19, the infection is work-related (e.g., the infection was contracted on the job or during business travel), and the infected employee is hospitalized as an inpatient, the hospitalization must be reported to OSHA within 24 hours of the incident. If the in fected employee is not hospitalized as an inpatient but dies from the infection, the death must be reported to OSHA if it occurred with in 30 days of the work-related incident.

Inquire about exposure or vulner

ability to COVID-19. Contractors should consider whether to institute a temporary practice of making inquiries into an employee’s exposure or vulnerability to COVID-19. While some forms of medical inquiries would normally be considered medical examinations (and thus impermissible under the ADA unless job related and consistent with business necessity), the EEOC has issued special guidance about the forms of inquiries permissible in a pandemic. Employers may consider implementing these special measures regarding employees or applicants: • Screening employees for symptoms as updated through CDC guidance; • Checking temperatures, which is an imper fect but permissible means of assessing risk

during this pandemic (keep data and logs confidential); • Sending employees home with COVID-19 or if they are symptomatic; • Asking questions of employees who report to work feeling sick to determine risk levels; and • Requiring all employees to complete a regu lar recurring questionnaire regarding potential exposure and symptoms.

Does OSHA permit employees to refuse to work due to safety concerns? The Occupational Safety and Health Act may protect employees from retaliation when they refuse to perform work as directed.

Specifically, an employee may refuse an assignment in an “imminent danger”

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situation, which involves “a risk of death or serious physical harm.” In that circumstance, however, all of these conditions must apply: (1) the employee has “asked the employer to eliminate the danger and the employer failed to do so”; (2) the employee “refused to work in ‘good faith’” (a genuine belief that “an imminent danger exists”); (3) “[a] reasonable person would agree that there is real danger of death or serious injury”; and (4) “[t]here isn’t enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.”

Other legal issues that may arise from an employee’s refusal to work, which could also be protected concerted activity under the National Labor Relations Act.

Paid sick leave as a safety measure.

On March 18, President Donald Trump signed the Families First Coronavirus Response Act (FFCRA) in response to the spread of the novel coronavirus and the illness it causes, COVID-19. Among other fiscal packages, the act expanded the Family and Medical Leave Act (FMLA) tempo

rarily (until the end of December 2020) to cover leave and loss of income when an employee needs to care for children because of school and childcare closures because of COVID-19; and created two weeks of paid sick leave for childcare and other leave related to the coronavirus. Both new laws apply only to certain covered employers (private employers with fewer than 500 employees and governmental agencies). The law became effective on April 1.

The sick leave part of the law could be seen as a safety and health requirement for employers. Four of the qualifying reasons for the leave are directly connected to COVID-19 when an employee (1) is subject to a government quarantine or isolation order; (2) has been advised to self-quarantine by a health care provider; (3) is experiencing COVID-19 symptoms and is seeking a medical diagnosis; and (4) is caring for an individual subject to a quarantine or isolation order or whose health care provider has advised the individual to selfquarantine due to concerns related to COVID-19. (The fifth reason is related to child care needs and is intended to coordinate with the paid emergency family leave requirement in the FFCRA. The sixth reason is an undefined “miscellaneous category” that has not been used or explained.)

Safety has always been a priority in the transportation construction industry. As employers ramp back up for full operations, employers should remain vigilant and follow CDC and local health department guidance. We also recommend continuing to engage in the industry through the FTBA and ARTBA and help each other with the common goal of protecting worker safety and health.

About the Authors

Phillip B. Russell and Dee Anna D. Hays are both boardcertified labor and employment lawyers and shareholders at Ogletree, Deakins, Nash, Smoak & Stewart, P.C. in Tampa. They are frequent FTBA speakers and members of the FTBA Safety Committee. Phillip can be reached at (813) 221-7265, and Dee Anna can be reached at (813) 221-7239.

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