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COVID-19 and Construction | FAQ

Legal Update
May 12, 2020
Amy Emerson

On March 24, 2020, the City of Austin issued a Stay Home—Work Safe Order that attempted to close down any construction projects that were not deemed “essential businesses” or “critical infrastructure.” The same day, Travis County issued a similar Order. TC Order. Several attempts by the City and the County to provide supplemental guidance for interpreting the orders were published as follows:

Later, on March 31, 2020, Governor Abbott issued Executive Order GA-14, which preempted conflicting city and county rules. On April 2, 2020, the City of Austin issued Supplemental Guidance Based on Executive Order No. GA-14, where it clarified that the City would allow construction work permitted in the Governor’s Executive Order to continue and that “the City will no longer prohibit commercial or residential construction projects.” Travis County issued its own Supplemental Guidance for the Construction Industry on April 2, 2020, stating that “Travis County will not be enforcing a prohibition against residential or commercial construction.”

On April 13, 2020, the City of Austin issued a revised Order that clarified safety requirements for all construction projects and extended the stay home order through May 8, 2020.

Most recently, on April 27, 2020, Governor Abbott issued Executive Order No. GA-18 as part of his “strategic plan to Open Texas in response to the COVID-19 disaster.” This Order supersedes all conflicting orders issued by local officials in response to COVID-19 “but only to the extent that such a local order restricts essential services or reopened services allowed by this executive order, allows gatherings prohibited by this executive order, or expands the list of essential services of the list or scope of reopened services as set forth in this executive order.” The list of businesses that can reopen was substantially expanded in Executive Order GA-21, which was issued on May 5th.

In response to Executive Orders GA-18 and GA-19, the City of Austin and Travis County each issued new Stay Home Orders on May 8, 2020. The City extended the Stay Home Order through May 30th and Travis County extended its order through June 15th.

The following are brief answers to some of the most frequently asked questions for the construction industry. Please note that the following is offered as our best general guidance and should not be construed as legal advice for any particular project. We will continue to update this content as more information becomes available.

Click the question to jump to the related section.

Q: What if an employee at my jobsite tests positive for COVID-19?

A: See Jobsite COVID-19 Exposure Protocol.

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Q: What safety measures are required for construction projects?

A: All construction projects must comply with the Social Distancing guidelines in § 1 of the Revised Order as well as the safety guidelines in Exhibits A, B, C, and D.

Exhibit A of the City’s order and Exhibit B of the Travis County Order provide that all Essential Business, Critical Infrastructure or Government Services shall reduce exposure by:

  • suspending nonessential employee travel;
  • prohibiting employees from working within six feet of each other (unless necessary to provide continuity of essential services);
  • cancelling in-person meetings or conferences where possible;
  • permitting sick employees to stay home when they are sick (and without requiring a doctor’s note);
  • implementing telecommuting options for work; and
  • altering schedules for employees so that they are not all present at the same time.

Every construction site should also implement social distancing requirements as outlined by the CDC and the Austin Health Authority, which includes washing hands with soap and water for at least 20 seconds, using hand sanitizer, covering coughs and sneezes with a sleeve or elbow, regularly cleaning high-touch surfaces, and not shaking hands.

All persons working for an Essential Service or reopened service (Executive Order GA-21) should wear a mask or cloth face covering when in public and when performing job duties in the presence of others.

If your project is Critical Infrastructure, both the City’s Order and the Travis County Order encourage employers to have employees to undergo “non-invasive temperature readings prior to entering a Critical Infrastructure facility; however, employers are not mandated to take the temperature of employees prior to entrance to its facility.” While temperature screenings aren’t required, if your project is Critical Infrastructure, you must create and implement an infectious disease response plan and immediately separate an employee who is sick or has a temperature greater than 99.6 degrees (by asking employees if they are sick, running fever, or exhibiting symptoms before they enter the site). Employers shall create and implement an infectious disease response plan.

Most importantly, the COA Revised Order No. 2 and TC Revised Order specifically provide safety regulations for the construction industry in Exhibits D and E, respectively. These construction-specific guidelines require:

  • Determine the Site Manager: The person in charge of the overall site is responsible for ensuring that the provisions below are followed. The “person in charge of the overall site” means the general contractor. If the site does not have a general contractor involved or present, the responsibility of being a Site Manager falls to each subcontractor.
  • Face masks: All workers are encouraged to wear masks or face coverings. The Orders require the Site Manager to “ensure workers adhere to the Social Distancing and Face Covering Requirements.”
  • Daily pre-screening and safety briefings: Employers should (1) conduct a pre-screening of the general health of each worker every day, (2) brief each worker on the COVID-19 safety requirements, and (3) check that the worker has personal protective equipment.
  • Stagger shifts: For sites with 10 or more active workers, institute staggered shifts.
  • Post notices:
    • For sites with 10 or more active workers, post a notice at the site, in languages understood by all persons working there, that shows the sizes and types of shift crews working there, and directions on how the Site Manager is limiting crew sizes and rotating shifts (see Notices).
    • Post in a conspicuous place at the site where notices to employees are customarily posted: (1) a sign in English and Spanish providing the Social Distancing and Face Covering requirements in Section 1 and Exhibit C of the Order, (2) the provisions in Exhibit A of the Order, and (3) information for workers to submit complaints of any violations (send to Preparedness@austintexas.gov).
  • Sign in required: The Site Manager must make sure that every worker entering a jobsite signs in and must keep a list of contact information for every worker each day for the purpose of identifying and notifying workers if they’ve shared a jobsite with someone who tests positive for COVID-19.
  • Ensure social distancing in high-traffic, enclosed areas: Identify “choke points” and “high-risk areas” where workers are forced to stand together and control them so social distancing can be maintained (this includes hallways, elevators, break areas, etc.).
  • Enable handwashing: Ensure that the site has at least one handwashing station and one portable restroom with soap or hand sanitizer (at least 60% alcohol) for every 15 workers and place the station in a convenient location. Each restroom and handwashing station must be six feet apart. Additionally, jobsites should mandate handwashing of at least twenty seconds for workers (1) before and after work, (2) before and after using shared tools, electronic devices, or multi-user devises, (3) before and after any meal or restroom breaks, and (4) after a worker’s shift ends. Provide single use disposable paper towels and no-touch trash receptacles.
  • Provide water to employees: prohibit the use of community water coolers and provide individual water bottles for employees or instruct workers to bring their own.
  • Clean common areas, toilets, and tools: ensure that shared tools are disinfected between users, and that common areas and collective touch points are cleaned and disinfected at least twice a day. Clean and sanitize toilet facilities by ensuring proper disposal of waste from the site.
  • Designate a Safety Monitor: designate a COVID-19 Safety Monitor on each site who can enforce these rules and will be present on the job site at all times during construction activities. The Safety Monitor’s contact information must be available to the City. If the Site Manager is the Safety Monitor (which is allowed), they should tell the City that when providing their contact information.

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Q: Can my construction projects continue?

A: Probably. Under the Governor’s Executive Order, if a project is considered “critical infrastructure” by the Cybersecurity & Infrastructure Security Agency (CISA) and the CISA Guidelines, then construction operations can continue. The “commercial facilities sector” on CISA’s website covers most commercial construction projects, including hotels, office and apartment buildings, condominiums, mixed-use facilities, retail centers, and shopping malls, to name a few. Additionally, the CISA Guidelines cover “Residential/Shelter Facilities and Services” which is defined as “Workers performing housing construction related activities to ensure additional units can be made available to combat the nation’s existing housing supply shortage.”

Further, the City of Austin’s and Travis County’s May 8th publications allow all commercial and residential construction projects to continue operations.

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Q: What happens if I violate the City’s Stay At Home Order?

A: The City can enforce the Stay At Home Orders by issuing criminal penalties, which could include a fine up to $1,000.00 or confinement in jail up to 180 days. Additionally, the City could shut down the work site. The City can issue stricter penalties if a construction site has additional violations after the first violation, or if the City determines that the violation was willful. If there is a willful violation, the City can remove the project from being classified as an “essential business” (i.e., the project will not be exempt). These penalties do not apply to the face mask requirements in the orders, and neither the state nor the local jurisdictions may fine or penalize people for failing to wear a face covering or mask.

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Q: Can non-essential offices reopen?

A: Beginning on May 18, 2020, services provided by office workers can reopen under Executive Order GA-18 by operating “with up to five workers or 25% of the total workforce, whichever is greater” but must still practice social distancing.

The City’s Revised Order No. 2 requires that reopened services with capacity of 75 or less should maintain an activity log of the contact information for all employees. The log should include the dates and times each employee was present in the business and the location where the employee sat/worked. The logs should be maintained for one month and are the property of the reopened business, and may only be used by the public health authorities for contact tracing.

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Q: What other resources should we know about?

A: Here are additional resources for the A/E/C industry:

Allensworth & Porter Legal Updates:

External Resources:

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Authors

Amy Emerson is a partner and litigator at construction law firm Allensworth & Porter. Amy represents clients from all sides of the construction industry—including public and private owners, general contractors, and developers—and is frequently retained by inside and outside general counsel to handle construction and contract disputes, appellate work, and governmental immunity issues.

Will Allensworth helps clients across the construction industry—primarily owners, general contractors, architects, and engineers—resolve complex disputes, with a focus on payment claims and construction and design defect litigation. He serves as the Assistant Editor of the State Bar’s Construction Law Journal and is an Adjunct Professor at the University of Texas Law School, where he teaches Construction Litigation.

Karly Houchin works primarily with engineers and architects on professional liability cases and on complex, multi-party disputes. She represents clients in front of professional licensing boards and defends design professionals against design and construction defect claims, construction delay cases, and traffic control plan disputes. She also represents owners in closeout disputes.

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