This post is co-written by Phyllis Karasov and Mike Schechter
In his recent Executive Order 20-74, Governor Walz’s ordered critical sector businesses to create and adopt a COVID-19 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 construction industry guidance is problematic—vague, over-reaching, potentially impossible to comply with, and possibly prescriptive. AGC of Minnesota, in consultation with Larkin Hoffman, has been working with the governor and his staff to clarify and address these problems and has rallied other associations to the conversation.
What the Guidance Says
The “Preparedness Plan Requirements Guidance – Construction” carries the “guidance” title but reads prescriptively, telling contractors that they must:
- Develop and implement a written COVID-19 Business Preparedness Plan. The plan needs to:
- Possibly be site-specific, meaning a contractor could have multiple plans;
- Encompass the obligations of owners, general and subcontractors and vendors;
- Be posted and available at each worksite;
- Address the hazards of COVID-19 transmission at the work site; and
- Ensure the work activities of one business do not interfere with or create additional risk to others.
- Take measures to ensure that sick workers stay home. These could include, among other things, evaluation and adjustment of sick leave policies to reflect the need for isolation or quarantine and to create incentives for workers who are sick to stay home.
- Ensure all at the worksite are immediately informed of their possible exposure to another worker who had COVID-19 symptoms or has tested positive for COVID-19 and are advised of actions they should take.
- Ensure diligent investigations are conducted at the worksite to assess exposure, whether actual or potential, involving workers who are confirmed COVID-19 symptoms or have tested positive, and/or the business has reason to believe a worker may be COVID-19 positive. These steps must provide timely and appropriate mitigating steps to prevent potential spread of 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.
Claims Arising from the Guidance
The vagaries of the guidance and the DOLI’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 DOLI, labor unions, employees and third parties.
With guidance becoming effective June 29, contractors will have to immediately begin developing 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.
Larkin Hoffman and AGC also recommend working with Minnesota OSHA to learn how to comply with the Guidance (OSHA.firstname.lastname@example.org), subscribing to this blog and AGC’s updates. Discussions with the State are ongoing and hopefully, there will be clarifications concerning the many unclear, uncertain and confusing provisions in the Guidance.
About the Authors
Phyllis Karasov, Larkin Hoffman
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.