With the recent reopening of Phase 1 construction in Washington and the eagerly awaited resumption of projects throughout the Pacific Northwest, we thought it might be helpful to provide a quick snapshot of the key regulatory guidance and tailored Miller Nash resources that employers in the build community may find most helpful as they prepare to return to work. This is, of course, not intended to cover everything employers will need to consider, but does address three key personnel-related topics where COVID-19 has impacted the construction industry thus far.
1. Workplace Safety. While we might not get entirely “past” the virus for some time, the pandemic's arrival has given businesses a renewed reminder of the vital health and safety obligations at play in the workplace, and some new fundamentals that we expect to be around for some time to come. The initial focus was on (and still remains) educating the workforce on COVID-19 symptoms, requiring employees who are ill or symptomatic to stay home, promoting good hygiene and respiratory etiquette, and implementing increased cleaning and disinfectant protocols. That was later expanded to include physical distancing requirements, pre-shift health screenings, and, for some, specific additional PPE mandates. We expect that most of those requirements will remain in effect for some time and in some form for the coming months—even after shelter-in-place/stay home orders are relaxed, phased out, or lifted entirely.
As that effort begins, here are the most current resources that we think construction-related employers will want to consider in order to ensure workplace and project sites are safe and healthy environments for returning workers:
- Guidance on Preparing Workplaces for COVID-19
This OSHA guide sets out the basic standards for all workplaces, and incorporates specific guidance from the Centers for Disease Control (CDC). OSHA also recently published a construction specific supplement.
- Interim Guidance for Businesses and Employers
This CDC guide addresses preventative measures as well as protocols excluding COVID-19 positive, symptomatic, or potentially exposed workers. There is also new specialized guidance on the latter for employers that are considered “critical infrastructure workers.”
- Phase 1 Construction Restart COVID-19 Job Site Requirements
This is a "Phase 1" checklist from Governor Inslee for Washington construction operations, and may provide a good glimpse of possible reopening protocols in other areas and contexts.
State of Washington:
- General Coronavirus Prevention Under Stay Home - Stay Healthy Order
- Dealing with COVID-19 (coronavirus) in Construction
The above resources were prepared by Washington’s OSHA equivalent, the Department of Labor & Industries, and provide COVID-19 specific enforcement policies, as well as construction specific guidance.
State of Oregon:
- Interim Guidance for Oregon OSHA Related to COVID-19
- Coronavirus Rules and Resources for Oregon Construction Workers and Contractors
The above resources, published by Oregon’s Occupational Safety and Health, provide specific rules and resources for construction contractors.
2. New Employee Leave and Related Protections. There have long been protections for employees expressing concerns about legitimate workplace health or safety, and those remain in effect now and should be carefully heeded. The pre-existing and state-mandated paid sick leave and other potential leave protections also need to be made available to employees who are ill or caretakers for the ill, under a patchwork of federal, state and local laws. But the pandemic also brought brand new employee protections that employers must be prepared to comply with as they ramp back up, particularly because it may limit employers' ability to require employees to return to work now, including:
- The Families First Coronavirus Response Act (FFCRA) mandated new employer-paid leaves for certain COVID-19-related absences as needed from April 1, 2020 through December 31, 2020. This includes up to two weeks when an employee has been advised to self-quarantine, is symptomatic and seeking a diagnosis, or is needed to care for someone who has been quarantined. It also offers up to 12 weeks for an employee who is unable to work, or telework, because the employee has to care for a child whose school or regular place of care is closed due to COVID-19. This new obligation applies to all employers with less than 500 employees in the U.S. We have published a number of resources about this new law, including a quick-reference chart and an explanation of the Small Business Exception.
- Discrimination laws including the American’s With Disabilities Act (ADA) and its state counterparts, provide potential job-protected leave, telework entitlements, and/or other accommodations for employees with disabilities that make them uniquely vulnerable to, or may otherwise be triggered by, COVID-19, and also impose limits on employee health inquiries and mandate the privacy of employee health information, all of which may need to factor into planning as well. See our discussion on that with a link to the updated EEOC guidance on pandemic preparedness here and COVID-19 related FAQ here.
- In Washington, a proclamation from the Governor mandates additional protections for employees who are considered to be at “high risk.” The protections include rights to potential additional job-protected leave and continued health insurance benefits. This proclamation is in effect until at least June 12, 2020. Here is our alert on that.
3. Employment-Related Cost-Recovery Options. While the FFCRA was the federal government’s initial national response, and provided immediate tax credits (including refunds) to offset the direct costs of the employer-funded paid leave mandate, it was followed up by the CARES Act, which brought about the most sweeping financial impact for employers. This includes, employee retention tax credits, payroll tax deferral options, as well as the Payroll Protection Program (PPP) loans, which may be subject to total forgiveness provided certain conditions are satisfied. While much of the guidance on these options is still being rolled out, here’s a snapshot of our resources, with links to the relevant guidance incorporated:
- A summary of PPP loan basics for small business employers.
- A summary of the CARES Act’s tax benefits.
- A chart comparing the various cost recovery options, and key terms, side by side.
We hope this is a helpful compilation as employers engage in their own efforts to prepare to get back to work, whatever that may look like. Of course, this is just a small snapshot of the resources available on our website, so if you don’t see what you are looking for here, we encourage you to check out our COVID-19 landing page for more.
As always, please don’t hesitate to call us if you have questions or need further assistance. In the meantime, please be well!