The COVID-19 pandemic has generated a host of legal issues for U.S. construction pros. Here, attorney Patrick J. Greene Jr., a partner in Peckar & Abramson's Government Contracts Practice, answers readers' top questions.
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.
Patrick J. Greene Jr.
What types of guidance should contractors follow in order to maintain jobsite health and safety?
Contractors need to be aware of both binding and nonbinding guidance issued by federal agencies and plan their compliance — which, naturally, will lead to new and extra work requirements that will impact the scheduling of the work and productivity. Some of the guidance issued by the Centers for Disease Control and OSHA apply generally to all work environments, but OSHA has issued guidance specific to construction job sites. The guidance issued by these agencies is generally nonbinding, although OSHA has issued binding guidance with respect to when an employer must report a sick worker to the U.S. Department of Labor as a job-related sickness.
The Department of Labor has issued binding guidance as to when an employer may test workers, when employees can be excluded from the jobsite and what information can be communicated to other parties in order to warn against potential exposures.
In addition to the guidance emanating from Washington, firms need to be aware of locally imposed requirements. For instance, on May 14 New York State issued specific, mandatory guidance that includes requirements for workers to remain 6 feet apart and wear masks when this is not possible and limitations as to the number of workers who can be present on the site without the use of protective equipment. Contractors need to take these requirements into account as part of scheduling and executing the work.
How can we adequately provide for a safe working environment for our employees while reasonably carrying the costs?
The question as to who will pay for the extra work involved in keeping workers safe as well as the increased time and productivity impacts that will likely result is obvious, but the answer is not simple and will likely turn upon the specific contract provisions that govern the project.
While some contracts may explicitly deal with whether the owner will reimburse some or all of these costs, many, if not most, will not. In the absence of explicit language, our clients will be left trying to figure out how to apply more general provisions to this very unique situation. It is not an easy exercise and there is little precedent to guide this effort.
We advise our clients to look to their contracts and identify all potentially applicable provisions. Plan for and perform all action required to invoke such provisions, including providing all required notices and information. Plan for ways to isolate the effects upon the project, including schedule and productivity impacts. Contemporary records and communications are very valuable when it comes time to negotiate or otherwise resolve responsibility.
How do I develop a plan for new or continuing projects that addresses worker protection and project hygiene?
The project participants (owner, contractor, and key subcontractors) need to consult to develop a plan that identifies health and safety precautions to be employed, as well as the party responsible for implementation of each of those requirements. The plan should be reduced to writing and may need to be submitted to applicable government agencies. It is necessary to consider sitewide safety, safety within individual trades and the safety of trades that need to interact.
In formulating the plan, the parties need to consider guidance published on the websites of OSHA and the CDC as to workplace safety and guidance by the EEOC as to employee screening. There are a number of draft plans that have been created by trade and labor organizations that can be used as a helpful starting point. Ideally, the parties should agree how the costs of implementation will be borne and how costs for work that may be shifted to work-at-home personnel will be handled.
Based upon the current guidance, issues to be considered in such a plan include:
Specification as to when Personal Protective Equipment (PPE) will or must be utilized and sourcing and payment for PPE, as well as additional cleaning supplies.
Limitations on access to the jobsite and related security.
Protocols for screening of employees, workers and other visitors, including, potentially, use of questionnaires, routine temperature measurements and other testing methods that become available, as well as the designation of personnel to perform the work (safety manager, nurse, paramedic, or hygiene subcontractor).
Communication protocols, potentially including daily checklists and reporting regarding individuals identified through screening or otherwise as potentially infected individuals.
Procedures to be employed with respect to sick or potentially sick workers (including issues as to payment for workers for show-up time and quarantine time).
Potential need to communicate with third parties with respect to sick or potentially sick workers (owner, health department, union, etc.) and prohibitions on divulging the information.
Procedures to be employed to allow return of sick workers. (CDC guidelines prescribe several potential measures.)
Policies for social distancing, including separation of workers, limited presence on common conveyances (hoists and elevators), policies for use of PPE or other measures (masks) when there is a need to work closely together (this may include the staggering of work crew start times and the employment of shift work).
Establishment of regular toolbox talks to include emphasis on COVID-19 safety — potentially to include remote attendance or conducted in a manner that maintains social distancing.
Development of jobsite meeting protocols that maximize social distancing.
Procedures for the increased cleaning of work areas including “high-touch” areas and areas that may have been contaminated.
Implementation and maximization of work-at-home solutions.
This is not necessarily an exhaustive list. Parties need to consider site-specific issues and everyone needs to remain flexible and cooperative to accommodate changes to the government and industry guidance (which have been frequent to this point in time).