COVID-19, however, still constrains aspects of highway contractors’ work, including obtaining respirator masks, recording worker illnesses, renewing driver licenses, and performing drug and alcohol testing. Fortunately, some agencies have provided guidance on how contractors should attempt to navigate these challenging times. Below is a round-up of some regulatory guidance that may help contractors to keep working.

OSHA

With N95 masks diverted to healthcare workers treating coronavirus patients, highway construction contractors are facing a shortage of these masks, which their workers need almost daily for respiratory protection against silica dust and other harmful airborne substances. What can a contractor do to keep work going and ensure their employees’ safety?

• On April 3, OSHA issued guidance titled “Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to the Coronavirus Disease 2019 (COVID-19) Pandemic.”
• Under this guidance, the same employee may reuse an N95 mask or use the mask on an extended basis, as long as the mask maintains “its structural and functional integrity,” and the filter material is not itself damaged or contaminated (oil, paint, etc.).
• Contractors should address circumstances for reuse or extended wearing versus disposal in their written Respiratory Protection Program.
• Expired N95 masks may be used if an employer has used good faith efforts to acquire respirators or alternative options but was unsuccessful in obtaining them.
• Workers should be notified that the masks are expired, and expired products should not be co-mingled with items that are unexpired.
• Any mask that fails an OSHA “seal check” should not be used.

A member of a crew or an employee has to self-quarantine because she is sick with COVID-19. Does this trigger a requirement to record the illness on an OSHA 300 log?

• OSHA provided guidance on April 10, titled “Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19).”
• COVID-19 must be recorded only if there is a) confirmed case; b) the case is work-related; and c) it results in a recordable event (death, medical treatment beyond first aid, missed days of work, etc.)
• OSHA explained that for contractors, OSHA would not enforce the recording requirements unless there is “objective evidence” that a COVID-19 case is work-related, and this evidence was “reasonably” available to the employer.
• This generally means that unless the contractor knows of evidence that the transmission happened on the jobsite, the contractor does not need to record the illness on the 300 log or complete a 301 report.

Commercial Driver Licenses

An employee has a Commercial Driver’s License (CDL) that is expiring, but the state office that renews the license is closed. Can this employee keep driving?

• The Federal Motor Carrier Safety Administration (FMCSA) issued guidance confirming that it will not take enforcement actions against the holder of a CDL that was valid as of February 29, 2020, but expired on or after March 1, 2020.
• Any person that falls into this category can continue to operate a commercial motor vehicle through June 30, 2020 without risk of enforcement for driving without a valid license.

Drug and Alcohol Testing

A contractor cannot find a lab to process drug and alcohol tests in a timely manner. Do projects that require randomized testing have to shut down? Do CDL holders that cannot be randomly tested have to stop driving?

• The FMCSA issued guidance acknowledging that many labs have shifted capacity to Coronavirus testing.
• If randomized testing cannot be achieved due to insufficient testing capacity, in order to acquire the target testing rate during a certain month or quarter, the tests should be made up later in the year.
• After an accident involving a CDL holder, if an alcohol test cannot be administered within eight hours of the test, or a controlled substance test within 32 hours of the accident, the contractor should document the reason for failure to give the test in writing with specific reasons, g., no facility available to take the test and the efforts made to locate one.

This is just a sampling of some of the regulatory changes and relaxations that have occurred due to the pandemic that may help highway and transportation projects stay on schedule. Even so, before proceeding out of compliance with regulations, it is always best to consult legal counsel to ensure that the specific circumstance faced fits within the exceptions.