The COVID-19 pandemic has generated a host of legal issues for U.S. construction pros. Here, Gregory R. Begg, partner and co-chair of Peckar & Abramson’s Labor Relations and Employment Law Practice​, answers readers' top questions.

This is the second edition of the Mailbag, and it won't be the last. Have a coronavirus-related legal question? Send it to Construction Dive editors.

The information provided in this article does not, and is not intended to, constitute legal advice. All information here is for general informational purposes only.

CONSTRUCTION DIVE: How does a contractor safely know if his or her projects are essential?

GREGORY R.​ BEGG: It varies by state, but the key is to carefully review the relevant public orders. In some cases, it is easy to identify essential projects just from reading the order. Other orders have delegated the determination to a specific public authority. 

Some authorities have published specific guidance in an effort to address any lack of clarity. But everywhere we have looked, there are gray areas.  

In some cases, the public authority can be contacted for approval of projects, while in other states there does not seem to be a defined path to receive guidance where there may be a question.  

Careful engagement with a project owner may also be critical, since some states permit construction to go forward if the project will be used for an essential business. For example, a contractor may not know exactly how a project will be used when complete.

The use of the word "safely" in the question poses another issue. Some state orders have provided specific guidance as to what needs to be done with regard to worker health, and others are more vague. Again, careful review of the relevant order is the key starting point.  

Where no clear path to guidance is provided, we have observed industry associations actively engaging and serving a valuable function in securing written clarifications and changes to public orders.

Are there penalties on essential government projects if a contractor is not adhering to OSHA and CDC protocols?

BEGG: The OSHA/CDC guidelines do not have the force of law, therefore, failure to implement them may not necessarily lead to OSHA penalties, per se. Other more general OSHA liability may be implicated.

COVID-19 OSHA guidance creates no new liability; however, the General Duties Clause does impose liability and requires an employer to provide a workplace free from recognized hazards which are likely to cause death or serious physical harm.   

We are in an extraordinary circumstance at this time, where work is proceeding because it is deemed “essential” and without time to take action in a more studied manner, and therefore an employer cannot reasonably be expected to take the same actions as it may in another circumstance. Exactly how OSHA takes action regarding penalties in this situation is unclear. An employer’s lack of effort to comply with OSHA, CDC or EEOC guidelines, or to implement other reasonable measures, may be a factor ultimately considered.

Is there any federal guidance as to what a contractor should do to address the risk of contracting coronavirus or if a worker contracts coronavirus and claims it was from the jobsite?

BEGG: We presently have COVID-19 specific guidance at the federal level from OSHA, CDC and EEOC regarding implementation of workplace-specific practices to reduce the risk of workplace exposure and to respond when it occurs. Risk reduction practices referenced in this guidance include:

• Modifying work schedules and practices.
• Cleaning work areas to reduce exposure.
• Notifying others when exposure has occurred.
• Screening employees to determine whether they should be permitted to work in proximity of others. 

The guidance also states that if a workplace exposure is believed to have occurred, excluding others from exposure areas and equipment (tools, phones, etc.) should be considered and potentially exposed employees notified and advised to seek medical evaluation before returning to work. Guidance also states that COVID-19 illnesses should be reported on an OSHA 300 log if exposure is:

• Work-related (the work environment caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness).
• Results in death, medical treatment beyond first-aid, days away from work or significant injury or illness diagnosed by a physician.

Each situation is unique. The precise response requires careful consideration of the circumstances and applicable guidelines. Local recommendations may also exist, or will likely be developed over time. (Click here for more information about new OSHA guidance related to COVID-19 reporting.) ​

It is critical for employers to stay updated on all guidance and regulations. They will continue to change as infections increase or decrease and as the virus is better understood, particularly as we move toward increased economic activity.