OSHA’s General Duty Clause requires an employer to provide a workplace free from recognized hazards that are likely to cause death or serious physical harm. In the current pandemic, COVID-19 qualifies and contractors should draft a COVID-19 policy for their worksites implementing the latest guidance in order to minimize the hazard and protect employees.
In addition to OSHA’s COVID-19 standards, on April 21, 2020, OSHA published a list of tips that can help reduce the risk of exposure to COVID-19 in the construction industry. Some of those tips include:
- Allowing workers to wear masks over their noses and mouths to prevent them from spreading the virus.
- Training workers on how to properly wear and use protective clothing and equipment.
- Keeping in-person meetings (including toolbox talks and safety meetings) as short as possible and limiting the number of workers in attendance.
- Encouraging workers to stay home if they are sick.
- Maintaining physical distance (at least six feet when possible) on the job site and inside work trailers.
- Encouraging frequent handwashing or sanitizing.
Drafting a COVID-19 Policy
In drafting a COVID-19 policy, you should review recent OSHA and CDC COVID-19 guidelines. For example, OSHA has published “Guidance on Preparing Workplaces for COVID-19,” which includes recommendations as well as descriptions of mandatory safety and health standards in the workplace. This is a great starting point in understanding what you should do with respect to health and safety in the workplace. For example, you might want to consider addressing the following topics in your COVID-19 policy: (1) policies and procedures for prompt identification and isolation of sick people (for instance, daily screenings (questionnaire and temperature checks) of employees before they enter the job site); (2) development, implementation, and communication about workplace flexibilities and protections; and (3) implementing workplace controls (such as, personal protective equipment, safe work practices such as physical distancing and alternative practices when physical distancing is not possible, limiting in-person meetings, and encouraging sick people to stay at home, etc.).
In tandem with the creation of a COVID-19 policy, and verification of any applicable state OSHA plans, you also need to effectively administer the job site to minimize the hazard. Administering the job site includes utilizing the workplace controls and protections identified in your COVID-19 policy in order to protect your employees while still allowing them to do their job efficiently at the job site. This may include daily screenings, such as temperature checks and basic screening questions related to potential COVID-19 symptoms before employees and visitors enter the job site, staggering trades, ensuring that physical distancing measures are followed, providing appropriate masks and gloves, and designating a person who will enforce those requirements on the job site. Additionally, when certain activities do not allow a six-foot distance between workers, you may want to require those workers to wear personal protective equipment (including appropriate masks, face shields, and gloves). You may also want to consider whether you can stagger schedules in addition or as an alternative, or add physical barriers between employees in order to avoid close contact if reasonable.
If you are a general contractor, you should draft your own COVID-19 policy; however, you should also require your subcontractors to draft their own COVID-19 policies and submit them to you prior to allowing them continued access to the jobsite where reasonable. It is critical that the general contractor and subcontractor regularly communicate and explain their policies to all of their employees, and the general contractor may consider posting applicable signage at the entrance and facilities stations on the project, and other reasonable locations to reinforce project compliance and protection. As appropriate for the project, you may want to ensure that your subcontractors designate their own employees on the job site to enforce the requirements and certify in writing each day that employees on the site have correctly answered all the screening questions and were actually screened.
Although the guidance, laws, and obligations related to COVID-19 seem to change and evolve on a daily basis, your responsibility to keep your employees safe and ensure that the job site is safe does not change. As with all other OSHA and project safety requirements, good planning, implementation, and reinforcement of the expectations will better achieve both safety and compliance goals, and allow ready answers by contractors when the project sites are inspected by governmental agencies.
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