Authored by: Carol A. Sigmond
Massachusetts, New Jersey and New York are moving to allow stalled construction projects to restart. For employers on job sites, be they owners, construction managers, general contractors, trade contractors or suppliers, the risks posed by coronavirus on reopened construction sites are concerning. These risks include: breach of contract claims by higher-tier parties based on claims that a lower-tier party introduced coronavirus on the job site, leading to disruption and delay of the project; personal injury claims by workers of other trades on site based on contracting the virus at the job site from the workers of another trade; and personal injury claims from others able to trace COVID-19 back to a job site and a particular infected worker.
The Occupational Health & Safety Administration (“OSHA”) has yet to issue safety rules relating to coronavirus. While OSHA has articulated some “guidancei“, the “guidance” does not provide specific conduct required to comply with the General Duty Clause to maintain worker safety.ii
For employers and their insurers, OSHA’s failure to provide rules is not necessarily helpful. OSHA rules provide certainty for employers on how to meet the requirements for work place safety under the OSHA General Duty Clauseiii. These regulatory systems also provide evidence of the duty of care in negligence actions. E.g. Almeida v. Pinto, 94 Mass.App.Ct. 540 (Mass. Ct. App. Bristol 2018); Costantino v. Ventriglia, 324, N.J. Super 437, (N.J. Super 1999); Signature Health Center LLC v. State, 28 Misc. 2d 543 (Ct. Cl. 2010). In the scenarios referenced above, the defendant is facing claims for damages for negligence or breach of contract.iv
If the courts do not have OSHA rules to use as a guide on the standard of care, the issue is what standards will the courts look to for a standard of care. Injured parties, plaintiff attorneys, and union advocatesv will be pushing high standards such as those propagated by the North American Building Trades Unions.vi Defense attorneys and insurance companies may advocate for less restrictive standards and argue for more personal responsibility in avoiding contact with infected parties. This tactic will be an attempt to utilize state-law comparative or contributory negligence defenses to reduce liability or damages.
Negligence is an issue of state law: in theory, there may be one standard for every state and the District of Columbia. Here, we are looking at three states: Massachusetts, New Jersey and New York that generally look to government safety regulations (state or federal, including OSHA) as evidence of the standard of care in the workplace.
While each state’s approach may vary, it seems likely that courts in each state will balance the risk of COVID-19, which extends up to and including a risk of death from COVID-19, against the steps available to prevent coronavirus. This balancing is likely to begin with consideration of the status of the virus at the time of the loss and the safety standards established by each state government at the time of the loss.vii Each state is maintaining records of the COVID-19 deaths in their respective jurisdiction. Moreover, each of these state plans appear to rely on guidance issued by federal agencies, including the Centers of Disease Control (“CDC”) and state health departments.
Doubtless in arguing about the appropriate standard of care, the parties will present evidence of federal standards. For those arguing for a lower standard of care and a greater appreciation of personal responsibility as a contributing factor, the White House guides will be offered. Those seeking a higher standard of care are likely to offer experts opining support for the shelved CDC guidance. The CDC prepared and the White House issued 6 decision treesviii for reopening that lack the detail and precision of the guidelines prepared by the CDC and then not issued.ix
There is no certainty as to how the courts will deal with the conflicting guidance from the federal government. But, if a state or industry adopts the shelved CDC guidance, the guidance is more likely to be considered an enforceable standard of care.x In evaluating the standard of care on construction sites, in addition to state standards and the infection and death rates, the courts are likely to look to actual job hazard plans for mitigating the risk of transmission of coronavirus on construction sites, the effectiveness of the plan, and compliance with the plan in relation to the risks and the cost benefit of each step in saving lives.
Absent OSHA regulations, construction sites should reopen in a manner consistent with the shelved CDC guidance, OSHA guidance, the respective state regulations and orders, and the local public health department direction and any collective bargaining agreement standards. Following these general guidelines will help reduce the spread of the coronavirus and maximize the likelihood that the standard of care followed at your site will be accepted by the courts and, in turn, reduce your exposure to damages.
i https://www.osha.gov/Publications/OSHA4000.pdf; https://www.osha.gov/Publications/OSHA3990.pdf; https://www.osha.gov/memos/2020-04-10/enforcement-guidance-recording-cases-coronavirus-disease-2019-COVID-19
ii The OSHA General Duty clause provides: “Each employer — (a) (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees. . .” 29 U.S.C. 654(a) (1)
iii These safe harbor type regulations may also provide defenses to breach of contract, even in light of time is of the essence clauses, under the doctrines of frustration of purpose, impracticality, impossibility, or inevitable injury. E.g. Capparelli v. Lopatin, 459 N. J. Super. 584 (N.J. Super. 2019); Crown II Services, Inc. v. Olsen, 11 A.D.3d 263 (1st Dept. 2004); Chase Precast Corp. v. John J. Paonessa Co., Inc., 409 Mass. 371 (1991).
iv Contract and negligence claims are generally treated differently under the law and this article focus on certain negligence issues. The doctrine of unavoidable accident is a contract defense, but is basically a consideration of negligence principles. https://escholarship.org/content/qt9fj1m40z/qt9fj1m40z.pdf
v Expect the major construction and manufacturing trade unions to negotiate coronavirus safety work rules. Doubtless the financial consequences of the safety work rules will also have to be negotiated.
vii https://www.mass.gov/info-details/reopening-four-phase-approach; https://www.njsba.org/news-publications/school-board-notes/april-28-2020-vol-xxliii-no-38/gov-murphy-announces-roadmap-for-reopening-new-jersey/; https://www.governor.ny.gov/news/amid-ongoing-COVID-19-pandemic-governor-cuomo-announces-fifth-region-hits-benchmark-begin
x US News & World Report advises that school superintendents are looking to the shelved CDC guidelines and not the White House decision trees. https://www.usnews.com/news/education-news/articles/2020-05-15/school-superintendents-dismiss-white-house-will-follow-leaked-cdc-guidance-on-reopening-schools