How Employers Should Respond to COVID-19

As COVID-19 (coronavirus disease) continues to affect our daily lives, and is now officially considered a pandemic by the World Health Organization (WHO) and the Center for Disease Control (CDC), it is crucial for employers to be aware of the steps the government is taking to reduce infection, how those steps affect your business, and the protocols your business needs to implement to ensure you are complying with what is required under these unusual circumstances. Because the national response is changing daily, it is important to remain up-to-date on new laws, regulations, and government mandates that are likely to begin taking effect rapidly.

Employer Screening and Examinations

To a certain extent, the COVID-19 pandemic is largely unchartered territory. However, there are certain laws, regulations, and government advisory statements that may help an employer deal with these complex issues.

In early March 2020, the Equal Employment Opportunity Commission (EEOC) released a statement on the COVID-19 pandemic, referring employers to an advisory opinion the EEOC previously published in 2009 amidst the H1N1 (“swine flu”) outbreak. In its 2009 advisory opinion, the EEOC implemented a temporary waiver of certain provisions of the Americans with Disabilities Act (ADA) that would otherwise prohibit an employer from taking action based on an employee’s medical conditions. In taking the position that illnesses related to global pandemics are dissimilar to the disabilities that the ADA was designed to protect, the EEOC calls for more flexibility in allowing employers to conduct medical examinations and screenings in the workplace if doing so is “consistent with a business necessity” or if the employer has “a reasonable belief the employee poses a direct threat to the health or safety” of others and the workplace.

For example, an employer may institute screenings for employees who exhibit flu-like symptoms in the workplace, but may not make such inquiries to employees who work remotely or do not come into contact with other employees as part of their job description.

Relying on the CDC’s recommendations for employers amidst the COVID-19 pandemic, employers are able to screen and examine employees to ensure the health and safety of others in the workplace. The CDC suggests that employees should be screened if (a) they are exhibiting flu-like symptoms such as fever, dry cough, shortness of breath, etc.; (b) the employee recently returned from travel abroad; or (c) the employee is known to have been exposed to a person who is a confirmed carrier of the virus. During these examinations, an employer may ask an employee if he or she is experiencing any flu-related symptoms, what symptoms the employee is experiencing, whether the employee has visited a doctor or has been tested for COVID-19, the employee’s recent travel history, and the employee’s reasoning for any recent work absence.

The CDC and U.S. Department of Labor (DOL) advise that employees who exhibit flu-related symptoms can and should be sent home immediately and prohibited from returning to work until they are symptom-free for at least 24 hours. If an employee has traveled to a country designated a Level 3 travel risk area (currently China, Iran, South Korea, and much of Europe), it is recommended that the employee be sent home immediately and be required to remain away from the workplace for 14 days. Further, if an employee is confirmed to have COVID-19, it is suggested that all employees who came in contact with that employee are sent home and a professional cleaning company is hired to do a full cleaning of the affected workspace.

Ultimately, any medical information employers received from an employee during one of these screenings, examinations, or otherwise, must remain confidential. If an employee is confirmed to have COVID-19, employers should inform other employees about their potential exposure to the virus, but the identity of the infected employee must remain confidential to the extent possible.

With all that being said, employers must be careful not to violate any state, federal, or local laws when implementing new protocols designed to prevent the spread of COVID-19. For instance, employers should avoid taking adverse employment actions (termination, demotion, etc.) against an employee who misses work or is sent home due to the outbreak of COVID-19. Additionally, employers must implement all such protocols uniformly and equally amongst all employees to avoid violating anti-discrimination laws. For example, if an employer chooses to send an employee home for exhibiting flu-like symptoms, it should also send home all other employees exhibiting flu-like symptoms.

Workplace Safety Standards

The General Duty Clause of the Occupational Safety and Health Act (OSHA) requires employers to keep their workplaces free from recognized hazards that are causing or are likely to cause death or serious physical harm. While it remains to be seen whether COVID-19 is considered a “recognized hazard” pursuant to 29 U.S.C. 654(a)(1), OSHA standards tend to rely heavily on CDC guidelines, which could consider a pandemic the scale of COVID-19 as such a hazard. Accordingly, employers must be cognizant of potential health risks posed by certain employees and implement protocols for employees to remain safe during a potential outbreak. Additionally, COVID-19 may be considered a recordable illness pursuant to 29 C.F.R. 1904 – Subpart C. For example, an outbreak of an infectious disease or similar illness occurring at a medical facility may be considered a recordable illness, under the Code of Federal Regulations, if such an outbreak is an illness resulting from events or exposures occurring in the work environment. Please note, however, that the Bloodborne Pathogens standard found in 29 C.F.R. 1910.1030, which requires employers take certain measures during the outbreak of a bloodborne pathogen, does not apply in the response to COVID-19.

Please visit OSHA’s website (, which has an employer’s guide to COVID-19, for more general guidelines and tips for maintaining a safe workforce during this outbreak.

Employee Pay and Benefits

In the coming weeks, as more employees either choose to work from home or are required to do so, employers will face challenges regarding employee pay and conditions of employment. Generally speaking, unless otherwise stated in an employee’s contract, employers are not required to provide paid leave or paid time off to employees who are unable to work due to an outbreak of COVID-19. Additionally, employers may require employees forced to take time off during an outbreak to use any accrued paid time off (sick and/or vacation days) during such an outbreak. However, employees must be properly compensated for any work they perform remotely or off-site. Minimum wage and overtime laws remain effective during a pandemic.

If you employ union workers and are requiring such employees stay home from work, to the extent possible, you must bargain in good faith with such employees prior to making any unilateral changes to their employment status or benefits. It is strongly advised that all union-employers familiarize themselves with their respective collective bargaining agreements prior to making any such changes.

If your business is a covered employer under the Family and Medical Leave Act (FMLA), an employee who contracts COVID-19 or needs to care for a spouse, child, or parent who has contracted the virus, may be eligible for up to 12 weeks of job-protected, unpaid leave and a continuation of his or her health insurance benefits during the time that he or she is unable to work because of the virus. Depending on the terms of your leave policy, the employee may choose to use accrued paid leave during his or her FMLA leave, or you may require the employee to do so. According to the DOL, the FMLA does not apply to leave taken by an employee merely for the purpose of avoiding exposure to COVID-19 or to care for a healthy dependent whose school or daycare is closed because of COVID-19. There is currently no federal law addressing private-sector employees who take off from work to care for healthy dependents.

However, in response to COVID-19, the United States House of Representatives recently passed a bill that, if enacted, would expand the scope of FMLA job-protected leave and would require employers to provide paid leave in certain circumstances. It is important for employers to monitor this bill (H.R. 6201) and respond accordingly if it passes. Further, employers should also be mindful that some states have previously enacted their own state family medical leave law, and employers must comply with those analogous state laws where applicable.

Mass Layoffs

If your business is covered by the Worker Adjustment and Retraining Notification (WARN) Act, you are generally required to provide affected employees at least 60-days’ notice before a mass layoff or plant closure as defined by the Act. However, the normal 60-days’ notice likely does not apply if the mass layoff or closure is due to the effects of COVID-19, as this would likely fall under the “unforeseeable business circumstances” exception to the WARN Act. However, even where the unforeseeable business circumstances exception applies, a covered business is required to give its employees as much notice as is reasonably practicable. Employers should also be mindful of potential state laws similar to the Federal WARN Act, and ensure that any mass layoff or closure complies with any such analogous state law.

About the authors: Benjamin Briggs is a Partner at Cotney Construction Law who represents clients in all aspects of labor and employment law. Elliot Haney is an Attorney at Cotney Construction Law who practices in all areas of construction law. Cotney Construction Law is an advocate for the roofing industry and serves as General Counsel for NRCA, FRSA, RT3, NWIR, TARC, WSRCA and several other roofing associations. For more information, visit

Author’s note: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

CFMA Spreads Suicide Prevention Awareness

According to a recent report released by the CDC, the construction industry has the second-highest rate of suicide (per 100,000 population). Given the male-dominated workforce and other indicators prevalent in construction, it’s imperative to bring suicide prevention to the forefront of safety, risk management, and HR discussions in construction companies.

On September 10, the Construction Financial Management Association (CFMA) joined the International Association for Suicide Prevention (IASP) and others around the world to help spread awareness and resources around the goal of preventing suicide.

CFMA’s journey to spread awareness and resources surrounding suicide prevention has covered much ground in little more than a year’s time. April 2016 saw CFMA’s Valley of the Sun Chapter hosting the first regional summit on the topic; CFMA’s Chicago, Charlotte, Grand Rapids, and Portland Chapters have similar events scheduled in 2016 and 2017. After their collaboration on a late 2015 issue of CFMA Building Profits article, longtime CFMA member, Cal Beyer, director of risk management at Lakeside Industries and executive committee member of the National Action Alliance for Suicide Prevention, and Dr. Sally Spencer-Thomas, CEO and co-founder of the Carson J. Spencer Foundation, mental health advocate, and survivor of her brother’s suicide, have gone on to author more than a dozen articles and spearhead just as many presentations throughout the construction industry. Their most recent work Construction + Suicide Prevention addresses why prevention is imperative in the construction industry and provides 10 action steps companies can take to save lives.

Stuart Binstock, CFMA president & CEO, further details, “CFMA is dedicating resources toward suicide prevention for one reason: If one accepts the premise that our members are responsible for the financial resources of a company and that the health and safety of human capital is an important financial resource, then how could we not get involved in educating the construction industry about this topic?”

The First Construction Industry Alliance for Suicide Prevention Association Member

CFMA formed the Construction Industry Alliance for Suicide Prevention to gather and disseminate information and resources, share education and programming for CFMA’s 94 chapters across North America, and promote initiatives to support suicide prevention. Most recently, the National Association of Surety Bond Producers (NASBP) has shown its support of creating a zero suicide industry by becoming the first association member of the Alliance.

NASBP CEO Mark McCallum affirms, “The conversation around suicide prevention in the construction industry has taken a leap forward with the formation of CFMA’s Construction Industry Alliance for Suicide Prevention. On behalf of our membership of surety bond producers and allied professionals, I’m proud of NASBP’s decision to commit to this cause, as demonstrated by joining the Alliance and supporting and participating in efforts to raise awareness of this critical issue. The health of the construction industry workforce is important to the well-being and competitiveness of this country, and suicide prevention among construction workers now is being made a focal point.”

CFMA Reacts to CDC Report With Education About Suicide Prevention

Statistics from the CDC shows that workers in construction and extraction have a 53.3% suicide rate, which is second only to workers in the farming, fishing, and forestry occupational group (84.5%). With 17 states taking part in the CDC’s National Violent Death Reporting System (NVDRS), this data heightens the need to address suicide prevention and mental health promotion in the construction industry.

The Construction Financial Management Association (CFMA) is taking a leading role in efforts to shatter the stigma surrounding mental illness and prevent suicide in construction. CFMA formed the Construction Industry Alliance for Suicide Prevention to gather and disseminate key information and resources, share education and programming for CFMA’s 94 chapters across North America, and promote initiatives to support suicide prevention.

Stuart Binstock, CFMA president & CEO, further details, “At CFMA’s 2016 Annual Conference & Exhibition, we brought the topic of suicide prevention to an audience of our nearly 1,300 attendees by offering two general education sessions and presentations to chapter leaders, providing flash drives, and introducing our new online resource at Efforts are also underway to encourage our industry partners to join the alliance with the ultimate goal of preventing death by suicide in the construction industry.”

“As a construction company controller, I understand the importance of protecting and supporting our most valuable asset—our human capital,” adds CFMA Chairman Ken Chiccotella. “In conjunction with our conference theme of Building It Forward, ensuring not only the physical well-being, but also the mental health of our workforce must be core to our business strategies and goals.”

CFMA Activity Makes a Difference

CFMA’s Valley of the Sun Chapter recently presented the inaugural Suicide Prevention Summit, a collaboration between construction and mental health professionals to discuss prevention of suicide for the construction industry. Designed for construction industry CEOs, CFOs, HR professionals, and safety and risk managers, the event provided a wealth of knowledge and resources to more than 100 industry professionals in the Phoenix area. CFMA’s Charlotte and Portland Chapters have similar events scheduled later this fall, and additional CFMA chapters are planning events for 2017.

The newly released Construction + Suicide Prevention publications by Cal Beyer, director of risk management at Lakeside Industries and executive committee member of the National Action Alliance for Suicide Prevention, and Dr. Sally Spencer-Thomas, CEO and co-founder of the Carson J. Spencer Foundation, mental health advocate, and survivor of her brother’s suicide, addresses why suicide prevention is imperative in the construction industry and provides 10 action steps companies can take to save lives.

Dr. Spencer-Thomas states, “Construction industry leaders are stepping forward and changing culture with a new vision around suicide prevention. CFMA has shown bold leadership in spearheading this shift in culture as a conduit in making suicide prevention a health and safety priority.” Additionally, the National Action Alliance for Suicide Prevention cites CFMA’s resources and website in support of the cause.

AIHA Launches Mold Resource Center

The American Industrial Hygiene Association (AIHA) launched a Mold Resource Center, an online reference guide for consumers and professionals to learn fast facts on mold, the potential adverse health effects of mold exposure, why remediation and prevention is important, what to do if you are victim of an indoor flood, and where to find help to prevent mold infestation.

In addition to natural catastrophes, such as the recent Hurricane Joaquin that caused historic rainfall and flooding in the Carolinas, excessive indoor moisture in a building can lead to mold problems, resulting in an increased risk of respiratory disease, according to the Centers for Disease Control (CDC).

AIHA’s Mold Resource Center provides information to consumers and industry professionals regarding mold, including:

  • Facts About Mold (general information).
  • Flood Response Resources.
  • A listing of additional online resources about mold.
  • Detailed articles about mold from AIHA’s trusted news source, the Synergist magazine.
  • Access to mold related publications and educational courses.
  • 2015 AIHA Consultants Listing, where one can search for mold specialists by state.

The term “mold” is a colloquial term for a group of filamentous fungi that are common on food or wet materials. Indoors, mold needs moisture to grow; it becomes a problem only where there is water damage, elevated and prolonged humidity, or dampness.

“The AIHA Mold Resource Center should be the first stop on the internet for professionals, homeowners and business owners affected by mold growth and contamination caused by flooding, storms, and water intrusion into buildings,” says Donald Weekes, CIH, CSP, FAIHA, member of the AIHA Board of Directors’ Indoor Environmental Quality (IEQ) Committee. “The center provides up-to-date information useful for the detection of mold in buildings, as well as the successful remediation of the contamination.”

Previously, AIHA launched a Formaldehyde Resource Center to equip consumers with concerns regarding overexposure to formaldehyde in laminate wood flooring and other products found in homes with resourceful information.