Covid-19 labor laws: Eight ways construction employees are supported

Iris Halpern, attorney, Rathod Mohamedbhai LLC

For the past 10 months, the construction industry has managed all the complications of operating as an essential industry in our world during the Covid-19 pandemic.

But as 2021 starts and the pandemic continues to affect daily life, contractors and their employees could use some more guidance and insight.

To help navigate ongoing Covid-19 issues, Sage and FieldFlo hosted a webinar with attorney Iris Halpern of the Denver-based law firm Rathod Mohamedbhai LLC.

Originally billed for demolition contractors, Halpern’s advice can help any employer in the field continue to maneuver and best protect themselves in this ever-changing landscape created by Covid-19.

Here are eight key legal points for the construction industry.

1. Paid leave is protected

Halpern said the most common complaints her firm, which specializes in employment law, has received come from employees who report being terminated after asking for paid leave while sick or under orders to quarantine.

She pointed to the Families First Coronavirus Response Act (FFCRA), which was passed by Congress in spring 2020. Although the FFCRA’s status heading into 2021 is somewhat in flux and some protections might temporarily lapse, Halpern said she thinks it’s likely President-elect Joe Biden’s administration will extend its protections or pass similar legislation related to paid leave once he is in office.

Under the FFCRA, employees are provided with paid sick leave or expanded family and medical leave for specified reasons related to Covid-19.

According to the US Department of Labor, employees taking leave are entitled to pay at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a two-week period).

The FFCRA applies to companies with fewer than 500 employees, and although there’s an exemption that companies can apply for if they have fewer than 50 employees, the Act protects workers’ rights to paid leave – and keeping their jobs despite getting sick.

“It’s great to hear folks [in construction] are … encouraging employees to report when they’re not feeling well,” Halpern said. “It’s a good practice, and the pandemic has taught us that.”

2. Make sure to follow your state and local guidelines

The FFCRA and any follow-up federal legislation are important to know, Halpern said, but states and municipalities might impose more stringent obligations from companies during the pandemic.

Halpern, who’s based in Colorado, detailed her state’s specific protections as an example: Colorado secured paid leave for workers in industries that aren’t covered the FFCRA, as well as for companies with more than 500 employees.

States differ on many Covid-19-related subjects including paid leave and workers’ compensation (more on that below).

3. Keep health information as private as possible

Halpern said her firm receives many questions about what workers must share about their health, as the Americans with Disabilities Act (ADA) specifies rules for when an employer can ask an employee about medical information.

“A lot of [those rules] has been thrown out the window for Covid-19, for all intents and purposes,” Halpern said.

There is still confidentiality in pandemic times. Halpern said if an employee does test positive for Covid-19, a company should not disclose his or her identity. But employers should disclose where and with whom the person worked to the rest of their staff for their own safety.

“In the pandemic, you can tell people they’ve worked with someone who’s caught Covid-19 and warn them of the hazard,” Halpern said.

In most workforces, other employees might figure out who has tested positive for Covid-19, and when faced with questions, employers should still keep identities and all other important medical information confidential.

4. Treating Covid-19 as a disability

Under the ADA, people with disabilities are protected and afforded accommodations, and according to Halpern, contracting Covid-19 can be considered a disability if it is severe enough.

“There’s a notion that temporary conditions can’t be considered a disability, but that’s not true,” Halpern said. “It depends on the severity of symptoms. There are underlying medical conditions that might make contracting Covid-19 particularly dangerous, [too]. You cannot make hiring or firing decisions based on those underlying conditions.”

She gave the example of a 70-year-old with a lung condition: If that employee tests positive for the virus, it could be a dangerous situation. Unless it is an undue hardship for the employer, they must accommodate that person under the ADA to try to mitigate that risk of exposure at work.

Accommodations could include working from home, but Halpern acknowledged that route might not be possible in the construction industry. More social distancing, not interacting with the public and only working with certain people are ways to make worksites safer for someone with an underlying medical condition that might make exposure to Covid-19 more dangerous.

5. Make worksites safe for employees

Halpern said there is a misconception now that employers cannot take temperatures, but she stressed that companies definitely can and should test their employees -- or require they test themselves beforehand -- for Covid-19 symptoms such as fever and coughing.

In addition, Halpern said employers should be providing personal protective equipment (PPE) such as masks or face shields to employees free of charge.

“You should be making that available to them and not assuming that they’re going to pay for that out of their own pockets,” she said.

In Colorado, construction workers were deemed essential, and the state passed down guidelines for the industry on how to stop the spread of Covid-19: minimizing the size of work crews and prohibiting employees congregating during lunch breaks, among others.

“These are very good best practices,” Halpern said.

6. Report Covid-19 cases to OSHA and local health authorities

The Occupational Safety and Health Administration (OSHA) has classified Covid-19 as an occupation safety and health hazard, so employers must report cases just like any accident or injury on worksites.

State guidelines will require different actions when you report cases. In Colorado, for example, a contractor must close its site temporarily if two or more employees test positive in a 14-day span, Halpern said, and the employer must report the cases to the local health officials.

Rules for ascertaining if employees have Covid-19 are looser during the pandemic, but there is still a need for privacy and fairness.

Employers can ask workers if they are exhibiting symptoms, which is usually not allowed during non-pandemic periods, but they must have a standard system for asking everyone on staff.

“You shouldn’t just be picking and choosing individuals [to ask],” Halpern said, “unless there’s an objective reason like they’re coughing.”

Uniformly asking all employees if they are experiencing symptoms such as a fever or aches is a way to screen for possible Covid-19 cases proactively and preemptively, as opposed to waiting for someone to cough and asking then.

7. Workers’ compensation as an option

Because the FFCRA guarantees paid leave, there are only certain cases when employees who contract Covid-19 would need workers’ compensation.

Again, many states have different policies, Halpern said. In more than 20% of states, including Arkansas and Wyoming, governments have clarified that employees with Covid-19 should get coverage under workers’ compensation, but about half of those states only apply it to essential fields such as healthcare.

Some states have passed legislation that presumes workers caught the virus at work; whereas other states will need proof that an employee contracted Covid-19 at work, just as a plaintiff would need to prove he or she was injured at work for a normal workers’ compensation case.

8. Changes coming after Jan. 20, 2021

Halpern said it is likely the incoming administration under President-elect Biden will make OSHA guidelines stricter to curb the spread of Covid-19.

“Right now, OSHA’s only offered guidelines, and Biden might issue emergency temporary standards,” Halpern said.

The Biden coronavirus task force could revamp OSHA’s whistleblowing program, double the staff at the agency so they can do more inspections and get through cases, and implement stricter social distancing requirements and handwashing protocols.

These changes within the federal government are important, but as with almost every entry on this list, Halpern stressed that researching and staying updated on state and local policies is important.