With the increase in COVID-19 cases in the summer of 2020, the state of California and local authorities have shut down many businesses, some of which were only recently allowed to reopen. The construction industry, on the other hand, has the good fortune to remain off the shutdown list. Nevertheless, one jurisdiction, the County of Santa Clara, has instituted regulations for construction contractors that call for even more stringent legal, practical, and paperwork requirements—setting what will likely be a new trend in for the construction industry during the COVID-19 era.
Previously, on April 29, 2020, Santa Clara County and five other Bay Area jurisdictions established baseline protocols for contractors, requiring worksite specific COVID-19 prevention plans, Covid-19 supervisors, the monitoring of workers, employee training, and, for “large projects,” a requirement for a third-party inspector with broad authority, including the right to shut down projects out of compliance with the COVID-19 protocols. These restrictions are fairly rigorous, but at least allowed for some uniformity throughout the Bay Area.
On July 7, 2020, and effective July 13, 2020, Santa Clara County struck out on its own and ramped up the April 29 requirements, releasing a significantly more stringent set of restrictions entitled “Mandatory Directive For Construction Projects” (the “Santa Clara Mandatory Directive”).
To comply with the Santa Clara Mandatory Directive, general contractors and subcontractors of all tiers (and, in fact, all businesses working in Santa Clara County) need to go online to submit and certify under penalty of perjury (using DocuSign), a Social Distancing Protocol. General contractors must submit a separate Social Distancing Protocol for each and every project in Santa Clara County. Subcontractors who work on multiple projects (or that have a facility in the County) must submit an online Social Distancing Protocol for the company and deliver a copy of the protocol to the “owner or operator” of every jobsite in the county. Moreover, all workers on construction projects must be given a copy of the Social Distancing Protocol.
The Social Distancing Protocols, which are likewise accessible to the public, require the contractor to disclose the name of the supervisor in charge of compliance with the protocol and other detailed information about the business and the facility. The protocols also require the contractor to check a mind-numbing set of 68 separate boxes, thereby promising to post signage, perform personal training, take individual control measures and screenings, perform handwashing, perform cleaning and disinfecting, maintain social distancing, prevent unnecessary contact, and perform procedures if a person on worksite tests positive for COVID-19 and other measures.
The contractor’s representative must also check a box certifying that the signer “understands that failure to comply with requirements imposed by the Health Officer of the County of Santa Clara (including this Social Distancing Protocol) is unlawful and may subject the business or responsible individuals to punishment by imprisonment or a fine or both . . . .” It remains to be seen whether such punishment is enforceable, and whether, as questioned by one of my more sophisticated clients, whether the County Health Officer has authority to levy such punishment.
The Santa Clara Mandatory Directive establishes strict reporting requirements to the County for both general contractors and subcontractors where a worker contracts the virus. A subcontractor must report to the general contractor the existence of a positive test or COVID-19 symptoms by anyone on the site within one hour of discovery. The general contractor must immediately implement procedures set forth in the Social Distancing Protocol, which includes ceasing operations, closing, and sanitation of the workplace. It is unclear whether the identity of infected individuals must be reported and how privacy rights under HIPPA are impacted.
The Directive includes heightened posting and signage requirements. Notices to workers and visitors, translated into Spanish, must be posted prominently at all entrances to the job site.
The general contractor is given responsibility for ensuring that everyone at the jobsite, including their own workers, their subcontractors’ workers, and visitors, complies with the Social Distancing Protocols. If the general contractor fails to comply, any worker or subcontractor can file a claim with the Santa Clara County Office of Labor Enforcement.
On “Large Projects” (defined as projects with more than 10 residential units, or commercial units of 20,000 square feet of floor space, or infrastructure projects), contractors must hold daily briefings, discussing the protocols and related information. General contractors must verify compliance with the protocols on a daily basis and store these written verifications for one year. General contractors must also certify that subcontractors have reviewed the Santa Clara Mandatory Directive, the General Contractor’s site-specific protocol, and has provided the subcontractor’s protocol to the general contractor.
The Santa Clara Mandatory Directive not only requires that the general contractor provide, but also requires that the general contractor mandate the use of Personal Protective Equipment according to the State’s Guidance for the Use of Face Coverings. Face coverings must be worn by workers at all times at the site, even while working.
The Santa Clara Mandatory Directive also places specific density limitations, allowing only one person per 250 square feet of indoor facility for workers, and one person for 150 square feet for members of the public. Meetings (other than COVID-19 related meetings) and gatherings for breaks or meals are prohibited.
As local jurisdictions like the County of Santa Clara, push the envelope on safety measures against COVID-19, contractors need to build into their prices the additional costs and lack of productivity of complying with the exhaustive paperwork and worksite regulations.