The good news for the construction industry in California is that the State of California and many of its counties have now designated the construction industry as an “Essential Business” for COVID-19 purposes, allowing contractors in California to ply their trade in nearly all facets of the construction industry–if they choose to do so.
Still, the construction industry has not been liberated entirely from the legal burdens of COVID-19. Rather than ban particular types of construction work, the new strategy for California lawmakers is to issue sets of jobsite restrictions that govern how the contractors perform their work.
Recent State and local orders require contractors to comply with a variety of social distancing guidelines and other restrictions applicable to all essential businesses. In addition, these orders enact rules and guidance specifically applicable to the construction industry. These orders have changed dramatically in the weeks immediately preceding the publication of this article, and potentially could change again. Contractors and other construction industry participants need to investigate the current rules applicable to their construction projects.
The State of California, on May 7, 2020, issued a series of documents entitled “Statewide Industry Guidance to Reduce Risk,” addressing 17 different industries, including one set of documents tailored to the construction industry. The construction industry portion includes both a five-page “Guidance for the Construction Industry,” and a summary of the same, entitled “Checklist for the Construction Industry,” to be filled out and posted at the workplace. Although the requirements are described as mere “guidance,” the preface mandates that the key activities be performed, and uses the word “must” in bold letters.
The State Guidance for the Construction Industry requires contractors to prepare a “written, worksite-specific COVID-19 prevention plan at every facility.” The contractor must also (1) designate a supervisor at each facility to implement the plan, (2) perform a risk assessment, and (3) regularly evaluate compliance with the plan.
The State Guidance for the Construction Industry also includes sections addressing Topics for Employee Training, Individual Control Measures and Screening, Cleaning and Disinfecting Protocols, and Physical Distancing.
Contractors should review the detailed State Guidance for the Construction Industry carefully. Some, but not all, of the Guidance requirements are fairly commonsensical for anyone familiar with COVID-19 precautions. Many of the requirements, however, will undoubtedly require time, effort, and planning. Compliance with these requirements may also affect the contractor’s rate of production in its work. The Physical Distancing category, for instance, encourages the staggering of breaks and work shifts to limit overlap of work crews and reduce the number of people on the jobsite at one time. Albeit for good reason, such requirements arguably interfere with a contractor’s means and methods. Contractors should consider whether such additional requirements justify time extensions and/or change orders under their contracts.
On April 29, 2020, six San Francisco Bay Area Counties (Alameda, Contra Costa, Marin, San Francisco, San Mateo, Santa Clara) and the City of Berkeley issued orders (the “Bay Area County Orders”) addressing a variety of COVID-19 issues and expressly identifying the construction industry as an Essential Business.
Significantly, the Bay Area County Orders only allow construction work where contractors comply with two sets of protocols set forth in the Bay Area County Orders as Appendix “B:” a Small Construction Protocol (“SCP”) and a Large Construction Protocol (“LCP”).
“Small Construction” in the Bay Area County Orders is defined as a residential project with 10 or fewer units, commercial projects of 20,000 square feet or less, and mixed-use projects meeting either of those criteria. “Large Construction” is defined as work exceeding these levels, with the surprising proviso that most civil construction work and telecommunications is defined as Large Construction in every instance (regardless of the size of the project) where the work requires more than five employees at one time.
In general, both the SCP and LCP established by the Bay Area County Orders are similar to, but noticeably stricter than, the State Guidance for Construction. The Bay Area County Orders mandate that the COVID-19 supervisor be present at the job site at all times work is performed and that the supervisor review the protocols with every worker and visitor to the site. A log must be kept of all workers and visitors to the site. Infection screenings must be performed on a daily basis, and a cleaning and decontamination protocol must be applied where a worker leaves the jobsite and returns. The contractor must control “choke points” and “high-risk areas” where six-foot distancing is difficult or impossible. Carpooling to the jobsite by anyone not in the same household is forbidden. For a complete list, contractors should refer to the Bay Area County Orders if they are working in the six Bay Area counties and any other relevant orders issued in the county where they will be working.
One of the more controversial restrictions of the Bay Area County Orders is the requirement to retain an outside COVID-19 inspector for “Large Construction Projects.” Jobsites where the LCP applies are required to retain a Third-Party Jobsite Safety Accountability Supervisor (“JSAS”), credentialed with an OSHA 30 Certificate and first aid training within the past two years. The JSAS must be trained in the LCP protocol, including rules related to visual inspections and random interviews with workers. The JSAS must prepare a report within seven days of any visit to the jobsite identifying any failures by the contractor to comply with the LCP protocol, and copy said report to the applicable county office. The JSAS has the authority to stop work not in compliance with the protocols and prepare remediation plans.
Time will tell how these new restrictions impact the work of contractors, and to what extent these new rules will have legal implications. In the meantime, contractors and other participants in the construction industry need to carefully research the ever-changing legal environment on a project-by-project basis. Contractors also need to consider their working conditions carefully, using both a common sense approach and the other available resources.
Keeping up with these changes requires diligence. News that the construction industry is “essential” does not exempt the construction industry from new regulations–much less guarantees that all workers or visitors to a construction project jobsite will remain safe.
If you have questions or concerns related to the COVID-19 crisis or any other construction industry related matter, we are here to help.