New York’s Multi-Faceted Approach to Reopening “Non-Essential” Construction

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COVID-19’s impact in New York has been particularly region-specific. To address the disparity, Governor Cuomo created a four-phase reopening plan to be implemented where geographic regions meet their required “health metrics”.

Each phase correlates with a group of industries in which their non-essential businesses may permit the return of their in-person workforce – under certain conditions – in qualifying regions. (As of the date of this publication, the regions that have qualified based on their health metrics are the Capital Region, Central New York, Finger Lakes, Mohawk Valley, North Country, Southern Tier and Western New York.) Construction is one of the industries comprising “Phase One.”

Construction companies within an eligible region may reopen so long as they satisfy the specific construction industry health and safety guidelines in four categories: physical distancing, protective equipment, cleaning and hygiene, and communication. The guidelines outline the mandatory requirements and provide additional recommended “best practices,” as follows:

Physical Distancing – Physical distancing requires six feet between personnel (unless safety or core function of the work activity requires a shorter distance); face masks; indoor work limited to 1 worker per 250 sq. feet; tightly confined spaces such as elevators, limited to 1 person; limited in-person gatherings; and minimizing contact. The guidelines stated best practices also include adjusting workplace hours, staggering arrival and departure times, creating A/B teams, reducing bi-directional foot traffic by posting signs, have employees work from home whenever possible and prohibit visitors from the site.

Protective Equipment – Employers must provide face coverings at no cost which must be cleaned or replaced after use or when damaged, minimize sharing equipment including tools, machinery, materials and vehicles, and employees should wear gloves or sanitize or wash hands before and after contact with shared surfaces.

Cleaning and Hygiene – Employers must adhere to the hygiene and sanitation requirements from the Centers for Disease Control and Prevention (CDC) and Department of Health (DOH) and maintain cleaning logs on site that document the date, time and scope of cleaning. Employers must provide and maintain hand hygiene stations for personnel, encourage use of cleaning and disinfecting supplies and conduct regular cleaning and disinfection of shared objects and high use areas such as restrooms and common areas.  Cleaning and disinfecting of the site, shared surfaces and other areas including equipment and tools must be performed using Department of Environmental Conservation (DEC) products identified by the Environmental Protection Agency (EPA) as effective against COVID-19. The guidelines stated best practices further include increased ventilation of outdoor air while maintaining safety precautions and encouraging employees to bring lunch from home and allow for adequate space for employees to allow social distancing while eating meals.

Communication – The employer must post signage throughout the site to remind personnel to adhere to the safety guidelines above, train all personnel on the new protocols, maintain a continuous log of every person, including workers and visitors, who may have close contact with other individuals at the work site or area. If a worker tests positive for COVID-19, the employer must immediately notify state and local health departments and cooperate with contact tracing efforts, including notification of potential contacts, who had close contact with workers or visitors, while maintaining confidentiality required by state and federal law and regulations.

Additional details regarding the mandatory construction guidelines and the guidelines’ recommended best practices for employers and employees and the may be found in the New York State “Reopening New York Construction Guidelines for Employers and Employees.”

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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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