8/18/2020

By Gary Thill

As roofing contractors deal with a slew of new pandemic-related safety and health issues, one of the biggest they encounter is what to do if a worker tests positive. But the more pressing question roofers should be asking themselves is whether they have the combination of HR protocols and safety measures necessary to protect workers, subcontractors, customers — and ultimately the business itself.

“We constantly encounter a variety of questions from contractors all over the United States, and one of the things that we’re often asked is how to navigate this new world order,” said Trent Cotney, CEO of Cotney Law and NRCA general counsel during a July webinar on safety and HR policies for COVID-19.

“There’s a variety of safety and HR issues, and what we’re starting to see is that they’re really intertwined. … But there are some preventive measures you can take that will help avoid liability.” 

To that end, Cotney provided a set of toolbox talks, quizzes, verification forms and inspection checklists contractors can use to develop their own HR protocols and safety measures.

He said the biggest question his office is receiving: What to do if one of your employees tests positive, exhibits symptoms, or is exposed? “This is the key question,” he said. 

In early August, the CDC updated its guidance for Returning to Work, When to Quarantine and for When You Can be Around Others After You Had or Likely Had COVID-19, according to Ben Briggs, partner with Cotney Law. The updated guidance reiterates the different standards for employees ending their quarantine.

Employees with COVID-19 symptoms / positive test +results should meet the following three critera:

• 10 days have passed since symptoms first appeared.
• 24 hours with no fever without the use of fever-reducing medications.
• COVID-19 symptoms have improved (for example, cough, shortness of breath).

Employees with a COVID-19 positive test but with no symptoms should wait 10 days since his/her positive test. Finally, CDC offers guidance on three scenarios for exposure to someone who is COVID-19 positive or symptomatic:

• Employee was exposed and develops symptoms:  Use the 10-day test set out above for those who have COVID-19 symptoms.
• Employee was exposed but does not develop symptoms:  Should stay home for 14 days after employee's last exposure.
• If the exposed employee does not develop symptoms and the exposed employee had COVID-19 in the past 3 months and recovered, then that employee does not need to stay home due to a subsequent exposure (assuming the employee does not develop any symptoms).

Briggs added that the CDC also put out a string of updated guidance last week regarding wearing masks — mainly focusing on when to wear masks in general (not specific to the workplace) and how to properly wear masks:  Considerations for Wearing Masks; How to Wear Masks; About Masks

For exposure to COVID-19 to occur, the CDC says the person must be in close contact (less than 6 feet away) for 15 minutes or more with the virus or someone who is symptomatic. Employees should be kept out of the workplace for 14 days after the last exposure. The CDC has slightly different guidance if the exposed employee in question qualifies as a critical infrastructure worker. 

However, even in those instances, the CDC's recent guidance suggests the exposed employee stay home for 14 days if possible. Briggs said as new understanding of the virus develops, guidelines are constantly changing, and roofers need to stay up to date. “It’s a moving target and you have to move with it,” he said. 

Although OSHA has no formal standards for COVID-19, Cotney reminded roofers that a number of existing standards do apply — and may be enforced. They include:

• Preparing workplaces for work.
• 29 CFR Part 1904, Recording and Reporting Occupational Injuries and Illness.
• 29 CFR § 1910.132, General Requirements - Personal Protective Equipment.
• 29 CFR § 1910.133, Eye and Face protection.
• 29 CFR § 1910.134, Respiratory Protection.
• 29 CFR § 1910.141, Sanitation.
• 29 CFR § 1910.145, Specification for Accident Prevention Signs and Tags.
• 29 CFR § 1910.1020, Access to Employee Exposure and Medical Records.
• Section5(a)(1),GeneralDutyClauseoftheOccupationalSafetyandHealth(OSH)Actof1970.
• OSHA's Bloodborne Pathogens standard (29 CFR § 1910.1030) applies to occupational exposure to human blood and other potentially infectious materials that typically do not include respiratory secretions that may contain SARS-CoV-2 (unless visible blood is present). However, the provisions of the standard offer a framework that may help control some sources of the virus.

Whether it’s standards or guidelines, adhering to the latest protocols gives contractors a measure of liability protection they otherwise could lack. “We’re trying to create a safe work environment, but we’re also trying to put employees, customers and contractors at ease,” Briggs said. “And we’re trying to do everything we can to protect your company from liability.” 

Basic mitigation steps include: 

• Post and distribute COVID-19 safety material.
• Clean and sanitize common areas and shared equipment.
• Mandate social distancing, hand hygiene, respiratory etiquette, and, potentially, face coverings.
• Have a signed agreement: Employees agree to (a) promptly notify you if they have any COVID-19 symptoms or if they have been exposed to COVID-19, and (b) not come to work until authorized.
• Do pre-job safety checks: Signed checklist and temperature checks.
• Train and instruct team leaders to identify COVID-19 symptoms and send sick employees home. 

But Cotney reminded roofers that these protocols can create some problems of their own. For example, he said normally this time of year, his office receives one or two calls related to heat injury or illness. This year, he’s already received 11 — one of them related to a fatality. Some potential causes include face coverings and dehydration due to switching away from communal water sources. "You must mandate hydration breaks,” he said. “This is a serious issue.”

No matter what safety protocols roofers ultimately put in place, one of the most important elements of any safety plan is documentation, especially as it relates to liability protection. “The party with the best paper wins the day,” Cotney said. 

In addition to protection, Coteny said written safety protocols offer another bonus of reassuring customers — and winning more work. “This is a great way to use legal as a great sales tool,” he said.