By Keenan Ordon-Bakalian, Attorney
This article was originally published in the April 24, 2020 edition of the Daily Journal of Commerce Oregon.
On March 23, 2020, Governor Kate Brown issued Executive Order 20-12 “Stay Home, Save Lives” (EO 20-12), effective immediately until further notice.
The coronavirus outbreak and the Governor’s order have had an extremely disparate impact on businesses and employees across the state. For the many Oregonians who do not work in high-tech offices, working from home is not logistically possible. Indeed, a person’s ability to work from home is highly dependent on the line of work they are in. Although some workers have the capability to work from home for the duration of the Governor’s order, by nature, the construction industry requires workers to be on the jobsite. According to the Bureau of Labor Statistics, only 16% of construction workers do some or all of their work from home. EO 20-12 has left the construction industry facing the questions of how to operate under the order, and when the industry can resume normal operations.
Here’s some clarity for your business. Oregon did not issue an essential business list. Instead, the state has provided a list of businesses that must stop operating because the nature of these businesses make it impossible to adhere to social distancing protocol. EO 20-12 did not list construction as a “non-essential business” which means the Oregon construction industry can continue operations as currently scheduled and underway.
For your business to comply with EO 20-12, workers must adhere to social distancing requirements. These include remaining six feet apart and designating a social distancing officer (SDO) to establish, implement, and enforce social distancing policies. The designated SDOs must be on the jobsite at all times, and must also enforce social distancing policies as they relate to essential visitors. Work in offices is prohibited whenever telework and work-at-home options are available. Businesses are encouraged to require as many employees as possible to work from their homes. If your business has remote-work technology, it must be utilized to the greatest extent possible for those employees able to work from home.
Several recommendations for working safely on the jobsite—beyond the designation of SDOs—include staggering work schedules to lower the total number of employees on the site at any given time, requiring the use of personal protective equipment (PPE) on the jobsite, safety vests with social distance reminders, safety stand downs designed to make sure every employee knows and follows new coronavirus safety guidelines, frequent cleaning and disinfecting high-touch surfaces around the jobsite, adding additional hand sanitizing stations, pre-screening all employees and visitors to the job site, and ensuring any employee feeling sick remains home.
With social distancing measures in place, most work will be allowed to continue. However, some tasks and trades may have to wait. There are aspects of physical construction that are impossible to complete while maintaining the six-foot buffer required by EO 20-12. Tasks and trades that rely on two-person or more squads to lift or install heavy items, such as glass paneling, will run afoul of the Order’s social distancing mandates.
As to whether tasks that will violate the six-foot rule can continue, a great deal of uncertainty remains. Governor Brown has acknowledged that “the six feet of distancing, telecommuting, that probably doesn’t work on a construction site. . . . But they also have equipment, from masks and helmets, that should provide a layer of protective gear.” Importantly, several guidance documents released by Oregon OSHA have urged contractors to maintain a social distance of six feet where possible. Due to the lack of clarity being provided by the State’s messaging, businesses should evaluate their individual situations and projects, and enact best practices designed to protect the health and safety of their workers.
Contractors should continually evaluate the specific hazards at their job sites along with the Centers for Disease Control and Prevention (CDC) and Oregon OSHA/Public Health Authority recommendations to determine the most appropriate job hazard analysis for the project or task as it relates to the spread and/or transmission of COVID-19. Businesses should develop job hazard analyses (JHAs) related to each activity for each trade “when social distancing is not an option” because the task or activities require two or more workers to perform the work.
Although the coronavirus pandemic has dramatically changed the way we work, few industries are as well suited to protecting workers as the construction industry. Contractors are accustomed to following complex and ever-changing safety rules and finding ways to make inherently dangerous work safer. Working safe in the midst of the coronavirus pandemic will require the industry to adopt the best practices detailed above and develop creative solutions to keep key projects on track and on time. Companies with digital infrastructure can remain busy even as physical construction has slowed. Design and pre-construction can continue, as well as developing more robust processes for efficiency and safety. Contractors should review their contracts regarding any notice and documentation requirements for claims for additional time and costs.
Many industry groups, including the Oregon Home Builders Association and Associated General Contractors’ Oregon-Columbia chapter have produced job safety resources available on their websites to assist in keeping members of the construction industry and the community safe.
Keenan Ordon-Bakalian is an attorney in the Jordan Ramis PC land use and development practice group. Contact him at Keenan.firstname.lastname@example.org.
Thank you for your interest in this article. The information contained in this article is for the general interest of the reader and should not be regarded as legal advice. If you have questions, or to obtain more information on this topic, please contact an attorney in our land use and zoning practice group.