While state governments have ordered that several types of businesses must shut down as a result of the COVID-19 pandemic, parties in the construction industry have, in most states, been permitted to proceed with business operations. That remains the case in both Ohio and Kentucky where the construction industry has continued to operate during the pandemic. Kentucky has created a carve-out, designating construction necessary for sustaining “the safety, sanitation and operation of structures” as an essential, life-sustaining business. Although Governor Beshear’s Order does not expressly state that all construction companies are essential, life-sustaining businesses, his subsequent statements and press releases indicate that they are.
Ohio has a similar “safety, sanitation and operation” carve-out for the construction industry but, like Kentucky, it appears all types of construction are being considered essential businesses.
Although construction companies have been given the green light to stay open, contractors and like parties should still take the necessary precautions to minimize the risks of spreading COVID-19. This would include the implementation of safety measures that prevent employee exposure by promoting, to the maximum extent feasible, social distancing and proper hygiene. Kentucky has offered the following social distancing and hygiene mandates for businesses that are permitted to stay open:
- Ensure physical separation of employees and customers by at least six feet when possible;
- Ensure employees practice appropriate hygiene measures, including regular, thorough handwashing or access to hand sanitizer;
- Regularly clean and disinfect frequently touched objects and surfaces;
- Permit employees to work from home when feasible;
- Monitor temperatures of your employees each day before work or have employees take their temperature prior to reporting for work;
- Have employees wear gloves and masks, if feasible; and
- Identify any sick employees and ask them to leave the premises.
Ohio has issued similar social distancing and hygiene requirements. Importantly, failure to abide by these requirements could result in a business being subjected to closure or additional penalties permitted under state law.
In the construction industry, some of the above requirements are much more attainable than others. For example, it is obviously impossible for certain employees to work from home when a construction project is involved. But a contractor can set up handwashing stations and take other steps to ensure proper hygiene. Appropriate measures for contractors and other construction businesses could include: (1) increasing the frequency with which you sanitize tools and equipment, especially shared tools; (2) bringing in separate handwashing stations for various crews and requiring through handwashing (at least 20 seconds) before entering and exiting the jobsite; and (3) splitting up crews into smaller groups (if possible) to promote social distancing. It could also be useful to retain a cleaning specialist to sanitize areas with a high volume of traffic or where exposure risks are particularly high.
Construction companies should also pay close attention to OSHA standards during the pandemic. OSHA requires employers to assess hazards to which their workers may be exposed. In doing so, contractors and other employers should consider whether their workers may encounter someone infected in the course of their duties and whether they may be exposed to a worksite or materials contaminated with COVID-19. Accordingly, it is good practice for contractors (and all employers) to adopt infection control strategies to minimize these risks of exposure. Employing some of the strategies previously identified, such as implementing handwashing stations and sanitizing tools more frequently, may significantly lower the likelihood of workers encountering and being infected by COVID-19.
It is equally important for contractors to train workers regarding potential sources of exposure, hazards associated with exposure, and other relevant workplace protocols. OSHA has developed the following general guidelines to prevent the spread of COVID-19, regardless of exposure risks, which should be discussed with employees:
- Frequently wash your hands with soap and water for at least 20 seconds. When soap and running water are unavailable, use an alcohol-based hand rub with at least 60% alcohol. Always wash hands that are visibly soiled.
- Avoid touching your eyes, nose, or mouth with unwashed hands.
- Avoid close contact with people who are sick.
Employees should be made aware of workplace protocols and these general guidelines in an effort to prevent the spread of COVID-19. A well-informed workforce is a valuable tool in decreasing the risks of infection.
Contractors can also take additional steps to ensure that potentially infected employees do not spread COVID-19 among their crews or at a jobsite. For example, the EEOC has clarified that employers are permitted to check the temperatures of their employees. They can also ask employees if they are experiencing COVID-19 symptoms such as a fever, chills, a cough, shortness of breath, or a sore throat. And, if an employee has COVID-19 symptoms, they can require him or her to leave the workplace. Importantly, any contractor or employer who makes any of these inquiries into an employee’s illness must maintain the confidentiality of this information. An employee’s COVID-19 status, regardless of whether it is positive or negative, cannot be disclosed to other persons without permission of the employee. However, employers should, without disclosing the identity of the individual, notify their employees if someone has tested positive and they were potentially exposed.
Finally, it cannot be left unstated that, as has already been seen, the landscape of COVID-19 is ever-changing. Contractors should therefore stay up to date on the latest developments to ensure that they are following all practices, policies, and procedures required by governmental authorities. This will also increase the likelihood that they are doing everything in their power to minimize the risks of employee infection.
COVID-19 poses a major threat to not only the workforce, but society as a whole. The construction industry is not exempt. By considering and implementing some of the above strategies and protocols, a contractor may be able to limit the spread of the virus among its crews and at its worksites.
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