Ohio’s “Stay At Home” Order, which lasts until Friday, May 1, 2020, has shut down all Ohio non-essential businesses in a further attempt to control the spread of COVID-19 (coronavirus). What does this mean for Ohio’s owners, design professionals, contractors, subcontractors, and suppliers? First, most construction in Ohio is not shutting down, but businesses that choose to remain open must implement the necessary steps to ensure the safety of employees, contractors, and other invitees to the project site.
Section 9 of the Order identifies “Essential Infrastructure” as an exemption to shutting down non-essential businesses. Specifically, “individuals may leave their residence to provide any services or perform any work necessary to offer, provision, operate, maintain and repair Essential Infrastructure.” This includes, among other things, general construction, construction required in response to this public health emergency, hospital construction, construction of long-term care facilities, public works construction, school construction, essential business construction, and housing construction. The Order also states that the Essential Infrastructure exemption “shall be construed broadly to avoid any impacts to essential infrastructure” as the same may be “broadly defined.” Further, the Order includes critical trades as Essential Businesses and Operations, which include, among others, building and construction tradesmen and tradeswomen, plumbers, electricians, operating engineers, HVAC contractors, and painters.
Owners, design professionals, contractors, subcontractors, and suppliers who choose to continue construction operations during the shutdown must proceed with caution. Safety measures must be both documented and implemented in order to protect against the spread of COVID-19. Where possible, remote and virtual work as well as meeting capabilities must be utilized, and all parties must continue to follow the recommendations of the Centers for Disease Control and Prevention (CDC), Occupational Safety and Health Administration (OSHA), and the Ohio Department of Health, which include, among other recommendations:
- Social distancing of at least six feet between individuals performing work at the project site
- Frequent disinfecting and cleaning of all surfaces and equipment
- Keeping only the required staff necessary to perform the work in accordance with the project schedule
- Discontinuing use of community drinks or food
- Discouraging hand-shaking and other contact greetings
- Instructing workers to clean their hands often with an alcohol-based hand sanitizer that contains at least 60-95% alcohol, or wash their hands with soap and water for at least 20 seconds. Soap and water should be used preferentially if hands are visibly dirty
- Providing soap and water and/or alcohol-based hand sanitizers to workers
- Discouraging congregation at lunch or breaks
- Discouraging the sharing of tools
- Prohibiting the sharing of personal protection equipment (PPE)
- Utilizing disposable gloves where appropriate
- Conducting routine environmental cleaning
- Encouraging workers to take temperatures at each project site
- Requiring any workers exhibiting any symptoms to leave the project site and/or to stay home if sick
- Requiring respiratory etiquette, including covering coughs and sneezes
- Maintaining records, updates, and communications in connection with the processes and procedures implemented to comply with the foregoing regulations
Each party should read and understand their construction agreement, especially those provisions relating to notification and documentation requirements and entitlements to additional time or monies. The success of every project depends upon the prompt and transparent communication and cooperation among owners, contractors, subcontractors, design professionals, and suppliers. Every party must work together to ensure the safety of the project and to address the potential time delays and costs associated with the ongoing fight against the spread of COVID-19.
Rick Amburgey is an associate at Walter Haverfield who focuses his practice on construction law, financial services and commercial real estate. He can be reached at firstname.lastname@example.org or at 216-619-7843.