In an attempt to control the spread of COVID-19 in Ohio, the Director of the Ohio Department of Health issued a Stay at Home Order (the “Order”) that became effective at 11:59 p.m. on March 23, 2020 and remains in effect through April 6, 2020. Among other things, the Order requires non-essential businesses to close and individuals stay inside their homes unless they are engaged in specific activities, which include going to work at essential businesses that are exempt from the order.
The Order contains language that authorizes most construction operations to continue in Ohio because such operations are “Essential Businesses and Operations.” The Order also authorizes tradesmen and other individuals to leave their homes for purposes of performing construction operations. Significantly, the Order contains numerous safety protocols that still must be followed
by all businesses, including those engaged in “Essential Businesses and Operations” like construction operations. In addition, there are other measures that businesses engaged in construction operations should consider taking to protect their employees, the public and their businesses.
Does the Order require construction businesses to cease operations?
Section 9 of the Order provides an exemption for “Essential Infrastructure,” which states that “individuals may leave their residence to provide any services or perform any work necessary to offer, provision, operate, maintain and repair Essential Infrastructure.” Under that provision, businesses
engaged in general construction, construction required in response to this public health emergency, hospital construction, construction of long-term care facilities, public works construction, school construction and housing construction are exempt from the Order.
Section 12 of the Order provides an additional exemption for “Essential Businesses and Operations.” Essential Businesses and Operations include “Healthcare and Public Health Operations,” “Human Services Operations,” “Essential Governmental Functions,” “Essential Infrastructure” (each as defined in the Order), and a myriad of other industries, including tradesmen and tradeswomen such as plumbers, electricians, operating engineers, HVAC contractors and painters.
If these exemptions seem broad, that is because they are. In fact, as to the Essential Infrastructure exemption, the Order explicitly states that the exemption should “be construed broadly.”
The Order does not provide for a qualification or certification process for businesses that fall within the “Essential Businesses and Operations” definition generally, or the “Essential Infrastructure” definition specifically. In response to questions from businesses that are unsure of their status, Lt. Governor Jon Husted has repeatedly directed businesses to the “plain language” of the Order and admonished businesses to close if they do not fall within the definitions. If a business wants to stay
open, he stressed that there is no certification process to operate under an exemption to the Order, and instead recommended that businesses prepare a written rationale as to why they stayed open so that they can demonstrate their attempts to comply with the Order upon request.
Are construction businesses required to comply with any workplace safety protocols?
Yes. Sections 15 and 18 of the Order specify a number of workplace safety protocols that must be followed by every business in Ohio (including “Essential Businesses” that are exempt from the shutdown provisions in the Order). Without limitation, those sections of the Order require that
businesses comply with the following:
- Actively encourage sick employees to stay home until they are free of fever (without the use of medication) for at least 72 hours (three full days) AND symptoms have improved for at least 72 hours AND at least seven days have passed since symptoms first began. Do not require a healthcare provider’s note to validate the illness or return to work of an employee who is sick – healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.
- Ensure that your sick leave policies are up to date, flexible and non-punitive to allow sick employees to stay home to care for themselves, children or other family members. Consider encouraging your employees to do a self-assessment each day to check if they have any COVID-19 symptoms (fever, cough, or shortness of
- Separate employees who appear to have acute respiratory illness symptoms from other employees and send them home immediately. Restrict their access to your business until they have recovered.
- Reinforce key messages – stay home when sick, use cough and sneeze etiquette, and practice hand hygiene – to all employees, and place posters in areas where they are most likely to be seen.
- Provide protection supplies such as soap and water, hand sanitizer, tissues and no-touch disposal receptacles for use by employees.
- Frequently perform enhanced environmental cleaning of commonly touched surfaces, such as workstations, countertops, railings, door handles and doorknobs. Use the cleaning agents that are usually used in these areas and follow
the directions on the label. Provide disposable wipes so that commonly used surfaces can be wiped down by employees before each use.
- Be prepared to change business practices if needed to maintain critical operations (e.g., identify alternative suppliers, prioritize customers or temporarily suspend some of your operations).
In addition, there are a number of other measures that businesses engaged in construction operations should consider taking to protect the safety of their employees and the public, including the following:
- Require and practice social distancing whenever possible.
- When possible, limit the size of groups of people who are working together to 10 people or less.
- Limit the number of people at the project site to those people who are essential to performing the necessary or required tasks for that day.
- Provide antibacterial soap, hand sanitizer, wipes, other cleaning agents, and the facilities and equipment to utilize them.
- Prohibit workers from sharing food or beverages at the project site and do not facilitate the sharing of food or beverages by providing community coolers or permitting food delivery services to the project site.
- Provide personal protective equipment (such as
masks, gloves, and eye and face protection) and require that any personal protective equipment that is provided is frequently cleaned and sanitized.
- Discourage the sharing of tools and equipment when possible and require the frequent cleaning and sanitizing of tools and equipment that are used.
- To the extent possible, frequently clean and disinfect work areas, including the hard surfaces, other surfaces, materials, and equipment located in the work areas.
- Eliminate, or at least limit as much as possible, in-person meetings. Consider conducting “job site meetings” and other meetings by telephone or videoconference. If an in-person meeting must be held, attempt to limit the number of attendees to less than 10 people and practice social distancing at the meeting.
The Ohio Facilities Construction Commission is requiring the application of extra safety protocols on public construction projects being administered by the OFCC. The specific extra safety protocols that the OFCC is requiring are set forth in an Enhanced Safety Protocol Notification issued by the OFCC.
Should construction businesses take any additional measures to protect their businesses in the event that restrictions are tightened through additional state or federal regulations?
Yes. As COVID-19 continues to spread throughout the U.S., its impact on every industry, including construction, will continue to evolve. While many construction projects in Ohio may proceed relatively unhindered for now, other states and cities have resorted to more extreme measures. For example, the Pennsylvania Department of Transportation recently suspended all construction projects, and the
City of Boston recently ordered the cessation of all construction work.
In addition to the potential future shutdown of construction projects in Ohio, other developments could come into play, including the disruption of supply chains, employees becoming ill or being quarantined, and the impact of rapidly changing economic and financing conditions.
Given those uncertainties, below are some actions that construction businesses should consider taking:
Review construction contracts: Whether it’s a standard form construction contract (such as those published by the American Institute of Architects) or an independently developed contract, it should be reviewed in light of the current uncertainty surrounding COVID-19. Provisions that address project changes, force majeure, delays, and suspension of work should be carefully reviewed to determine if your company’s rights or responsibilities are impacted by COVID-19.
Document impacts: As COVID-19 continues to affect everyday life and business, construction businesses should maintain up-to-date documentation on the effects of this crisis on their projects. Proper documentation and timely notification of issues, even if not explicitly required by a governing contract, may provide a framework to rely upon later when the related impacts are ultimately determined.
Review insurance policies and bonds: Whether an insurance policy or bond covers any COVID-19 related effects depends on its specific language. You (or your legal counsel) should carefully review each such document for potential coverage. By way of example, you should review your business interruption insurance coverage, which may offer protection in the event of a government-mandated shutdown.
Take inventory of your projects: There are many factors to consider when evaluating whether a project should be maintained, suspended or cancelled. Construction businesses should consider, among other things, the size of the project, the number of workers required onsite in order to maintain the project’s schedule, and potential exposure/liability relating to the suspension or cancellation of the project.
In conclusion, COVID-19 has created many unknowns and uncertainties for construction businesses, which should be navigated proactively but cautiously.
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