We could all use a few more Yogi Berra-isms to distract us from incessant drumbeat of miserable statistics reported in the news on a daily basis.  The COVID-19 pandemic raises employment issues that require careful attention even if the construction project is classified as an exempt or essential business.  Below are 4 employment considerations in the COVID-19 era.

1.     Review and Adhere to All Jobsite Health Rules and Guidance

Federal, State and local governments have issued a crazy quiltwork of jobsite health rules and guidelines that impact construction sites in Texas. Aside from social distancing requirements, some jurisdictions, such as Dallas County and the City of Austin, have imposed more stringent health rules for construction projects proceeding during the pandemic.  Some counties, such as the tiny Andrews County in west Texas, require submission of a Work Safe Plan.  The list goes on and on.

An important step in determining whether you are compliant with local rules is to review the stay-at-home orders or other local guidance documents for the specific jurisdiction in which the project is located.   On our website, we have posted the stay-at-home orders issued by Texas counties and the larger Texas cities along with a brief summary of them.

Another important step is to review the CDC’s website for new and updated disease prevention measures for businesses and employers.  While the CDC has long advocated social distancing, it has more recently recommended individuals wear cloth face masks when possible.  We anticipate the CDC’s recommendations will continue to evolve as the pandemic makes its way across the country.

2.    Maintain a Discrimination-Free Project Site

COVID-19 potentially implicates several federal and State employment statutes, such as Title VII of the 1964 Civil Rights Act, the Americans with Disability Act, and Age Discrimination Employment Act.  It is imperative that your project site and employment practices continue to adhere to federal and State anti-discrimination practices.

It almost goes without saying that federal and/or State statutes prohibit discrimination or creation of a hostile work environment based on gender (including pregnancy), race, disability, country of origin, age, religion and sexual orientation.  The COVID-19 pandemic does not change those prohibitions.  All employees and workers should be treated similarly, whether it be on newly implemented COVID-19 health and safety protocol or pre-existing work protocol.  All employees and workers should be treated similarly in the distribution of any materials or products issued as disease prevention measures.

How does this relate to COVID-19?  If, for example, workers alert their supervisors that they do not feel well and/or are showing symptoms consistent with COVID-19, follow State and local stay-at-home orders and CDC guidelines.  Since COVID-19 is highly contagious, quick and assertive action may be necessary to protect the health and welfare of other employees.

Determination of risk or contagion should not be based on race, gender or country of origin. Similarly, the worksite should not create or foster an atmosphere that places blame, responsibility for COVID-19 on specific genders, races or persons of a specific country or region of origin.

If, in a worst case scenario, employees notify you that they have tested positive for COVID-19, additional notifications and precautions will be warranted.  The first step, again, is to review State and local stay-at-home orders for the jurisdiction in which the project or workplace is located as well as CDC guidelines to determine which governmental agencies must be notified.  Workers or employees who had contact with the infected worker must also be notified and may need to be self-quarantine themselves.

These notifications must adhere to standard protocols that protect the confidentiality of the employees’ medical conditions and medical information. For instance, you should not disclose the identities or medical conditions of the employees who tested positive for COVID-19. As always, you may not ask questions about employees’ medical status, whether or not related to COVID-19.

These are stressful times. Allowing discriminatory employment practices to develop or grow will only increase stress and risk exposure.

3.    Maintain Adequate Documentation

As you know, documentation on a job site is extremely important and can also be difficult to maintain. However, as with construction and/or workmanship issues that arise after substantial completion, claims and litigation regarding COVID-19 may not arise until after the pandemic has subsided.

Several simple processes, as listed below, may assist in both keeping the jobsite as safe as possible and managing risks associated with operating a jobsite during the pandemic.

• • Document precautions that are being taken at the project site.
  • Document any supplies or products you distribute to employees or workers as measures to prevent transmission.
  • Document any COVID-19 transmission prevention measures that have been provided to workers.
    • Post those transmission prevention measures for all workers to observe.
    • Take a photograph of the posted measures for future reference, if needed.
  • Document any safety meetings where COVID-19 prevention measures are discussed and have workers sign in for those meetings.
  • Document and maintain a copy of the applicable federal, State, county or city orders that apply to the project full the full duration of the project.
    • Post those orders for workers to see.
    • Take a photograph of the posted measures for future reference, if needed.
  • Post notices regarding an employees’ rights under the Families First Coronavirus Response Act. (Similar to the requirements for Texas Worker’s Compensation).

4.    Comply with Families First Coronavirus Response Act

There are circumstances under which an employer must continue some or all of the employee’s wages.  The newly enacted Families First Coronavirus Response Act (“Act”) imposes some of those obligations on employers, though the law is only effective from April 1, 2020 until December 31, 2020.

A public employer or a private employer with less than 500 employees may have to pay up to 2 weeks (80 hours) of an employee’s wages, if that employee is told to isolate or quarantine as a result of a federal, state, or local order or by advice of a medical professional or if the employee has tested positive for COVID-19 or if the employee is experiencing symptoms similar to COVID-19 and is seeking a medical diagnosis. If the employee cannot find suitable childcare as a result of the child’s day care being closed and/or school being closed, then the employer may have to pay 2/3 of the employee’s wages for up to 2 weeks (80 hours).

The Act also extends the time allowed under the Family and Medical Leave Act (“FMLA”) for employers subject to that statute. Employees may now be eligible for an additional 10 weeks paid family and medical leave at 2/3 employee’s regular rate of pay if the employee has a bona fide need for leave to care for a child whose school or child care provider is closed or if the employee is otherwise unavailable for reasons related to COVID -19.

To mitigate these circumstances, employees who must self-quarantine by order or directive of medical professional may work remotely from their residence.

It is always a best practice to consult with a human resources manager and/or legal counsel regarding any employment-related issues.  The attorneys in our Austin and Dallas offices are available to answer any questions you may have.

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