Massachusetts Reopens: Construction Guidelines
On May 18, 2020 Governor Charlie Baker released his four-phase plan for reopening Massachusetts. During Phase 1 beginning on May 18, essential businesses, manufacturing and construction will be allowed to resume operations. The Commonwealth published both general and industry specific guidelines that business must adhere to in order to reopen. Although the following guidelines apply to projects across Massachusetts, many cities and towns have developed additional guidance and protocols for construction sites, and it is important for owners and contractors to check with the municipalities where their projects are located for additional requirements prior to reopening.
Requirements Applicable to All Industries
In addition to industry specific reopening guidelines, the Commonwealth has released three requirements applicable to all industries; (1) the COVID-19 Control Plan; (2) the Compliance and Attestation Poster; and (3) the Mandatory Workplace Safety Posters.
First, businesses must develop and implement a written COVID-19 control plan. The COVID-19 Control Plan addresses social distancing measures, hygiene protocols, staffing and operations, and cleaning and disinfecting procedures. A sample COVID-19 Control Plan template is available from the Commonwealth. This plan does not need to be submitted and approved, but it must be kept onsite in the event of an inspection or COVID-19 outbreak.
After creating the COVID-19 Control Plan, customer-facing business must complete, sign, and display a Compliance and Attestation Poster. The Poster informs visitors and employees that the business has implemented social distancing measures, cleaning and disinfecting protocols, provided hygiene instruction, and requires the employees to wear masks. The Poster must be visible to employees and visitors. The Commonwealth has provided a template Compliance and Attestation Poster.
As part of the implementation of the COVID-19 Control Plan, businesses are required to display posters detailing the Mandatory Safety Standards outlined in the Plan. The Commonwealth has developed separate posters for workers and employers which must be displayed where employees can see.
Specific Guidelines for the Construction Industry
In addition to the general requirements applicable to all industries, the Commonwealth has released guidelines specifically for construction sites. Many of the site safety requirements have been in place since the beginning of the COVID-19 emergency, and continue to be in effect. Additionally, the processes for addressing a confirmed case of COVID-19 on site is still in place.
General Requirements for Construction Sites
Workers on all sites must continue to self-certify prior to every shift that they have had no fever over 100.3 degrees or other signs of fever, cough, or shortness of breath within the past 24 hours; they have not been in close contact with a person who was diagnosed with COVID-19; and have not been asked to self-isolate or quarantine by their doctor or public health officials. However, there are other important details that contractors, project managers, and owners should be aware of.
All construction sites, other than construction on 1- 3 family residences, must have a site-specific COVID-19 officer who is required to submit daily written reports to the project owner certifying that the contractor and all subcontractors are in compliance with the COVID-19 Construction Safety Guidance.
Additionally, all outdoor construction projects without easy access to an indoor bathroom are required to install wash stations, with adequate stocks of soap and paper towels, and hot water if possible. For 1-3 family residential projects without ready access to indoor restrooms, contractors may provide adequate supplies of hand sanitizer to each worker rather than installing wash stations.
Large, Complicated Construction Projects
For large, complicated construction projects, the city or town where the project is located may require the owner to develop a site-specific risk analysis and enhanced COVID-19 safety plan. The city or town reviews then reviews and approves the plan, and the plan is implemented. The city or town may require the project to stop work until an enhanced plan is submitted and approved. Any violations of the enhanced COVID-19 safety plan are treated the same as violations of the Commonwealth’s COVID-19 Construction Safety Guidance.
Importantly, a city or town has the authority to require the Owner of a large, complicated private construction project to pay for, or pay into a pooled fund, for an independent third-party inspector or inspection firm to enforce the COVID-19 Construction Safety Guidance and any enhanced COVID-19 safety plan. The third-party inspector is only accountable to the city or town, and the city or town has the authority to pause work on a project until a third-party inspector has been retained. The Commonwealth has provided no guidance on how projects may be classified as “large” and “complicated.”
Special Guidelines for Large, Complicated Public Construction Projects
For projects undertaken, managed, or funded by a state agency or authority, there is joint responsibility between the state agency and the town or municipality in which the project is located. The Owner has the lead responsibility for compliance and enforcement including frequent on-site inspections by an employee or contractor who is familiar with COVID-19 guidance and is authorized to enforce the guidance and shite down the work site if violations are found. The owner must notify the municipality where the project is located if the project is shut down or when it finds violations of the COVID-19 guidelines and a plan for corrective action. Work can be paused on a construction project until a plan is developed, approved and implemented.
1-3 Family Residential Construction Projects
1-3 family residential projects that have 5 or fewer workers on site at any given time, do not need a site-specific COVID-19 officer. A contractor may designate a COVID-19 officer to be responsible for all the small construction sites in a city or town. The COVID-19 officer should be in daily contact with each of the sites to ensure they are in full compliance with the COVID-19 guidelines and the COVID-19 officer must still prepare daily reports covering all the small sites.
Consequences of Non-Compliance
If construction sites fail to adhere to the COVID-19 guidelines, the municipality has the authority to shut down work on the project until a plan for corrective action addressing each area of noncompliance is developed and approved by the owner. If the site is found to have additional issues of non-conformance, action may be taken against the contractor’s prequalification and certification status.