May 14, 2020 UPDATE: Prepare Now for Construction Safety Under COVID-19

As the construction industry inches ever so closer to reopening all construction in the New York metropolitan area, contractors should use the remaining downtime to educate and prepare themselves for what will be the “new normal” in terms of required site safety following COVID-19. Being proactive about COVID-19 safety while your project is inactive is key to a safer and successful project in the future.

When construction is fully reopened, contractors who have been idle to date will be expected to adhere to then current Empire State Development (“ESD”) COVID-19 guidelines for construction under New York State Executive Order 202.6. (https://esd.ny.gov/guidance-executive-order-2026) The current ESD guidelines for “essential construction” provide in part:

At every site, it is required that the personnel working on the site maintain an appropriate social distance, including for purposes of elevators/meals/entry and exits.

Sites that cannot maintain appropriate social distancing, as well as cleaning/disinfecting protocols must close. Enforcement will be conducted by state and local governments, including fines up to $10,000 per violation.

When considering the ESD’s guidelines, contractors must keep in mind these are baseline standards which may change as we learn more about how COVID-19 is transmitted and how it survives on surfaces and in the air. In addition to the ESD guidelines, contractors must also remember their contracts likely require them to comply with all applicable rules, regulations, codes, and bulletins of the New York State Department of Labor and the standards imposed under the Federal Occupational Safety and Health Act of 1970, as amended (“OSHA”) as well as all municipal safety requirements. Contractors should take this opportunity to educate themselves on all applicable COVID-19 safety requirements and be prepared upon returning to the job site to immediately implement the most up-to-date practices to protect the safety and health of their employees, clients, and the general public.

In anticipation of remobilization, contractors should be communicating now with their owners, subcontractors and suppliers concerning COVID-19 safety measures. Review subcontractor agreements and identify material terms, such as provisions regarding health and safety; compliance with federal, state, and local law and remind subcontractors of their obligations thereunder. In communicating with subcontractors, contractors should confirm in writing the subcontractor’s compliance with COVID-19 safety requirements and establish a system for subcontractors to report suspected COVID-19 exposures at the job site.

Prior to remobilization, contractors should review and modify their written safety plan in order to detail how COVID-19 safety measures will be implemented for the remaining duration of the project. As part of this process, contractors may want to consider adding an individual dedicated to site safety, whose sole responsibility will be coordinating and overseeing all COVID-19 safety measures at the project.

Each construction project has its unique contractual obligations and circumstances, and the foregoing includes some important points to consider prior to remobilization. Careful analysis of contract terms and informed planning now is critical before the first boot re-enters the construction site.

In my next article, I will discuss how contractors can seek compensation for these added project safety costs.

Some pertinent contractor resources:

OSHA COVID-19 Resources — https://www.osha.gov/SLTC/covid-19/
OSHA COVID-19 Guidance for the Construction Workforce — https://www.osha.gov/Publications/OSHA4000.pdf
DOL COVID-19 Resources — https://coronavirus.health.ny.gov/home
Centers for Disease Control — https://www.cdc.gov/coronavirus/2019-ncov/index.html

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