And We’re Back! (Sort of): Regulatory Compliance for Resuming Construction Work in PA on May 1

Cohen Seglias Pallas Greenhall & Furman PC
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The construction industry can resume operations statewide starting May 1, 2020 under recent orders from Pennsylvania Governor Tom Wolf. The Governor’s decision brought relief and excitement to contractors eager to get back to work. It also brought up many questions. The initial order allowed for only “limited construction activity,” but did not define those limitations until follow-up guidelines were issued yesterday. Construction work must also comply with two prior orders from the Pennsylvania Secretary of Health about COVID-19-related safety measures for buildings and workplaces. Guidelines from OSHA and the CDC also apply to resumed construction work.
 

The dizzying array of orders and regulations may leave construction businesses wondering, “what do we need to do to get back to work?” In simple terms, construction companies should do what they always do: make your team’s safety top priority. But, to help contractors remain compliant, here is a review of the new regulatory landscape with attention to construction guidelines.

The Governor’s Order

The Governor’s guidelines for limited construction activity implemented protections meant to reduce the risk of coronavirus transmission. Some of these include:

  • Workforce Size – Residential projects may have up to four workers on-site at any one time. Commercial projects 2000 square feet and under may have up to four workers on site at once, but for every additional 500 square feet of project size, the maximum number of workers increases by one (e.g., 2500 sf. = 5 workers; 3000 sf. = 6 workers, etc.).
  • Pandemic Safety Officer (PSO) – Each site (or in some cases, each contractor) must have a PSO to communicate, monitor, and enforce all COVID-19-related guidelines.
  • Administrative Controls – Jobsite policies must require social distancing (where safe to do so), limit meetings to no more than ten people, stagger workforces, and use virtual communication where possible.
  • PPE – All workers should receive and use facemasks, and the jobsite must have handwashing stations at convenient locations.
  • Sanitizing – High-traffic areas must be cleaned and sanitized regularly.
  • Other Orders – Resumed construction work must also comply with prior orders from the Pennsylvania Secretary of Health (SOH) and must follow CDC and OSHA guidelines.

The PA SOH’s Orders

The SOH’s April 15, 2020 order outlined safety measures for life-sustaining businesses and businesses with a waiver from the business shutdown ordered March 19, 2020. An earlier SOH order also provided for building safety guidelines. All of those protections now apply to resumed construction work and mirror the Governor’s construction limitations. Under one provision, a business, such as a contractor, that learns it has been exposed to an infected person (known or probable), must follow prescribed decontamination and monitoring provisions. Like all operating businesses, construction companies must also provide facemasks to all employees and require employees to use them. Additionally, contractors must also routinely clean and disinfect all “high-touch” areas.

CDC

The CDC outlined dozens of workplace practices meant to reduce coronavirus transmission. Many of those are reflected in the Governor’s and SOH’s above orders. Additionally, the CDC references and incorporates OSHA guidelines regarding workplace safety measures in response to COVID-19.

OSHA Guidelines

OSHA’s multiple COVID-19 guidelines all have portions that apply to construction work. The “COVID-19 Guidance for the Construction Workforce,” contains recommendations similar to the limitations associated with the Governor’s order. A more comprehensive publication, “Guidance on Preparing Workplaces for COVID-19” advises preparing an infectious disease plan, implementing infection prevention measures, and developing policies for employee illness and leave time. It also directs employers to use engineering, administrative, and PPE controls to address COVID-19 infection risks. Nevertheless, OSHA’s recent “Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19)” notes that inspection efforts regarding COVID-19 complaints will concentrate on high-risk workplaces, and OSHA will use non-formal investigation procedures for low-risk environments, like construction sites. Further, OSHA has announced policies that relax enforcing certain respirator regulations and require reporting COVID-19 cases for only known workplace transmission. OSHA will also credit good faith efforts to comply with standards relating to training, audit, assessment, inspection, or testing where the pandemic makes full compliance impossible. In short, OSHA recognizes the complications COVID-19 has created and is adjusting certain regulations to best promote workplace safety.

Takeaways

Based on these applicable regulations and guidelines, the next steps in preparing for the return to work should include:

  • Thoroughly reviewing all orders and guidelines from the Governor, the SOH, OSHA, and the CDC
  • Developing company-specific written plans and policies that implement all applicable measures in the orders and guidelines
  • Obtaining all necessary PPE, handwashing stations, and cleaners and sanitizers
  • Designating a PSO for all projects
  • Preparing project schedules that facilitate staggered and socially distant workforces

Finally, contractors need to bring COVID-19 compliance questions to their safety consultants and counsel early and often to get ahead of possible complications and problems. Cohen Seglias attorneys are prepared to advise on all of these issues, so please contact us with any concerns.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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