While many states, counties, and municipalities have encouraged and recommended compliance with CDC guidelines for preventing the spread of COVID-19, more and more states are making compliance with such guidelines an explicit requirement to continuing in-person operations for “essential” businesses, including construction. Recent examples of making these guidelines explicit requirements include orders from Maryland, New Jersey, and Pennsylvania. In Maryland, the governor’s order also provided for new enforcement mechanisms and threatened partial or total shutdown of construction sites that do not comply.
Maryland
On April 5, 2020, Governor Larry Hogan of Maryland issued an executive order authorizing state health officials to enforce state social distancing guidance upon entities including construction sites. The order allows state health officials to require construction sites to modify operations or to close them partially or entirely.
Construction sites are expected to comply with social distancing guidance, defined in the order as all applicable social distancing guidance published by the U.S. Centers for Disease Control and Prevention (CDC) or the Maryland Department of Health. The CDC recommends staying six feet from other people, not gathering in groups, and staying away from crowded places. The Maryland Department of Health recommends avoiding close contact like handshaking, avoiding non-essential travel, and avoiding crowds, especially in poorly ventilated spaces. Both the CDC and some counties in Maryland have also recommended or required mask use.
As of April 14, 2020, there are no reports of state health officials in Maryland enforcing operation modifications or closures under this order. Some construction sites have temporarily closed because workers tested positive for COVID-19, but these closures were voluntary to allow for deep cleaning per CDC guidelines and give workers time to complete a 14-day quarantine.
New Jersey
As discussed in our April 10, 2020, Alert, New Jersey has added additional requirements on construction project sites. On April 8, 2020, Governor Phil Murphy of New Jersey issued an executive order closing non-essential construction projects and imposing additional requirements upon essential projects. The order requires construction projects that are permitted to continue to comply with CDC safety guidelines, such as staying six feet from other people, not gathering in groups, and staying away from crowded places.
The order further seeks to minimize unnecessary contact between individuals to the extent safely possible. It does so by limiting gatherings and persons permitted on the project site. The executive order also requires changes to project site logistics to ensure that employees are not entering/exiting the project site at the same time or concurrently utilizing common areas. Finally, the executive order imposes requirements on employers to provide employees with cloth masks and gloves and to frequently sanitize the work site.
The executive order mandates that all construction projects permitted to remain open adapt the following practices:
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Prohibit non-essential visitors from entering the project site;
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Limit worksite meetings and workgroups to less than 10 individuals;
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Require individuals to be at least six feet apart when possible;
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Stagger work start/stop times to limit individuals from entering and leaving the job site at the same time;
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Stagger breaks and work times to safely continue work on the project with minimum amount of employees;
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Restrict individuals from accessing common areas at the same time;
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Require workers to wear cloth masks and gloves when safely possible, provided at the employer’s expense;
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Require regular handwashing, coughing/sneezing etiquette, and tissue disposal;
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Limit tool sharing, equipment, and machinery; and
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Provide hand sanitizer and wipes and also frequently sanitize high-touch areas.
The order does not include new enforcement powers.
Pennsylvania
On April 15, 2020, Governor Tom Wolf of Pennsylvania issued an executive order requiring businesses authorized to maintain in-person operations to comply with CDC guidance for cleaning, employee quarantine, and mask-wearing. The order also requires compliance with other guidelines including staggering work start and stop times, providing sufficient space for employees to maintain a social distance of six feet, and scheduling handwashing breaks for employees.
The order does not include new enforcement powers and appears to be geared toward businesses that serve an in-person customer base. However, the requirement that operating businesses comply with CDC guidelines applies to any and all construction sites that are allowed to continue operations, even if they have been granted exemptions to Pennsylvania’s earlier orders shutting down most construction.
These new orders are examples of the evolving response to the COVID-19 pandemic and its effects on the construction industry. For strategies on responding to and documenting impacts from these government actions and COVID-19 in general, please refer to our previous client alert, COVID-19 Strategies for the Construction Industry. Additionally, follow Cozen O’Connor’s COVID-19 website for new updates.