Strange new world of OHS issues at construction sites
In this strange new world of construction during the COVID-19 pandemic, new types of protective equipment, physical distancing measures, hygiene practices and health screening measures – many of which were unimaginable or unnecessary on construction sites only a few months ago – have become widely accepted. These measures will likely remain in place throughout the pandemic and may continue after.
It is important for constructors and construction employers (industry professionals) to continue meeting all of their obligations under occupational health and safety (OHS) legislation and public health orders to ensure worker safety. Otherwise they face enforcement measures from OHS regulators (and disgruntled employees), including, but not limited to, work stoppages and regulatory prosecution.
Much has been written on the specifics of public health measures. While understanding public health measures is important, it is also important to understand key OHS issues arising from construction sites during the pandemic which continue to create uncertainties for industry professionals as sites continue to operate with public health measures in place.
Construction employers’ duties under OHS legislation
All Canadian OHS legislation, both provincial and federal, require all industry professionals to take every reasonable precaution for the circumstances to protect a worker. This general obligation has not changed in light of the pandemic; industry professionals alike must implement and enforce measures to protect workers from contracting COVID-19 on jobsites.
Construction employers’ duties regarding public health orders
The above catch-all obligation has provided authority for OHS regulators to force industry professionals to implement public health orders at jobsites. As such, public health orders are enforced through OHS regulators’ inspections and/or investigations and through inspectors’ orders and prosecutions.
This means industry professionals are responsible for creating, implementing and enforcing pandemic plans that fit both their respective trades and jobsites. Such plans and protocols must account for directives and recommendations contained in public health orders on measures required to protect workers. This requires careful consideration of the nature of the work and jobsites affected so that the required public health measures, and any other reasonable precautions, can be implemented efficiently and in a manner that workers will accept and follow.
Best practices for construction site pandemic plans
Have a written protocol
Industry professionals should have proper written protocols, procedures and policies in place that show consideration of the issues that have arisen as a result of COVID-19.
Written protocols have several benefits as they minimize confusion over how to operate and work safely on the jobsite during the pandemic. Specific and robust written protocols demonstrate that a company has turned its mind to key OHS issues. If any questions are asked, or any complaints are raised, the company will have a document outlining all of its safety measures readily available to provide clarity and direction.
In terms of what those written protocols should look like, caution should be exercised with respect to the adoption of cookie-cutter, standard policies copied from others. Industry professionals should consider the unique aspects of their jobsites and reflect those differences in their written protocols. Protocols that are designed to fit a specific work, trade and/or jobsite are often easier to implement and more readily followed and adhered to by workers.
Public health orders continuously evolve as more is understood about the virus, how it is transmitted and how to protect from it. Therefore, the construction industry must keep up-to-date and modifications to particular OHS protocols may be necessary over time.
Specific protocols applicable to construction sites
Industry professionals should consider implementing the below protocols and provide proper training and reinforcement:
- Physical distancing. Various measures to maintain space between workers and others on jobsites including physical barricades, distancing requirements, remote communication (i.e. radios), organizing/altering floorplans or corridors for one-way movement through work areas and stairwells to ensure physical distancing requirements are met.
- Hygiene rules. Hygiene rules should be created and posted in the workplace, and should set out the rules around the frequency in which employees should wash their hands and how often hygiene supplies (i.e. soap, sanitizer, paper towels, clean water, etc.) are checked and replenished.
- Site sanitization. Proper sanitization methods should be reinforced, with protocols on how often frequently touched and shared surfaces should be cleaned and the process for doing so.
- Pre-entry screening. Workers should be informed of their obligation to self-report. Employers should consider creating and providing a questionnaire for workers and others entering jobsites, which asks about their or their families’ recent travel history, whether they are experiencing any flu-like symptoms and whether they or someone they have close contact with has recently been diagnosed with COVID-19. All persons must be clearly informed that failure to self-report, or filing a misleading self-report, can lead to permanent removal from the jobsite.
- Temperature check. As a part of pre-entry screening, employers may implement temperature screening procedures for those that are on site. However, temperature testing information should be kept private. It is recommended that a specific and limited number of people are responsible for the entire screening process, and for overseeing the self-reporting of employees to ensure privacy.
- Personal protective equipment. Appropriate personal protective equipment policies should be updated, as appropriate, to include masks, gloves, and/or face shields, and how often these supplies are replenished.
- Restricting site access. Constructors and employers should consider restricting site access to only those who must be on site and require contactless deliveries of any materials or equipment where possible and reasonably practical.
- Contact tracing. Employers should consider maintaining a mandatory sign-in sheet for everyone entering jobsites that indicates who that person will be meeting or working with so effective contact tracing can be done if necessary.
- Staggered shifts. Implementing staggered start and end times to the workday and to lunch breaks is an option for reducing unnecessary contact and promoting physical distancing.
Protocol for COVID-19 positive cases
There should be a protocol in place outlining decontamination procedures in case a worker tests positive, to obtain and secure information for contact tracing and a plan for shutting down the site temporarily and reopening it if necessary. Without these protocols in place, employers might be unprepared on what to do and workers might cite safety concerns as justification for not returning to work.
Such protocols could include advising co-workers if a worker tests positive, securing information for contact tracing and contact information to inform public health officials where appropriate, along with guidelines to ensure compliance with health information privacy laws.
Industry professionals should also consider removing someone from the workplace even if they have not tested positive, but are symptomatic.
What to do if found to be in breach of public health orders
The obligation under OHS legislation to provide reasonable precautions for workers is not limitless, but this does not mean that an OHS inspector will readily accept and agree that a constructor’s or employer’s customized protocol meets the “every precaution reasonable in the circumstances” standard. This pandemic situation is new for OHS inspectors as well, and they may seek to enforce public health orders without fully understanding or considering what may or may not be reasonable in the specific circumstance. As such, construction employers may have grounds to defend a protocol they have created and challenge a particular OHS regulator’s interpretation of the public health measures.
If an OHS regulator issues a compliance or stop-work order for breaching public health orders, industry professionals can appeal the decision by escalating the matter to an adjudicative body. In most jurisdictions, the labour relations board is responsible for hearing such appeals.
In the alternative, construction employers can try to negotiate with the OHS regulator to find an acceptable solution. Discussions regarding creative additional protective measures or enhanced means of ensuring proper hygiene at a jobsite – such as cloth masks, acrylic barricading used in the retail sector or even respiratory protection used in the healthcare sector – can often result in a positive outcome.
Each circumstance is unique and depends on the specific role of the industry professional, the trade, the nature and location of the jobsite, what other trades may be interacting on site, etc. – the variables are endless. OHS legislation is vague and broad to capture unexpected dangers, but it also allows industry professionals to find creative solutions to fit their specific projects and encourage compliance by everyone on site. Be sure to consult with an OHS expert when drafting or reviewing and revising OHS protocols to ensure obligations are met and avoid problems with OHS inspectors.
Patrick Groom is a partner in the labour and employment group at McMillan LLP. He is designated by the Law Society of Ontario as a certified specialist in labour law. Groom has more than 20 years of labour relations experience in a wide variety of roles with particular expertise in construction labour relations and litigation and health care restructuring. Groom frequently appears before all levels of Court in Ontario, as well as the Ontario Labour Relations Board, the Ontario Human Rights Tribunal and the Workplace Safety and Insurance Appeals Tribunal.
Victor Kim is an associate at McMillan LLP and provides counsel in all areas of employment and labour law. Kim assists employers with managing unionized and non-unionized workforces in a wide range of industries, with a particular focus on advising contractors of all sizes on managing relationships with Ontario’s construction trade unions. He represents employers at the provincial and federal levels in a variety of workplace issues including labour arbitrations, collective bargaining, labour board proceedings, wrongful dismissals, human rights and OHS. 