COVID-19 AND THE CONSTRUCTION INDUSTRY

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COVID-19: Answering Construction Firms Most Pressing Employment Questions About the Pandemic

By now, everyone is aware of the significant impact the coronavirus pandemic (COVID-19) is having on all industries, including construction. Construction employers have a lot on their plate right now, including monitoring the health and safety of their loved ones and workforce, accommodating their employees’ needs during this difficult time, managing their business operations, closely monitoring the most recent news, and considering their next step.  

The impact of COVID-19 has already been felt at every level in construction, from interrupted supply chains to shutdown construction sites across the United States. Construction employers will have a lot of difficult decisions to make in the foreseeable future, many of which will be directly related to employment law. In this editorial, a Fort Lauderdale construction lawyer will cover a variety of important employment law questions related to COVID-19. We will answer questions related to: 

  • Employee absenteeism
  • Sick leave policies
  • Worker classification (hourly or salaried)
  • Telework
  • Traveling employees
  • Paid or unpaid leave
  • FLSA requirements 
  • Payroll requirements
  • Work culture issues

This article will address many of the most frequently asked questions our Fort Lauderdale construction attorneys are currently receiving from construction businesses. It’s important to note that the answer to many of these questions may vary depending on the provisions detailed in your employee handbook. To ensure your company policies align with current public health guidelines and federal and state laws, consult the Fort Lauderdale construction lawyers at Cotney Construction Law. To learn more about employment concerns related to COVID-19, we encourage you to visit the Department of Labor (DOL) and the Centers for Disease Control and Prevention’s (CDC) websites. 

Without further ado, let’s cover the most frequently asked questions a Fort Lauderdale construction attorney can answer related to your business during this pandemic:

1) Are there OSHA requirements I need to know about in regard to this pandemic?

Yes. Whether there is a pandemic or not, all construction businesses must fulfill the requirements outlined by the Occupational Safety and Health Administration (OSHA). The federal agency has recently updated their website with a variety of helpful resources related to workplace health and safety. Whether you’re interested in general employer guidance during this difficult time or specific safety standards related to your jobsite, we encourage you to visit OSHA’s website. Although there is no specific safety standard covering COVID-19, there’s several requirements related to preventing occupational exposure to COVID-19. To learn more about OSHA requirements, consult a West Palm construction lawyer. 

2) If my business closed midweek, do my employees need to be paid for the entire week?

Yes and no. Hourly employees are compensated by the total number of hours they work in a workweek. So if they did not work any hours, wage laws under the Fair Labor Standards Act (FLSA) do not require an employer to compensate them. If an hourly employee worked 20 hours in a shortened workweek, they should be compensated for those 20 hours. Generally, a salaried employee should be compensated for the entire week with few exceptions. As long as the salaried employee was working during the same week as the closure, they should be compensated for the entire week of work. However, it’s important to have a West Palm construction attorney review your company policies and the worker classification status of your entire workforce.

(Editor’s Note: With the passing of the Families First Coronavirus Response Act, some employment rights for paid sick leave and extended medical leave have been amended. Consult an attorney for more information.)

3) If an employee refuses to come to work because they are worried about getting sick, do I have to compensate them? 

Whether or not you have to pay an employee for time away from work largely depends on their worker classification. As we discussed above, an hourly employee will likely not be compensated for time away from work, as they were not working any hours, whereas a salaried employee will likely be paid if they worked any hours that workweek. However, this can be a complicated issue that depends on a lot of factors, including whether or not the employee is exempt and the policies within your employee handbook.

4) Can I require a sick employee to provide a note from a healthcare provider before they return to work?

Yes. An employer has legal authorization to request that their employees provide certification that they are healthy and ready to return to work; however, the note should not include a diagnosis of the employee’s condition. In other words, the note should simply address whether or not the employee can return to work and perform the essential functions of their position. Employers should keep in mind that it may not be feasible for an employee to provide a note during a pandemic, as medical providers will have their hands full treating sick patients. In fact, the CDC and other health organizations are advising employers to not require a medical note in most cases. However, you can encourage employees to obtain a note verifying that they recovered from illness to ensure that they are no longer contagious. 

5) When workers are out sick, can I request another employee to perform work outside of their job description?

Yes. As long as the employee is 18 years of age or older, there are no restrictions for the type of work they can perform. Of course, certain employees on a jobsite have to be certified in specific areas of construction to perform the work, but any tasks that don’t require a license or other forms of credentials can be performed by another employee. As part of the pandemic, many non-union workers may have to fill-in where needed; therefore, employers should consult an Orlando construction law attorney before they request that an employee perform work outside of their job description. 

6) If employees are out sick, can I use volunteers to help out?

No. The Fair Labor Standards Act (FLSA) has strict requirements for the utilization of unpaid workers. Typically, nonexempt workers have to be paid the minimum wage for their services, including overtime pay for any hours worked over 40 hours. Minimum wage isn’t always the federal minimum wage amount either. Often, the prevailing amount is the state’s minimum wage, such as in Florida. Willful violation of federal wage and hour laws can result in excessive fines and criminal penalties in extreme cases.  

7) Can I request for an employee to go home if they are showing symptoms of COVID-19?

Yes. Employers have a legal right to request that any employees that are exhibiting signs of COVID-19 go home. In fact, the CDC is advising employers to closely monitor their workplace and remove any employees who may be showing symptoms of infection. Self-isolating is a critical step in mitigating the spread of the disease, so any employees exhibiting symptoms should be immediately removed from the workplace and sent home. Common signs of a person infected with COVID-19 include: shortness in breath, a persistent cough, or a fever. As COVID-19 is a community spread disease, an employee exhibiting any of the above symptoms is a threat to the workplace and needs to be isolated.

8) Do I need to pay an employee that was sent home?

Yes and no. If the employee is a salaried, exempt employee, they should be paid for the day. If the employee is an hourly employee, you should pay them for the total number of hours they worked that week. Although employers are not obligated to pay hourly employees anything more than the total hours worked in a workweek, if they are sent home, consider paying them for the full day. It’s important to create an action plan for your workplace in regard to a pandemic outbreak. Part of this plan should motivate employees to come forward with any issues, including infection. With that being said, employers are not legally obligated to provide hourly employees with paid time for hours they did not work. 

(Editor’s Note: With the passing of the Families First Coronavirus Response Act, some employment rights for paid sick leave and extended medical leave have been amended. Consult an attorney for more information.)

9) If an employee refuses to come into work, should this count as paid time or an unexcused absence?

The answer to this question largely depends on the company policies in place. Technically, if an employee refuses to come into work, it is considered an unexcused absence. For example, if an employee is fearful they will be infected with COVID-19 and elect not to come into work, this would be considered unpaid, nonmedical leave. This is not covered under the Family Medical Leave Act (FMLA). However, it’s important that employers are consistent with company policy and consider the culture of their workplace. So in some cases, an employer could deduct paid time off from the absent worker. The answer to this question largely depends on your employee agreement, so consult a construction attorney to learn more.

(Editor’s Note: With the passing of the Families First Coronavirus Response Act, some employment rights for paid sick leave and extended medical leave have been amended. Consult an attorney for more information.)  

10) Can I request an explanation of why an employee was absent from work?

Yes. If an employee calls out sick, an employer can ask them why they are out sick and when they anticipate returning to work. In fact, to mitigate the spread of the virus, employers need to know if employees that are out sick are showing symptoms of COVID-19, so they can alert the rest of the workplace to closely monitor the site for visible symptoms. With that being said, an employer can neither ask the employee any questions that may be related to a disability nor can they inform the workforce of the specific employee that was infected with COVID-19. It’s important to keep any medical information confidential.  

11) Is telework an option for employees away from work?

Yes. As a prevention strategy, the majority of workplaces around the country are now relying on telework to meet demands; however, many construction tasks cannot be performed remotely. If telework is a reasonable accommodation, and the employee can perform the essential functions of their position away from the workplace, then telework is a great solution. In fact, many employers are moving any employees not involved in jobsite day-to-day activities to telework. This also includes employees required to travel for work.   

12) If an employee is under a government-imposed quarantine, what are the employer’s responsibilities to the employee?

Employers are strongly encouraged to accommodate any self-isolating employee as they recover from COVID-19. Although telework may not be an option in construction-related jobs, the employer should offer the employee paid time off, including additional paid time off, until they recover from their ailment. In fact, a newly signed bill requires employers with less than 500 employees to provide two weeks of paid leave to workers that are unable to work as a result of quarantine and/or seeking medical treatment. This also includes employees that are caring for a family member infected with COVID-19. To learn more about, the Families First Coronavirus Response Act, read this article.  

13) How can I accommodate the needs of employees during a pandemic?

There are many ways employers can mitigate the spread of COVID-19 and accommodate the needs of their employees. As we discussed above, one way to help prevent the spread of the virus is to move all nonessential employees to telework. Another way to reduce exposure is to research how you can prevent exposure of COVID-19 on the jobsite. Lastly, with the assistance of a Orlando construction lawyer, you can update your employee manual’s sick leave policy to ensure it’s more flexible. This will encourage sick workers to not be present on the jobsite if they believe they are infected. From training your workers to reading up on OSHA standards, there are a variety of ways you can ensure you are utilizing the best safety and health practices to keep your workplace safe. 

14) Does construction qualify as an essential business?

As many communities go to a shelter-in-place plan, construction businesses will need assistance determining if they are (or are not) an essential business. First, review your order from the state, city, or county. Generally, construction is an excluded business, although there are some exceptions. Second, reach out to a Orlando construction attorney to learn more about whether or not your business qualifies. As the federal guidelines are vague in some communities, a construction attorney can review your order, the scope of work you are performing on a project, and provide you with further guidance on the issue. 

At Cotney Construction Law, we are committed to the construction industry, which is why we offer affordable, monthly subscription plans to cover your essential legal and business needs. Now more than ever, you need a subscription plan to ensure that every aspect of your business is equipped to deal with the ramifications of COVID-19. To learn more about services, please give us a call at 1 (866) 259-1894.

If you would like to speak with our Orlando construction law firm, please contact us today.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.