What To Do If You Have an Employee with COVID-19 Symptoms, a Positive COVID-19 Test, or Exposure to COVID-19
With the rapid spread of the COVID-19 virus, if you have not already, it seems inevitable that you will have an employee who is experiencing COVID-19 symptoms or has tested positive for the COVID-19 virus. Many employers are unsure of what to do in this situation. The CDC offers guidance that addresses how to stop the spread of the COVID-19 virus in the workplace, as well as guidance on when the sick employee can return to work.
Preliminarily, it is important to know that employers are within their rights, according to the Equal Employment Opportunity Commission, to ask employees whether they are experiencing COVID-19 symptoms, whether they have tested positive for the COVID-19 virus, whether they have been exposed to others either with COVID-19 or experiencing COVID-19 symptoms.
If an employee reports experiencing COVID-19 symptoms or testing positive for the COVID-19 virus, the employer must consider the isolation period for the sick employee. The employer must also determine which employees were exposed to the sick individual and the appropriate measures to take to stop spread of the virus. Guidance offered by the CDC assists employers with navigating this minefield.
The CDC's guidance for the sick individual subject to home isolation can be found here. The CDC provides that persons with COVID-19 symptoms who were directed to care for themselves at home may discontinue isolation under the following conditions: (1) at least 10 days have passed since symptom onset (however, a limited number of persons with severe illness may produce replication-competent virus beyond 10 days, that may warrant extending the duration of isolation for up to 20 days after symptom onset); (2) at least 24 hours have passed since resolution of fever without the use of fever-reducing medications; and (3) other symptoms have improved. For those individuals with COVID-19 who are asymptomatic, the CDC suggests isolation can end 10 days after the date of their first positive COVID-19 test.
The CDC's guidance and safety practices specifically for critical infrastructure workers who may have had exposure to a person with suspected or confirmed COVID-19 can be found here. While staying home may be the preferred and most protective option for exposed employees, the CDC's guidance suggests there are alternative means to protect against the spread of the COVID-19 virus that do not require critical infrastructure workers who are asymptomatic to self-quarantine for 14 days.
The CDC suggests that workers who cannot be replaced and who have had exposure but remain asymptomatic should adhere to the following practices prior to and during their work shift:
- Pre-Screen: Employers should measure the employee's temperature and assess symptoms prior to them starting work. Ideally, temperature checks should happen before the individual enters the facility.
- Regular Monitoring: As long as the employee doesn't have a fever or symptoms, they should self-monitor under the supervision of their employer's occupational health program.
- Wear a Mask: The employee should wear a face mask at all times while in the workplace for 14 days after last exposure. Employers can issue facemasks or can approve employees' supplied cloth face coverings in the event of shortages.
- Social Distance: The employee should maintain 6 feet and practice social distancing as work duties permit in the workplace.
- Disinfect and Clean work spaces: Clean and disinfect all areas such as offices, bathrooms, common areas, shared electronic equipment routinely.
Employers looking to exercise more caution may insist on testing its exposed employees for COVID-19, especially when the source of the exposure is a co-worker who has tested positive for the COVID-19 virus. In these instances, the CDC now offers testing guidance, supplementing the guidance above, and which can be found here.
By following the CDC's guidance on isolation periods, quarantine periods, and testing protocols, employers are doing their part to stop the spread of the virus in the workplace. Indeed, state and local health departments may adapt the CDC guidance to respond to rapidly changing local circumstances.
If you have further questions about the CDC's guidance on isolation and quarantine periods, please e-mail Philip Siegel by clicking here. You can also reach Philip directly at (404) 469-9197.
COVID-19 Emergency Temporary Standard - Virginia Adopts First-in-the-Nation OSHA COVID-19 Workplace Safety Requirements for Employers
On July 27, 2020, the Virginia Department of Labor and Industry published and adopted Emergency Temporary Standard ("ETS"), 16 VAC 25-220, a first-in-the-nation workplace safety requirements for Virginia employers in order to control, prevent, and mitigate the spread of COVID-19 in the workplace.
The ETS applies to all private employers and employees covered by the Virginia Occupational Safety and Health ("VOSH") Program. For the majority of employers operating in Virginia, the ETS mandates appropriate personal protective equipment ("PPE"), sanitation, social distancing, infectious disease preparedness and response plans, record keeping, and training. However, employers with jobs containing tasks considered "medium risk," "high risk," and "very high risk," as defined in the ETS, will need to take additional actions. Under the ETS, construction workers are specifically classified as "medium risk." As such construction contractors will need to pay close attention to the specific obligations and requirements for "medium risk" jobs under the ETS. Among the new ETS requirements for construction works, employers must provide COVID-19 training to employees by August 26, 2019 and, for employers with more than 11 employees, prepare an Infectious Disease Preparedness and Response Plan by September 25, 2020. To assist employers with compliance, VOSH has established training protocols and a step-by-step guide to achieve compliance with the ETS, which is available on the VOSH ETS website here.
The ETS is detailed and has many onerous obligations for contractors operating in Virginia. Compliance will be challenging. As a first step, Virginia contractors should immediately conduct a risk assessment for all job tasks and then develop and implement a compliance program for the requisite obligations associated with such risk levels as defined in the ETS. You can access the VOSH's guidance and training information here .
If you have further questions about best practices for back to work safety, please contact Ben Lowenthal. You can e-mail Ben clicking here.
Understanding Your Agreements and Addressing Potential Impacts in Contract Negotiations is the Key to Preserving your Rights in Relation to COVID-19
With the uncertainty created by the on-going COVID-19 pandemic, it is as critical as ever for contractors to understand the terms and conditions of their existing agreements and to make additional efforts to negotiate favorable terms and appropriate protections into future agreements. Whether it is understanding how the suspension of a project will impact your right to be paid for work already performed, your ability to collect additional compensation for delays and impacts related to COVID-19, or the potential to recover on claims against your insurance policies, the courts have made it clear that the applicable question will be, "what does the agreement say?"
For instance, in Pernix Serka Joint Venture v. Department of State, an incredibly timely decision issued by the Civilian Board on Contract Appeals on April 22, 2020, the Board found the Pernix Serka Joint Venture ("PSJV") was not entitled to an equitable adjustment on a firm, fixed-price contract it was performing for the Department of State in Sierra Leone as a result of the impacts of the Ebola virus outbreak that struck during contract performance in 2014. After multiple unsuccessful attempts to obtain direction from the Department of State on how to respond to the epidemic, in August of 2014, PSJV made the decision to stop performance and evacuate its personnel. After remobilizing in March of 2015 with additional medical facilities and services to protect its employees from the virus, PSJV submitted two requests for equitable adjustment for the costs impacts associated with the Ebola outbreak, which were rejected by the Department. In its certified claim, PSJV presented several legal theories to the Board to attempt to recover its additional costs, including cardinal change, constructive change, and constructive suspension. Despite PSJV clearly incurring additional performance costs to protect the health and safety of its employees from an unforeseen epidemic, the Board rejected PSJV's claims and ultimately relied squarely on the language of the contract. The Board held that the epidemic was an event that entitled PSJV to time, but not money, under the explicit terms and conditions of contract, and that since the Department never directed PSJV to take any specific action, PSJV could not shift the additional performance costs to the Department.
As a further example of the importance of contract language in relation to unforeseen events, on June 3, 2020, in the bankruptcy matter of Hitz Restaurant Group, the United States Bankruptcy Court for the Northern District of Illinois found that the Governor of Illinois's March Executive Order on the COVID-19 pandemic triggered the force majeure clause in the lease between the landlord and Hitz Restaurant Group, excusing the restaurant group's obligation to pay the full amount of its rent for the months of April, May and June of 2020. Of note is the fact that the Court looked only to and applied the plain language of the lease, which excused the restaurant group's performance when the performance of its obligations was delayed or prevented by governmental action and/or orders of the government.
Finally, on August 18, 2020, the Judicial Panel on Multidistrict Litigation denied industry wide consolidation of more than 275 COVID-19 business interruption insurance coverage cases. The denial, in part, was based upon the fact that there were multiple insurance policies at issues, with differing terms and conditions applicable to each claim.
With over 2,000 COVID-19 related cases currently pending across the country, the case law will likely grow exponentially in the coming years. Yet, the growing number of decided cases is unlikely to change the manner in which courts will analyze the claims. Indeed, as set forth in the examples above, case law makes it exceedingly clear that courts will look at COVID-19 related claims in the same manner that they view all contract-based claims. They will look to the applicable agreement itself and determine the parties' rights based on what that agreement says. Accordingly, contractors should take extra care to negotiate terms and conditions into future agreements that provide ample protection from anticipated and unanticipated COVID-19 related impacts. If you need assistance with your contract negotiations, contact J.T. Gallagher. You can e-mail J.T. by clicking here.
Pernix Serka Joint Venture, Appellant, 20-1 B.C.A. (CCH) ¶ 37589 (Apr. 22, 2020).
In re Hitz Rest. Grp., 616 B.R. 374 (Bankr. N.D. Ill. 2020).
In re COVID-19 Bus. Interruption Prot. Ins. Litig., No. MDL 2942, 2020 WL 4670700 (U.S. Jud. Pan. Mult. Lit. Aug. 12, 2020)
Georgia Lien Waiver Bill Becomes Law and Takes Effect on January 1, 2021
Earlier this summer, we informed you of the passage of SB 315 by the Georgia House of Representatives and the Georgia Senate. On August 5, 2020, Georgia Governor Brain Kemp finally signed SB 315 into law. The new law amends O.C.G.A. § 44-14-366 to clarify that a contractor's contractual right to payment will not be impacted in the event the contractor does not record an Affidavit of Nonpayment within 60 days of signing a lien waiver. Under the new law, lien waivers only waiver lien and bond rights, and not other claims such as contractual rights to payment. The new law takes effect on January 2, 2021.
Back in September 2019, in ALA Constr. Servs., LLC v. Controlled Access, Inc., No. A19A0923, 2019 WL 4463305 (Ga. Ct. App. Sept. 18, 2019), the Georgia Court of Appeals ruled that a contractor's failure to timely file an affidavit of non-payment or claim of lien within the statutory 60 day period defeated not just the contractor's lien claim for the underlying debt, but also the contractor's breach of contract claims. The ruling meant that a contractor would be found to be "paid in full" without any right to payment if an affidavit of nonpayment or claim of lien was not recorded within 60 days of signing a lien waiver. The new law corrects this expanded interpretation of O.C.G.A. § 44-14-366. Specifically, the new law amends O.C.G.A. § 44-14-366 to specifically clarify that a contractor's failure to timely record an affidavit of nonpayment or claim of lien "shall not be deemed to affect any other rights or remedies of the claimant." This means that a contractor's contractual right to payment will not be impacted if the contractor does not record an affidavit of nonpayment or claim of lien within the statutory period after signing a lien waiver form under O.C.G.A. § 44-14-366.
In addition to clarifying that a contractor's contractual rights to payment will not be impacted under the lien law provisions, the new law extends the statutory period for recording an affidavit of nonpayment or claim of lien from 60 to 90 days.
Finally, the new law provides new and updated statutory lien waiver and affidavit of nonpayment forms. Georgia contractors should use the updated form once the new law takes effect on January 1, 2021. We drafted useable versions of the updated statutory forms. The updated Affidavit of Nonpayment can be found here. The updated Interim Waiver form is here, and the updated Final Waiver form is here. The current lien waiver and affidavit of nonpayment forms should be used until January 1, 2021.
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While live presentations are on hold for the time being, Philip Siegel
has been busy presenting timely information for construction contractors via webinar. You can access Philip's sessions presented at the Virtual Western Roofing Expo. The seminar Top 10 Employment Law Mistakes Most Commonly Made By Roofing Contractors
can be accessed here
, and the seminar Essential Policies for Every Employee Handbook can be accessed here
Philip's Practical HR series was presented to the Associated Builders and Contractors of Georgia over four separate sessions, which can be accessed here