By Michael R. Fortney, Esq.
The Ohio Department of Health Director's Stay At Home Order of March 22, 2020 ("Order"), allows the construction industry to continue working on projects related to "Essential Infrastructure" as well as critical trades (including plumbers, electricians, exterminators, cleaning and janitorial staff for commercial and governmental properties, security staff, operating engineers, HVAC, painting, moving and relocation services, and other service providers) "who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, Essential Activities, and Essential Businesses and Operations." The Order also provides an exemption for hardware and supply stores.
The provisions of the Order are to be construed broadly so as to limit any impact to supply chains and our way of life. Due to this broad construction, it is likely that, nearly all construction projects can and should continue.
Construction Related to Essential Infrastructure May Continue
The Order allows for individuals and companies to provide work to support Essential Infrastructure, which includes construction (including, but not limited to projects on roads, highways, railroads, and public transportation; construction required in response to this public health emergency; hospitals, public works construction, school construction, "essential business" construction, and housing construction). Further, the Order declares that "Essential Infrastructure shall be construed broadly to avoid any impacts to essential infrastructure, broadly defined."
Thus any public construction project (including road and highway construction), construction related to healthcare, housing, or in response to the coronavirus emergency, or "essential business construction" may continue.
Construction Related to Essential Businesses May Also Continue
The list of Essential Businesses covered by the Order, and thus the list of construction projects that may continue, is vast, and includes construction projects on any of the following businesses:
- Grocery and drug stores, including pet supply stores, including their supply chains and administrative support operations;
- Food, beverage, agriculture, and marijuana production facilities, including animal shelter facilities;
- Organizations that provide charitable or social services, including non-profits, food banks, and disability assistance;
- Religious facilities;
- Newspapers, television, radio, and other media services;
- Gas stations and businesses needed for transportation, including construction equipment sales and repair;
- Financial and insurance institutions, including banks and insurance company operations;
- Hardware and supply stores;
- Post offices and similar businesses such as Fed-Ex, UPS, and Amazon;
- Educational institutions;
- Laundry services;
- Restaurants, but only if they offer consumption off-premises, which amounts to just about any restaurant nowadays due to apps like DoorDash and UberEats;
- Businesses that sell or supply products needed for people to work from home;
- Businesses that sell, manufacture, or supply products necessary for business, including electronics, hardware, electrical, plumbing or heating material, sanitary equipment; food and beverages, and chemicals;
- Transportation, including airports, taxis, marinas, and other transportation services;
- Home-based care providers and services;
- Residential facilities and shelters;
- Professional services, including insurance, accounting, real estate, and legal services;
- Manufacturing companies, distributors, and supply chain companies providing products for the businesses and operations laid out above;
- Hotels and motels; and
- Funeral homes.
Based on the above, the list of construction projects that may continue is enormous, and it is more likely than not that your project falls into an exempted category, and thus your project may continue.
Best Jobsite Practices Moving Forward
Just because your project can continue does not mean that it should continue as it has in the past. According to the Order, employers who continue to work must take proactive measures to ensure compliance with social distancing and the Order. At a minimum, construction employers must: designate six foot distances where possible for employees and customers in line; provide hand sanitizer and sanitizing products for employees and customers, and; post online which facilities are open and how to reach the facilities.
Construction employers should provide additional guidelines for their workers in order to slow the spread of the disease. The following is a non-exhaustive list of practices that can and should be implemented to protect construction jobsites and limit risk moving forward.
- Promote frequent and thorough hand washing of all employees, whether in the office or on the jobsite, including before beginning work, before eating, after coming into contact with others, after coughing or sneezing, and prior to entering any new area.
- All jobsites should have hand washing stations readily available, consider renting wash stations if that is not the case.
- Hand sanitizer may be an acceptable workaround if hand washing is not available.
- Consider posting hand-washing fact sheets in the office and at the trailer or other areas of the jobsite.
- Provide tissues and encourage employees to implement safe coughing and sneezing practices, including coughing and sneezing into the elbow or a tissue, and washing hands after coughing or sneezing.
- Provide gloves and disinfectant wipes.
- Regularly disinfect frequently touched surfaces, and provide gloves to any employees required to disinfect surfaces.
- Regularly remove trash from the jobsite by an employee wearing gloves.
- Provide PPE, such as nitrile gloves and eye or face protection, to employees providing cleaning services.
- Regularly remind employees to avoid touching their eyes, mouth, nose, or face.
- Remind employees to wash clothing, gear, and PPE regularly.
Job Site and Office Practices
- Limit work in occupied areas to only tasks that are strictly necessary.
- Limit physical contact with others and increase personal space to ensure social distancing of at least six feet.
- Discontinue use of community water, coffee, and food.
- Discourage handshakes and other forms of direct contact with other persons.
- Take breaks and lunches in shifts, and require employees to engage in social distancing while on breaks or lunches.
- Require foremen or site superintendents to limit and break up gatherings of more than ten people, as well as encouraging and requiring six foot distances of persons in groups.
- Require foremen and site superintendents, as well as designated office representatives, to monitor employees for signs of potential illness. Ask potentially ill employees to leave work and refrain from entering any occupied or potentially occupied areas.
- Employers should consider designating a representative to take employees' temperatures, or ask that employees self-check temperature prior to reporting to work and do not report if they have a fever higher than 100.4 degrees.
- Require employees with ill family members at home to notify their supervisor.
- Maintain confidentiality of any employee affected by COVID-19 in accordance with the Americans with Disabilities Act (ADA). Ask that the employee identify all employees he or she came into contact with before the employee departed, and consider sending potentially affected employees home and require those employees to take their temperature prior to working in the future.
- Hold virtual jobsite meetings, including safety meetings, rather than meetings involving groups of people in the same vicinity.
- Limit use of iPads, computers, cell phones, and similar devices, to one user. Ask that employees regularly clean and disinfect those devices.
- Special provisions regarding construction projects at occupied buildings or homes. Ask that workers take special precautions and evaluate occupants before and during work in occupied buildings and homes, including the following:
- Require the customer to clean and sanitize the work area prior to the workers' arrival on site.
- Technicians should sanitize the work areas themselves upon arrival, throughout the workday, and immediately before departure.
- Require customers to keep household pets away from any work areas.
- Ask that occupants keep a personal distance of 10 feet at minimum.
- Do not accept payments on site (no cash or checks exchanged). Require electronic payments over the phone or online.
- Workers should wash hands immediately before starting and after completing the work.
- Special provisions regarding visitors to jobsite or office. Restrict visitors to jobsite and office, including screening visitors in advance and refusing entry if visitors answer "yes" to any of the following questions:
- Have you been asked to self-quarantine since December 2019?
- Have you been in close contact with any person(s) who has been asked to self-quarantine since December 2019?
- Have you experienced a recent onset of any illness-related symptoms, such as fever, cough, or shortness of breath?
- Have you traveled outside of North America in the past 14 days?
- Have you been in close contact with any person(s) who have traveled outside of North America in the last 14 days?
- Have you been in close contact with any person(s) who has been diagnosed with COVID-19?
Following some or all of the above procedures and protocols, while potentially burdensome in the short-term, may provide benefits to employers in the long-term, as employers can show that they had a risk management plan in place for employees who continued to work.
If you have specific questions related to continuing your work or project, your employees, or your company's coronavirus response plan, please contact me or a member of our Real Estate & Construction team at Wickens Herzer Panza. This article provides an overview and summary of the matters described therein. It is not intended to be and should not be construed as legal advice on the particular subject.