Dear YouDig?

Dear YouDig?,

Ok… this is getting ridiculous. We are a subcontractor working on a project for an “essential business.” We have emphasized the safety and government guidelines to our team members in light of COVID-19. To a person, our employees appreciate the effort and understand their role in keeping everyone safe. Unfortunately, we are not the only contractors on the job. A group of laborers working near us share certain facilities but refuse to wear masks. Look, we appreciate their right to a political stance, but we can’t afford to be knocked out of our work due to a COVID issue caused by a contractor that won’t observe the guidelines. Our employees are irate and threatening to walk. How do we handle this?

-Damn Good Apple

Dear DGA,
You may well be a good apple but the other contractor may not be a bad apple.  Its management probably won’t mandate masks in fear losing its workers.  If the owner of the project won’t mandate it then you are stuck with an economic decision.  A work site is inherently dangerous. There is now abundant evidence of COVID transmission in such settings, but there is not a body of law addressing COVID issues specifically.  We can accept that work sites differ.  Decisions should be made based upon what is actually happening in the field. What is the real risk on the job?  Are measures other than masks being taken? Can you separate your crew out of an abundance of caution? You can bet the plaintiffs’ Bar will come knocking if you don’t maintain procedures consistent with recommendations and an outbreak occurs. Setting aside causation and other legal hurdles, are you willing to risk that all these variables will favor you? You can’t build a building in court, can you?

DGA, your work place is where you and your workers butter your bread.  Smart contractors understand what is at stake for them and realize the construction site is not the place to gamble on politics or quack medical opinions. Be smart, focus on your core values and take the conservative approach by planning for a moving target and assuming the worst.

Remember these fundamentals, now and forever:

  • Build your legal case as you build your project.
  • Document your compliance with the recommended standards.
  • Exceed those standards where it makes sense.
  • Document the promptness of your responses to your employees’ complaints.
  • Keep your team and its representatives informed and advise them to avoid contact with other contractors as much as possible.
  • Regularly document the behaviors via written notice to the GC, the other subcontractor and by all means, the owner and maybe a solution will evolve.
  • Stay in touch with legal counsel to address risk avoidance as the issues unfold.

Most importantly, do everything you can to keep your team safe and willing to work. The good apples need to stay in business in these times, YouDig?