COVID-19 in the Workspace: Is Enough Enuf?You’ve been to the webinars about COVID-19. You’ve read the trade publication tips. You’ve implemented measures to protect your workers. You’re ahead of the game, right? Well, you’re certainly ahead of the sheriff who reportedly instructed his employees not to wear masks in the office. If a visitor enters Sheriff Billy Wood’s office with a mask, she or he will be instructed to remove it.

Employers generally have an obligation to provide a reasonably safe place for employees to work and for invited guests. In today’s COVID-19 environment, this may involve daily temperature checks of employees and visitors, daily certifications by each employee that she or he has no COVID-19 symptoms or exposure, and a requirement that prudent distancing be maintained when possible. Visitors too should likely be required to make a similar certification.

CDC guidance suggests essential workers may not require quarantining after potential exposure. Nevertheless, an employer may consider quarantining crews exposed to an infected person, particularly if face masks were not being used or distancing was not followed or possible.

Each of these safety steps is expensive, both in additional check-in time for employees and in work efficiency. That expense should be measured first against the well-being of the workforce. If the employer has the duty to provide a reasonably safe place to work, then that duty is perhaps satisfied by these safety steps.

So, you’re ahead of the curve. You have gate monitoring in place; toolbox meetings to discuss COVID-19 issues each morning; and you require certifications from each employee that she or he is symptom-free every day. Many of our readers have attended seminars emphasizing the importance of implementing good contractual and safety practices and of documenting them.  Clearly, with the coronavirus, an employer should consider whether it can put simple, effective documentation of its proactive COVID-19 prevention into place. Can the company computerize the morning representation by its employees? Can the temperature log be automated? How can the company confirm that it held daily meetings with groups of employees at the site to stress practicable COVID-19 preventive measures?

Good recordkeeping can pay off in several important ways. It can help prevent employee infections because management is requiring attention to the issue through documentation. It may also minimize the isolation at home of entire crews. And, it can allow the employer to prove it implemented and monitored the application of reasonable steps in the event of an employee who becomes infected with COVID-19 and claims it was caused at the workplace.

At least one state, Virginia, has issued a regulation classifying employers in construction jobs as medium risk and requiring those at medium risk with 11 or more employees to develop a preparedness and response plan that includes several factors, including the designation of a person responsible for administering the plan. Some companies are appointing such a person not because it is required by an express regulation, but for the reasons we mention above: the health and well-being of the workforce.

Should you take a deeper look at the impact of COVID-19 on your workforce? Are there safety measures that you can take that will make your employees feel safer? Does COVID-19 have a disproportionate effect on women or minorities? Because of the impact of childcare costs on women in the workplace, some recent findings indicate a disproportionate impact on women. Is that something you should study with respect to your workforce? Are there targeted measures you can take to help with this? Is it important enough to document any effort your company makes to analyze that impact, if any? Is there an obligation to do so?

A document will not “vaccinate” your workforce. But it can serve at least three salutary purposes: 1) encouraging your management to consider how to implement a COVID-19 plan; 2) lowering the risk of infections at your project; and 3) allowing you to show third parties that your company was safety conscious during this “new normal.”

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Photo of E. Mabry Rogers E. Mabry Rogers

Mabry Rogers focuses his practice on complex construction and procurement litigation. He has been with Bradley Arant Boult Cummings since 1975 and worked on some of the most important matters in Alabama, the Southeast and around the country over the past several decades.

Mabry Rogers focuses his practice on complex construction and procurement litigation. He has been with Bradley Arant Boult Cummings since 1975 and worked on some of the most important matters in Alabama, the Southeast and around the country over the past several decades. Rogers is a member of the American College of Construction Lawyers, named a leading lawyer by Best Lawyers and Chambers USA. He holds a B.A. (cum laude) from Yale University and a J.D. (cum laude) from Harvard Law School. View articles by Mabry

Photo of John W. Hargrove John W. Hargrove

John Hargrove is chair of the Labor and Employment Practice Group and is a Fellow in the American College of Labor and Employment Lawyers. He regularly represents public and private companies in mining, construction, manufacturing, medical, communications and warehousing industries, among others. He…

John Hargrove is chair of the Labor and Employment Practice Group and is a Fellow in the American College of Labor and Employment Lawyers. He regularly represents public and private companies in mining, construction, manufacturing, medical, communications and warehousing industries, among others. He also represents municipal and quasi-public organizations such as police and fire departments and school boards. John also has represented several nonprofit agencies, ranging from national sports organizations to small local charities. View articles by John.

Photo of Keith Covington Keith Covington

Keith Covington practices labor and employment, immigration, and construction law in the firm’s Birmingham office. He counsels employers on a wide variety of topics, including labor relations, union avoidance, equal employment opportunity, OSHA compliance, disability accommodation, non-compete agreements, and issues relating to employee…

Keith Covington practices labor and employment, immigration, and construction law in the firm’s Birmingham office. He counsels employers on a wide variety of topics, including labor relations, union avoidance, equal employment opportunity, OSHA compliance, disability accommodation, non-compete agreements, and issues relating to employee discipline and termination. His immigration practice includes worksite compliance and obtaining employer-based non-immigrant and immigrant visas for foreign national employees. View articles by Keith.

Photo of J. Christopher Selman J. Christopher Selman

Christopher Selman is a litigator, representing clients in a variety of industries, such as construction, government contracting, energy, and real estate.

Christopher’s construction practice involves the representation of owners, EPC contractors, general contractors, subcontractors and suppliers in a variety of issues and projects…

Christopher Selman is a litigator, representing clients in a variety of industries, such as construction, government contracting, energy, and real estate.

Christopher’s construction practice involves the representation of owners, EPC contractors, general contractors, subcontractors and suppliers in a variety of issues and projects, both public and private. Christopher has experience managing construction disputes across the United States and abroad, including Alabama, Florida, Illinois, Kansas, Maryland, Nevada, North Carolina, South Carolina, Texas, the Republic of Panama, Turkey, and the Dominican Republic.