Job Site Safety Regulations and COVID-19

As movement towards reopening gains momentum, despite the ongoing COVID-19 pandemic, state and local authorities are issuing various guidance to businesses.  In the construction industry, guidelines have typically been issued by county or city authorities.  On April 23, 2020, the City of San Diego published safety protocols for construction sites in relation to COVID-19.  Failure to follow the guidelines automatically results in a finding that the violator created an unsafe construction site condition and could result in the job site being shut down until the compliance is corrected.  Construction professionals doing work in San Diego should take warning.

The guidelines applicable to general contractors and trades are:

1. 1. Construction industry employers shall develop a comprehensive COVID-19 exposure control plan, which includes control measures such as social distancing, symptom checking, hygiene, decontamination procedures and training. The exposure control plan and all protocols in this notice must be followed to prevent any onsite worker or job site visitor from contracting COVID-19.
   2. Job site workers and visitors shall practice social distancing by maintaining minimum 6-foot separation between all individuals, including during work breaks, gatherings of any size and when picking up or delivering equipment or materials. At the site, trades will be staggered or work schedules altered as necessary to reduce density, minimize the number of trade teams and maintain minimum 6-foot separation social distancing.
   3. Prohibit gatherings or meetings of 10 or more people at any time on the job site, including during lunch and other breaks. Jobsite safety meetings should be held in smaller groups while maintaining required social distancing.
   4. Eliminate “choke points” and “high-risk areas” where workers are forced to stand together, such as hallways, hoists and elevators, break areas and buses, and control each to maintain required social distancing.
   5. Workers are not to share equipment or tools. If tool-sharing is required, each tool must be sanitized before and after each use. When cleaning or disinfecting areas or tools, do not use pressurized air or water spray to avoid generating bio‐aerosols.
   6. Allow workers to regularly and thoroughly wash hands with soap and water or use alcohol‐based hand sanitizers while on job sites at least every 30 minutes.
   7. Provide a clean and sanitary restroom with a handwashing station or hand sanitizer for employees and visitors, stocked with all necessary cleaning products like soap and sanitizer. Hand sanitizer should contain a minimum 60% ethanol or 70% isopropanol. Ensure jobsite toilets are regularly cleaned and/or sanitized. The recommended ratio of jobsite toilets to employees during the emergency declaration is 1:10 (to match size of groups allowable). If this is not feasible, jobsite toilets should be cleaned at a higher than standard frequency.
   8. Cease providing communal drinking water coolers, and ensure workers avoid sharing food or personal items. Contractors should provide bottled water.
   9. Discontinue carpool or ride‐sharing of workers before, during and after work.
   10. Maintain a daily attendance log of all workers and visitors, and manage site deliveries to limit direct contact between workers and minimize the overall headcount on the job site.

Tenant improvement work, of course, presents additional challenges because of the number of trades typically involved and the often tight workspaces.  For these projects, the City guidelines provide:

1. 1. At the site, trades will be staggered or work schedules altered as necessary to reduce density, minimize the number of trade teams and maintain minimum 6-foot separation social distancing.
   2. Limit building access for on site contractor to one door.
   3. Where possible, use construction designated pathway to enter job site that is not publicly accessible, such as service elevators in lieu of common elevators.

In terms of protective gear, the City requires that employers provide personal protective equipment (PPE) as appropriate for the activity being performed as follows:

1. 1. All job site workers and visitors shall wear face coverings over their noses and mouths while performing their work. Face coverings include fabric coverings, such as scarves and bandana coverings.
   2. All reusable face coverings must be frequently washed, at minimum once a day, for the health and safety of users and others. Single-use covers must be discarded appropriately into trash receptacles.
   3. Workers should use supplemental PPE, such as nitrile or latex gloves, when necessary.
   4. Workers shall not share PPE with coworkers unless they are cleaned and disinfected before and after use.

Additionally, the City guidelines require certain signage be posted at job-sites informing workers (in both Spanish and English) of the required hygienic practices such as hand-washing and covering one’s mouth and nose when sneezing.   The now standard stay-home-if-sick order is also part of the protocol.

Finally, the City also requires that a project owner or the contractor designate a specific person at each construction site tasked with ensuring compliance with the City’s guidelines.  The designee must be present on the construction site during construction activities.  However, the designee can also be a typical on-site supervisor such as a site foreman or project manager.

These types of guidelines are not limited to the City of San Diego or San Diego County.  Counties and municipalities throughout California are publishing similar guidelines for the construction projects underway in their jurisdictions.  For example, San Mateo County has issued separate protocols for small and large construction projects.  While many of San Mateo’s guidelines mirror those issued by the City of San Diego, San Mateo has imposed additional requirements for “large” construction projects.  For example, a large construction project must assign a COVID-19 Third-Party Jobsite Safety Accountability Supervisor (JSAS) for the jobsite, who at a minimum holds an OSHA-30 certificate and first-aid training within the past two years.  Similar guidelines have also been published by Santa Clara, Marin, San Francisco, and Los Angeles counties, among others.

As things currently stand, it appears these sorts of regulations and guidelines are going to remain in place for the foreseeable future.  It is worth checking into whether the local jurisdiction where your project is located has issued any such guidelines and then take steps to ensure your project is in compliance.  Additionally, given that such guidelines will likely remain in place for some time, it may be worth incorporating the written guidelines into the job-site safety manuals and bulletins already in place on projects.

Zachariah H. Rowland is a partner in the law firm of Dunn DeSantis Walt & Kendrick. He advises clients on all types of commercial litigation and construction matters in state and federal courts throughout California. He can be reached at zrowland@ddwklaw.com.

Dunn DeSantis Walt & Kendrick provides a broad spectrum of legal services to businesses of all sizes, from small, local start-ups and non-profits to large, national companies. DDWK’s real estate development and construction practice includes representing all segments of the development and construction industries on both private and public projects.

You can find additional information and resources related to helping business owners and their businesses through COVID-19 challenges on the DDWK website.