As I hope readers of this construction corner of the “blogosphere” know, Virginia adopted emergency COVID workplace regulations effective July 27, 2020, and with enforcement beginning at the end of September. Among the various items found in these regulations are general requirements for all employers, including among others, the requirement to self determine the employer’s risk level and disinfecting requirements. The regulations also have some requirements that seem specially directed toward construction industry employers. These include among them engineering controls and various requirements relating to communications with subcontractors. For a good overview of these requirements, see this great post at the Virginia Bar Association’s construction law blog.
One item that is not included in the emergency regulations is a statement that following the regulations immunizes an employer from COVID infection-related lawsuits. For this reason, among others, all construction (and other industry) employers should have a COVID plan that meets the requirements of these regulations at whatever “hazard level” that employer meets. These plans should be written and distributed to all employees and include protocols for workplace/job site screening and what to do if there is a need for contact tracing. I also highly recommend that any plan be created with the help of a good Virginia workplace safety consultant well versed in the COVID regulations.
Why is such a plan necessary you may ask? As a construction attorney here in Virginia, I know that written beats oral all the time (whether it’s with contracts or safety plans). What better way to show VOSH/OSHA that you are on board with COVID safety than to be able to show them in writing how great a plan you have? Given the number of COVID related claims VOSH must be receiving, I am sure that any response to a letter from VOSH that attaches a written plan will go a long way toward closing that file and avoiding an inspection that could lead to the discovery of further minor (I hope) violations. In short, cutting this off at the pass is the best way to stay violation free.
Another reason is to avoid liability. In the event that you are sued because someone gets sick or dies as a result of COVID, having a written plan, and following that plan, will likely be the best defense. Given the nature of COVID, proof of where and how a person contracted it may be difficult for a plaintiff. Your written plan will only make this proof harder. Additionally, a potential plaintiff will have a harder time proving employer negligence in the face of a written and executed plan that meets with the requirements of the VOSH emergency rules.
COVID has thrown the world for a loop. Making a plan and sticking to the plan can make things easier in a crazy 2020.
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