Client Alerts
May 26, 2020

Healthy at Work – Kentucky Governor Issues Requirements for Construction Businesses in Response to COVID-19

Stites & Harbison Client Alert, May 26, 2020

by Stites & Harbison, PLLC

Effective May 11, 2020, Kentucky Governor Andy Beshear issued a Healthy at Work Order based on criteria set by public health experts and advice from industry experts. The Order includes minimum and industry-specific requirements that contractors must meet to re-open and/or remain operating.

The “Requirements for Construction Businesses” are divided into four categories: (1) social distancing requirements, (2) cleaning and disinfecting requirements, (3) personal protective equipment (PPE) requirements, and (4) training and safety requirements. The Healthy at Work Order details the specifics of each requirement, but this article highlights a few specifics that may be problematic for contractors to implement on construction sites. The requirements and related commentary are pertinent to both prime contractors and subcontractors.

1. Social Distancing Requirements

Many contractors have already implemented policies and procedures to comply with ever-changing social distancing requirements. The Order provides more direct guidelines for contractors to follow. For example, the social distancing requirements mandate that work crews be separated where possible and limit face-to-face meetings. Also, on-site personnel should be restricted to those required for that day’s activities.

Advanced planning will be critical for contractors to appropriately comply with social distancing requirements. Contractors must be hyper aware of who is on-site and where they are working on-site. Contractors must create detailed schedules that include on-site spacing between crews.

Contractors must also limit gathering areas, such as water coolers. In most locations, during the summer months water coolers are necessary to prevent workers from overheating. Contractors can comply with the prohibition on water cooler areas and still provide workers with needed water by supplying bottled water to work groups in a manner that prevents workers from gathering around a common source.

While face-to-face communication must be limited, contractors can and should employ alternative means of communication to ensure efficiency. For example, contractors should use video communications applications such as Zoom, to meet with project participants. Contractors should also expand their use of digital construction technology and utilize tablets, smartphones, drones, and other technology to inspect the work and provide instruction and feedback to subcontractors on the work.

2. Cleaning and Disinfecting Requirements

The cleaning and disinfecting requirements pose a significant challenge for contractors. The requirements discourage contractors from sharing tools and/or equipment and require shared tools and equipment be disinfected between uses. Contractors share equipment on job sites as a means of efficiency and cost savings. For ongoing projects, costs for tools and equipment have already been budgeted. If contractors order extra tools and equipment to avoid sharing, it may negatively impact profitability.

Because avoiding sharing tools and equipment may be problematic for contractors, they must implement methods to disinfect tools and equipment between uses. This will require contractors to invest in things like hand sanitizer and disinfecting wipes to disinfect tools and equipment between uses. Workers should sanitize their hands before use and wipe down the tool or equipment after use. This restriction may be modified in the near future because of the CDC’s recent guidance stating COVID-19 cannot live easily on surfaces. But for now, contractors should follow the requirements as written.

3. Personal Protective Equipment (PPE)

The most obvious requirement is contractors must use PPE when on the jobsite. The PPE requirements mandate face coverings are worn at all times practicable. However, when working more than six (6) feet from others or in remote areas face coverings are not required. While it may be a nuisance for many workers, especially on hot summer days, workers should wear masks while on-site. If a worker becomes overheated or is having trouble breathing, it is advisable for him or her to withdraw from others to a reasonable distance before removing their face covering. Contractors should provide their workers with disposable masks each day.

4. Training and Safety Requirements

Contractors must also adhere to the Training and Safety Requirements provided in the Order. Contractors must appoint a safety coordinator to manage the requirements at each jobsite. Contractors must also require sick workers or those exhibiting symptoms to stay home. Special accommodations must be provided for high-risk persons and contractors must have COVID-19 testing information readily available including testing locations. The safety coordinator should be responsible for ensuring project participants understand and comply with the requirements.

The Healthy at Work requirements are mandatory. It is incumbent on contractors to review and understand the requirements, and to implement measures to comply.

Related Capabilities
Construction Drafting, Reviewing & Negotiating Construction Contracts Fabricated Structural Steel Federal, State & Local Public Construction and Procurement Health Care - Construction