Douglas C. Bracken | Kane Russell Coleman Logan
While the media is currently distracted from the Coronavirus, the economy is still struggling to reopen from the shut downs Coronavirus caused. As businesses reopen, employers are obligated under the Occupational Safety and Health Act of 1970 (“OSH Act”) to provide a safe workplace for their employees. Failure to consider and take measures to mitigate the risks from COVID-19 could result in employees being unnecessarily exposed. On-the-job exposure may also result in worker’s compensation and negligence claims, and employers could face regulatory penalties and/or actions from the Occupational Safety and Health Administration (“OSHA”).
On May 11, 2020, our firm posted extensive guidance through its COVID-19 Resources page about how best to prepare and implement a plan to return employees to work, titled Returning to Work in the Shadow of COVID-19: Resources and Suggested Approaches for Employers. This resource was based in part on guidance provided by OSHA, including its Guidance on Preparing Workplaces for COVID-19. According to OSHA, any employer should follow these three basic steps:
First: An employer should assess the hazard to which its workers will be exposed.
Second: The employer should evaluate the risk of exposure.
Third: The employer should select and implement controls to prevent exposure, and take steps to ensure workers use those controls.
OSHA has now adapted its general COVID-19 workplace guidance specifically for the construction industry. On May 26, 2020, OSHA launched a dedicated COVID-19 webpage for construction. The new webpage applies OSHA’s three basic steps to the construction industry to identify hazards from COVID-19; establish a program that eliminates or controls those hazards; and provide specific COVID-19 training for employees. Employers on construction work sites would do well to heed OSHA’s guidance to avoid potential future enforcement actions and liability.
Assessing the Hazard
To assess the hazard in the workplace, OSHA set out its usual threat level matrix, consisting of four levels: Lower, Medium, High and Very High. Generally:
“Lower” risk level tasks allow employees to maintain social distancing of 6 feet, and to have little contact with the public, visitors or customers.
“Medium” risk level tasks might require employees to work within 6 feet of one another (close contact), or to be in close contact with customers, visitors or members of the public.
“High” risk level tasks might include entering into an indoor work site with many different workers, customers or residents suspected of having or known to have COVID-19.
OSHA found construction sites typically do not have tasks with “Very High” risk – a level generally reserved for health care workers and emergency responders directly exposed to COVID-19.
Evaluating the Risk
Using OSHA’s risk matrix, an employer should assess what threat level each employee’s job poses. If certain activities indicate higher risks, OSHA encourages employers to delay non-essential tasks until they can be performed more safely. For example, certain tasks may be safer to perform after more appropriate infection prevention measures are implemented or community transmission subsides.
Implementing Controls
Once the threats have been identified, OSHA encourages the employer to mitigate the risk by implementing abatement methods from one of the following categories, ranked in order of preference: Engineering Controls; Administrative Controls; Safe Workplace Practices; and Personal Protective Equipment (PPE). This is where the “rubber meets the road” in controlling the risk of infection to employees.
- Engineering Controls: Isolate employees from the hazard through physical or mechanical controls such as air ventilation, physical barriers, and reconfigured workspaces.
For construction, OSHA specifically recommended using doors and walls when feasible to physically separate workers from individuals experiencing any signs or symptoms consistent with COVID-19. Where employees work in close contact, OSHA suggests erecting plastic sheeting barriers instead. OSHA also recommends periodically reassessing engineering controls to reduce the need for PPE that could be used for higher risk activities. For instance, an employer may find that it can reduce ambient dust thereby reducing the need for N95 respirators that can instead be diverted to first responders who need them more.
- Administrative Controls: Change work policies or procedures impacting employees such as staggering shifts, encouraging sick employees to stay home, and eliminating non-essential travel.
For construction, OSHA suggested employers implement standard operating procedures that follow CDC, OSHA, state, and local guidelines to prevent the spread of COVID-19. OSHA encourages employers to train construction workers on COVID-19 transmission and prevention, including social distancing, hygiene and the importance of staying home when sick. OSHA also provides specific guidance for working indoors and using cloth face coverings.
- Occupied indoor work sites
Before an employer takes a job in an occupied indoor work site where persons infected with COVID-19 may live or work, OSHA suggested asking “screening questions” and even provided sample questions:
- Is the construction work at an occupied work site essential, urgent or emergency work?
If “yes,” then proceed with a hazard assessment to determine how best to proceed while minimizing exposure for the worker. - Are there any individuals in the occupied site under quarantine or isolation due to a confirmed case of COVID-19?
If “yes,” then closely follow recommended infection prevention measures including Engineering Controls, Administrative Controls, Safe Work Practices, and PPE. - If the work is determined to be essential, urgent or emergency work, are there any individuals or contractors in the occupied site suffering from flu-like symptoms to which your employees may be exposed?
If “yes,” then closely follow recommended infection prevention measures including Engineering Controls, Administrative Controls, Safe Work Practices, and PPE.
Once work begins at an occupied indoor work site, employers should request that any persons diagnosed with COVID-19, experiencing signs or symptoms of COVID-19, or under quarantine or isolation for COVID-19, remain physically separated from workers, and only communicate remotely with workers. OSHA further suggests increasing air flow in any shared spaces by using air conditioning or opening windows where weather permits.
- Cloth face coverings
Consistent with CDC guidance, OSHA recommends construction employees use cloth face coverings as a protective measure in addition to social distancing or where social distancing is not feasible due to working conditions. OSHA specifically notes that cloth face coverings are not PPE to protect the wearer, but are instead designed to protect others from infection. So employees should still use PPE (like respirators) where indicated by an appropriate hazard assessment.
OSHA also provides guidance on the proper use of cloth face coverings, noting they may not always be practical on a construction site. OSHA encourages employers to provide additional or alternative choices in the event an employee’s cloth face covering becomes wet, soiled or otherwise visibly contaminated. Employers should also provide training and oversight to employees to ensure proper use of face coverings, and OSHA provides a list of “dos and don’ts” for using cloth face coverings.
- Safe Work Practices: Administrative controls focused on procedures for safe and proper work habits.
OSHA recommends multiple safe work practices for construction work sites, including:
- Screening all visitors to a construction site, including employees, for signs and symptoms of COVID-19.
- Implementing staggered shifts to reduce the number of employees on the job site at a given time and to ensure social distancing.
- Identifying choke points in the work site and implementing policies to maintain social distancing.
- Coordinating deliveries to the site to minimize contact and avoid interference with cleaning protocols.
- Limiting in-person meetings, including toolbox talks and safety meetings, by shortening the meeting times, controlling numbers in attendance, and using social distancing.
- Cleaning and disinfecting toilet and handwashing facilities on the work site regularly.
- Providing and refilling hand sanitizers and disinfecting frequently touched items regularly.
- Personal Protective Equipment (PPE): Although PPE is often required to address workplace hazards, OSHA considers PPE to be the last line of protection behind all other controls.
OSHA notes that construction workers are unlikely to need PPE beyond what they normally use to protect themselves during routine job tasks. Hard hats, gloves, safety glasses, and/or respiratory protection may be required depending on the specific workplace conditions. An employer is required by 29 CFR 1910.132 to assess the hazards that are present, or likely to be present, in its workplace and provide its employees the appropriate PPE for those hazards. Employers should also consider where necessary providing PPE ensembles to visitors to the work site that may include gloves, eye protection and/or face shields.
However, OSHA specifically noted that respiratory protection may be needed in limited circumstances to protect against someone with suspected or confirmed COVID-19, consistent with 29 CFR 1910.134. Again, employers should conduct a hazard assessment to determine what PPE may be necessary under the circumstances.
Action Items
Employers in the construction industry should review OSHA’s guidance on its new construction webpage, and use that guidance to assess the hazards from COVID-19 at construction worksites, evaluate the risks posed by COVID-19, and implement controls to prevent infection to employees. Following OSHA’s guidance should help employers avoid liability not only from OSHA, but from other potential claims that may be leveled by employees and others who may visit the job site.