On March 18, 2020 New York Governor Andrew Cuomo signed Executive Order 20.6 which directed that all businesses and non-for-profit entities utilize telecommuting or work from home procedures, to the exclusion of certain “essential businesses” which provide essential services, supplies or support. The Order specifically exempts “skilled trades” within the construction industry, such as electricians, plumbers, carpenters, and other related construction firms and professionals for essential infrastructure or emergency repair for safety purposes. As a result, construction projects continue to move forward and owners, general contractors, and/or construction managers must take the necessary precautions to provide a safe work environment for all those present at the construction site.
OSHA guidelines provide that employers have a duty to keep the workplace and its employees safe and, in light of COVID-19, it is advisable for general contractors and/or construction managers to implement safety measures like encouraging employees to wash their hands and keep 6 feet away from one another. To that end (and as practicable as possible) laborers at job sites should always wear gloves (even when simply signing a sign-in sheet for a project meeting), masks, and protective eyewear (personal protective equipment or “PPE”). While the use of PPE is commonplace on construction sites, the employer is well advised to strictly enforce these protective measures as much as possible. In addition, employees should be advised to try to avoid sharing tools as much as practicable or having multiple people work on the same equipment such as drill rigs or diggers.
Considering the extent of this global pandemic, it may be inevitable that someone on a job will test positive for the virus. Should that occur, that person should not return to the site until all symptoms have subsided, and the area at the site where he/she worked should be isolated and be subject to a “deep clean.”
OSHA has created an occupational risk pyramid which separates job places into 4 separate categories: (i) Very High; (2) High; (3) Medium; and (4) Low Risk. This pyramid is meant to be used by employers as a guide to assess the appropriate precautions to take. Although not specifically mentioned, construction job sites likely fall under the Medium Risk category, which is defined as jobs with a high density population and contact and heavy contact with other co-workers. They recommend to take the controls specified above and include offering all employees PPE if necessary.
OSHA guidelines provide that if an employee tests positive for COVID-19, the employer should:
· Send home all employees who worked closely with that employee for a 14-day period of time to ensure the infection does not spread. Before the employee departs, ask them to identify all individuals who worked in close proximity (three to six feet) with them in the previous 14 days to ensure you have a full list of those who should be sent home. Do not identify by name the infected employee or you could risk a violation of confidentiality laws.
· Advise potentially affected workers (those who were in close proximity to the affected worker) so they can take all necessary precautions. This is the situation where employees who shared tools or used the same mechanical equipment as the infected person need to be informed of their potential exposure to the virus. Again, do NOT disclose the identity of the infected person unless that person has provided written consent.
As to the “deep clean” of the area where the infected person worked, the CDC provides recommendations for cleaning and disinfecting areas where the presence of COVID-19 is suspected or confirmed. According to the CDC, “cleaning” refers to “the removal of dirt and impurities, including germs from surfaces…[but] cleaning alone does not kill germs.” To kill germs, the CDC recommends disinfecting the area “by using chemicals to kill germs on surfaces.”
For a construction site, it may not be necessary to deep clean the entire site, but only those areas where the infected person worked. For example, on large projects if an employee worked solely on the 2nd floor, then that is the only area where the deep clean would be necessary. Any such area should be closed-off with the use of plastic sheeting and subject to a deep clean. In addition, all tools, equipment, etc. which the infected person used or may have used should all be thoroughly cleaned and disinfected.
As to procedure for conducting a deep clean, the CDC recommends the following:
· The closure of areas used by the infected employee and wait as long as practical before cleaning and disinfecting to minimize potential for exposure to respiratory droplets. If the site is enclosed, open outside doors and windows to increase air circulation in the area. Wait up to 24 hours before beginning to clean and disinfect the area.
· Cleaning staff should clean and disinfect all areas (e.g., offices, bathrooms, and common areas) used by the ill persons, focusing especially on frequently touched surfaces.
As construction projects move forward during this pandemic, general contractors and construction managers should take all steps necessary to avoid employees’ exposure to COVID-19 so that the project can continue to completion as close to schedule and budget as possible.
Gary M. Rosenberg, Arthur C. Silverman, Michael C. Castellon