Recording COVID-19 on your OSHA Log
March 16, 2020
With the help of some of our member professionals, we created the attached document with items that you should be considering given the current environment.
1. WORKPLACE PREPAREDNESS
2. CONTRACT NEGOTIATIONS/REVIEW YOUR CONTRACTS
3. INSURANCE
4. WAGES AND EMPLOYEE LEAVE
With the help of some of our member professionals, we created the attached document with items that you should be considering given the current environment.
1. WORKPLACE PREPAREDNESS
- A. Adopt COVID-19 preparedness policy
- B. Provide updated contact information of all employees and circulate emergency contact details for key employees to address a crisis response
- C. Carry out a risk assessment at the workplace, ensuring good hygiene practices in the common areas of the office and training employees on the key facts and risks. Provide necessary protective wear if infection at the workplace is imminent.
- a. Good hygiene and infection control practices include:
- Promoting frequent and thorough hand washing and providing employees and worksite visitors with places to wash their hands (and providing alcohol-based hand sanitizer containing at least 60% alcohol if soap and running water are not immediately available, such as where portable toilets are used on a worksite).
- Encouraging employees to stay home if they are sick.
- Encouraging respiratory etiquette, including covering coughs and sneezes.
- Providing employees, customers and worksite visitors with tissues and trash receptacles.
- Discouraging employees from sharing work tools.
- Regularly disinfecting common surfaces and equipment, including portable toilets, at least once if not multiple times per day.
- Exploring and, where feasible, implementing practices that reduce the number of employees, or increase the physical distance between workers, at worksites at any given time, such as by staggering shifts or reducing crew sizes to essential employees only.
- Implementing measures to identify potentially infectious employees, and having procedures in place to promptly isolate those employees from other employees, especially from employees who are potentially at higher risk, and following CDCs most current guidance and instructions with respect to course of action (e.g., sending employee home unless symptoms are severe, in which case contact medical care center for instructions).
- Encouraging self-monitoring among employees (such as encouraging employees to take their temperatures prior to reporting to work, asking employees to report whether they or a family member have traveled to impacted regions, etc.).
- Although employers are normally prohibited from asking employees about their health and medical conditions, the Pandemic Preparedness in the Workplace and the Americans with Disabilities Act guidance issued by the U.S. Equal Employment Opportunity Commission (EEOC) provides that during a pandemic, exceptions to the ADA’s restrictions on employer health inquiries allow employers to inquire about an employee’s potential infection with the disease and related travel.
- Promptly isolating employees who are identified as potentially infectious, especially from employees who are potentially at higher risk,
- Staying informed and current regarding guidance by public officials and authorities such as the Centers for Disease Control and Prevention (CDC) and the Occupation Safety and Health Administrations (OSHA), whose current guidance can be found here:
- a. Good hygiene and infection control practices include:
- Update employee handbook for any policies or procedures (e.g. sickness absence, dependent dare leave, flexible/home working) which may be affected by an outbreak of COVID-19.
- Implement policy on anyone displaying signs or symptoms and steps employees should take if they suspect they may have come into contact with someone with COVID-19 including details of the nearest medical center equipped to deal with the virus.
2. CONTRACT NEGOTIATIONS/REVIEW YOUR CONTRACTS
- Review contracts to assess whether you are obligated to provide insurance coverage to another entity or if another entity is required to provide insurance coverage to you. If the latter, request copies of relevant insurance policies (not just certificates of insurance and review them to assess potential coverage).
- Specific Contract Terms to Review.
- Force majeure clauses and application to current and future projects (government issued certificates of force majeure being issued by the Chinese government for suppliers impacted by the virus).
- Impact to construction supply chain and cost/delay impacts
- Impossibility/impracticability defenses
- Consequential Damages
- Waiver of Liability
- Liquidated Damages
- Choice of law/venue (especially international transactions of supply agreements)
3. INSURANCE
- Workers Compensation
- If an employee alleges that they contracted COVID-19 while at work, this may result in a compensable workers compensation claim but the likelihood of a successful claim would be very fact-specific. Workers compensation is a no-fault system, meaning the employee does not have to prove negligence on the part of the employer. The employee only must prove the injury occurred at work and was caused by their employment.
- The two main factors in order for workers compensation to apply are the “occupational” and “peculiarity” tests.
- For example, good questions to ask are:
- “Occupational”-was the employee benefitting the employer when exposed to the illness?
- “Peculiarity”- is the disease found almost exclusively in this field of work or is there an increased exposure to the disease due to particular working conditions?
- For example, good questions to ask are:
- It will likely be difficult to prove these two tests in an attempt to make a workers compensation claim due to Covid-19. Each claim would need to be evaluated based on the specific individual circumstances.
- Absent state or federal legislation on this topic, an employee seeking workers compensation benefits for a COVID-19 infection will have to provide medical evidence to support their claim. For example, the State of Washington is mandating workers compensation benefits to all health care workers and first responders who contract COVID-29 while responding to infected patients.
- Travel Insurance
- If available, consider travel insurance to cover future event cancellations. The market availability of this coverage today may be difficult. Our understanding is that COVID-19 will be specifically excluded in these policies when they are written new. Some insurance companies are going as far as to not offer new policies at all (even with the exclusion), as they do not want to deal with these exclusions being tested in court.
- Business Interruption Insurance
- The majority of property insurance policies include coverage for business interruption losses (think loss of income). However, the coverage trigger generally requires actual physical damage from a covered peril. The insurance industry is currently commenting that Covid-19 does not establish physical damage and therefore does not trigger coverage.
- Some policies may include smaller, sub-limited amounts limits for things like government authority shutdowns, communicable diseases, etc. The coverage trigger here may need to include an action from a government authority to order the shutdown. Each policy should be individually scrutinized to make these determinations.
- This is a very fluid situation for the insurance industry. A court ruling or government action could change the outlook on the above comments at any time. For this reason, ECA Members should keep good records of their business interruption losses should they experience any.
- Hold Harmless Agreements asking contractors or employers to hold GC/CM/Owner harmless
- We would caution the signing of such agreements. The adequacy of general liability coverage for this type of loss is untested. Policy forms would need to be evaluated individually. The obvious concern here is a 3rd party over action that would be passed down to the general contractor or sub-contractor through the contract. This should be evaluated by counsel.
- Risk Management / Best Practices
- Employers should take steps to create a safe, compliant work environment. A written plan/policy is a great start. It is important to inform employees and create guidelines to address particular situations. There are many resources available. Here are a few:
- https://www.rkinsurance.com/blog/employee-benefits/the-coronavirus-and-the-workplace-what-employers-need-to-know/
- https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html
- https://www.osha.gov/Publications/OSHA3990.pdf
- https://bcnys.zoom.us/webinar/register/WN_SvdFiqVUTnqIAWpiZckbtQ
- Final Thoughts
- This is a very fluid situation and is new for the insurance industry as well. Government and/or court actions can dramatically change the insurance environment. Consistent communication with your insurance broker in the days/weeks/months ahead is very important.
4. WAGES AND EMPLOYEE LEAVE
- Issues surrounding wages and employee leave are still up in the air as the government works out legislation to address these issues.