The Pause Is Over….OSHA Issues New Guidance for Construction and Steps Up Enforcement

By Stephen Parascandola, Pete Marino and Wayne Maiorano

The Occupational Safety and Health Agency (OSHA) recently released guidance concerning construction jobsite safety requirements to mitigate risk arising from the coronavirus (COVID-19). These actions include certain guidance directed specifically at the construction industry, as well as internal memoranda, indicating an increase in enforcement activity and the willingness to use OSHA’s “General Duty Clause” as a basis for citing employers where insufficient measures are being taken to protect employees from the coronavirus. 

Both OSHA and the Centers for Disease Control and Prevention (CDC) have offered periodic guidance to employers on dealing with COVID-19 in the workplace. The CDC has also offered employers guidance on how best to prepare workplaces for reopening, including suggested methods for cleaning and disinfecting workplaces. 

Up until this point, industry-specific guidance from OSHA has generally been limited to certain industries designated as “high risk.” Workplaces deemed by OSHA to be most at risk during the COVID-19 pandemic have included those involved with healthcare, airline travel, “death care,” and emergency responders. Throughout the pandemic, OSHA has deemed most construction activities to be “low risk,” with some indoor activities where appropriate distancing is difficult to achieve rising to “medium risk.” However, OSHA has recently begun issuing additional guidance applicable to low and medium risk industries, including the construction industry. 

Specifically, OSHA recently issued an Alert entitled “COVID-19 Guidance for the Construction Workforce.” In the Alert, employers were provided with various tips to help reduce worker exposure to COVID-19, including the following: 

• Encouraging workers to stay home if they are sick;
• Allowing workers to wear masks if they so choose;
• Training workers on how to properly put on, use/wear, and remove protective equipment and clothing;
• Instructing workers on proper ways to clean and disinfect tools and equipment;
• Advising workers on proper distancing, respiratory etiquette, and personal hygiene;
• Keeping in-person meetings such as toolbox talks and safety meetings as short as possible, while employing proper distancing practices and limiting the number of workers in attendance;
• Using EPA-approved cleaning and disinfecting chemicals, or those that have label claims against COVID-19; and
• Encouraging workers to report safety and health concerns.

OSHA’s guidance for the construction industry follows certain prior CDC guidance that was directed specifically at construction workers. This prior CDC guidance, entitled “What Construction Workers Need to Know about COVID-19,” provided some similar recommended safety practices, such as personal hygiene and social distancing. Many construction employers have voluntarily adopted CDC suggestions into workplace safety practices. 

The OSHA and CDC guidance documents are important to construction employers because they outline the types of safety measures OSHA compliance officers will expect to see in place as they weigh employee complaints, which stand at record levels as of this writing and with many relating to the construction industry. They also will be more important than ever to construction employers in light of OSHA’s recent instructions to its own compliance staff. In internal memos to state and regional program administrators, OSHA has directed (1) that inspections will increase as businesses reopen across America, and (2) that the “General Duty Clause” will be used as grounds for issuing citations to employers who are not doing enough to protect employees from COVID-19.  

As many in the construction industry know all too well, the OSHA “General Duty Clause” - Section 5(a)(1) of the Occupational Safety and Health Act - is a “catch all” mandate that directs all employers to provide their employees with “a workplace that is free from recognized hazards.” This mandate often means whatever it is OSHA thinks an employer should be doing to provide a safe workplace, even in the absence of specific rules requiring or forbidding certain action. OSHA has acknowledged that general duty clause citations stemming from COVID-19 will be novel to the agency, but has nonetheless provided proposed language for such citations to its compliance staff.  

Even outside of the COVID-19 pandemic, the construction industry regularly ranks among the highest in terms of OSHA inspections and citations. Given that OSHA will be increasing the number of workplace inspections, and that the pandemic poses unique challenges for all employers, construction employers will be well served to pay close attention to both applicable OSHA and CDC guidance, as well as to relevant industry “best practices” that are published from time to time, whether from local governments or from industry organizations. For example, the City of Los Angeles has issued actual rules relating to COVID-19 that apply to construction in that city. Other cities, such as New York City, have issued guidelines and tips for construction employers.  

Learning applicable best practices and incorporating those that are feasible into individual workplaces can help keep your workforce healthier, safer, and can reduce concerns of possible enforcement actions in these uncertain times.   

If you have any questions related to this alert, please do not hesitate to contact your regular Smith Anderson lawyer or any other member of our firm. Additionally, please visit and bookmark our firm’s Coronavirus (COVID-19) Business Resource Center which is continuously updated with useful materials and resources related to COVID-19. This tool has been made available to ensure that our clients and the broader business community stay informed on key issues that may impact their operations and to navigate the related business and legal issues during these challenging times.