This post is co-written by Phyllis Karasov and Mike Schechter.
This post was updated on 6/29/20
In his recent Executive Order 20-74, Governor Walz ordered critical sector businesses to create and adopt a COVID-19 preparedness plan to make workplaces safe from the spread of the coronavirus, and his administration subsequently published guidance for specific industries that pose higher risks of transmission including construction. The guidance was initially published on June 15.
In consultation with Larkin Hoffman, AGC of Minnesota and Housing First Minnesota have been advocating for meaningful clarification and change in this guidance on behalf of the construction industry. They have been in communication with the governor and his staff to clarify and address problems in the guidance and have rallied other associations to the conversation. DLI updated its guidance on Thursday, June 25.
What the Guidance Says
The construction industry guidance is problematic—vague, over-reaching, potentially impossible to comply with, and possibly prescriptive.
The “Preparedness Plan Requirements Guidance – Construction” carries the “guidance” title but reads prescriptively, telling general contractors that they must:
- Develop and implement a written COVID-19 Preparedness Plan that addresses the COVID-19 protocols and practices set out in the guidance that are applicable to the general contractor’s overall responsibility for work activities at the worksite and the work activities of its workers at the worksite. General contractors must ensure their plan is posted and readily available at the worksite.
- Ensure all businesses that have workers performing work activities at the worksite, including employees, subcontractors and independent contractors, have a written COVID-19 Preparedness Plan that complies with the guidance.
- Ensure COVID-19 Preparedness Plan prepared by each business at the worksite can be effectively implemented at the worksite, address any worksite-specific hazards for transmission of COVID-19 and are in alignment with the general contractor’s and other business’s COVID-19 Preparedness Plans.
- Follow the guidance requirements for the component of the COVID-19 Preparedness Plan, “Ensure sick workers stay home,” and ensure all businesses at the worksite are immediately informed of the possible exposure of their workers to another worker who has COVID-19 symptoms or has tested positive for COVID-19 and are advised of actions they should take in response to that exposure.
- Ensure diligent investigations are conducted at the worksite to assess exposure, whether actual or potential, involving workers who are confirmed COVID-19 positive, or where the general contractor and/or business have reason to believe a worker may be COVID-19 positive, to ensure timely and appropriate action is taken to mitigate the potential spread of COVID-19 among other workers at the worksite or at other worksites where that worker is or was performing work.
The responsibilities for general contractors do not minimize, mitigate, or substitute for the obligations of every business at the worksite, including subcontractors and independent contractors, to develop and implement their own written COVID-19 Preparedness Plan and to take appropriate steps to address exposures to workers who have tested positive for COVID-19.
The guidance also refers to the guidance published by the Minnesota Department of Health, OSHA and the CDC regarding social distancing, worker hygiene, work site-building and ventilation, worksite cleaning and disinfection, drop-off, pick-up and delivery, communications and training, and other protections. There are specific protections for in-home services, such as requiring all occupants present within the residence to respond to a screening survey and verify no COVID-19 symptoms.
Problems with the Guidance
The guidance provides minimal information as to the specifics to be incorporated into the plan. This lack of detail creates further problems.
- The guidance gives conflicting directives as to whether a contractor should adopt one plan for office and field, consistent with past guidance, whether a plan must be crafted for each job site or whether all of the written plans prepared by the businesses that will engage in work at the worksite must be integrated into one plan. If the intent is to have one office and field plan, then contractors can improve their current practice and protocols with little additional disruption, risk and cost.
- If the guidance requires a plan per each job site, then the guidance is baffling.
- Crafting a detailed plan which covers probable and improbable site issues can expose a contractor to liability for minor lapses or the omission of an important protocol.
- Vertical plans may be inconsistent, either contradicting one another or providing details lacking in another document. On a large project, there could be dozens of plans that need to be reviewed and coordinated. A large company could be required to develop and implement hundreds of plans.
- The plans must be integrated with other safety plans.
- Companies likely will lack the experienced personnel to create, coordinate, review, train and post hundreds of site-specific plans.
The administration has revised the guidance twice, most recently on the Friday before it took effect, and was unable to provide state training before it took effect. As questions and practical problems multiply, the administration has cited no cause for the restrictive guidance or hope how anyone can comply with it in confidence.
Claims Arising from the Guidance
The vagaries of the guidance and the DLI’s failure to include other enforcing agencies or public owners makes it difficult to predict the ripples that will result from the guidance. The first significant question is whether the guidance requires field or site-specific Plans. Questions abound as to how the guidance will be enforced and the kinds of claims, including work stoppage orders, that can be made by DLI, labor unions, employees and third parties.
With the guidance effective on June 29, contractors should have already developed their Plans. The guidance requires that all workers must be properly trained on and adhere to the work site’s policies, protocols, and practices described in the guidance. This training applies to subcontractors, independent contractors, vendors, and delivery, part-time and seasonal personnel.
Contractors should consider using a committee of employees and management to develop their Plans. Employees who work on the project will have real-time information concerning the management of traffic flow, bottlenecks, how gatherings can be limited to 10 or fewer people, and how to stagger shifts and restroom/lunch breaks.
We recommend that construction contractors contact OSHA Consultation in writing with their concerns and questions to elevate the significance of the challenges these requirements pose. Please keep a copy of your correspondence and alert AGC so we have a record of the response rate. OSHA Workplace Safety Consultation can be reached at OSHSA.firstname.lastname@example.org. You can also contact Phyllis Karasov with questions or for assistance with the drafting of a Preparedness Plan.
A copy of the updated guidance is available at: https://www.dli.mn.gov/sites/default/files/pdf/COVID_19_preparedness_plan_requirements_guidelines_construction.pdf
About the Authors
Phyllis Karasov is chair of the Larkin Hoffman labor and employment law practice group and advises businesses on labor and employment matters. Her clients come from a variety of sectors, including construction, manufacturing, higher education, K-12 private education, nonprofit and healthcare. She provides counsel in all areas of human resources, including hiring, handbooks, regulatory compliance, discrimination, sexual harassment, discipline and termination, Americans with Disabilities Act, OSHA rules and the Family and Medical Leave Act. As a former National Labor Relations Board attorney, Phyllis is often called upon to represent clients in labor union matters including arbitrations, collective bargaining agreements and union contracts. Phyllis is also on the Board of Directors for the Associated General Contractors of Minnesota.
Mike Schechter, Associated General Contractors of Minnesota
Mike Schechter is the General Counsel and Director of Labor Relations for the Associated General Contractors of Minnesota. AGC serves the construction industry to improve construction conditions, create jobs, promote safety, and benefit the communities. It works with government, unions, community groups, and related businesses and associations. You can learn more about Mike at https://www.linkedin.com/in/mikeschechter.