Since March 4, 2020, when Governor Newsom issued a Proclamation of a State of Emergency, the State has been in a constant pattern of slow down, shutdown, ramp up, repeat. In addition to Governor Newsom’s emergency orders, most counties are establishing (or already have established) emergency procedures as well. This makes it particularly difficult for construction companies with projects in multiple counties to track emergency procedures such as training and reporting. The following provides a quick guide to construction site compliance based on California’s Assembly Bill 685 (“AB 685”) and how to prepare for potential shutdowns related to COVID-19.
I. AB 685 – COVID-19 INFECTION PREVENTION REQUIREMENTS
AB 685, which went into effect on January 1, 2021, codifies several of the emergency orders Governor Newsom signed throughout 2020, including mandatory guidelines related to imminent hazard to employees, exposure, notification, and serious violations. The following provides a summary of the primary sections of AB 685. The full text is located at https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB685.
A. OSHA is Authorized to Make an Imminent Hazard Determination (§ 1)
Under existing law, OSHA is authorized to make a determination that a place of employment is an imminent hazard to employees. When such determination is made, OSHA can prohibit entry and post notice of the condition.
AB 685 expands OSHA’s authority to include exposure of COVID-19 as an imminent hazard. Thus, OSHA can prohibit workers from entering the immediate area where imminent hazard exists; however, it must do so in a manner that does not materially interrupt critical governmental functions essential to ensuring public health and safety.
This section will be repealed January 1, 2023.
B. Companies are Required to Provide Notice to Employees within One Business Day of Potential Exposure to COVID (§ 2)
AB 685 requires employers to provide a notice of potential exposure to COVID-19 to its employees and employers of subcontracted employees within one day of exposure. Notice must be provided to those who were on the same premises within the infectious period and may have been exposed. The notice must include: (1) COVID-19-related benefits, and (2) plans to implement and complete disinfection per the Centers for Disease Control. Failure to provide such notice will result in civil penalties. Employers are also required to maintain records of all notifications for at least three (3) years.
Further, when the employer is aware of the number of cases of the outbreak, the employer must notify the local public health agency in the jurisdiction of the worksite within 48 hours, and such notification must continue throughout the outbreak. AB 685 defines “outbreak” in accordance California Department of Public Health: “At least three probable or confirmed COVID-19 cases within a 14-day period in people who are epidemiologically-linked [(such as people sharing a defined-workspace)] in the setting, are from different households, and are not identified as close contacts [(within 6 feet of an infectious case for at least 15 minutes)] of each other in any other case investigation.”
C. Citations Can be Issued Immediately for Serious Violations (§ 3)
A “serious violation” is defined as a realistic possibility that death or serious physical harm could result from the hazard created by the violation (i.e., failure to notify employees of exposure to COVID-19). Under existing law, before issuing a citation for a serious violation, OSHA permits the employer to rebut the citation and provide additional facts and information. AB 685 permits OSHA to immediately issue a citation for serious violation, without the rebuttal process. This section will be repealed January 1, 2023.
II. WHAT CONTRACTORS CAN DO TO PREPARE FOR A POTENTIAL SHUTDOWN
Unfortunately, compliance with the emergency procedures and AB 685 may not prevent construction shutdowns as we are faced with spike-after-spike of COVID-19 cases and the uncertainty that follows a new Presidential Administration. Being prepared is key. Here are a few steps contractors can take to prepare for a potential shutdown:
A. Implement and Enforce COVID-19 Procedures
You may not be able to prevent shutdown based on Federal or State emergency orders; however, you can prevent shutdown by local government by ensuring COVID-19 cases on your project are minimal or nonexistent. Though the process of creating the materials and training may be tedious, it is necessary (and, of course, required) to ensure the safety and health of your team and the progress of your project. This means communicating your COVID-19 prevention plan with anyone who accesses the project (i.e., subcontractors, suppliers, owners). Be thoughtful about your prevention plan; putting the time in now will be rewarding in the future.
Thankfully, OSHA provided model written programs in English and Spanish, which are located at https://www.dir.ca.gov/dosh/coronavirus/ETS.html, along with other helpful fact sheets and FAQs. The model program was drafted as a result of OSHA’s Emergency Temporary Standards (“ETS”), which mandated an extension of employers’ Injury and Illness Prevention Programs to address COVID-19. ETS requires employers to develop a written COVID-19 Prevention Program, implementing procedures related to communication to employees about the employer’s COVID-19 prevention procedures, how to identify COVID-19 hazards, proper physical distancing and personal protective equipment use, and implementing testing to employees who are exposed to COVID-19, among other topics. The ETS went into effect November 30, 2020 and will expire in October 2021, unless it is extended for an additional period of time.
B. Document, Document, Document! And Stay Organized.
Emergency or not, these are primary contractor principles: Document Everything and Stay Organized. Try to avoid the last-minute scrambling that comes along with a surprise shutdown by being in a position where a shutdown is expected. That means taking progress photos, ensuring your reports are up to date, ensuring proper storage for materials and equipment that may be left onsite, and maintaining constant communication with your team, subcontractors, and owner(s). Track COVID-19 updates in the county where your project is located or rely on your Human Resources/Risk Management departments for such updates. Create a custom list of things to do within 24-hours of receiving a shutdown order. You can probably recite this list on demand; however, having it in writing will ensure nothing vital is forgotten during the chaos of a shutdown.
If there is any part of the project you can accelerate – do so now! Depending on your percent completion, you may even be able to complete the project ahead-of-schedule. Of course, accelerating comes with unbudgeted costs, but it is worth considering when there are so many uncertainties (i.e., if a shutdown will occur, and if so, how long it will last and how it will impact equipment and materials when the project is able to re-open, etc.)
Bottom line: be prepared by planning now! Construction projects are a beacon of progress, improvement, and regrowth. If a shutdown occurs (again, for many contractors), there is no doubt that the construction industry will pick up where it left off and continue to build.
 The CDC published guidelines for Cleaning and Disinfecting Your Building of Facility if Someone is Sick. See https://www.cdc.gov/coronavirus/2019-ncov/community/disinfecting-building-facility.html.
For more information contact:
Missy L. Griffin
Missy Griffin is an associate in the San Jose office of Gibbs Giden where she represents clients in the areas of construction claims and litigation in addition to business and commercial transactions. Ms. Griffin has worked on complex construction litigation, contract analysis, contract drafting, corporate governance issues, and data privacy and compliance matters.
The content contained herein is published online by Gibbs Giden Locher Turner Senet & Wittbrodt LLP (“Gibbs Giden”) for informational purposes only, may not reflect the most current legal developments, verdicts or settlements, and does not constitute legal advice. Do not act on the information contained herein without seeking the advice of licensed counsel.