With stay-at-home orders in effect in various cities and counties throughout Texas, what are reasonable precautions to keep workers safe from a coronavirus infection or to reduce the spread of the virus?  

Although Governor Abbott clarified in Executive Order GA 14 that construction is an Essential Service in Texas and, therefore, exempt from stay-at-home orders, he did not set out a uniform set of requirements or recommendations for jobsite safety to reduce transmission of the novel coronavirus. To determine whether requirements exist and, if so, what they are for a specific project, the stay-at-home orders in effect in the county and city in which the project is located must be examined.  

The starting point is finding the applicable county and city level orders. Unfortunately, not every county’s or city’s website stores the orders in the same location and not every website is updated frequently enough to post the most current orders.  Our firm has created a database of stay-at-home orders that Texas counties and cities have issued, available at www.gstexlaw.com/covid-19 resources.  The summary of orders, also available through that link, contains a brief description of the requirements imposed by the orders.     

Some counties, such as Dallas County, and large cities, such as Austin, have amended their orders or issued supplemental guidance to specify employer requirements for construction. The requirements include things such as, conducting daily temperature checks of all workers with a forehead thermometer at the construction site before they may begin work, providing handwashing stations or hand sanitizer for every 15 workers at a site, disinfecting shared tools at least twice per day, or limiting crossover of subcontractors.

The starting point, however, is not the ending point.  The primary law that governs workplace safety is the Occupational Safety and Health Act of 1970 (OSH Act). One of the OSH Act’s most significant provisions is the “General Duties Clause,” which requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees…”

What does this mean in relation to the novel coronavirus and COVID-19 given the patchwork of county and city requirements regarding worksite safety?  Under normal circumstances, the Occupational Safety and Health Administration (OSHA) issues rules and regulations to help contractors determine what the General Duties Clause and law require. Unfortunately, no such regulation yet exists for dealing with airborne infectious diseases, such as the novel coronavirus.

Last month, OSHA released guidelines about what employers can do to keep employees safe from the novel coronavirus. It does not create new legal requirements for employers, but it does provide some clarity as to what employers can and should do to maintain a safe jobsite during the COVID-19 pandemic.

That clarity is predominantly in two areas: Workplace controls and levels of worker risk.

1. Workplace Controls
OSHA guidance document discusses the implementation of four types of workplace controls:

• • Engineering controls
  • Administrative controls
  • Safe work practices
  • Personal protective equipment (PPE)

               

               a. Engineering Controls. Engineering controls are methods which isolate an employee from a workplace hazard. For example, installing high-efficiency air filters, increasing ventilation rates in the work environment, or installing physical barriers, such as plastic sneeze guards.

               b. Administrative Controls. Administrative controls are methods of changing human behavior to reduce or minimize exposure to a hazard. Examples include encouraging sick employees to stay home or establishing alternating days or extra shifts that reduce the total number of employees in a facility at a given time.  Other means may include allowing employees to maintain distance from one another while maintaining a full onsite work week, making it easier for employees to stay six feet apart from each other, and providing employees with up-to-date education and training on COVID-19 risk factors and protective behaviors (e.g., cough etiquette and care of personal protective equipment).

              c. Safe Work Practices. Safe work practices are administrative controls that reduce the duration, frequency, or intensity of exposure to a hazard.  They include making hand sanitizer available to employees and providing disinfecting products so employees can clean their work surfaces.

              d. Personal Protective Equipment.Personal protective equipment (PPE) is an additional level of protection employers can provide employees and refers to things like masks, gloves, hard hats, eye protection, and respiratory protection, when necessary. Depending on the risk of exposure to the novel coronavirus, employers may be required to provide PPE to employees.

2. Levels of Worker Risk
In its recent guidance, OSHA has provided four different classifications of employee risk to exposure to the novel coronavirus, as follows.

• • Very High
  • High
  • Medium
  • Lower Risk

 

              a. Very High Risk. Very high exposure risk jobs are those with high potential for exposure to known or suspected sources of COVID-19 during specific medical, postmortem, or laboratory procedures.

              b. High Risk.  High risk exposure jobs are those with high potential for exposure to known or suspected sources of COVID-19, where an employee may come into contact with someone carrying the coronavirus, but the infected person is not as likely to spread it to the employee. An example might be a nurse or a doctor entering the room of a patient who may be infected.

             c. Medium Risk.  Medium exposure risk jobs include those that require frequent and/or close contact with (i.e., within 6 feet of) with people who may be infected, but who are not known or suspected COVID-19 patients.

            d. Lower Risk.  Lower exposure risk applies to workers that are not required to be in contact with people known to be, or suspected of being, infected with COVID-19, nor in frequent close contact with the general public. Workers in this category have minimal occupational contact with the public and other coworkers.

Most construction workers likely fall into the lower or medium risk categories. According to the OSHA guidance, for lower-risk employees, employers do not have to do much more than what they were doing before the coronavirus outbreak, and providing PPE isn’t required.

However, for employees that fall under medium exposure risk, OSHA advises that employers should at a minimum install basic engineering controls, such as physical barriers, “consider” offering face masks to employees, limit worksite access to the public, reduce travel, and consider ways to minimize or eliminate any face-to-face contact among employees, such as implementing alternating shifts. 

While maintaining 6-feet social distancing remains important to slowing the spread of the virus, providing basic PPE (such as goggles or a face mask) to certain employees may be crucial to keep employees safe from infection. The CDC recently issued a recommendation that individuals use cloth face masks and provided video instruction on how to make your own cloth face coverings fashioned from household items or other common materials.

The attorneys at Gerstle Snelson are available to answer your questions about how the novel coronavirus is or may impact in your business.  If you should have any questions, please email us at info@gstexlaw.com or call us at 214-368-6440.

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