April 9, 2020
Dear Construction Industry Leaders:
A crisis brings out the best and worst in everyone. We have been greatly encouraged by the work that our members are doing to help and the care they are taking to make sure everyone is safe. We have also been amazed, however, at some of the things that contractors are being told to do that may put workers in harm’s way.
Associations from all parts of upstate New York are getting numerous reports about contractors being threatened with removal from a project because they have raised issues regarding safe work practices under the current environment. They have notified an owner or owner’s representative that the work needs to stop, or schedules be modified due to not being able to maintain social distancing. In some cases, owners are claiming that social distancing rules do not apply because the project is essential. These reports include both public and private owners. There are also a number of projects that owners have deemed essential that don’t seem to meet any of the guidance. It may not be a surprise, but some of the most aggressive threats seem to be on private projects that probably are not essential.
One thing that is clear in the guidance is that SOCIAL DISTANCING MUST BE MAINTAINED on ALL PROJECTS regardless of their essential status. There is currently no protocol for PPE or any exemptions. The relevant language from the executive order is below:
- At every site, it is required that the personnel working on the site maintain an appropriate social distance, including for purposes of elevators/meals/entry and exits. Sites that cannot maintain appropriate social distancing, as well as cleaning/disinfecting protocols must close. Enforcement will be conducted by state and local governments, including fines up to $10,000 per violation.
If you feel that you are being pressured to work unsafely, please let me know (firstname.lastname@example.org).
We suggest being wary of emails from ESD or other state or other public owners that claim that social distancing is not required. The executive order has currently not been modified to allow best efforts or the use of PPE instead of social distancing. Finally, make sure that you are involving your legal counsel and asserting all of the rights that you have under your contract. We also recommend that you get a letter from the owner regarding the essential nature of the project before going to work. It is clear that some bad actors are claiming projects are essential and then are unwilling to put that information in writing. This indicates that they probably are not in possession of that guidance and you will be responsible for the fine. Keep in mind that the DOL Worker Protection unit and various health departments are actively visiting job sites.
We will get through this crisis and can minimize the pain by making sure that we treat each other with respect. Construction schedules are going to be missed, through no fault of any of the contractors or designers. CM’s, GC’s and Subcontractors need to set reasonable expectations with the owners. By working safely together, we will create the best possible outcomes for our customers. If we fight each other, then the only folks who will win are the lawyers, and our owners will surely lose. This is something that no one has experienced – let’s do everything that we can to deal with it professionally and safely.
On Behalf of the Associations,
Todd G. Helfrich
President and CEO
Eastern Contractors Association, Inc.
Eastern Contractors Association, Inc.
Construction Employers Association of Central New York, Inc.
Construction Industry Association of Rochester, NY, Inc.
Construction Industry Employers Association, Inc.
Southern Tier Contractors Association, Inc.