On April 17, ABC, as a member of the Construction Industry Safety Coalition Steering Committee, wrote to the U.S. Department of Labor’s Occupational Safety and Health Administration regarding additional guidance from OSHA as it relates to construction.

“As the CISC, OSHA and the public health community continue to collectively address the outbreak, our contractor members are interested in receiving additional guidance from OSHA and, in particular, as it relates to construction,” according to the letter. “With the risk of OSHA enforcement under the General Duty Clause, we are seeking OSHA guidance and information in two areas, (1) reportability of COVID-19 cases, and (2) the recommended approach to social distancing and face coverings in construction.

“Recognizing the need for construction specific guidance and the essential nature of construction operations, the CISC developed a Construction Industry COVID-19 Exposure Prevention, Preparedness and Response Plan (“Response Plan”) that could be adapted by contractors to protect their employees. It provides a program structure, key protective measures to consider, cleaning and disinfecting procedures and other useful information, including a COVID-19 Toolbox Talk. The CISC intends to issue an updated plan to account for some of the recent public health guidance to controlling the virus,” the letter said.

In the letter, CISC urges OSHA to take the following actions:

• To issue a second enforcement memorandum clarifying that its recordkeeping enforcement position applies to both recording and reporting obligations under 29 C.F.R. Part 1904. By its terms, the guidance only applies to “the requirements of 29 CFR Part 1904 with respect to the recording of occupational illnesses.” OSHA does not appear to address the requirement in 29 C.F.R. Part 1904 that employers report work-related confirmed COVID-19 positive cases that result in a fatality or the in-patient hospitalization of an employee. Similarly, in the Interim Enforcement Program, OSHA discusses reporting obligations and OSHA’s response to same, but does not clarify whether the guidance given for recording COVID-19 cases is also applicable to reporting COVID-19 cases.

• To issue guidance to contractors making it clear that social distancing should be practiced where possible, but that a failure to do so will not, on its own, result in a General Duty Clause violation. One of the most basic recommendations by OSHA and the Centers for Disease Control and Prevention relates to social distancing. While working, employees are strongly encouraged to maintain at least six feet between each other. This will help slow the spread of the virus. The CISC’s Response Plan includes a social distancing recommendation. Notwithstanding this, there are times where it could be difficult to work six feet apart on construction jobsites. The nature of some construction activities makes social distancing challenging. Without any guidance from OSHA regarding how to address situations where keeping six feet away presents a challenge, contractors are faced with potential citation even though they are taking multiple steps to protect employees from COVID-19.

• To issue guidance clearly stating that face coverings are not PPE. Unlike N95 filtering facepiece respirators, the face coverings do not serve as barriers to the transmission of the virus to the wearer; however, they are effective at preventing community spread and should be promoted as meeting CDC recommended guidelines. This clarification is important. It will ensure that all employers and employees understand the purpose of the face coverings and their limitations, as opposed to respiratory protection program requirements. It will also help employers establish practices for the use and maintenance of the face coverings, whether voluntary or mandatory.

Any developments on the CISC letter will be reported on in Newsline.

Additional resources:

• OSHA COVID-19 website
• ABC’s Emergency Preparedness and COVID-19 Response Resources
• Construction Industry Safety Coalition COVID-19 Resources
• ABC’s Coronavirus Resources