ASK (Accessing Safety Knowledge):
Rights and Responsibilities on a Jobsite Not Observing COVID-19 Precautions
By ASA-HC member Keith Coulter, Coulter, P.C.
Among the challenges subcontractors face in dealing with the recent COVID-19 pandemic is that not all other contractors, general contractors or project owners appreciate the importance of complying with recommended — or even government-ordered — disease containment rules, such as face covering, social distancing and sanitizing. In addition to concerns about the health of our own employees and those with whom they come in contact, having key workers (, and in some cases any workers) who have contracted the virus can effectively shut-down a project or even a company’s entire operations. While some project owners and their prime contractors do not see the virus as an operational concern, others, especially owners of projects with ongoing operations open to the public, say they will require a contractor to vacate a jobsite indefinitely if anyone in the company has tested positive.
Most existing contracts, laws and regulations were put into place before the recent virus outbreak was contemplated, and do not specifically address the rights and responsibilities of a contractor who is concerned about another project participant’s disregard for safety and health concerns. What guidance is available in those situations?
The first place to look is your contract. It establishes the law that applies to your work for that project. Depending on the precise wording, a “force majeure” clause may allow a contract to be cancelled or suspended for specifically mentioned “Acts of God” or other overriding forces. The City of Houston’s Houston First Corporation and the Republican Party of Texas are presently embroiled in a lawsuit over a force majeure clause in the contract for lease of the Convention Center. Litigation is a very expensive and time-consuming way to deal with the issue, even without the financial ramifications of shutting down a construction project.
Most contracts prohibit violations of laws, rules, OSHA and other safety regulations. However, the compliance-with-laws clause that is standard in most contracts does not specifically refer to “orders” or “directives” issued by mayors, judges state governors or the POTUS. A contract may provide for work to be stopped if certain safety or health hazards arise, such as discovery of hazardous substances, such as asbestos-containing materials. However, most subcontracts prepared by general contractors are one-sided, imposing obligations by the subcontractor to the general contractor, but not vice-versa. Going forward, subcontractors may have the opportunity to negotiate for such contract obligations to be mutual, and specifically include spread of contagious disease and government executive orders as conditions that would justify work stoppage, scheduling or other work condition accommodations, and change orders to compensate for the changes. AIA and the Consensus Docs both include hazardous materials provisions to use as helpful guidelines for contract negotiation.
The U.S. Dept of Labor Occupational Safety & Health Administration is empowered to issue citations with monetary penalties for violation of regulatory standards. In addition to enforcement against any employer whose employees are exposed to a hazard, OSHA’s “Multi-employer doctrine” allows the agency to cite and fine any employer who created, controlled or who could correct a hazardous condition to which another contractor’s employees could be exposed. OSHA regulations do not specifically address COVID-19, except for recent directives regarding whether a positive test for the virus is recordable work-related condition. However, the “General Duty Clause”, §5(a)(1) of the OSH Act of 1972, requires each employer to provide a place of work that is free from recognized serious hazards that are feasible to abate. It is not yet clear whether OSHA will begin issuing 5(a)(1) citations for failure to follow CV-19 containment measures, but OSHA does encourage affected workers and other concerned individuals to notify OSHA of regulation violations and other safety concerns. The benefit of such reporting has its limits: The General Duty Clause is not enforceable if another more specific standard, such as the respiratory protection standard applies. If the reported employer provides a prompt and satisfactory response in writing, OSHA has discretion to defer from initiating a site inspection. If OSHA does visit the site, and they notice other hazardous violations, they may open a general inspection, interfering with everyone’s ability to keep progress moving on the job. However, it may be worth it if a visit or threatened visit from OSHA prompts the controlling contractor to implement necessary health precautions.
A contractor whose employees are exposed to hazards created by others has a valid defense against an OSHA citation if that employer lacked the means to correct the hazard (based on contractual, physical or monetary constraints) and took realistic measures to abate the hazard. A written notice complaining to the creating and/or controlling contractor, which was ignored or disregarded by the controlling or creating contractor, would be evidence that the employer of the exposed workers did not have the ability to correct the hazard. Such a notice should be combined with realistic alternative measures. The first step is to enforce COVID-containment precautions within one’s own company employees. Other precautions could include barricading or somehow separating employees from the zone of danger, and at-least threatening to stop work.
Failure to exercise ordinary care to avoid foreseeable property damage, injury or death may result in legal liability. “Ordinary care” is defined as “failure to do what a reasonably prudent person or company would do in the same or similar circumstances.” In Texas, this duty only applies to a contractor who has exercised control or has the right to control the circumstances that created the hazard. Several factors, including the terms of any applicable contract, determine whether a contractor had enough control to be held liable. Because the question of control is often uncertain as to employees of other companies, the best course is to do what is reasonable under the circumstances. This usually means taking the same actions one would take to protect workers from an OSHA “multi-employer” situation: Enforce precautions within your employed workforce, give notice to those believed to be the cause or in control of the hazardous condition, and remove employees from the zone of danger, or stop work, if necessary.
What if the subcontractor’s rights under a subcontract do not allow stopping work or other prudent actions that might be necessary to avoid a negligence lawsuit or OSHA Multi-employer citation? Without sufficient contract language, stopping work may place the subcontractor in breach of contract for failure to “diligently prosecute” the work or complete within the contract time, or because stoppage of work delayed others. Fortunately, Texas law recognizes an implied obligation by the GC to coordinate the work of various trades and not to actively interfere with contractual performance. Knowingly allowing conditions that prevent safe performance of someone else’s work may be considered a form of active interference. Subcontractors, who usually have no contractual rights against other subcontractors, and no control over the GCs, are often in a difficult position, requiring seemingly continuous efforts to influence G.C.s and other subcontractors to follow safe work practices. However, with well-planned, well-meaning efforts, ASA members can demonstrate that safety is our greatest concern, by initiating and maintaining open communications with general contractors and other subcontractors, politely and specifically educating them to assist them in discharging their legal obligations consistent with safely and efficiently completing each project.