The Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) have issued specific COVID-19 guidelines for construction regarding safe work [...]
ABC of Wisconsin
The latest information on COVID-19 for ABC of Wisconsin members
ASSOCIATED BUILDERS AND CONTRACTORS
ABC is closely monitoring the Coronavirus (COVID-19) pandemic and how the virus is impacting our workplaces and communities. ABC of Wisconsin staff members are actively cultivating new information and resources to help construction companies through this difficult time. In addition to these resources, members can find the latest scheduling changes for member events and apprenticeship classes below.
Frequently Asked Questions
Information for Contractors
This FAQ contains information for our members to consider when faced with employee questions and issues that can arise as a result of managing COVID-19 in your workplace. The information in this FAQ does not constitute medical and/or legal advice. For legal counsel, please utilize ABC of Wisconsin’s Member Legal Education Service.
STATEWIDE MASK ORDER
The latest emergency order issued July 30, 2020 by Gov. Tony Evers is not only raising questions about the legality of such an order, it is raising questions about how individuals and employers are to comply. The new order, which assumes face masks are effective in containing the spread of COVID-19, creates a blanket mandate for the entire state. Even while we are developing this FAQ, Legislative Republicans are talking openly about taking action to rescind the public health emergency declaration. In the meantime, here are some questions and answers to help you comply with the mandate.
Does the mask order apply to contractors and their employees?
Yes. You need to wear a face covering whenever you are indoors or in an enclosed space, other than a private residence (unless someone from another household visits a private residence), and other people are present in the same room or space. “Enclosed space” means a contained space that is open to the public where individuals congregate, including but not limited to outdoor bars, outdoor restaurants, taxis, public transit, ride-share vehicles, and outdoor park structures. This means essentially all work areas that are not entirely outdoors with another non-family member present.
When is the order in effect?
The emergency order goes into effect at 12:01 a.m. on Saturday, Aug. 1, 2020 and expires on Sept. 28, 2020, unless repealed by a subsequent superseding emergency order, action by the Legislature or action by the courts.
What if I can physically distance from other people inside a building? Do I need to wear a mask?
Yes. This mandate requires that you wear a face covering indoors, even if you can distance six feet or more, unless you are at a private residence or you’re the only person in the room. The requirements include when you are inside large, open spaces within buildings that are under construction unless you are the only individual in a separate enclosed room with a closed door.
What about inside businesses and office spaces?
Yes, unless an exception applies, you will need to wear a mask whenever you are indoors and another individual from a different household is present, even if you are able to distance six feet or more. If you can enclose yourself by closing an office door, you do not have to wear a mask. A mask would be required if you leave your enclosed office and would have a chance of encountering other individuals in the same open space who are not from your household.
Is the Governor’s statewide “mask mandate” legal?
Legal experts disagree. Only the Wisconsin Supreme Court can answer the legal question. Until a suit is brought, and a decision is issued, we simply do not know if its legal.
Is the mask mandate enforceable?
This order supersedes any local order that is less restrictive and is enforceable, until it is not. There are a few ways the order could be reversed. The court could rule it unconstitutional. The Governor could rescind the order. Or, the Legislature could pass a Joint Resolution rescinding the public health emergency. Until (and unless) one of those things happen the order is enforceable. (See: Who will enforce the mandate? below).
Who will enforce the mandate? Will OSHA be enforcing it?
OSHA will not be enforcing it because it is a local/state requirement. Enforcement of the order is left to “state and local” officials. Some law enforcement agencies have indicated they will not enforce the order, but that does not mean those who violate the order are immune from fines. Violating the order may result in a civil fine up to $200.
When and how could OSHA become involved with this state mandate?
Contractors are well advised to do a risk assessment to determine what personal protective equipment (PPE) are required to keep employees safe. If you have an outbreak of COVID-19 cases on/from your site, OSHA may become involved per the OSHA General Duty Clause (see next question). Contact ABC of Wisconsin for more details on risk assessments.
What is the General Duty Clause and what are my obligations as an employer?
Under the General Duty Clause of Section 5 of the Occupational Safety and Health Act, there are two responsibilities for the employer (section 5(a)). The employer:
- shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;
- shall comply with occupational safety and health standards promulgated under this Act.
If your site has a COVID-19 outbreak, OSHA may consider whether you adhered to any local or state emergency order in effect at the time.
What are my obligations as a General Contractor to ensure that employees of subcontractors on my jobs comply with the order?
The mask order specifically applies only to individuals and its terms do not appear to require enforcement by entities. General Contractors normally, however, maintain site-specific safety guidelines and should add the mask requirement to its normal safety guidelines.
What are my obligations as an employer to ensure my employees comply with the order?
While the obligations of the Governor’s order apply to individuals, an employer that does not take reasonable steps to require employees to comply with the order could risk civil claims based around the requirement to provide a safe working environment. While the viability of these claims is unknown, risk exists for employers that knowingly permit employees to ignore the order.
What if an employee “refuses” to wear a face covering?
Employers may enforce non-discriminatory rules through its normal process. Many employers rely on progressive discipline. Unionized employers may have a duty to bargain rules before imposing them. To the extent that employees claim that a medical condition precludes them from wearing a mask, the normal accommodation interactive process, including proof of the need for the accommodation, still applies.
Does the fogging of safety glasses exempt employees from having to wear masks?
No. Contractors should take the necessary steps to remediate fogging of glasses so they are not a safety hazard. This may include the use of anti-fogging glasses, anti-fogging spray or wipes, or the use of another type of mask.
Do employees need to wear masks when traveling to jobs or jobsites?
If individuals are sharing a vehicle with persons from another household, masks must be worn.
Does the use of a face shield meet the requirement?
No. This order does not allow the use of a face shield to replace a face covering, unless a mask would create a risk to the individual.
Do employees need to wear masks on breaks or at lunch?
No. Employees are not required to wear masks when eating or drinking, but masks must be used as soon as employees are done with these activities.
JOBSITE PRECAUTIONS & BEST PRACTICES
What if no sanitizing products can be found for purchase due to high demand? How do we protect our employees?
We can maintain distance of at least six feet. No sharing of tools or equipment. Avoid working in confined spaces. Keep doors open and use ventilation equipment and filtering processes where needed. Eliminate touch processes wherever possible. Where employees may have to be closer than six feet to get their work done, use PPE such as nitrile gloves and respiratory protection. All workers should wash hands before breaks and food or beverage consumption.
Try to outsource disinfectant and any other protective product purchases. It may be easier to obtain a smaller quantity from several different sources vs. ordering in bulk from one supplier.
Can we mix our own disinfectant solutions?
Yes. Be sure to follow the CDC and the distributer/manufacturer guidelines for proper ratios, application, use and limitations, and how to protect yourself during mixing and application. Be sure all products are properly labeled, especially when using a secondary container, and that SDS information is made available for these products.
Does the bleach water disinfecting solution recommended by the CDC degrade after 24 hours?
Follow the CDC guidelines, found at https://www.cdc.gov/ and listed below:
Additionally, diluted household bleach solutions (at least 1000ppm sodium hypochlorite) can be used if appropriate for the surface. Follow manufacturer’s instructions for application, ensuring a contact time of at least 1 minute, and allowing proper ventilation during and after application. Check to ensure the product is not past its expiration date. Never mix household bleach with ammonia or any other cleanser. Unexpired household bleach will be effective against coronaviruses when properly diluted.
Prepare a bleach solution by mixing:
- 5 tablespoons (1/3rd cup) bleach per gallon of water or
- 4 teaspoons bleach per quart of water
What is the employer’s responsibility if Personal Protective Equipment (PPE) is not available?
You still have a duty to protect employees under OSHA’s General Duty Clause which states:
“Each employer shall furnish to each of his employee’s employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees”
It is best to minimize hazards using what is called the Hierarchy of Controls. Eliminate hazards, substitute methods and approaches, use engineering controls, administrative controls, and lastly require the use of PPE to protect workers.
If you cannot engineer the hazard out, look at administrative controls as the CDC suggests; Wash hands, use hand sanitizers, clean/disinfect the work area, tools etc. maintain the six-foot distancing rule, etc.
If someone has a cough or is symptomatic, can they come on the jobsite?
Follow CDC guidelines. Symptoms may include fever, coughing, and shortness of breath. This will have to be determined on a company by company basis. Some companies say if they have a persistent or difficult to control cough they will not be allowed on site. Some companies will not let them even approach their Wellness Checkpoint if they have symptoms.
These symptoms can mimic other health issues as well, such as allergies. No matter what we recommended that you error on the side of safety.
Can each employee have a thermometer to monitor themselves?
Yes. That is one way to keep distance while we are monitoring employees. They should document the date and time they took their temperature and what the results were. If you have a smaller job site this is probably a realistic approach. If you have personnel coming into the office you could monitor that way as well.
What degrees of separation should there be regarding possible exposure to a confirmed or even suspected positive case?
The potentially exposed person should be quarantined for up to 14 days, or until test results come back negative. Again, we need to error on the side of safety. Continue to monitor yourself and follow CDC protocol.
What if your spouse or household member works in a profession that they will likely be exposed, such as healthcare workers?
People should be working remotely where possible. We should also be teaching this to our employees in the opposite manner, not just protecting our jobsites but protecting your family when you return home from work.
Is it better to wear glasses or contacts?
Talk to your eye doctor. Eyeglasses may be less invasive when it comes to eyecare and cross contamination. As a best practice we all wear a hard hat and safety glasses and gloves on site. Disinfect regularly and try not to touch your face.
What if we have employees working out of town staying in a hotel?
Distancing becomes hard, the easiest and best answer to this is don’t share rooms. If two people have to share a room evaluate to see if they can safely maintain the recommended distance apart, as well as sterilize common areas.
Will there be changes to our PPE policies?
It is best to minimize hazards using what is called the Hierarchy of Controls. Eliminate hazards, substitute methods and approaches, use engineering controls, administrative controls, and lastly require the use of PPE to protect workers.
With a shortage of protective masks/respirators we want to reduce the need for the use of this type of equipment.
How should site deliveries be handled?
Have a procedure in place. Maintain distance upon approach. Try not to sign forms and do not touch anything that you do not have control of decontaminating. Have alternative methods for the exchange of communication where possible. Where it cannot be avoided use gloves and ensure proper disposal and handwashing procedures upon completion.
What is the process with multiple personnel using the same site transportation equipment (i.e. forklifts, scissorslifts, boomlifts, mules, and other shared equipment)?
A best practice would be to issue these types of equipment to the same person the entire day. If that is not practical or feasible, ensure hygiene practices are in place. You should have disinfecting procedures and affected site employees should be properly trained in these procedures. This equipment should be disinfected regularly and gloves in use.
Have companies or job sites been running split shifts to eliminate the number of personnel on site at the same time?
We are in a very communicative business. We are trying to make this happen wherever possible to limit close interaction between employees, as well as subcontractors on site, and all other site personnel.
How are you handling site visitors?
Non-essential visitors should not be allowed on site. Post signage to communicate this requirement. This is in place to protect the visitor as well as all site workers. If it is not critical, do not go on site. Communicate/work remotely wherever possible.
What should we have in place in the case we may need to shut down a project?
Contact your local health department for guidance. Have a checklist ready to go to ensure we have the best coverage and shutdown protocol goes as smoothly as possible keeping site workers comfortable with the process.
Identify the infected person and all other site personnel they may have come in contact with.
Understand that the job site may have to be shut down for at least 24 hours for follow-up procedures. Cleaning and disinfecting protocols should be followed. This will include any potentially contaminated surfaces including, common areas, tools, equipment, machinery, and any other potentially contaminated surfaces. Employees who are disinfecting these areas should be trained in these procedures. PPE should be issued and worn in accordance with training and procedures. There may be a need for a third-party cleaning service to come in.
Have you seen a change in safety audit procedures?
Yes, a few. There has been a change in the exchange of information. We are trying to distance and minimize or eliminate contact wherever possible. Eliminating group site walks and things of that nature. Independent audits continue to be conducted. We added COVID 19 protocols to our checklists to oversee implementation.
Should safety professionals continue to conduct site audits?
Yes. We should continue to conduct regular site inspections. It is important and remains essential our health and safety programs and procedures continue. These audits need to remain as we promote and protect the health and safety of our workers.
Is COVID-19 an OSHA Recordable Illness?
If there is a confirmed case on your job site, you should conduct a thorough investigation and determine if it did occur on the job site. Below is the OSHA outline for determination. If you have any questions contact ABC of WI. See below for OSHA’s recordability criteria:
COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties. However, employers are only responsible for recording cases of COVID-19 if all of the following are met:
- The case is a confirmed case of COVID-19 (see CDC informationon persons under investigation and presumptive positive and laboratory-confirmed cases of COVID-19);
- The case is work-related, as defined by 29 CFR 1904.5; and
- The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7(e.g. medical treatment beyond first-aid, days away from work).
Is COVID-19 an OSHA Reportable Illness?
When it comes to an OSHA reportable incident or illness it must be reported within 24 hours for: a hospitalization for anything other than diagnostic purposes, an amputation, loss of an eye. If there is a fatality, it must be reported within 8 hours.
When it comes to the OSHA criteria for reportable cases this may be difficult due to the fact that a hospitalization must occur within 24 hours of initial exposure and a fatality has to be reported within 30 of initial exposure. Most cases may not fall underneath OSHA’s guidelines. If there are any questions regarding this call ABC of WI for assistance.
FFCRA & CARES ACT
If someone is out due to a mental health issue due to the Covid-19 does that qualify for emergency paid sick leave under the FFCRA?
The information does not list mental health issues relating to Covid-19 as a qualifying reason for emergency paid sick leave under the FFCRA. A company can consider managing this issue under their company’s leave of absence policies or under State/Federal Family and Medical Act for employers with 50 or more employees.
Is the $511/day for salaried employees? Are owners covered under the emergency paid sick leave?
The $511/day (for the proper qualifying reason) is for salaried (exempt) and hourly (non-exempt) employees. It is also further understood that the owners may qualify for emergency paid sick leave if they receive a W-2.
Explain how you calculate the employee’s regular rate?
This can be found by referring to the Department of Labors FAQ’s regarding FFCRA. Please refer to #5, #6, #7 or #8. The link is: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions
What if the employee refuses to work and your company is consider an essential business defined under the Stay at Home Order?
By choosing not to work and not meeting the qualifying reasons for leave, the employee will not meet the requirements of the FFCRA emergency paid sick leave nor the expanded paid family and medical leave requirement.
May I take my paid sick leave intermittently while working at my usual worksite (as opposed to teleworking)?
It depends on why you are taking paid sick leave and whether your employer agrees. Unless you are teleworking, paid sick leave for qualifying reasons related to COVID-19 must be taken in full-day increments. It cannot be taken intermittently if the leave is being taken because:
- You are subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
- You have been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- You are experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- You are caring for an individual who either is subject to a quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
- You are experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.
Unless you are teleworking, once you begin taking paid sick leave for one or more of these qualifying reasons, you must continue to take paid sick leave each day until you either (1) use the full amount of paid sick leave or (2) no longer have a qualifying reason for taking paid sick leave. This limit is imposed because if you are sick or possibly sick with COVID-19, or caring for an individual who is sick or possibly sick with COVID-19, the intent of FFCRA is to provide such paid sick leave as necessary to keep you from spreading the virus to others.
If you no longer have a qualifying reason for taking paid sick leave before you exhaust your paid sick leave, you may take any remaining paid sick leave at a later time, until December 31, 2020, if another qualifying reason occurs.
In contrast, if you and your employer agree, you may take paid sick leave intermittently if you are taking paid sick leave to care for your child whose school or place of care is closed, or whose child care provider is unavailable, because of COVID-19 related reasons. For example, if your child is at home because his or her school or place of care is closed, or child care provider is unavailable, because of COVID-19 related reasons, you may take paid sick leave on Mondays, Wednesdays, and Fridays to care for your child, but work at your normal worksite on Tuesdays and Thursdays.
The Department encourages employers and employees to collaborate to achieve maximum flexibility. Therefore, if employers and employees agree to intermittent leave on less than a full work day for employees taking paid sick leave to care for their child whose school or place of care is closed, or child care provider is unavailable, because of COVID-19-related reasons, the Department is supportive of such voluntary arrangements.
FAMILY & MEDICAL LEAVE
My employee needs to stay home to care for children who are off of school. Do I have to let them take time off?
Yes, the FMLA expansion for Covid-19 is as follows: the Act amends the FMLA to allow an employee who is unable to work (or telework) to take leave due to a need to care for the employee’s son or daughter (under 18 years of age) if the child’s elementary or secondary school or place of care has been closed, or the childcare provider is unavailable, due to a “public health emergency.” A public health emergency means an emergency with respect to COVID-19 declared by a federal, state, or local authority.
Do I have to pay them while they are gone?
The Act also adds a paid sick leave obligation. Employers with fewer than 500 employees must immediately make available 80 hours of paid sick leave for full-time employees (or the equivalent of the average number of hours over two weeks for part time employees) for the following reasons:
- The employee is subject to a federal, state, or local quarantine or isolation order under COVID-19.
- The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19.
- The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- The employee is caring for an individual who is subject to an order as described in subparagraph (1) or has been advised as described in paragraph (2).
- The employee is caring for their son or daughter if the school or place of care of the son or daughter has been closed, or the childcare provider of the son or daughter is unavailable, due to COVID-19 precautions.
- The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretary of the Treasury and the Secretary of Labor.
What is the amount of pay?
Under the FMLA provisions, when leave is needed due to a school or day care closure, the employer can provide the first 10 days of leave unpaid, then subsequent absences for this reason must be paid at 2/3 the employee’s regular rate of pay. The Act includes a cap of $200 a day and $10,000 in aggregate. If the first 10 days are unpaid, an employee may elect to substitute any accrued vacation leave, personal leave, or medial/sick leave for the unpaid absence.
Emergency Paid Sick Leave is paid at the employee’s regular rate for a use of 1, 2, or 3 above and 2/3 of an employee’s regular rate for use of 4, 5, or 6 above. Full-time employees will be entitled to up to 80 hours of paid leave based on their normal wage. Part-time employees will be entitled to paid leave equal to the number of hours worked, on average, over a two-week period. This paid sick leave is capped at:
- $511 per day and $5,110 total per employee for employees who are quarantined, isolated, or experiencing symptoms and seeking a medical diagnosis.
- $200 per day and $2,000 total per employee for an employee who is carrying for:
- Their minor child because the child’s school or care provider is closed or unavailable
- An individual subject to a quarantine order or has been advised by a health care provider to self-quarantine
- Someone experiencing any other substantially similar condition specified by the Secretary of Health and Human Services.
This paid sick time would be in addition to any other paid leave made available to the employee by the employer. Employers are prohibited from requiring an employee to use other paid time before using this paid sick time. This sick leave cannot be carried over year-to-year and is not required to pay out any unused sick time at the time of separation.
Employers will be required to post and keep posted a notice to employees describing these paid sick leave requirements. The US DOL will make a model notice available.
What tax credits are available?
Employers are entitled to tax credits on their employer’s portion of payroll taxes for wages paid to employees.
- For paid FMLA leave, an employer will be entitled to a tax credit for qualified family leave wages in an amount up to $200 per day or $10,000 in the aggregate (5 days x 10 weeks x $200/day cap). If any tax credit exceeds the amount of payroll taxes due by the employer, then such excess would be treated as an overpayment entitling the employer to a refund.
- For paid sick leave, the available tax credit for each employee would be for wages capped at either $200 or $511 per day depending on the reason for the sick leave as detailed above.
Are there exceptions for small businesses?
The US Department of Labor is authorized to issue regulations that would exempt employers with fewer than 50 employees if such payment obligation would jeopardize the viability of the employer’s business as a growing concern. NOTE – After the regulations are issued, an employer taking advantage of this provision risks being subject to having to defend the decision.
How do I notify employees of their rights?
The U.S. Department of Labor (DOL) published workplace posters that small and midsize employers can use to fulfill their obligations to notify employees of their rights to Expanded Paid Sick Leave and Expanded Paid Family and Medical Leave Act leave under the Families First Coronavirus Act (FFCRA).
The DOL also issued frequently asked questions and answers regarding FFCRA employee notices.
WORKER'S COMP & FURLOUGHED EMPLOYEES
Is there a statistical code for COVID-19?
WCRB has established a new unit statistical code for reporting certain payroll for this unprecedented event: Carriers may implement code 0012 as a class code in their operating system. All insurance carriers in Wisconsin will be allowing companies to utilize the new worker’s compensation COVID-19 code for employees that are furloughed per the WCRB.
Unit Statistical Code 0012 – Paid Furloughed Workers During A Governmental Emergency Order Impacting Employment
Who is considered a paid furloughed employee for WI worker’s compensation insurance purposes?
By definition, a paid furloughed employee is one who is still being paid where they have been given a temporary layoff, an involuntary leave or another modification of normal working hours for a specified duration. This is for payments made by the employer during the paid furloughed time under the Governmental Emergency Order regardless of when it was earned.
Is paid furloughed time the same as idle time?
No. Paid furloughed time is the time period where a state-wide emergency order has been issued by a public official and is for an extended period. The employee is not performing work duties for the employer.
Idle time is “down” time when an employee is waiting for materials or products in order to perform their duties. The employee is still under the total direction and control of the employer.
If a paid furloughed employee continues to be paid by their employer, is their payroll excluded from the employer’s worker’s compensation insurance premium?
If an employer continues to pay furloughed employees their normal wages and the employer keeps separate, accurate and verifiable records, the payroll will not be included for the basis of premium.
How is the payroll to be split when an employee works part of a day and is furloughed part of the day?
If the employee is performing work duties for any portion of the day, no division of payroll is acceptable.
What if an employer does not have documentation on the work that is furloughed versus the work that is actually being done?
If accurate, verifiable payroll records are not maintained, 100% of the wages are assigned to the employee’s normal classification.
WI Basic Manual Rule IV E.2.b.2. states:
“Estimated or percentage allocation of payroll is not permitted.”
What if Code 0012 is used fraudulently by an employer to falsely lower WC premiums?
Code 0012 can ONLY be used if an emergency order is issued by a governmental official. Code 0012 is defined as: Paid Furloughed Workers During A Governmental Emergency Order Impacting Employment. If a governmental emergency order is not in effect, code 0012 cannot be used. During a declared government emergency order, improper use of this code or the use of false or misleading documentation in support of reallocation of payroll to this code is a violation of the law and may subject the employer/owners to fines, penalties and/or imprisonment for fraud.
Is a $0.00 rate appropriate for code 0012?
Yes. The WCRB believes there is no justification for charging premium based on payroll that creates no worker’s compensation exposure.
Is there an end date to when code 0012 can be used?
Statistical code 0012 Paid Furloughed Workers During A Governmental Emergency Order Impacting Employment will be a permanent reporting code and will be implemented whenever an emergency order is in effect.
Is the term Governmental Emergency Order defined?
Governmental Emergency Order means any order, decree, stipulation, or determination, promulgated or entered by any public official or governmental body representing the state in which a statewide emergency is declared.
Is the term public official defined?
Public Official means someone who has authority to exercise the power of the state government and does so in his or her official capacity as an employee of the state government.
Should there be a waiting period before code 0012 can be used?
No. The use of statistical code 0012 is directly linked to an executive order made by a state official with the authority to do so. In the case of COVID-19, it’s Governor Ever’s Executive Order #72, which is currently effective from March 17, 2020 through April 24, 2020.
HEALTH & SAFETY
What steps should I be taking as a contractor employer?
Per the “General Duty” clause from OSHA, employers are to provide a safe and healthy workplace free from hazards that could cause death or serious physical harm.
Employers should follow the recommendations for number of employees on a particular worksite and instruct employees on the practice of social distancing, or ensuring employees keep a six foot distance between one another while working. Employees should not share tools.
Employers should remind employees to take basic, preventative measures to reduce the spread of coronavirus at the workplace, including these recommendations:
- Washing hands frequently with soap and water for at least 20 seconds or use an alcohol-based sanitizer that contains at least 60% alcohol
- avoiding touching their eyes, nose and mouth;
- covering sneezes or coughs with tissues, if possible, or else with a sleeve or shoulder;
- avoiding close contact with people who are sick;
- staying home when sick; and
- cleaning and disinfecting frequently touched surfaces and objects.
Employers should provide adequate supplies in the workplace for employees to follow these recommended practices.
CDC guidelines for protecting employees: https://www.cdc.gov/coronavirus/2019-ncov/index.html
What do I do if an employee may have the virus?
The Centers for Disease Controls (CDC) specifically recommends that employers immediately send home employees who appear to have symptoms of any acute respiratory illness. Employers should also investigate symptoms by asking the employee about their symptoms to keep an open environment of communication. Employers should try to assess if employees came into contact with other employees and send home employees who may be exposed for 14 days. Employers should encourage employees to stay home if they have been exposed to someone who has any illness and stay home until fever or other symptoms have subsided for at least 24 hours. Employers should not share names of individuals who may have contracted an illness. You may require a “fit for duty” certification or verification from a doctor, but that may not be realistic considering healthcare facilities may be overwhelmed.
Can an employer take the temperature of an employee and ask an employee about their health?
Yes, under normal circumstances this would be considered a medical exam under ADA and not allowed, but because of COVID-19, the CDC and local Health Departments are allowing this. Keep in mind this should be related to COVID-19 and you should be specific to COVID-19 symptoms (i.e. fever, cough, shortness of breath). All employees should do this consistently and not discriminate based on protected classes. Employers are reminded that doing this can provide a false sense of security. Be sure to continue with CDC recommendations on cleaning and keeping the workplace safe.
Would I have to shut down a worksite if an employee with the virus was on the jobsite?
At this point OSHA has not indicated that it is necessary to do so, however that could change.
What should be done regarding the cleaning of jobsites?
OSHA has said that outside of healthcare facilities, there is no need to clean “contaminated” work environments unless there are bodily fluids present. However, with COVID-19, you will want to take measures to clean the jobsite wherever and whatever the employee may have encountered, including all tools, common surfaces, porta potties, etc. This can be done by your employees, but should only be done with a respirator, eye protection and other personal protective equipment.
If someone is positive with COVID-19, do I have to record in on my OSHA log?
Most likely, no. As an employer, you should determine whether there was any exposure that occurred in the work environment that caused or contributed to the test positive. As a practical matter, it is very difficult to do this and not practical to ascertain there was exposure on the worksite. OSHA would have to prove that the employee testing positive was work-related. If you have a COVID-19 case that results in a fatality or in-patient hospitalization, you would want to call OSHA. You would also likely be engaged with your local health department if this were to occur.
What about OSHA and general contractor responsibility on multi-employer jobsites?
If you’re a general contractor, OSHA could not cite you for a general duty clause violation related to COVID-19 on your worksite due to other employers’ employees.
If I donate my PPE, such as respirators or masks, to my local hospitals, will I get a pass on this type of employee protection from OSHA?
No. OSHA has not weighed in on this issue so you should make sure you are in compliance with OSHA standards, respiratory standard and every other standard because OSHA has not granted any pass on this.
What if I’m a contractor who has employees who must work in close proximity with one another, such as in a manhole or trench?
There will be situations where the six–foot minimum distance is not feasible. The best action in this situation is for employees to be using N-95 respirators, gloves, etc. However, given the nature of the work, OSHA would not likely be able to take action on this.
An employee of ours has tested positive for COVID-19. What should we do?
You should send home all employees who worked closely with that employee for a 14-day period of time to ensure the infection does not spread. Ask them to identify all individuals who worked in close proximity (three to six feet) with them in the previous 14 days to ensure you have a full list of those who should be sent home. When sending the employees home, do not identify by name the infected employee or you could risk a violation of confidentiality laws. You may also want to consider asking a cleaning company to undertake a deep cleaning of your affected work spaces. If you work in a shared office building or work area, you should inform building management so they can take whatever precautions they deem necessary. Employers should proceed to clean the work area or jobsite the employee may have come into contact with.
Can employer require an employee stay home and quarantine for 14 days?
Yes, authorities have concluded that employees who have symptoms of COVID-19 should leave the workplace. You should consider the CDC guidelines. These guidelines will give employers guidance and information on risk levels. If an employee has traveled from a level 2 or 3 area whether for work or personal a company can require the employee to quarantine for 14 days.
Can an employer ask about symptoms and how much information can I request of the employee?
Yes, but only around Covid-19 symptoms (i.e. fever, cough, shortness of breath). Due to the sensitivity of this information, confidentiality is imperative.
Can an employer require a doctor’s note?
Yes, but keep in mind the CDC is advising employers not to require doctor’s notes or proof that someone has tested positive for the virus at this time. The thought is to not overwhelm the health care system. Employers are struggling with this a little bit. Someone with no symptoms may not be able to get a note. It is recommended employer’s watch this. If employees are unable to get a doctor’s note an employer may want to have flexibility in their policy regarding this and make it clear that this it temporary and when this has past the policy will require documentation.
What does an employer do when an employee refuses to work?
There are various legal issues that need to be considered:
- American’s with Disabilities Act (ADA): an employer should understand if the employee has a disability under ADA and if an accommodation should be considered.
- National Labor Relations Act (NLRA): non-supervisory employees may refuse to work in conditions they believe to be unsafe and the employee has a reasonable good faith belief of this.
- Occupational Health and Safety Act (OSHA) under certain circumstances an employee may refuse an assignment that could risk death or a serious personal harm. An employer needs to look at the situation and conditions.
- The employer will also need to weigh the situations of Covid-19, CDC guidelines and public relation issues for the company.
What impact will force majeure or other change clauses have on my contract obligations?
A force majeure or other change clauses may free parties in a contract from their liabilities when an “extraordinary event” or “act of God” prevents them from fulfilling their obligations.
It depends on the contract and whether such a clause is included. Review each contract to determine whether there are clear, comprehensive and adequate protections for your company and whether “epidemic” or “pandemic” or “public health emergency” are included. Courts often interpret the clause based on what is specifically listed. Then consider whether your project has, in fact, been affected by the pandemic, e.g. labor or equipment shortages; is there a schedule impact?
For companies that have force majeure clauses in their standard contracts, it would be wise to review those provisions to make sure they provide clear, comprehensive, and adequate protections for the company and consider whether terms such as “widespread epidemic,” “pandemic,” and/or “public health emergency” should be added to their force majeure clauses in light of the threat posed by the current coronavirus outbreak, as often courts will interpret the clause based on what is specifically listed in the contract.
In a recent ABC webinar, attorneys from the legal firm Bradley recently recommended these five important points when it comes to force majeure clauses:
- Any particular issue that might arise on a particular job is very, very specific to that project. What may apply to project A may not apply to project B. You need to look at the specific facts on a specific job.
- Course of action is very dependent upon specific contract language and specific facts.
- What a legal team and client might decide to do on a particular project is very dependent upon the applicable law. It could be a very different outcome from one jurisdiction to the next.
- The situation we’re dealing with is unprecedented in recent history in the United States. As a result, there could be not laws enacted or new interpretations of existing laws in courts later as some of these issues are, are addressed in courts.
- Document everything. Everyone is operating in a fog, but the fog will lift and that’s when everything will be dependent on facts of what occurred.
This does not constitute legal advice. Consult an ABC attorney for more details. ABC members are entitled to a free call for legal education on a specific issue and are not limited by the number of issues they can call about. Contact ABC of Wisconsin at 608-244-5883 or 800-236-2224 and chapter staff will help you determine if a free legal call is necessary and which attorney can best answer your question.
CONSTRUCTION & THE 'SAFER AT HOME' ORDER
What is the “Safer At Home” order?
Effective Wednesday, March 25, 2020 at 8:00 a.m. until 8:00 a.m. Friday, April 24, 2020, or until a superseding order is issued, Gov. Tony Evers’ “safer at home” emergency order is effective statewide. The order closes nonessential businesses, directs everyone to stay home and practice six feet social distancing when outside or in public specifically deemed essential. Travel is prohibited except when deemed essential.
Construction is deemed essential and generally exempt from the “stay at home” requirement.
Can construction continue under the “Safer At Home” order?
Construction is deemed essential and generally exempt from the “stay at home” requirement. The term “construction” is to be construed broadly to avoid any impacts on essential infrastructure. This includes:
- Building and Construction Tradesmen and Tradeswomen, and other trades including but not limited to plumbers, electricians, carpenters, laborers, sheet metal, iron workers, masonry, pipe trades, fabricators, finishers, exterminators, pesticide application, cleaning and janitorial staff for commercial and governmental properties, security staff, operating engineers, HVAC, painting, moving and relocation services, forestry and arborists, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, Essential Activities, Essential Governmental Functions, and Essential Businesses and Operations.
- Construction required in response to this public health emergency, hospital construction, construction of long-term care and assisted living facilities, public works construction, school construction, essential business and operations construction, construction necessary for essential government functions, and housing construction. The EO recommended that optional or aesthetic construction should be avoided.
Ancillary Businesses also deemed essential:
- Building management and maintenance,
- Highways, railroads and public transportation.
- Financial institutions and services
- Hardware and supplies stores. Hardware stores and businesses that sell electrical, plumbing, heating and construction material.
- Mail, post, shipping, logistics, delivery and pick-up services.
- Transportation. Airlines, taxis, transportation network providers (such as Uber and Lyft), vehicle rental services, paratransit and other private, public, and commercial transportation and logistics providers.
- Professional services. Legal or accounting services, insurance services, real estate services (including appraisal, home inspection and title services).
All essential businesses to the greatest extent possible, are encouraged to use technology to avoid meeting in person and engage in social distancing.
Do I need documentation to prove that I’m an “essential worker?”
Essential workers do not need documentation to prove they are essential, according to state agency staff. Police are generally not going to be stopping individuals and asking for proof.
In some rare instances, construction employees have been asked to provide documentation to prove they are essential and exempt from the “safer at home” order. While not required, it may be helpful and prudent to provide your employees with a letter explaining their exemption from the emergency order.
Do I need to request any type of exemption for my business?
The Wisconsin Economic Development Corporation (WEDC), which is the government agency charged with determining whether businesses are “essential,” has indicated that if your type of business is listed (i.e. construction) there is no need to get a designation to become exempt; you are already included under exempt. If your business type is listed as essential, there is no further action required.
Am I required to have written COVID-19 response plan?
While it is not explicitly required in the state’s order, the WEDC encourages each business to develop a written COVID-19 response plan that is unique to each individual business and type of work being done. Guidelines for planning are provided in this document from WEDC. The Wisconsin Department of Health Services also provides guidelines for planning here.
What about expired licenses through the Wisconsin Department of Transportation (DOT)?
The DOT has announced that driver licenses and CDLs that expire during the public health emergency will be automatically extended 60 days and the driver record visual to law enforcement will show the extension and that the driver license is valid.
What does the new COVID-19 legislation from Washington cover?
It covers emergency paid sick leave, family medical leave, tax credits for employers on the employer’s portion of payroll taxes for wages paid to employees.
You can find more details through this link.
GET AN EXPERT OPINION
Have a Question?
ABC of Wisconsin is here to help you navigate through this extraordinary time. Have a question? Contact our team of experts and we’ll get an answer for you!
Human Resources & Safety Director
News & Event Updates
Documents & Articles
DOCUMENTS & ARTICLES
COVID-19 Resources for Contractors
ABC of Wisconsin has compiled some resources to help you navigate the COVID-19 crisis:
ABC of Wisconsin
- Sample Notice of Potential Delays and Reservation of Rights
- COVID-19 Flowchart (Updated 5/19/20)
- Reopening Guidance for Cleaning and Disinfecting Public Spaces, Workplaces, Businesses, Schools, and Homes (Added 5/19/20)
- Guide to Creating a Return to Work Action Plan (Added 5/19/20)
- Toolbox Talk: COVID-19 Action Plan
- Toolbox Talk: Coronavirus Basics
- Toolbox Talk: Coronavirus (espanol)
- Toolbox Talk: COVID-19 in the Construction Workplace
Department of Labor
- Families First Coronavirus Response Act: Employer Paid Leave Requirements
- Families First Coronavirus Response Act: Employee Paid Leave Rights
- Families First Coronavirus Response Act: Questions and Answers
- Coronavirus resources from DOL
Equal Employment Opportunity Commission
Internal Revenue Service
- COVID-19-Related Tax Credits for Required Paid Leave Provided by Small and Midsize Businesses FAQs
- Treasury, IRS and Labor announce plan to implement Coronavirus-related paid leave for workers and tax credits for small and midsize businesses to swiftly recover the cost of providing Coronavirus-related leave
- Guidance to help construction workers during the coronavirus pandemic
- Revised enforcement guidance for recording cases of COVID-19
- Protecting Workers During a Pandemic
- Guidance on Preparing Workplaces for COVID-19
- Enforcement Guidance on Decontamination of Filtering Facepiece Respirators in Healthcare During the Coronavirus Disese 2019 (COVID-19) Pandemic
Small Business Administration
Wisconsin Department of Workforce Development
- Centers for Disease Control and Prevention (CDC)
- Wisconsin Department of Health Services (DHS)
- World Health Organization
- OSHA: Guidance on Preparing Workplaces for COVID-19
- Unemployment Insurance Division (UI) Wisconsin
- Wisconsin Emergency Order #24 Transportation of Overweight Commodity from Gov. Evers
- Wisconsin Emergency Order #24 Transportation of Overweight Commodity: Identifying critical infrastructure
- Wisconsin Emergency Order #24 Transportation of Overweight Commodity: Apply for permits here
ABC of Wisconsin Webinars
Jobsite Safety Precautions and Best Practices During COVID-19
Speakers: Don Moen, ABC of Wisconsin; Matt Morley, Kraemer Brothers; and Cullen Schmeling, Stevens Construction
With construction in Wisconsin declared an “essential service” and most, if not all, sites operational, how do you maintain a safe jobsite during these epic times? In this recorded webinar, ABC of Wisconsin Safety & HR Director Don Moen and ABC of Wisconsin Safety Committee Chair Matt Morley of Kraemer Brothers and Vice Chair Cullen Schmeling of Stevens Construction provided guidance to members on employer and employee responsibilities and best practices, as well as OSHA reporting and recordkeeping.
Other On-Demand Webinars Available
ABC of Wisconsin members can view and download past webinars on demand, including our ongoing COVID-19 series. Member login for the ABC of Wisconsin website is required.
Available COVID-19 Webinars
- May 5: Construction Liens – What you need to know in the COVID-19 economy
- April 23: U.S. Sen. Ron Johnson Town Hall with ABC Members
- April 21: Construction Contracts and COVID-19 – Staying Breachless During the Crisis
- April 17: 2020 Market Turbulence – Has the current market affected your savings and retirement income plan?
- April 15: Customizing, Understanding and Optimizing the 2 SBA Loan Programs to Fit Your Business Today and Tomorrow
- April 14: Interacting With Your Bank During COVID-19
- April 9: Effective Ways to Manage a Remote Workforce
- April 3: The CARES Act & PPP – A $350 Billion SBA Loan Rescue Package for the Ages
- April 1: FFCRA & CARES Acts
- March 27: Jobsite Safety Precautions and Best Practices During COVID-19
- March 25: Gov. Evers’ COVID-19 ‘Safer At Home’ Order – What it Means for Construction
Need assistance logging in? Contact us at email@example.com or 608-244-5883.
ABC National Webinars
View Past Webinars in the ABC Academy for Construction Ethics, Compliance & Best Pratices
All ABC National webinars will be archived in the ABC Academy for Construction Ethics, Compliance & Best Practices. The Academy is restricted to ABC members in management positions and chapter staff. If you don’t yet have a login for the academy, please complete the login request form to gain access.
SAFER AT HOME UPDATE
Local Restrictions in Effect
As a result of the Wisconsin Supreme Court ruling that Governor Evers did not have the authority to issue the stay at home order, some Wisconsin Counties and municipalities have been issuing their own stay at home orders until state government decides on their next step. Today it is unclear if local governmental entities have the authority to do that.
Throughout the COVID-19 crisis, ABC’s government affairs team has successfully advocated that construction be deemed an essential service and our efforts have not changed. So far, local government’s own orders have not changed the essential service designation. ABC’s legal and government affairs professionals will continue to monitor the situation and provide updates when necessary.
Included here is an alphabetical list of local governments that have issued their own COVID-19 emergency orders, with a link to the language if available. As this list is a moving target, it is always best to reach out to a specific local government if you have any questions, or the ABC one-call for legal education service. Also, please consult the best practices we have produced over the last several weeks on this page.
MUNICIPALITIES WITH RESTRICTIONS
- Dane County
- Florence County
- Ho Chunk Nation
- Lac Courte Oreilles Band of Lake Superior Chippewa Indians
- Lac Du Flambeau Band of Lake Superior Chippewa
- Menominee Indian Tribe of Wisconsin
- Mole Lake Band of Lake Superior Chippewa
- City of Milwaukee
- Oneida Nation
- Red Cliff Band of Lake Superior Chippewa
- Stockbridge-Munsee Band of Mohican Indians
- Waupaca County