As COVID cases continue to rise, each state has handled business restrictions differently. Recently, the Centers for Disease Control and Prevention (CDC) has released guidance for what construction workers need to know about COVID-19, and guidance for what their employers should consider moving forward. I believe these are important considerations to keep in mind while advising or consulting with construction industry clients across the spectrum. The following list is an overview of the CDC’s guidance:
1. Reduce Transmission Among Workers
- Actively encourage sick employees to stay at home.
- Consider placing posters with accurate information about COVID-19 and what criteria is needed to discontinue home isolation.
- Implement specific policies to minimize face-to-face contact for employees with higher risk for severe illness.
- Provide employees with access to soap, clean running water, and materials for drying their hands, or provide alcohol-based hand sanitizers containing at least 60% alcohol at stations around the establishment for use by workers.
2. Maintain a Healthy Work Environment
- Create measures to physically separate and increase distance between employees such as modifying work schedules to reduce the total number of workers on a job site at any given time.
- Restrict access to reduce the number of workers in enclosed and confined areas at one time.
- Employers are required to determine, select, provide, and train on correct PPE use and application (29 CFR 1926 Subpart E).
3. Maintain Healthy Business Operations
- Designate a safety and health officer to be responsible for responding to COVID-19 concerns at every jobsite. This safety and health officer could be identified as someone who should be contacted if an employee becomes sick so contact tracing can occur. Note: Confidentiality must be maintained in accordance with the ADA and HIPPA. Employers should not require a positive COVID test result or healthcare provider’s not to validate their illness.
- Follow all applicable local, state, and federal regulations and public health agency guidelines.
- Consider following additional CDC guidelines for businesses and employers to plan and respond to COVID, and the North America’s Building Trades Unions and The Center for Construction Research and Training’s COVID-19 Standards for U.S. Construction Sites.
While this overview is not an exhaustive list of the CDC’s guidance for construction workers, it does highlight some significant suggestions that should be considered in attempt to reduce the spread of COVID and decrease an employer’s potential liability. Moreover, according to a recent Pew Research Center survey, roughly 40% of U.S. adults would “probably” or “definitely” not get the vaccine. This begs the question - can employers fire their employees for refusing to take a COVID vaccination.
The short answer is yes, but with a few exceptions. First, if a work force is unionized, then the employer needs to refer to the collective bargaining agreement to determine whether the employer can make inoculation mandatory. Second, anti-discrimination laws, such as the Americans with Disabilities Act, might protect workers who do not want to be vaccinated for medical reasons. Also, employees could be protected by the Civil Rights Act of 1964 if taking the vaccine is a violation of a “sincerely held” religious belief. Finally, there is an additional exception that may play a significant role in whether an employer can require their employees be vaccinated - has the state taken action to prevent mandatory inoculation.
State lawmakers in Ohio have proposed new legislation that would protect employees who do not want to get vaccinated from losing their jobs. The “Medical Consumer Protection Act” (House Bill 268) was introduced in 2019 and would stop employers from firing an employee for refusing to be vaccinated. While this proposed legislation has not been passed, employers should refer to their State’s laws.
With COVID cases on the rise, a new administration set to take office in January, and vaccinations nearing distribution, there are many items to be addressed and planned for in the coming months. While we cannot plan for every scenario, it is important to consider both the CDC’s guidance for construction workers and their employers, and any potential issues that might arise from mandatory inoculation.
Author Christopher M. Wise is an attorney and the Managing Member of Wise Law, LLC in Louisville, Kentucky.