It is to be expected that all persons involved in construction in New Jersey have been closely monitoring the COVID-based construction restrictions that have begun to loosen and are aware of Executive Order 142, allowing all projects to re-open effective May 18. The Order places significant work-site responsibilities on all projects (whether previously deemed “essential” or “non-essential”). The list follows, below.
Discussion and agreement must be had between all of the parties on the project from the owner down to the lowest levels of sub-sub-contractors and those providing deliveries on who is responsible, who is monitoring and how the costs will be borne.
There will be both official and unofficial oversight to assure that these workplace actions are being taken. Violations may result in prosecution as a disorderly persons offense against essentially all parties participating in the project as direct violators or as “aiding and abetting” under N.J.S.A. App. A:9-49 and 50. In addition, failure to abide by the Order can result in claims by other parties on the site or workers by way of direct claims for violations or “whistleblower” claims by employees who suffer retaliation for reporting violations. While possibly difficult to prove the source of infection, a worker or others may have worker’s compensation claims or even direct claims arguing willful violation of the protocols, as well as claims against parties other than their employers, for damages. Failure to abide by the protocols can result in work stoppages by entities, unions and even non-union workers, who may find protection from discipline for such actions under the provisions of New Jersey’s whistleblower law, the Conscientious Employee Protection Act (CEPA).
The restrictions will require constant monitoring, will have a cost to implement and will have in many instances an adverse impact on productivity and the project schedule. These are all areas that need to be coordinated and worked out by the parties on the project. Since these are all conditions that did not exist when the project was initially planned, bid, contracted and scheduled, the resulting agreement on how to address these responsibilities should take the form of a written contract amendment or change order.
THE FOLLOWING ARE THE RESTRICTIONS SET FORTH IN EXECUTIVE ORDER 142 APPLYING TO ALL CONSTRUCTION PROJECTS IN NEW JERSEY.
- Prohibit non-essential visitors from entering the worksite;
- Engage in appropriate social distancing measures when picking up or delivering equipment or materials;
- Limit worksite meetings, inductions, and workgroups to groups of fewer than 10 individuals;
- Require individuals to maintain six feet or more distance between them wherever possible;
- Stagger work start and stop times where practicable to limit the number of individuals entering and leaving the worksite concurrently;
- Identify congested and “high-risk areas,” including but not limited to lunchrooms, breakrooms, portable rest rooms, and elevators, and limit the number of individuals at those sites concurrently where practicable;
- Stagger lunch breaks and work times where practicable to enable operations to safely continue while utilizing the least number of individuals possible at the site;
- Require workers and visitors to wear cloth face coverings, in accordance with CDC recommendations, while on the premises, except where doing so would inhibit the individual’s health or the individual is under two years of age, and require workers to wear gloves while on the premises. Businesses must provide, at their expense, such face coverings and gloves for their employees. If a visitor refuses to wear a cloth face covering for non-medical reasons and if such covering cannot be provided to the individual by the business at the point of entry, then the business must decline entry to the individual. Nothing in the stated policy should prevent workers or visitors from wearing a surgical-grade mask or other more protective face covering if the individual is already in possession of such equipment, or if the businesses is otherwise required to provide such worker with more protective equipment due to the nature of the work involved. Where an individual declines to wear a face covering on the premises due to a medical condition that inhibits such usage, neither the business nor its staff shall require the individual to produce medical documentation verifying the stated condition;
- Require infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal;
- Limit sharing of tools, equipment, and machinery;
- Where running water is not available, provide portable washing stations with soap and/or alcohol-based hand sanitizers that have greater than 60% ethanol or 70% isopropanol;
- Require frequent sanitization of high-touch areas like restrooms, breakrooms, equipment, and machinery;
- When the worksite is an occupied residence, require workers to sanitize work areas and keep a distance of at least six feet from the occupants; and
- Place conspicuous signage at entrances and throughout the worksite detailing the above mandates.
If you have any questions with regard to the worksite requirements or appropriate contract revisions to implement them, please contact James Landgraf, Esq or Benjamin Teris, Esq.