New York City’s Construction Restart: What Should A Project Owner Expect from Its General Contractor?

Seyfarth Synopsis: New York City construction projects are set to resume on June 8, 2020, after Governor Cuomo’s shutdown of most construction projects in New York in late-March 2020 to combat the spread of COVID-19. This Legal Update provides information about what a construction project owner may expect from its general contractor as construction projects resume.

As reported in Legal Updates we issued on March 30, 2020 and April 9, 2020, in response to the ongoing COVID-19 public health emergency, New York’s Governor Andrew Cuomo shut down all construction projects other than “essential” or “emergency” projects. On May 14, 2020, Governor Cuomo issued an executive order announcing the reopening of “Phase One” industries and businesses in regions within New York State as such regions meet prescribed public health and safety metrics, as determined by the New York State Department of Health (“NYS DOH”). Phase One industries include the construction industry. Once open, such industries must operate pursuant to guidance issued by the NYS DOH.

New York City is entering Phase One of the reopening process on June 8, 2020. On this date, non-essential construction projects in New York City are permitted to re-open. Pursuant to an emergency executive order issued by Mayor Bill de Blasio, for construction projects with permits or licenses set to expire or to be renewed during the construction shutdown, such expiration dates were automatically extended until the shutdown concluded. That being said, the permits are to remain in effect until the end of the term for which they were issued, and construction permits should be renewed in a timely manner. Insurance required for each project must remain in effect.

On Friday, June 5, 2020, the New York City Department of Buildings (“NYC DOB”) and the New York City Department of Health & Mental Hygiene issued guidance indicating that construction projects subject to permits issued by the NYC DOB or otherwise regulated by the New York City construction and electrical codes are permitted to proceed as long as such projects comply with New York State’s “Interim Guidance for Construction Activities During the COVID-19 Public Health Emergency” (“NYS Interim Guidance”). Compliance with the NYS Interim Guidance is required until the State and City rescind or amend their Executive Orders and related guidance regarding the ongoing COVID-19 state of emergency.

The NYS Interim Guidance identifies minimum requirements for all construction projects in New York City (whether starting, reopening, or an on-going essential or emergency project), and project owners or general contractors are free to require more stringent precautions and restrictions than those identified in the guidance. General contractors must develop a Safety Plan to implement such requirements for each construction site, and must submit an affirmation to the State that they have reviewed and will implement such requirements. The completed Safety Plan must be conspicuously posted on the construction site.

The NYS Interim Guidance includes the following requirements:

Physical Distancing

For indoor work, no more than one worker per 250 square feet is permitted on the jobsite (excluding supervisors) without the required personal protective measures being implemented. Workers must maintain a distance of six feet between them at all times, unless the activity being performed requires a shorter distance between workers to be performed safely. Workers that come within six feet of another person must wear acceptable face coverings. For activities that typically requiring a higher degree of personal protective equipment (“PPE”) than cloth-based face coverings and disposable masks due to the nature of the work, workers must wear N95 respirators or other PPE required by OSHA.

Occupancy of tightly confined spaces (such as an elevator or hoist) must not exceed 50% of the maximum capacity, and occupants must wear acceptable face coverings. Moreover, the general contractor must implement measures to reduce bi-directional foot traffic in narrow hallways or spaces by using tape or signs with arrows, and must identify six-foot distances in areas where lines typically form or people may congregate. Signage must be posted throughout the jobsite reminding workers to utilize masks or cloth face-coverings when unable to maintain social distancing; to properly store and, when necessary, discard PPE; to adhere to physical distancing requirements; to report symptoms of or exposure to COVID-19; and to follow hand-hygiene and cleaning guidelines.

Workplace Activity

The general contractor is required to limit on-site interactions between workers, to prohibit non-essential visitors on the jobsite, and to implement measures to ensure social distancing in confined areas, such as restrooms and breakrooms. Employee schedules must be staggered to encourage social distancing for gatherings such as coffee breaks, meals, and start/stop of shifts. The general contractor must implement measures to reduce congregation and interpersonal contact, including by limiting the in-person presence on the jobsite to necessary staff; by adjusting workplace hours as necessary; by reducing the on-site workforce to permit compliance with social distancing guidelines; and by staggering scheduled tasks to avoid multiple crews working in one area.

Protective Equipment

Contractors must provide acceptable face coverings to their workers (at no cost to the workers). Face coverings must be cleaned or replaced after each use, and may not be shared by workers. Contractors must also limit the sharing of objects (such as tools, machinery, materials, and vehicles) and the touching of frequently touched surfaces (such as railings and fences), and require workers to wear gloves when in contact with shared objects or frequently touched surfaces or to sanitize or wash their hands before and after such contact.

Hygiene and Cleaning

Contractors must adhere to hygiene and sanitation requirements, and the general contractor must maintain a cleaning log that identifies the date, time, and scope of cleaning; must provide and maintain hand hygiene stations on site; must provide appropriate cleaning and sanitation supplies for shared and frequently touched surfaces and encourage their use; and must conduct regular cleaning and disinfection of the work site, tools, and equipment, and more frequent cleaning and disinfection of high risk areas.

Screening and Testing

The general contractor must implement mandatory daily health screenings (including temperature checks), which may be performed remotely or on-site. Those performing screening activities on the jobsite must be provided with PPE and be appropriately protected from exposure to potentially infectious workers or visitors entering the site. The results of such daily health screenings must be confidential, and should not be documented.

An employee who exhibits COVID-19 symptoms or tests positive for COVID-19 must not be permitted to enter the work site and must be sent home to contact his or her healthcare provider for assessment and treatment. Employees exhibiting COVID-19 symptoms must self-quarantine for 14 days. An employee who develops symptoms of COVID-19 during the workday must immediately disclose such symptoms to his or her employer and must be sent home to self-quarantine.

The general contractor must designate a site safety monitor whose responsibilities include continuous compliance with all aspects of the site safety plan, including the plan to monitor for and reduce the possible spread of COVID-19. To the extent possible, the general contractor must maintain a log of every person who has close contact with others on the work site, excluding deliveries that are performed with appropriate PPE or through contactless means, so that all contacts may be identified, traced, and notified if an employee is diagnosed with COVID-19.

Tracing and Tracking

Once a project worker has tested positive for COVID-19 or exhibits symptoms of COVID-19, the general contractor must immediately contact the local health department and NYS DOH, and must cooperate with the local health department in the tracing and tracking of all workplace contacts of such diagnosed or symptomatic individual. Employees notified that they have come into close contact with a person with COVID-19, including those alerted via tracing or tracking efforts, must self-report to their employers at the time of the alert, must self-quarantine for 14 days, and shall not be permitted to remain or return to the work site until the self-quarantine period has elapsed, they have not had a fever for the prior three days, and their overall health has improved.

For thirty days after construction resumes on June 8, 2020, the NYC DOB will inspect construction sites to focus on educating the construction industry regarding how to implement the new standards and procedures. Violations of the NYS Interim Guidance issued by NYC DOB during this 30-day period will carry no financial penalty. Thereafter, the NYC DOB will be following up with additional periodic inspections to confirm that jobsites are following these safety measures; if violations are documented, such violations will result in financial penalties. Further noncompliance may result in the issuance of a Stop Work Order and a summons with an accompanying civil penalty of up to $5,000 for each offense. Members of the public may also report non-compliance with the COVID-19 safety measures to NYC DOB by calling “311.”

As New York City starts to reopen, construction projects must adopt new rules and policies to minimize the risk of the spread of COVID-19. Project owners must look to their general contractors, as the party responsible for site safety, to develop and implement the Safety Plan, which must be tailored to address the unique aspects of each construction project.