By Steven R. Lindemann and Johnny S. Wang of Stinson
Published June 2, 2020
During the COVID-19 pandemic the construction industry has, for the most part, been able to continue field operations on existing projects. Of course, regulations have varied from state to state, and in some regions operations have been restricted or curtailed. For the last several weeks construction trade associations such as Associated General Contractors and Associated Builders and Contractors have done a great job keeping their members informed about measures to keep their jobsites safe by preventing and limiting exposure to the virus.
At the same time, many contractors have shut down their offices, and their office staff has been working remotely. They have done an amazing job adapting to the new environment, but most are looking forward to reopening their offices and returning to some semblance of normalcy. The Stinson Coronavirus Task Force recently held a two-hour webinar that explored in-depth the issues that every company, contractors included, should consider when contemplating a return to work. View the materials used during the webinar.
For those looking for an essential to-do list, we have boiled things down to the top 10 action items for contractors reopening their offices:
1. Appoint a person, or better yet a team, to get up to speed on all of the laws, orders and regulations applicable to the jurisdictions in which you do business. Hopefully you have done this already, but it's an ever-changing landscape that must be monitored on a weekly, if not daily basis. Important sources of information include guidance from the White House, CDC, OSHA, EEOC, states, counties and municipalities. It's your responsibility to be up to speed on all applicable laws and regulations.
2. Assess your facilities and operations to determine what physical structures and operational protocols need to be changed in order to operate safely.
3. Create a plan for returning to work, and update it regularly as circumstances change. There is no one-size-fits-all plan, but any plan should, at a minimum, address:
- Means of access to the workplace, such as doors, elevators, garages, etc.
- Whether and how to do medical screening and contact logging
- Social distancing in the workplace, including spacing and physical barriers and best practices for in-person meetings
- Personal protective equipment (PPE), including whether and how to require face coverings or masks
- Cleaning and sanitizing
- Procedures for work-related travel
- Quarantining and/or temporarily prohibiting the return of workers who have been exposed to or infected with the virus, or have traveled outside of the region. This includes deciding if and when employees should be paid during quarantine.
- Staggering work times for employees and requirements for visitors
- Protocol for employees who need medical accommodations or leave benefits, including the FFCRA
The plan should be flexible and take into account that second and third waves of infection are likely. The long-term interests of the company should be taken into account, not simply getting employees back to the office quickly.
4. Consider the interests of all stakeholders—employees, customers, subcontractors, vendors, and visitors, and make sure that the plan addresses the needs of each. Survey your employees to solicit their input, and allow them to self-identify if they need any accommodations for returning to work. Do not make any assumptions about who will need accommodations or what accommodations they might need.
5. Be careful about any medical information that you obtain by whatever means. Preserve confidentiality in compliance with all laws and regulations.
6. Create a process for handling complaints promptly and professionally, and follow it. Do not discourage employees from submitting complaints if they have concerns about their safety.
7. Provide clear and comprehensive training to your employees about appropriate safe practices, and update your training program regularly.
8. Before reopening your offices, and frequently thereafter, provide clear, uniform and accurate information to ensure that all stakeholders understand how you are planning to reopen safely and what is expected from them.
9. If you rent your office space, consult your lease to determine the respective obligations that you and your landlord have.
10. Consult legal counsel to help you create and maintain a plan that best suits the needs of your business.
Stinson recommends that you consult with a trusted advisor to create a return to work plan that aligns with your business goals, protects the health and safety of your employees, and mitigates your risk of exposure to claims and lawsuits.
Stinson's Coronavirus Task Force has worked diligently to create and maintain a database of best practices. The task force, a cross-disciplinary team of attorneys who advise clients on a wide variety of COVID-19 business-related subjects, serves to provide both legal and best practice information.
Steven R. Lindemann is a Partner in the Minneapolis, MN office of Stinson. He works with companies involved in the construction industry to manage risk and to solve problems. He also serves as the lead attorney for Fortune 100 companies who have selected Stinson as their national construction counsel. He can be reached at firstname.lastname@example.org or 612.335.1724.
Johnny S. Wang is a Partner in the St. Louis, MO office of Stinson. He is well-versed in a variety of employment issues for clients across diverse industries. Johnny’s experience as a litigator gives him perspective on the real risks and potential issues employers face. He can be reached at email@example.com or 314.259.4531.