Last week, we wrote about Mayor Walsh’s two-week ban on all construction activities in the City of Boston. (If you missed it, you can catch up here.) Since then, several municipalities, including Cambridge and Somerville, have followed suit and ordered an indefinite halt to construction within city limits.
But not everyone agrees that the Bay State’s construction industry should remain shuttered. On Monday, Governor Baker exempted construction-industry workers and professionals from his stay-at-home advisory, signaling to local officials that they should consider easing their restrictions on construction activities. Yesterday, the Governor formalized his position in a letter directing, in essence, that cities and towns revoke any order banning construction activities locally. He also issued strict guidelines aimed at limiting COVID-19 virus transmission on job sites.
In response, Mayor Walsh – the former president of Laborers Local 223 – announced that he is extending Boston’s two-week construction ban indefinitely, citing concerns about worker health and safety. City officials in Cambridge and Somerville also have doubled down on their construction moratoriums, in defiance of Governor Baker’s order.
While this bickering may make good political theatre for some, it creates real problems for construction professionals trying to navigate an already-fraught situation. So what’s one to do in the face of these conflicting orders?
For those working in places covered by a local ban, the best bet is to wait for additional guidance. Contractors that jump the gun risk being shut down, particularly where local enforcement authorities are likely to back their mayors over state officials. Rather than squandering remobilization expenses, call the Mayor’s and Governor’s offices and push for a resolution. The current stalemate is untenable, and before long, someone will have to give.
For suburban contractors (i.e., those not covered by a ban), the news is better. Governor Baker’s letter reaffirms that there is no statewide ban on construction. To the contrary, the Governor’s designation of construction professionals as essential personnel provides clear guidance that construction may proceed. That said, it will not be business as usual. Contractors should take care to distribute to their employees, subs, and vendors a COVID-specific health and safety plan that specifically implements (at a minimum) Governor Baker’s guidelines. These plans should include the following, among other terms:
- Workers must be required to go home if they report experiencing COVID-19 symptoms like fever, cough, and shortness of breath.
- For at least those working inside or in confined spaces, a nurse should be onsite to conduct periodic temperature screenings.
- Workers should observe at least six-feet of “social distancing” during work and breaks. Meetings should occur by video or teleconference.
- All surfaces and common areas should be regularly cleaned and disinfected.
- Workers must wear gloves, eye protection, and other personal protective equipment.
- Workers must wash their hands frequently using the protocols established by the CDC. (For sites lacking easy access to operational bathroom facilities, the contractor must install handwashing stations.)
Contractors also should strongly consider assigning safety personnel to strictly enforce their COVID-19 plans. Remember, if your plan doesn’t seem like overkill, you’re probably not doing enough.
There is no doubt that the COVID-19 pandemic presents unfamiliar and unprecedented challenges. But new problems do not always require us to abandon principles that always have served you well:
- Use common sense. If the virus presents a risk to health and safety on your job site, take all necessary steps to mitigate or eliminate that risk. If you can’t, don’t work.
- Look to the terms of your contracts. What do they say about force-majeure triggering events? Are there notice requirements? How do they allocate the risk of delay-related expenses?
- Talk to each other. When all else fails, pick up the phone to work out disputes informally. Try to find middle ground that works for your business and for your clients, employees, subcontractors, and vendors.
Stay safe, and as always, let us know if there is anything we can do to assist you.Share with your network: