Loren Kean Law

Loren Kean Law

Loren Kean Law

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COVID-19: WORKPLACE SAFETY AND OSHA REPORTING Kyle W. Ohlenschlaeger and Bruce E. Loren | Apr 15 2020

While many Florida businesses have been shut down due to the COVID-19 outbreak, most construction in the state continues as it has been deemed an “essential business” pursuant to the governor’s “safer at home” order. While pushing forward on your projects, it is also essential that contractors provide a safe workplace and comply with all Occupational Safety and Health Administration (“OSHA”) requirements and guidelines.

Doing so became slightly easier, as OSHA recently issued a formal clarification regarding an employer’s requirement to record and report COVID-19 cases. Prior to the most recent clarification, it was unclear what responsibility contractor had to report an employee’s positive COVID-19 test as a workplace illness. However, OSHA’s new guidance correctly recognizes that a contractor has little ability to determine whether a COVID-19 case was contracted on the jobsite. As a result, OSHA will not enforce its recordkeeping requirements to require most employers (excluding first responders) to make work-relatedness determinations for COVID-19 cases, except where: (1) there is objective evidence that a COVID-19 case may be work related; and (2) the evidence was reasonably available to the employer.

There are still some situations where a COVID-19 case may be a reportable event on a construction site, but they are limited. For instance, if an employee is known to be in full isolation other than his time on the jobsite, the employer may have a duty to report that employee’s contraction of COVID-19 as workplace related. An outbreak occurring across many or most of the employees on a particular jobsite may also rise to the level of reportable.

Despite these eased reporting requirements, employers are still required to provide a safe working environment for their employees. Contractors recklessly exposing employees to contraction of COVID-19 will be subject to OSHA penalties. To keep your employees safe and comply with OSHA requirements you should, at minimum, enforce and implement the following practices:

  • Require employees to stay home when they are experiencing symptoms. Promote self-awareness by placing signage encouraging staying home when sick.
  • Require employees to seek medical attention when they experience symptoms.
  • Do not host large group meetings, meetings should be limited to only those necessary. When meeting, “social distancing” of at least 6 feet should be enforced. Conduct larger meetings (such as weekly toolbox talks) by phone or web.
  • Stagger breaks/lunch to avoid congregation of employees.
  • Place notices of cough and sneeze etiquette and hand hygiene on jobsites, discourage hand-shaking and other person to person contact.
  • Require supervisors to monitor obvious signs of illness on the jobsite, whether employees are complying with “social distancing” and whether employees have come in contact with someone suspected of carrying COVID-19 when off the jobsite.
  • Keep jobsites stocked with soap/water and alcohol-based hand sanitizers.
  • Limit the sharing of tools, documents, personal protective equipment (“PPE”), etc. Be sure to sterilize all shared tools and PPE after use.
  • Enforce the use of gloves on the jobsite, instruct workers to wash hands before and after using gloves.
  • Provide individual water bottles instead of common water cooler.
  • Avoid stacking trades.
  • Request increased sanitation of portable toilets.
  • Disinfect service/fleet vehicles after each use by wiping/spraying all areas with sanitizers and interior cab.
  • Encourage employees to provide their own transportation to the jobsite.
  • Enforce the use of masks where available.
  • Due to the current shortage of N95 respirators, employers should take additional steps to protect employees performing dust producing activities. For instance: (1) avoid dust producing activities where possible; (2) limit exposure time; (3) use dust limiting controls such as water delivery and dust collection systems; and (4) attempt to use a containment structure to limit dust exposure.

We will continue to share information as it becomes available and do our very best to keep you informed about any further actions necessary as it relates to your open projects.

Bruce E. Loren and Kyle W. Ohlenschlaeger of the Loren & Kean Law Firm are based in Palm Beach Gardens and Fort Lauderdale. Loren & Kean Law is a boutique law firm concentrating in construction law, employment law, and complex commercial litigation. Mr. Ohlenschlaeger focuses his practice on construction law and a wide range of commercial litigation disputes. Mr. Loren has achieved the title of “Certified in Construction Law” by the Florida Bar, exemplifying the Bar’s recognition of this expertise. The firm’s construction clients include owners/developers, general contractors, specialty contractors in every trade, suppliers and professional architects and engineers. Mr. Loren and Mr. Ohlenschlaeger can be reached at bloren@lorenkeanlaw.com or kohlenschlaeger@lorenkeanlaw.com or 561-615-5701.