COVID-19 AND THE CONSTRUCTION INDUSTRY

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Contractor Obligations under Washington’s New COVID-19 Restrictions

The COVID-19 pandemic has changed the landscape for businesses, including and especially those in the construction industry.  As the virus continues to linger throughout the country, contractors have become accustomed to changing rules and policies, closings, re-openings, re-closings, and a host of other obstacles to operating in compliance and ensuring employee safety. Yet, with careful planning and preparation, including learning about these new regulations, it is possible for contractors to operate compliantly.

Regulatory Developments in Washington.

At the end of May 2020, Governor Jay Inslee released an updated, county and industry-specific “Safe Start” reopening plan for resuming normal activities throughout Washington. Under the plan, businesses are not authorized to reopen until they can comply with all safety criteria. The plan identifies 11 workplace safety requirements, which are applicable to all employers, addressing topics such as facial coverings, personal protective equipment, physical distancing, hand sanitation, surface sanitation, employee education, and the presence of ill employees in the workplace.

This July, the Governor released Phase 2 Construction COVID-19 Job Site Requirements (“Construction Plan”), which permits all forms of construction in Phase 2, including new construction and activities where strict social distancing cannot be maintained. Yet, in limitation, the Construction Plan mandates strict compliance with its own complex set of rules.

Also in July, Washington’s Department of Labor & Industries (DLI) adopted an emergency rule which significantly expanded Washington’s ability to enforce Governor Inslee’s restrictions; namely, the Safe Start reopening plan. While the DLI was already capable of enforcing Washington’s Safety Code,  the new Rule permits the DLI to penalize contractors under the Safety Code for: (1) performing work where a business activity is prohibited by an emergency proclamation; and (2) failing to comply with any condition for operation as required by an emergency proclamation (including the Safe Start phased reopening requirements). As many in the construction industry understand, penalties under Washington’s Safety Code can be severe.

The following is an overview of Washington’s new requirements for contractors operating under the Construction Plan during Phase 2.

Planning Requirements.

During Phase 2, contractors are required to develop a “Comprehensive COVID-19 Exposure, Control, Mitigation, and Recovery Plan” for each job site prior to commencing work. The plan must include policies regarding control measures, such as utilization of personal protective equipment (PPE); on-site social distancing; hygiene and sanitation; and symptom monitoring.

The plan must also include a Job Hazard Analysis (JHA) which provides a list of the contractor’s engineering controls and proper PPE for all job site activities defined as presenting a medium or high risk of transmission. A copy of the safety plan must be available on each job site during any construction activities, and available for inspection by state and local authorities.

Incorporated Safety Requirements.

During Phase 2, contractors have a general obligation to keep a safe and healthy worksite in accordance with state and federal law. Additionally, contractors must comply with each of the following incorporated policies:

Failure to follow these requirements may be deemed a violation of RCW 49.17.060, which requires the employer to furnish a place of employment free from recognized hazards that are causing or likely to cause serious injury or death.

Site-Specific COVID-19 Supervisor & Training Requirements.  

During Phase 2, the contractor must designate a “COVID-19 Supervisor” at each of its job sites. This supervisor must monitor the health of employees and enforce the COVID-19 job site safety plan. The supervisor must be present at all times during construction activities, except on single-family residential job sites with six or fewer people on site. The name and contact information for the supervisor must be clearly displayed at all job sites.

The contractor must conduct COVID-19 Safety Training on all job sites, commencing on the first day of returning to work, and on a weekly basis thereafter. The training should include an explanation regarding the protective measures in place for workers laboring at the job site.  However, social distancing must be maintained during this safety training.

Social Distancing and PPE Requirements.

The Construction Plan mandates that social distancing of at least six feet be maintained between every person on the worksite at all times when possible. In instances where social distancing cannot be maintained, the JHA shall be thoroughly reviewed by all workers prior to commencing tasks in which social distancing is not possible.

Gatherings of any size must be prevented by control measures such as staggering lunch breaks and shift starts. The contractor must identify “choke points” and “high-risk areas” on job sites where workers typically congregate and control such areas so social distancing is always maintained. Contractors must minimize interactions when picking up or delivering equipment and materials in order to maintain 6-foot separation.

Employers must provide appropriate protective equipment such as gloves, goggles, face shields, and face masks. Appropriate eye protection for hazards must be worn at all times by every employee present at the worksite. If appropriate PPE cannot be provided, the work is not authorized to commence, recommence, or continue.

Sanitation & Cleanliness Requirements.  

Hand-washing stations with soap and running water must be provided at all job sites. Portable washing stations may be used to meet this requirement. Workers should be encouraged to wash their hands regularly with soap and water for at least 20 seconds, especially before and after going to the bathroom, before and after eating, and after coughing, sneezing, or blowing their nose. Alcohol-based hand sanitizers can also be used but are not a replacement for soap and water. Employers should encourage employees to avoid touching their face with unwashed hands or gloves. Information about hygiene protocols should be visibly posted on all job sites.

Employers should make disinfectants available to workers throughout the worksite and ensure cleaning supplies are frequently replenished. High-touch surfaces on job sites and in offices should be frequently cleaned and disinfected, such as shared tools, machines vehicles and other equipment, handrails, doorknobs, and portable toilets. If these areas cannot be cleaned and disinfected frequently, the job site must be shut down until such measures can be achieved and maintained. If an employee reports feeling sick and goes home, the area where that person worked should be immediately disinfected.

When the worksite is an occupied home, workers should sanitize work areas upon arrival, throughout the workday, and immediately before leaving for the day. Occupants of the home at residential job sites should keep a personal distance of at least ten feet.

Procedures Relating to Employee Health, Symptoms of Illness, and Quarantine.  

Employers must implement policies that encourage workers to stay home or leave the worksite if feeling sick or if they have close contact with someone that has tested positive for COVID-19. Employees should be encouraged to inform their supervisor if a family member is sick with, displaying symptoms of, or has tested positive for COVID-19. In this scenario, the employee in question must follow the Washington Department of Health’s isolation/quarantine requirements.

Employers must screen all workers at the beginning of their shift by asking if they have a fever, cough, shortness of breath, fatigue, muscle aches, or new loss of taste or smell. Employers should take the temperature of employees when they arrive unless the employee has taken his or her own temperature prior to arriving. Thermometers used shall be ‘no touch’ or ‘no contact’ to the greatest extent possible. Any worker with a temperature of 100.4 or higher is considered to have a fever and must be sent home.

Employers should instruct workers to inform their supervisor if they develop symptoms of COVID-19. Should symptoms develop during a shift, the worker should be immediately sent home. Should symptoms develop while the worker is not working, the worker should not return to work until they have been evaluated by a healthcare provider.

If an employee has tested positive for COVID-19, employers should inform fellow employees of their potential exposure to COVID-19 in the workplace while maintaining confidentiality as required by the Americans with Disabilities Act. The employer should instruct fellow employees about how to proceed based on the CDC’s Public Health Recommendations for Community-Related Exposure.

Finally, any worker traveling from a state that does not share a border with Washington must self-quarantine for 14 days to become eligible to work on a job site in Washington. Alternatively, the worker can also become eligible to work in Washington upon receipt of a negative COVID-19 test administered within Washington state. If the employee leaves Washington and then returns to perform additional work, they must be retested and receive another negative result before resuming work.

Adhering to these mandatory procedures will help employers avoid potential liability for administrative fines and penalties. Thus, contractors should take a proactive approach to safety, ensuring their operations comply with Washington’s phased reopening plans and emergency proclamations. Additionally, Employers can stay abreast of new developments by monitoring the Governor’s news page.

Disclaimer: 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.

Cotney Construction Law is an advocate for the roofing industry and General counsel of RCAW, WSRCA, and NRCA. For more information, contact the author at 866.303.5868 or go to www.cotneylaw.com.