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COVID-19 Updates

The latest information on COVID-19 for ABC of Wisconsin members

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ASSOCIATED BUILDERS AND CONTRACTORS

COVID-19 Announcements

Since the pandemic became prevalent, ABC was actively monitoring the situation to provide you with updates. While the pandemic may not be as widespread as it once was, ABC of Wisconsin staff members will continue cultivating any new information and resources to help construction companies.

COVID-19 Updates

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.
MASKS FOR COVID-19

On Mar. 31, 2021, Gov. Tony Evers’ mask mandate was struck down by the Wisconsin Supreme Court on a 4-3 vote. The ruling followed after Republicans in the state Legislature voted to repeal the mask mandate, only to have the governor re-issue a mask mandate. There is currently no statewide mask mandate, but many local ordinances remain in effect.

Does the ruling by the Supreme Court mean I don’t have to wear a mask anywhere in Wisconsin?

Although the mask mandate was ruled as unconstitutional by the Supreme Court, the ruling was related to the governor exceeding emergency order authority for the state. However, local ordinances may still require the wearing of masks, depending on the municipality.

Are local mask mandates enforceable?

Yes, they are but it may be rare to find an instance where a citation was issued. Local ordinances are typically established for collective health and safety, not simply for generating citations.

What about the General Duty Clause and 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:

  1. 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;
  2. 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 ordinances in effect at the time.

When and how could OSHA become involved with masks to protect against the virus?

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.

 

JOBSITE PRECAUTIONS & BEST PRACTICES
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.

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:

  1. 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);
  2. The case is work-related, as defined by 29 CFR 1904.5; and
  3. 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.

AMERICAN RESCUE PLAN ACT (ARPA)

The American Rescue Plan Act of 2021 (ARPA) includes a section which allows employers to voluntarily extend the emergency paid sick leave (EPSL) and emergency family and medical leave (EFML) provisions of the Families First Coronavirus Response Act (FFCRA) with tax credits through September 30, 2021, but with notable changes.

What was the original FFCRA measure?

The Families First Coronavirus Response Act (FFCRA) that went into effect in April of 2020 required employers with less than 500 employees to provide certain forms of paid COVID-related leave to eligible employees. Specifically, the FFCRA provided for 80 hours of emergency paid sick leave (EPSL) to be used by employees who were unable to work or telework due to specific COVID-related reasons and 12 weeks of emergency family and medical leave (EFMLA) to be used to care for an employee’s child because the child’s school or daycare was closed or unavailable due to the pandemic. FFCRA leave was fully or partially paid depending upon the circumstances and, in all cases, the employer was eligible to be reimbursed for the entire cost of the leave through a dollar-for-dollar payroll tax credit.

Is the original FFCRA in effect?

The FFCRA’s mandatory leave requirements expired on December 31, 2020, but the stimulus package passed by Congress in late December of 2020 provided that employers could voluntarily allow employees to use the remainder of their allotted EPSL or EFMLA for qualifying reasons through March 31, 2021. If the employer allowed the continued use of this leave, the employer would likewise be entitled to the same tax credit as provided under the FFCRA. The American Rescue Plan Act (ARPA) of 2021 made the leave granted by employers voluntary, but extended the tax credits available to employers.

What is the American Rescue Plan Act (ARPA)?

The American Rescue Plan Act (ARPA) extends the Families First Coronavirus Response Act (FFCRA) tax credits available to employers with fewer than 500 employees to September 30, 2021. As has been the case since January 1, 2021, leave is no longer mandatory, but employers may offer leave for qualifying reasons and take the tax credits on the same bases as identified in the original FFCRA, with some changes:

  • The tax credit is now available for leave taken to obtain the COVID-19 vaccine or for “recovering from any injury, disability, illness, or condition related to such immunization.”
  • Employers may also now recover the tax credit for paid leave offered when “the employee’s employer has requested [a COVID-19] test or diagnosis.” Previously, leave under the FFCRA was not available if the employee was not exhibiting symptoms and had not been ordered to quarantine by the government or a doctor but was being tested at the employer’s request.
  • A refreshed bank of 10 additional days of paid sick leave as of April 1, 2021, for which the tax credit may be recovered. So employees who already exhausted all leave available under the original FFCRA can use additional leave between April 1, 2021, and September 30, 2021.
  • The aggregate cap for paid leave (and thus tax credits) under the Emergency Family and Medical Leave Expansion Act (EFMLEA) was extended from $10,000 to $12,000, because the two weeks of leave available under the Emergency Paid Sick Leave Act (EPSLA) now count as EFMLEA leave for all purposes (not only when the leave is to care for a child when the child’s school or place of care is closed).
Are there nondiscrimination rules to be aware of?

Yes. Although providing leave under the ARPA expansion is purely voluntary, this is not akin to a benefit that employers can fully choose to provide only to certain employees. The law now imposes nondiscrimination rules, so employers may not discriminate in offering leave in favor of highly compensated or full-time employees or based on tenure.

It appears that the non-discrimination test applies separately to EPSL and EFMLA. So, for example, being disqualified from taking the tax credit for EFMLA leave (due to it being provided in a discriminatory manner) may not disqualify the employer from taking the tax credit for EPSL (as long as it was provided in a non-discriminatory manner).

What is the latest on Emergency Family and Medical Leave?

Specifically, the FFCRA provided for 80 hours of emergency paid sick leave (EPSL) to be used by employees who were unable to work or telework due to specific COVID-related reasons and 12 weeks of emergency family and medical leave (EFMLA) to be used to care for the employee’s child or because the child’s school or daycare was closed or unavailable due to the pandemic. FFCRA leave was fully or partially paid depending upon the circumstances and, in all cases, the employer was eligible to be reimbursed for the entire cost of the leave through a dollar-for-dollar payroll tax credit.

The recently passed America Rescue Plan of 2021 (ARPA) expands the scope of both the EPSL and EFMLA to allow employers to voluntarily provide additional leave from April 1, 2021 through September 30, 2021. The new FFCRA leave under the ARPA is not mandatory.

What is the new timeframe?

From April 1, 2021 through September 30, 2021 employers with less than 500 employees can continue to allow for EPSL and EFMLA qualifying leave and receive reimbursement for the expenses for such leave through a dollar-for-dollar payroll tax credit.

What are the new EPSL and EFMLA time banks?

The EPSL bank of 80 hours and EFMLA bank of 12 weeks of leave resets on April 1, 2021. In other words, the initial leave provided by the FFCRA ends on March 31 and, starting on April 1, 2021, employers may voluntarily provide a new bank of up to 80 hours of EPSL and 12 weeks of EFMLA, for which the tax credit will apply as long as the leave is taken by September 30, 2021 and other rules are followed.

Can leave be used for vaccine incentive?

Many employers are providing or considering paid leave to get a vaccine to incentivize employees to become vaccinated. The expansion of paid leave to cover vaccinations would now seem to allow covered employers to receive a tax credit for this form of vaccine incentive.

FAMILY & MEDICAL LEAVE
Are mandatory, paid FMLA requirements still in place?

As of Dec. 31, 2020, the paid sick leave provisions of the FFCRA expired. Instead of requiring paid sick leave, Congress made it a voluntary option for businesses, providing tax credits through March 31, 2021. The third round of stimulus spending (American Rescue Plan Act, or ARPA) does not include any expansion of mandatory paid medical leave. However, Congress extended the dollar-for-dollar tax credits up to $12,000 for voluntary sick leave pay to Sept. 30, 2021. It also added a new reason for leave: to receive the COVID-19 vaccine or for any side effects resulting from getting the vaccine.

How much can can employers provide?

To be eligible for the applicable tax credit, an employer must provide a new bank of Emergency Paid Sick Leave (EPSL) of up to 10 days for employees’ use beginning on April 1, 2021 and ending on Sept. 30, 2021. Further, employers may voluntarily continue to provide employees with any remaining EPSL they would have been entitled to under the FFCRA and the Consolidated Appropriations Act of 2021.

The new measure does not create a new bank of Emergency Family and Medical Leave Expansion Act (EFMLEA) leave, which remains capped at 12 weeks. However, it does provide that the first two weeks of EFMLEA can be paid and employers may seek the corresponding tax credit for those two weeks (previously, the first two weeks were unpaid, but an employee could use available EPSL for those weeks), and it increases the maximum amount of FFCRA tax credits for EFMLEA from $10,000 to $12,000 in the aggregate for each employee.

What tax credits are available?
  • Extends the FFCRA paid sick time and paid family leave credits from March 31, 2021 through September 30, 2021.
  • Increases the amount of wages for which an employer may claim the paid family leave credit in a year from $10,000 to $12,000 per employee.
  • Provides that paid sick and paid family leave credits may each be increased by the employer’s share of Social Security tax (6.2%) and employer’s share of Medicare tax (1.45%) on qualified leave wages.
  • The paid leave credits will be allowed for leave that is due to a COVID-19 vaccination.
  • Resets the 10-day limitation on the maximum number of days for which an employer can claim the paid sick leave credit with respect to wages paid to an employee. The old 10-day limitation ran from the start of the credits in 2020 through March 31, 2021.

 

 

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).   

Employee Rights:  Paid Sick Leave and Expanded Family and Medical Leave under The Families First Coronavirus Response Act (FFCRA) 

The DOL also issued frequently asked questions and answers regarding FFCRA employee notices.   

Families First Coronavirus Response Act Notice – Frequently Asked Questions 

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 general steps should I be taking as a contractor or employer during the pandemic?

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, which are updated regularly:  https://www.cdc.gov/coronavirus/2019-ncov/index.html 

Can I mandate that employees take one of the vaccines available for COVID-19?

Employers may mandate vaccines for employees to come to work, however, this could lead to legal issues. It is recommended that employers encourage, rather than mandate, employees to get vaccinated because of a number of potential legal problems that have yet to be determined. An employer must allow for exemptions under either the Americans with Disabilities Act (“ADA”) or Title VII of the Civil Rights Act of 1964 (“Title VII”) if the employee has an underlying medical condition or voices an objection on religious grounds. Employers may need to provide reasonable accommodations to employees who are protected under the ADA or Civil Rights Act. There is also the potential that employers could lose employees having strong opposition to taking the vaccine.

Are preventative measures still required even among vaccinated persons?

Yes. As of Apr. 8, 2021, there is no evidence that vaccinations prevent transmission — or even acquiring the virus — like a traditional vaccine, as they are designed to slow or stop progression of the virus within a person’s body.

On March 8, 2021, the Centers for Disease Control (CDC) issued guidance for the non-healthcare setting regarding individuals who have been fully vaccinated. In this guidance, the CDC instructs that fully vaccinated people should still follow precautions (masks, distancing, etc.) when “in public” and also suggests employees should still follow employers’ guidelines.

According to the CDC’s, people are considered fully vaccinated for COVID-19 two weeks after receiving the second dose in a 2-dose series (Pfizer-BioNTech or Moderna), or two weeks after they have received a single-dose vaccine (Johnson and Johnson (J&J)/Janssen).

The CDC indicates that fully-vaccinated people can:

  • Visit with other fully vaccinated people indoors without wearing masks or physical distancing;
  • Visit with unvaccinated people from a single household who are at low risk for severe COVID-19 disease indoors without wearing masks or physical distancing; and
  • Refrain from quarantine and testing following a known exposure if asymptomatic.

But the CDC also noted that fully vaccinated people should still:

  • Take precautions in public like wearing a well-fitted mask and physical distancing;
  • Wear masks, practice physical distancing, and adhere to other prevention measures when visiting with unvaccinated people who are at increased risk for severe COVID-19 disease or who have an unvaccinated household member who is at increased risk for severe COVID-19 disease;
  • Wear masks, maintain physical distance, and practice other prevention measures when visiting with unvaccinated people from multiple households;
  • Avoid medium- and large-sized in-person gatherings
  • Get tested if experiencing COVID-19 symptoms;
  • Follow guidance issued by individual employers; and
  • Follow CDC and health department travel requirements and recommendations
Can employers share who has been vaccinated and differentiate on duties performed based on vaccinations?

This is not recommended by experts. Differentiating duties of workers or implementing restrictive policies based on whether a person has been vaccinated could lead to violation of medical privacy and employment discrimination requirements. Even identifying employees who have been vaccinated through the use badges or stickers could violate privacy rules.

OSHA specifically notes that, for now, employers should not distinguish between workers who are vaccinated and those who are not. The Occupational Safety and Health Administration (OSHA) issued guidance to employers on January 29, 2021. OSHA also recommends persons who are vaccinated continue to follow protective measures, such as wearing a face covering and remaining physically distant because there is not currently evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.

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

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 sixfoot 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. 
CONTRACTS
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:

  1. 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.
  2. Course of action is very dependent upon specific contract language and specific facts.
  3. 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.
  4. 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.
  5. 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.

BUSINESS CONTINUATION/OPERATIONS
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!

DON MOEN

Human Resources & Safety Director
(608) 332-5827

News & Event Updates

COVID-19 BLOG

News For Contractors

Resources

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

Department of Labor

Equal Employment Opportunity Commission

Internal Revenue Service

OSHA

Small Business Administration

WisCon

Wisconsin Department of Workforce Development

ABC of Wisconsin Webinars

WEBINAR ARCHIVE

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 info@abcwi.org or 608-244-5883.

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

Department of Labor

Equal Employment Opportunity Commission

Internal Revenue Service

OSHA

Small Business Administration

WisCon

Wisconsin Department of Workforce Development

ABC of Wisconsin Webinars

UPCOMING WEBINARS

No Events

WEBINAR ARCHIVE

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 info@abcwi.org or 608-244-5883.

ABC National Webinars

UPCOMING WEBINARS

No Events

WEBINAR ARCHIVE

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.

Local Restrictions

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.

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