Monday, March 23, 2020
On March 4, Governor Gavin Newsom proclaimed a State of Emergency to exist in California as a result of the threat of COVID-19. On March 19, he issued Executive Order N-33-20 that directed – with specific exceptions – “all individuals living in the State of California to stay home or at their place of residence.”
The order excepted activities “needed to maintain continuity of operations of the federal critical infrastructure sectors.” These 16 critical infrastructure sectors are:
The Memorandum on Identification of Essential Critical Infrastructure Workers During Covid-19 Response issued by CISA on March 19, makes clear that construction is an important component of these sectors. I would point out that the memorandum does include the following disclaimer: this list is advisory in nature. It is not, nor should it be considered to be, a federal directive or standard in and of itself.
- Chemical Sector
- Commercial Facilities Sector
- Communications Sector
- Critical Manufacturing Sector
- Dams Sector
- Defense Industrial Base Sector
- Emergency Services Sector
- Energy Sector
- Financial Services Sector
- Food and Agriculture Sector
- Government Facilities Sector
- Healthcare and Public Health Sector
- Information Technology Sector
- Nuclear Reactors, Materials, and Waste Sector
- Transportation Systems Sector
- Water and Wastewater Systems Sector
Additionally, while not part of N-33-20, the State’s COVID-19 website includes “construction, including housing construction.” as specifically exempt industries from the “stay-at-home” order. I would point out that inasmuch as this language is not in N-33-20, it could be changed as the COVID-19 pandemic evolves and the State reacts (it has already changed once since the release of N-33-20).
For instance, the State COVID website earlier said “Depending on the conditions in their area, local officials may enforce stricter public health orders. But they may not loosen the state’s order.” It now just says “This is a state-wide order.” This suggests the ongoing, internal debate whether more restrictive local requirements supersede the State’s order. This is important as some localities have set more stringent local standards than the State’s.
In addition to guidance from the State of California and the federal government, the Associated General Contractors Association of America and JD Supra also provided clarification on the construction industry's essential role during theCOVID-19 crisis.
Finally, employers have a general obligation, even if exempt from “stay-at-home” orders, to follow best practices to protect their employees and their families. The OSHA/DHS has developed a guidance for preparation of workplace, and the U.S. Chamber of Commerce has compiled resources for large and small business alike on effective ways to combat the coronavirus.
WECA also suggests members consider the following guidance. Contractors and jobsite safety personnel should take specific steps to increase hygiene on the jobsite, such as:
Social distancing is essential by having smaller construction crews and, if possible, staggering shifts.
- Adding sanitary facilities (toilet and hand washing stations with soap and hand sanitizer provided). Workers should both wash their hands with soap for twenty seconds and use hand sanitizer often. The CDC has guidelines on handwashing.
- Clean jobsites including disinfecting handrails, doorknobs, equipment and tools on a regular basis.
- Instead of having group safety meetings, and to keep the suggested social distance, hold smaller individual safety meetings at the jobsite maintaining social distancing guidelines.
- Keep separation of at least 6 feet on the job and always during rest and break periods and lunches; there should be no group gatherings and limit the number of persons in a single occupied space (such as elevators).
- Workers should bring a lunch from home and stay away from congested lunch trucks and coffee shops. Go directly from work to home and vice versa and minimize contact with the general public.
- Workers should wear and utilize all safety equipment available on the jobsite.
If these guidelines cannot be met or a project is in tight quarters, or in contact with the general public, consideration should be given to shutting the construction project down until safer conditions exist. Likewise, if you or your workers note other contractors are not following safe procedures, you will need to consider removing your crew.
Some reminders to share with your team:
You may also want to consider some policies or discussions about the theft or hoarding of construction job site bathroom, hygiene, and sanitation materials. These items are hard to find in retail shops, they are in short supply for the contractors, and must be used to keep the construction sites safe and clean.
- If you are sick, stay home and don’t show up to work.
- Don’t shake hands when greeting others.
- Stay six feet away from others.
- Avoid sick people.
- Avoid touching your eyes, nose, or mouth.
- Clean your hands often by washing them with soap and water for at least 20 seconds, this is the most effective way to kill germs; using a hand sanitizer that contains not less than 70% alcohol in the interim.
Something else for your consideration:
- If an employee is confirmed to have coronavirus or similar disease, the employer shall notify all employees who were believed to be in contact with this individual and take actions consistent with appropriate protocols to prevent the further spread of the disease.
- We have heard that Cal-OSHA has cautioned that any incidence of illness associated with COVID-19 and workplace exposure could be incorporated in the employers’ experience modification.
- Employers may want to ask their employment law attorney for language to incorporate in messaging with employees that showing up to work under the emergency order construction exemption is “voluntary” to reduce potential future claims that you forced employment during the COVID-19 pandemic.