Earlier this month, Florida embarked on Phase 1 of Governor DeSantis’ “Plan for Florida’s Recovery” (the “Plan”) – a three phased approach gradually lifting the restrictions on human movement across the state imposed to protect Floridians from COVID-19. Construction companies are in a unique position as the Plan rolls out—unlike other companies who must only consider how to develop and implement safe, smart and step-by-step procedures at their offices, construction companies need to do so at their home offices and also (likely) multiple jobsites, which can each raise their own unique challenges.
As construction companies work their way through Phase 1 of the Plan, they should consider the following factors in each employee workspace. We note that while the Governor’s task force has issued certain “recommendations” for how Phases 2 and 3 should look, the finalized details have not yet been released. Stay tuned for further guidance in the near future as the specifics for the next two phases are announced.
I. What Is (and Is Not) Permitted in Phase 1?
- Stay at home orders and social distancing continue for non-essential employees and vulnerable individuals.
- Essential employees may be out regularly, but should avoid nonessential travel and observe 14 day isolation if exposure is expected. Essential employees should also observe social distancing.
- State parks are open.
- Restaurants should continue safe sanitation measures and can host groups of no more than 10, with a limit on indoor seating at 25% building capacity. All outdoor dining is open.
- Retail businesses, museums and libraries should follow CDC and OSHA regulations and operate at no more than 25% building capacity.
- Theaters, theme parks, and personal care services that require close contact are not permitted to open.
- Elective medical procedures may proceed with the appropriate use of PPE.
- Visitation for long-term care and corrective facilities is still prohibited.
- Schools are closed through the end of the 2019-2020 school year.
II. What Best Practices Can Construction Companies Implement During Phase 1?
A. Identify and review regulatory standards
Construction companies should review a number of guidelines to inform their approach to Phase 1. On the federal level, the key publications include: the White House’s “Guidelines for Opening Up America Again”, OSHA’s “Guidance on Preparing Workplaces for COVID-19”, the CDC’s Interim Guidance for Business and Employers to Plan and Respond to Coronavirus Disease, the EEOC’s Pandemic Preparedness in the Workplace, and the EEOC’s Interim Guidance. On the state level, construction companies should review Governor DeSantis’ executive orders, as well as local orders and industry-specific guidance/recommendations. For job sites that present unique challenges/risks (such as construction at a hospital currently treating COVID-19 positive patients), construction companies should consider hiring specialty consultants. Such individuals could include industrial hygienists, infectious disease specialists, environmental engineers, and/or a legal team.
Even though the guidance documents are not “law” per se, they are crucial to shielding construction companies from liability for employee exposure claims because they will establish the basis for the employer’s standard of care and set the benchmark for how employee claims may be evaluated in the future. The ultimate question that will be asked is: Did your company take reasonable steps to protect its employees and maintain safety?
B. Develop a plan for each working environment
Develop a performance specification like you would on a project—set out specific goals/requirements and then develop the means and methods to achieve them. Have your consultants review/comment/approve your plan. Consider whether your plan is appropriate for all of the environments where you are sending your employees. Create plans for each jobsite/office if the risks are different. If you’d like advice or assistance in developing a plan, please contact us.
C. Make Appropriate, Informed Accommodations
Consider whether your employees with disabilities may require unique accommodations for battling COVID-19 and ensure you’re ADA-compliant. Consider that vulnerable individuals who are classified as such based on age alone cannot be categorically restricted from returning to work—employees who hold similar positions should return under the same circumstances, with vulnerable individuals able to request reasonable accommodations. We note that labor and employment lawyers suspect there will be an influx of Whistle Blower Act claims by employees who were terminated for refusing to come back to work who are able to cite legitimate employer short comings when it comes to following CDC, OSHA, or other safety/well-being recommendations. If you have an employee who does not want to come back, ask why. If the reason is safety-related, make sure to review your plan to ensure it includes appropriate measures addressing that issue for employees.
D. Offer employee training
Florida offers businesses robust workers’ compensation immunity for employee injuries on the job, including exposure to disease, but that protection is not unlimited. Should an employee contract COVID-19 at work, the question of whether your company will remain immune under the Workers’ Compensation statute will turn on whether: (1) the company knew of a dangerous condition; (2) the company failed to take action to prevent the employee injury; and (3) the employee was unaware of the dangerous condition. To maintain immunity under the third element, construction companies should develop policies that include advising employees of COVID-19 risks. Further, keep in mind that Workers’ Compensation immunity applies only when employees make a claim—construction companies should also consider how to limit additional risk by controlling non-employee presence on jobsites and in the office.
To best protect your construction company, once you’ve formulated your plan(s), offer training like you would on a typical job. Include employees and site visitors. Integrate COVID-19 training into your live jobsite training where you’re already addressing activity hazards, task-specific risks, site access to medical treatment, OSHA training, etc.
As construction companies work their way through the Plan, we encourage them to employ these best practices, among others. For up to date information, please follow Gunster’s Webinar Series and continue to check back on our Construction client updates.
If you have any questions, please contact Gunster attorney Kellie Humphries.
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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.
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