By James L. CurtisBrent I. ClarkMark A. Lies, II, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: The Occupational Safety and Health Administration (OSHA) has issued an alert listing safety tips (guidance) employers can follow to help protect construction workers from exposure to the coronavirus.

Measures that can help protect employees working in construction include:

  • Encouraging workers to stay home if they are sick;
  • Allowing workers to wear masks over their nose and mouth to prevent them from spreading the virus;
  • Continue to use other normal control measures, including personal protective equipment (PPE), necessary to protect workers from other job hazards associated with construction activities;
  • Advising workers to avoid physical contact with others and directing employees/contractors/visitors to increase personal space to at least six feet, where possible. Where work trailers are used, all workers should maintain social distancing while inside the trailers;
  • Training workers how to properly put on, use/wear, and take off protective clothing and equipment;
  • Encouraging respiratory etiquette, including covering coughs and sneezes;
  • Promoting personal hygiene. If workers do not have immediate access to soap and water for handwashing, provide alcohol-based hand rubs containing at least 60 percent alcohol;
  • Using Environmental Protection Agency-approved cleaning chemicals from List N or that have label claims against the coronavirus;
  • To the extent tools or equipment must be shared, providing and instructing workers to use alcohol based wipes to clean tools before and after use. When cleaning tools and equipment, workers should consult manufacturer recommendations for proper cleaning techniques and restrictions;
  • Keeping in-person meetings (including toolbox talks and safety meetings) as short as possible, limiting the number of workers in attendance, and use social distancing practices;
  • Cleaning and disinfecting portable jobsite toilets regularly. Hand sanitizer dispensers should be filled regularly. Frequently-touched items (i.e., door pulls and toilet seats) should be disinfected;
  • Using Environmental Protection Agency-approved cleaning chemicals from List Nor that have label claims against the coronavirus; and
  • Encouraging workers to report any safety and health concerns.

OSHA routinely applies its Multi-Employer Worksite Doctrine to construction sites, inspecting and issuing citations to many indirect employers following a discrete accident or observed violation. A general contractor could be cited for a subcontractor’s failure to comply with the OSH Act’s General Duty Clause and abide by CDC and OSHA guidance for protecting employees from COVID-19. Accordingly, employers would be wise to review OSHA’s construction COVID-19 guidance and to ensure that other parties at a worksite do the same.

Considering OSHA’s aggressive enforcement of construction training regulations against many types of employers, it is somewhat surprising that OSHA would encourage employers to keep safety meetings and training as short as possible. This recommendation is obviously driven by current pandemic and outbreak conditions.

Also, OSHA’s guidance acknowledges that the six foot social distancing is not an absolute that must be observed at all times, but rather is to be followed “where possible.” Six foot social distancing is not always required or appropriate and if work processes cannot be modified to permit six foot distancing, employers should develop clear procedures outlining the precautions and conditions that must be followed to minimize risk.

In addition, the manufacturing industry Guidance encouraged employers not to share tools and equipment, but the construction guidance acknowledges that tools will be shared and must be cleaned consistent with manufacturer’s recommendations. We question whether it would be practical for employers to find and review manufacturer’s recommendations for sanitizing the many tools at the construction workplace.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.