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May 5, 2020

NYS Construction Safety, Health Practices During COVID-19 and Beyond

The vital nature of the construction industry has been evident throughout the COVID-19 crisis. Whether it’s projects for essential businesses, projects supporting essential business, vital infrastructure construction, or emergency projects necessary to ensure the safety and security of individuals and buildings, the construction industry has continued on where many other industries have shut down. The question that continually comes—and will continue to come up as the economy reopens and more construction projects resume and begin—is what sort of safety and health practices must be followed on a construction site? This is a particularly critical issue for many construction projects where the very nature of the project may not make social distancing easy or even possible.

To address these concerns, the Occupational Safety and Health Administration (OSHA), the Centers for Disease Control and Prevention (CDC), and the NYS Department of Health (NYSDOH) recently issued policies and procedures for construction sites to follow. Initially, contractors must implement a safety plan addressing site policies and procedures to protect their employees from COVID-19, and project plans must be updated as conditions change on the site and to reflect and as the OSHA, the CDC, and/or the DOH issues new guidance. Contractors must also provide training to employees regarding the safety practices and must ensure that employees are following all safety practices.

Among other requirements, a safety plan must provide the following in relation to employee health issues:

  • Sick employees are not to report to work.
  • Any employee exhibiting any COVID-19 symptoms (including fever, cough, shortness of breath or difficulty breathing, sore throat, loss of taste or smell, and other symptoms as may be updated by health officials) must report their symptoms to a supervisor (via phone, text, or email) immediately and must be directed to leave the job site immediately (or will be directed to stay home if already there).
  • Prior to starting a shift, each employee will either self-certify or be examined by a qualified individual to confirm that the employee:
    • Has no signs of a fever or a measured temperature greater than 100.3 degrees
    • Had no cough or trouble breathing within the past 24 hours
    • Have not had “close contact” with an individual diagnosed with COVID-19, meaning not living in the same household as a person who has tested positive for COVID-19, caring for a person who has tested positive for COVID-19, being within six feet of a person who has tested positive for COVID-19, or coming in direct contact with secretions (e.g., sharing utensils, being coughed on) by a person who has tested positive for COVID-19 while that person was symptomatic
    • Has not been asked to self-isolate or quarantine by their doctor or a local public health official
  • Any employee that exhibits symptoms, answers “yes” to any items on the daily questionnaire, or who is unable to certify they do not have an elevated temperature must be directed to leave the work site. If warranted, employees must seek medical attention and receive applicable testing per their health care provider. They are not to return to the work site until cleared by a medical professional if the health care provider determines they may be or have been infected with COVID-19. CDC and NYSDOH guidelines must be followed accordingly.

Additionally, the plan must include general site procedures to prevent and limit the transmission of COVID-19, including:

  • For sites that utilize designated entry points (e.g., secured buildings, etc.), entry points should be established to eliminate or limit employees from interacting with non-construction personnel. Designated entry points need to be identified within the site safety plan.
  • No handshaking or other touching.
  • All people onsite must wash their hands upon entering the worksite and periodically over the course of their shift with soap and water or shall use an alcohol-based hand sanitizer comprised of least 60-percent ethanol or 70-percent isopropanol.
  • Each jobsite must have handwashing stations available for employees when practical. Employees must be aware of proper handwashing procedures, and instructions on how to properly wash one’s hands must be provided onsite.
    • When handwashing stations are not practical, hand sanitizer must be provided.
    • Having both handwashing capabilities and providing hand sanitizer is recommended when it is achievable.
    • All wash stations shall be provided with soap, hand sanitizer, paper towels, and a garbage receptacle with a liner.
    • If a worker notices soap or towels are running low or are out, they are to immediately notify their supervisor.
  • Each jobsite shall develop cleaning and disinfection procedures following CDC guidelines.
  • A “no-congregation” policy is in effect on all construction projects. All employees must adhere to social-distancing protocols by maintaining a minimum distance of six feet from other individuals.
  • If a construction activity must be performed and it is infeasible to perform that operation while maintaining social distancing, employees must be provided with the appropriate personal protective equipment (PPE) as defined by OSHA and the CDC.
  • Where appropriate, employers should stagger shifts and coordinate work activities so social distancing can be maintained.
  • Meetings of more than 10 people are prohibited.
    • All face-to-face meetings must be conducted while maintaining social distancing.
    • Employers should utilize cell phones, texting, web meeting sites, and conference calls for project discussion when practical.
  • Employers must assess the potential exposure to COVID-19 and ensure their employees are provided with the appropriate personal protective equipment. OSHA’s “Guidance on Preparing Workplaces for COVID-19” document outlines worker PPE that is required based on the potential level of exposure to the employee.
  • All construction workers shall wear a face covering where social distancing cannot be consistently maintained.
  • All employees shall be encouraged to maintain appropriate social distancing when traveling to work or returning home from work.
    • Employees who utilize company vehicles are not to share their vehicle with others to get to and from work.
    • If a construction activity requires more than one employee to occupy the vehicle, appropriate PPE must be worn.
  • When entering a machine or vehicle that you are not sure you were the last person to enter, door handles, steering wheel, etc. are to be cleaned and disinfected.
  • All high-contact surfaces such as but not limited to meeting areas, door handles, handrails, personnel hoists, elevators, laptops, tools, bathrooms/porta-potties, etc., shall be cleaned and disinfected at least twice daily.
  • Personnel hoists and elevators shall only be used at 50-percent capacity, and employees must be provided with appropriate PPE.
  • Cover coughing or sneezing with a tissue, then throw the tissue in the trash and wash hands. If no tissue is available, then cough into your elbow.
  • Avoid touching your eyes, nose, and mouth with your hands.
  • To avoid spreading germs, all employees must clean up after themselves. No person shall be responsible for moving, unpacking and packing up tools or other personal belongings of another individual.

To ensure compliance with these requirements, there must be a designated employee working onsite who is aware of OSHA and CDC guidelines for protecting their workforce and who’ll be responsible to ensure safe work practices are being followed and employees are properly trained in policies and procedures related to COVID-19.

These requirements will present challenges on work sites and will require additional time and effort on behalf of employees at all project levels—from owners all the way down to suppliers. However, this unprecedented time will require unprecedented steps to ensure projects can begin, resume, or continue while minimizing the risk of a renewed outbreak of the virus.

If you have any questions regarding the content of this alert, please contact Jim Domagalski, Construction & Surety Practice Area chair, at jdomagalski@barclaydamon.com; Nick DiCesare, partner, at ndicesare@barclaydamon.com; or another member of the firm’s Construction & Surety Practice Area.

We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. You can reach our COVID-19 Response Team at COVID-19ResponseTeam@barclaydamon.com.

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