Returning to Work after COVID-19: Updated Orders for Critical Businesses

Last week the Occupational Safety and Health Administration, Colorado Governor Jared Polis, and the Colorado Department of Public Health and Environment respectively updated their prior guidance/requirements relating to jobsite safety and COVID-19.
Gov. Polis issued Executive Order D 2020 039 on April 17, 2020, requiring all workers in Critical Businesses to wear a medical grade or non-medical grade cloth face covering over the nose and mouth while working, except where doing so would inhibit the individual worker’s health (Section II.A.1.).
All workers, not just employees, must comply. This means that everyone on the job site, including independent contractors and subcontractors, must wear a face cover. While one can purchase masks from various Denver providers, anyone can make a face-covering using bandanas and hair ties, sewing, or other methods
If OSHA requires a higher-grade mask than a cloth mask for a specific task, OSHA’s requirements will still control over the local standard. However, OSHA issued a Memorandum on April 16, stating the OSHA Area Offices will view enforcement through the light of an “employer’s efforts to comply” with its requirements. Construction companies should create, practice, and document their culture of compliance, as this will help avoid or lessen the risk of regulatory problems. 

OSHA’s April 16 Memorandum also instructs Compliance Safety and Health Officers to consider whether the employer thoroughly explored all options to comply with the applicable standards and any interim alternative protections implemented or provided to protect employees. So consider the options and keep a record of your work. OSHA issued additional guidance on April 13 regarding COVID-19 response efforts but placed construction into a low-risk category for which OSHA’s additional new requirements do not apply. Construction, being so classified, will also be placed lower on OSHA’s enforcement priorities.  Nevertheless, creating a culture of compliance will protect contractors, and may also prevent costly outbreaks on the jobsite.
You should still closely monitor employees for symptoms of COVID-19.  The Colorado Department of Public Health and the Environment has issued guidance and provided resources to assist. 
If you have specific questions about your project site, please reach out to Dan Wennogle. This article was co-authored by Bobby Dishell, Law Student Intern at Moye White.