By: Erica Berardi
Seven San Francisco Bay-area health officers are reopening all construction, effective May 4, under updated shelter-in-place orders. But new required safety protocols, in place of social distancing requirements, are prompting questions from firms and industry groups regarding the mandate for third-party, COVID-19 accountability supervisors.
“Under the new orders, all construction projects will be allowed to resume as long as the project complies with safety protocols included with the order,” the counties of Alameda, Contra Costa, Marin, San Francisco, San Mateo and Santa Clara and the City of Berkeley said in a joint press release on April 29.
While each county and Berkeley issued separate orders, their language is largely the same. Safety protocols, required for construction to resume, are different from social distancing requirements and are an appendix to the orders. The safety protocols vary county to county. The Santa Clara order’s appendix, for example, lays out a three-page small construction project safety protocol and five-page large construction project safety protocol.
ENR contacted the six counties and Berkeley, none of whom immediately responded to questions for clarification.
“We have serious concerns and oppositions related to aspects of the new order,” says Emily Cohen, executive vice president of United Contractors (UCON). “We believe many of the new requirements are arbitrary, unworkable and a step backward for heavy civil engineering construction.”
UCON is opposed to the new orders’ large construction project (LCP) safety protocols’ requirement of a third-party Job Site Safety Administrator (JSAS), who must hold a 30-hour OSHA certificate and first-aid training and verify protocol compliance through visual inspection and random interviews with workers. The JSAS must complete written reports to be stored in case requested by a county. The orders define “large construction” as projects with 5 or more workers but do not specify who must assign the JSAS or the meaning of “third-party.”
“What is immediately clear is that no research was engaged in to determine what monitoring resources are available to meet this mandate,” UCON said in message to members. “There are simply not enough safety professionals in the Bay Area to perform the JSAS specific duties.”
AGC of California agrees: “Upon initial review, the order includes a third-party COVID-19 supervisor, a requirement not advocated for by AGC,” the organization told members in an email.
Associate Builders and Contractors of Northern California (ABC NorCal) echoes the sentiment. Michele Daugherty, president and CEO of ABC NorCal, asks how one qualifies to be a JSAS, if there are county registration processes to become a JSAS, who is responsible for storing reports for county review and who at the counties will review them.
“Is the JSAS responsible for the whole project or does each trade/contractor on the job need a JSAS,” Daughtery asks. “This is now adding another body on the jobsite.”
Matt Rossie, chief operating officer of Webcor, says the JSAS requirement needs definition and clarification, but that the firm’s projects will not be affected as they already meet the safety standards through OSHA and social distancing requirements. Rossie was promoted to COO and named to the firm’s board of directors earlier this week.
Rossie questioned whether the JSAS requirement would be met by appointing an employee “independent of the project who acts in the best interest in enforcing the rules to the letter and spirit of the law.” Webcor has had success meeting similar requirements in Los Angeles County by appointing employees in senior leadership positions to the task.
Rossie says that initial confusion about employees’ ability to travel between counties with varying shelter-in-place orders and varying definitions of “essential” business and workers, has largely been resolved through increased communication and clarification from government officials. The April 29 orders allow travel into or out of counties only to perform work for essential business or minimum basic operations of non-essential businesses.
Webcor expects the new requirements to impact project timelines. For example, Rossie points to high-rise projects where the logistics of vertical transportation are already complicated, and social distancing requirements limit the number of workers that can move up and down on a site. And though Webcor, liked other employers across the region, experienced higher rates of absenteeism when the pandemic began, Rossie does not expect it to be a major impediment.
“What we have seen is that if you create a safe work environment, eventually word spreads and people start coming back,” Rossie says.
Arup says the safety protocols are “absolutely necessary” to protect the health of everyone accessing construction sites, and the firm already has plans in place for projects with complex work where close proximity between workers is difficult to avoid.
“In such cases, the number of workers allowed in physically constrained areas at one time is reduced,” says Sheba Hafiz, infrastructure practice leader for Arup’s San Francisco office. “Such measures will obviously have some impacts on construction schedules.”
Skanska USA says it, too, already meets or exceeds local safety standards.
“If we can’t follow the safety protocols, we will not work,” says Gordon Childress, executive vice president and general manager of Skanska’s building operations in San Francisco. Childress notes that only two Bay Area projects are currently suspended by client request, “not due to state or local orders or directives.”
Hensel Phelps will adjust and adapt to new standards, says Dave Valentine, project development director of Hensel Phelps’ NorCal District, who does not portend project delays but expects costs to increase “not substantially,” due to added prevention measures.
“We can only imagine the negative economic impact to the communities, having so many projects shutdown,” says Valentine. “We are not yet aware of all these requirements, but trust that we will be able to work through any additional costs with our owners.”
Nixon Peabody attorneys Alison Torbitt, an energy and environmental partner, and Tracy Ickes, who focuses on law relating to commercial and construction, say the new safety protocols will impact timelines and logistics.
“For at least one client’s contractors, I just received a copy of their new protocol compliant on today’s order within three hours of the orders being published,” says Torbitt, who expects large construction and remediation projects to be able to restart quickly. “Other projects may be delayed as we are told some contractors already had months-long delays due to greater than normal demand for construction after [last year’s Northern California] fires, which are now only exacerbated by the shutdown.”
Ickes says contractors will need to reconsider logistics, including staggering daily worker arrivals and adjusting management of deliveries, while daily schedules will be reconsidered to allow for cleaning and decontamination.
“Contractors may also have to make new arrangements for basic items like water, which can no longer be come from shared coolers, and on-site office equipment, which should not be shared,” Ickes says. “Getting all of this in place may not happen overnight, especially on large projects.”
The new orders extend through May 31 and modify the area’s previous shelter-in-place orders, some of the most restrictive in California. That March 31 order halted most construction. The order also allows all real estate transactions to resume, but with continued restrictions on open houses and in-person-viewing limitations. In addition, the orders say any employee allowed to return to work may also access childcare programs, which includes daycare, public and private education institutions and recreational camps, that are permitted to operate.