Covid-19 In The Construction Industry

The construction industry has certainly changed dramatically within the last few months with the emergence of COVID-19.  With the virus emerging out of seemingly thin air and the shocking quickness that it spread throughout the entire world, it is not surprising that construction sites were woefully unprepared for such a disaster.  Many construction sites have either been shut down voluntarily by the owners of the projects or mandated by the government to shut down such as Boston’s ban on all non-essential construction activity on March 16th.  However, for many of the construction sites, it is “business as usual” as the virus continues to spread across the country.  If your client continues to work on their respective construction projects, it is important for attorneys to understand how their clients can best protect their workers and their business.

OSHA's Stance on Covid-19

The general duty clause of the Occupational Health and Safety Act states that “employers shall furnish to each of his employees…a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”  Stress to your clients (1) that the safest site is a site that closes down until the pandemic crescendos, and (2) that if your client does continue to work, they potentially put themselves at risk of violating the OSH Act.

If your client has an employee that contracts COVID-19, that illness could be deemed an OSHA recordable.  According to the Department of Labor, COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties. However, employers are only responsible for recording cases of COVID-19 if all of the following are met:

1. The case is a confirmed case of COVID-19 (see the CDC information on persons under investigation and presumptive positive and laboratory-confirmed cases of COVID-19);
2. The case is work-related, as defined by 29 CFR § 1904.5; and
3. The case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7 (e.g., death, medical treatment beyond first aid, days away from work, or a restricted work schedule).

Attorneys should stress to their clients that if COVID-19 is passed through the job site, there could be a slew of consequences from OSHA due to high OSHA recordable rates, including potential fines and investigations. 

Emergency Modifications Ratings

If a construction company receives a COVID-19 outbreak, it could affect their safety ratings.  An Experience Modification Rating, or EMR, is a rating system for construction companies.  It compares safety incidents of similar sized companies doing similar work.  A company with an EMR of 1.0 is considered averagely safe compared to other similarly situated companies.  A company with an EMR of under 1.0 is considered safer, and an EMR over 1.0 is considered less safe.  Experience Modification Ratings can affect insurance premiums for the upcoming year.  And sometimes clients will look at companies’ EMRs when determining bids for jobs.  A company with a higher EMR could be less likely to get jobs awarded to them than companies with lower EMRs. 

COVID-19, like any other job site injury or illness, can affect a company’s EMR.  Stress to your clients that reckless activities regarding COVID-19 could affect their insurance rates and the capability to gain more work in the future.

Criminal and Civil Liabilities

If the employer fails in their duty to provide a safe work environment, the employer could be found negligent, both civilly and criminally.  This has been the standard for years.  However, within the last half decade, some courts have extended criminal liability to specific construction site leaders that behaved negligently.  Some such examples include:

• In 2015, a Philadelphia crane operator pled guilty to six counts of manslaughter for operating a crane while under the influence of narcotics that resulted in the deaths of six workers on the job site.  
• A New York construction foreman was sentenced in 2016 to one to three years of prison time after being convicted of criminally negligent homicide for allowing a trench to cave in after repeated warnings that the trench was unsafe.
• A California crane operator was charged with involuntary manslaughter in 2017 when two individuals fell eight stories from a man basket due to deficiencies with the crane.  Charges were dropped later that year.
• During November of 2019, a foreman, an engineer, and the company operator of a Brooklyn construction company were charged with manslaughter and criminally negligent homicide for failing to comply with safety standards.

Lawyers should stress to their clients that if COVID-19 fatally attacks a worker while on the job site and site supervision was negligent in preventing such attack, personal responsibility could fall upon those supervisors that behaved negligently. 

What Can Your Clients Do To Combat Covid-19?

Limit travelers and new hires

Construction workers, by their very nature, are a transient group.  They often work short term projects going from project to project.   So, the construction industry, by its nature, is a profession that has a higher risk of outbreaks. 

As the virus continues, workers will steadily leave the project.  To combat this, construction companies will continually hire in new hires to replace the leaving workers.  This rotating door of construction workers will eventually create many different opportunities to bring the virus on site.  Lawyers should understand that companies need to have enough manpower to continue the job; however, to try to combat a COVID-19 outbreak, general contractors should try to limit as few new hires as possible. 

Most large construction projects have workers from several different states.  For example, a general contractor at a large construction site in Alabama at one point had workers from Arkansas, Alabama, Louisiana, Tennessee, Mississippi, Georgia, Kentucky, Florida, and North Carolina.  Travelers are generally exposed to more people and thus at a higher risk of being exposed to the virus.  However, limiting travelers could be particularly tricky if the contractor is pulling from a union hall where contractors have limited control over who takes the call and arrives on site.  But, if controlling travelers is within the general contractor’s control, then this is something that should be considered. 

Closely monitor the health of the workers

Have your clients closely monitor the health of the workers on site.  Encourage workers to stay home if they become sick while off-site.  Find out what projects they have recently been on and if it was shut down from a case of COVID-19.  Give surveys out to the workers asking if they have any symptoms or if they know anyone that has symptoms similar to the symptoms of COVID-19. 

Many construction workers are at-risk individuals and have a higher chance of contracting the virus.  Ensure that your client knows who these more at-risk individuals are on site and have them monitor these people closely. 

• According to the CDC, over a third of all construction workers use nicotine, which is the highest percentage of tobacco use of any profession in the United States. 
• As of 2018, 22% of all construction workers were over the age of 55. 
• An estimated 43% of all construction workers are obese compared to 35% of the national work force.  
• Some construction workers have a history of diabetes or heart problems. 

Finally, have your clients act quickly.  If anyone shows signs consistent with COVID-19 or has been in contact with someone that has the disease, remove them from the site as soon as possible.  If someone has tested positive on site, do not let your clients continue to work.  Everyone on site must then be quarantined for 14 days to prevent the spread of this disease. 

Educate workers

Ensure that your clients educate themselves on the ever-changing situation regarding COVID-19.  There are many resources online including state guidelines for construction workers.  For example, on March 25^th, Oregon established state rules and resources for construction workers within the state which can be found at https://www.myoregon.gov/2020/03/25/rules-and-resources-for-oregon-construction-workers-and-contractors/

Have your client give toolbox talks and safety stand downs to educate workers on the issues.   Post any toolbox talks on job boards or disseminate them to each worker.  Ensure that management is candid and honest with the workers.  If a worker has been exposed to someone that has tested positive, if a worker has tested positive, or if there is an outbreak on site, tell the workers immediately. According to the OSH Act of 1970, “workers have the right to know what hazards are present in the workplace and how to protect themselves.”  Stress to your clients that telling employees about potential COVID-19 exposures on the job site is required by the law.  Further, hiding information could cause angst and anger towards management if this information is later found out by the workers. 

Practice social distancing

Many construction managers have been pushing work for years.  It is what they are paid to do.  Therefore, it is not in their nature to take a step back and not push the work as hard as possible.  But, you must ask them to do so to prevent the spread of this terrible disease.  As an attorney, it is your job to get them to understand this.  It is not only their moral obligation to their workers, but also their legal obligation as the OSH Act “requires employers to provide their employees with working conditions that are free of known dangers.”

Some things you should push your clients to implement are:

• Avoid working in pairs on tasks that can be done alone. 

• Ensure that your client tries to limit hours per day, cuts out weekend work, and considers a split shift schedule.   There will undoubtedly be push back from your client on this, but ensure that this is necessary to best try to prevent the spread of the disease on site. 

• Staggering break times, arrival times, lunch times, and quitting times could help isolate workers.  Again, project managers may be resistant to staggering breaks as it will be harder to monitor when each employee will arrive for breaks and when each worker is supposed to leave the break area, potentially resulting in longer breaks and lost production.  Explain to the management team that it is the responsibility of the foreman to ensure their workers’ break times are appropriate in length.  Also, explain to them that any loss of production should be secondary to preventing the spread of this disease.

• Spread out break areas to maintain six feet of personal space between workers. 

• Encourage workers to take breaks outside if the weather is nice. 

• Avoid shuttle buses and elevators that have multiple people in close proximity. 

• Do not put two people into one aerial lift even if rated to do so.

• Encourage phone or Skype meetings versus meeting in person.  If meetings must be in person, break meetings into two or three different sessions. 

Keep the site as clean as possible

Construction sites are notoriously unsanitary.  However, there are some things that your clients can do to help prevent the spread of COVID-19:

• Beef up the number of port-a-johns and wash stations and the times per week they get cleaned.

• Hiring an industrial cleaning team or labors dedicated only to sanitation efforts during the day or between shifts.   Have them clean tools, equipment, trailer offices, and break areas. 

• Construction sites share a lot of items amongst many different people on site.  Some items include: fork lifts, aerial lifts, hand and power tools, laptops, and personal fall arrest systems.  Have these items cleaned before passing them to the next worker or have these items assigned to particular individuals so that they are not shared. 

• Avoid repeated touching of common items on the job site such as doorknobs (remove doors and gates that are repeatedly used) and materials.  Shut down fingerprint scanners that record the time an employee signs in and signs out of the jobsite.  Give workers their own ink pens to use on the job site. 

• Unless working in an existing building, most construction sites lack hot water.  For larger projects, employers can bring in their own hot water heater.  For smaller projects, however, instead of a full hot water heater which could cost a contractor thousands of dollars, there are economical two to seven gallon electric hot water heaters that plug directly into existing sink systems.

• Employers should try their best to find and buy antibacterial soap and hand sanitizer.  However, this most likely isn’t a viable option for most contractors.  Instead, try finding antibacterial dish soap.  Dish soap can still be found in most stores and, while not perfect for fighting COVID-19, it is better than just water.  Additionally, there are recipes that allow individuals to make their own hand sanitizer with aloe vera gel and alcohol.  Homemade sanitizer needs to have 2:1 alcohol to gel to keep the alcohol above 60%, which is the minimum amount of alcohol needed to kill the virus according to the CDC.      

• If work sites have N95 dust masks and latex gloves, encourage use of these types of PPE.  Ensure that masks are form fitting and do not leak oxygen in through the sides of the mask.  If latex gloves are not available, encourage the use of work gloves at all times while on the site.