Businesses in the Construction Industry are Permitted to Maintain In-Person Operations as of May 1, 2020

On April 23, 2020, Governor Wolf announced that on May 1, 2020, all business in the construction industry are permitted to maintain in-person operations. Governor Wolf issued a Guidance to assist companies as they return to work. The purpose of this blog is to inform companies in the construction industry of their duties and obligations as they return to work.

NOTE: The Guidance includes provisions for private and public construction. This blog focuses on the requirements of private companies only. Further, please note that entities not in the construction industry must adhere to the Governor’s March 19, 2020, Stay-At-Home Order.

Construction Companies Allowed to Maintain In-Person Operations

The Guidance specifies that “business in the construction industry” includes companies that are involved in: (1) new construction, (2) renovation, (3) repair, (4) land subdivision, and (5) design-related field activities.

Local Political Units Can Implement Stricter Requirements

Before discussing the terms of the Guidance, it must be noted that the Governor expressly states that, “local political units may elect to impose more stringent requirements than those contained in the Guidance.” This means that businesses must stay up to date with the restrictions set forth in the municipalities in which they conduct business.

Requirements Applicable to All Construction Activities

In addition to adhering to the April 15, 2020 Order issued by the Secretary of Health, details of which are outlined in my previous blog, employers in the construction industry MUST:

  • Follow applicable guidance from the Pennsylvania Department of Health and the Center for Disease Control.

  • Require Social Distancing among workers, unless the safety of the public or the workers require deviation. NOTE: Social Distancing means individuals maintain a minimum of 6 feet between others.

  • Provide hand wash stations on the site. These stations should be in “appropriate locations” (ie- building entrances, break areas, food truck areas, offices, trailers and job site egress areas.)

  • Implement cleaning or sanitizing protocols at all sites and on all projects. Employers must identify and regularly clean and disinfect areas that are a high risk for transmission. The Protocol must include provisions to clean common areas and regularly trafficked spaces periodically.

    • NOTE: Employers should prepare an individual Protocol for each job site and each project. The Protocol should be specific.

  • Ensure that all meetings are limited to no more than 10 people. At these gatherings, all individuals must maintain 6 feet between each other.

    • NOTE: This requirement applies to meetings that are conducted outside.

  • Limit tool sharing.

  • Sanitize tools if they must be shared.

  • Prohibit unnecessary visitors to the site.

  • Limit supplier deliveries.

  • Ensure that workers are traveling to and from the job site separately.

The following should be implemented by employers in the Construction Industry to the extent feasible:

  • Utilize virtual meetings and disseminate information electronically.

  • Stagger shifts

  • Stagger breaks

  • Stagger work area

  • Stagger stacking of trades

  • Limit access to enclosed spaces.

In addition to the above, companies must identify a “Pandemic Safety Officer” (“PSO”) for each work site or project. If it is a large-scale construction project, then each contractor on site must have a PSO. The PSO must, “convey, implement, and enforce the social distancing and other requirements of [the] guidance for the protection of employees, suppliers, and other personnel at the site.

Residential Construction Requirements

In addition to the requirements listed above, the Guidance includes specific requirements for projects in Residential Construction, which are projects on Residential Buildings. Such buildings are those as defined in the PA Uniform Construction Code which are, “detached one-family and two-family dwellings and townhouses which are not more than three stories above grade plane in height with a separate means of egress and their accessory structures.”

Projects on such buildings must require:

  • Such projects may not permit more than four people on the job site at any time.

    • This includes sub and prime contractors.

    • This does NOT include delivery people, code inspectors, or others who require temporary access to the site and are not directly engaged in the construction.

Non-Residential or Commercial Construction

For work on non-residential buildings (including multi-unit housing and student housing), companies must adhere to the following (in addition to the requirements listed in the section applying to All Construction Activities):

  • All enclosed projects or portions of projects that are enclosed and less than 2,000 square feet cannot have more than 4 people working. For each additional 500 square feet over 2,000, one additional individual is allowed.

    • NOTE: The number of employees is inclusive of both prime and sub contractors. This does not include delivery persons, code inspectors, or similar people who require temporary access to the site.

The Guidance directs commercial construction firms to “consider strongly” establishing a written safety plan. The Plan should include “specific details for the implementation of this guidance to be shred with all employees and implemented and enforced by the designated Pandemic Safety Officer.”

More Information & Resources

The Guidance further instructs businesses to abide by guidances from the Pennsylvania Department of Health, and the Center for Disease Control. Lastly, the Guidance suggests that companies refer to the Pennsylvania Department of Transportation’s Guidance for Restarting Construction Projects for insight and information.

It is also worth noting that employers should be cognizant of OSHA’s Guidance on Preparing Workplaces for COVID-19. Establishing a Return to Work Policy ensures that your company abiding by the General Duty Clause by providing a hazard free work environment.

Return to Work and COVID Policies

As companies return to work, it is essential that they assess the implications of the CARES Act and state orders and laws. It is strongly recommended that companies consult counsel regarding Return to Work Protocol and COVID-19 policies. Implementing daily protocol and policies and documenting same can be essential in defending against lawsuits and union campaigns.

Distribution of a COVID Policy sends a message to the employees that the business is taking steps to protect them. Such a policy ensures that your company is taking the proper steps to protect employees.

Susie Cirilli