Bay Area Counties Issue Less Restrictive “Shelter in Place” Orders, Including for Construction
The short story: Construction can resume. The long story: Construction can resume beginning Monday, May 4, 2020, with extensive and detailed restrictions.
Six Bay Area Counties Loosen Shelter-in-Place Restrictions Including Allowing Construction to Resume
Earlier this week, six Bay Area counties and the City of Berkeley issued new orders requiring the use of face coverings when in public. The six Bay Area counties, which also happen to be the first counties in the nation to issue shelter-in-place orders, are Alameda, Contra Costa, Marin, San Francisco, San Mateo and Santa Clara.
When do the revised shelter-in-place orders take effect?
The revised shelter-in-place orders take effect at 11:59 p.m. on May 3, 2020and will remain in effect until 11:59 p.m. on May 31, 2020 unless extended, rescinded, superseded, or amended. Thus, effectively, the new orders take effect on Monday, May 4, 2020.
What restrictions remain in place under the revised shelter-in-place orders?
The revised shelter-in-place orders retain many of the same restrictions as the previous shelter-in-place orders. These include a general prohibition from leaving one’s residence unless engaging in “Essential Activities” or “Essential Travel,” working at or accessing “Essential Governmental Functions,” or operating an “Essential Businesses” or engaging in “Minimum Basic Operations” and, if leaving one’s residence, requiring the use of face coverings and maintaining social distancing of at least 6 feet:
- Essential Activities: Including traveling to a hospital or pharmacy; going to a grocery store, pet store, office supply store, or hardware store; engaging in outdoor activities such as walking, hiking, bicycling and running; attending a funeral with no more than 10 people present; caring for a family member or pet in another household; and performing work at an Essential Business or maintaining Minimum Basic Operations.
- Essential Travel: Including travel related to Essential Activities, Essential Governmental Functions, Essential Business or Minimum Basic Operations; travel to care for elderly, minors, dependents or persons with disabilities; travel to or from educational institutions for materials or meals; returning to a place of residence.
- Essential Governmental Functions: Working at or accessing functions deemed by a governmental agency as being “essential” including first responders, emergency management personal, emergency dispatchers, court personnel, law enforcement personnel.
- Essential Businesses: Includes a wide-range of businesses including healthcare, grocery stores, gas stations, hardware stores, banks, and laundromats.
- Minimum Basic Operations: Minimum necessary activities to maintain and protect business inventory and facilities; ensure security, safety and sanitation; process payroll and employment benefits.
- Facial Coverings:
What new under the revised shelter-in-place orders?
The revised shelter-in-place orders loosen restrictions on several activities:
- Construction is now permitted subject to specified “Construction Safety Protocols.”
- A new category called “Outdoor Business” was created. Businesses currently meeting the definition of an Outdoor Business include wholesale and retail plant nurseries, agricultural operations, and garden centers. Arborists, landscapers and gardeners, and environmental site remediation providers also fall within the definition of Outdoor Business.
- Childcare establishments, summer camps, and other educational or recreational institutions or programs providing care or supervision for children (not more than 12 in any group) to enable those engaged in Essential Businesses, Essential Governmental Functions, Outdoor Businesses, Minimum Basic Operations to work.
- Subject to restrictions by local jurisdictions, golf courses, tennis courts, skate parks and athletic fields may be used.
Are there penalties for failing to comply with the revised shelter-in-place orders?
Yes, violation of the revised shelter-in-place orders is punishable by fine, imprisonment, or both.
Where can I get a copy of the revised shelter-in-place orders?
Copies of the revised shelter-in-place orders can be obtained from the following links:
- Alameda County
- Contra Costa County
- Marin County
- San Francisco County
- San Mateo County
- Santa Clara County
- City of Berkeley
Impact on Contractors, Subcontractors, Material Suppliers, Equipment Lessors and Project Owners
The revise shelter-in-place orders state include within the definition of “Essential Business”:
“Construction, but only as permitted under the State Shelter Order and only pursuant to the Construction Safety Protocols listed in Appendix B and incorporated into this order by reference. Public Works shall be subject to Appendix B, except if other protocols are specified by the Health Officer.”
As we read the revised shelter-in-place orders there are three take-aways:
- The county orders are expressly made subject to more restrictive requirements contained in the State Shelter-in-Place Order issued on March 19, 2020. Under the State Shelter-in-Place Order, construction workers who support the construction, operation, inspection and maintenance of construction sites and construction projects, including housing, commercial, and mixed-use construction, and workers who support the supply chain of building materials, are exempt from the State Shelter-in-Place Order. As such, as we interpret it, there is no restrictions on construction under the county orders.
- Construction, while permitted, is subject to contractors following the Construction Safety Protocols set forth in the county orders.
- Public works project are also subject to the Construction Safety Protocols set forth in the county orders except if other protocols are specified by the “Health Officer.” The “Health Officer” refers to the county Health Officer of each county issuing the revised shelter-in-place orders, and under the revised shelter-in-place orders, there are no special protocols applicable to public works projects. In short, at present, public works projects are subject to the Construction Safety Protocols set forth in the revised shelter-in-place orders.
What Do the Construction Safety Protocols Require?
The revised shelter-in-place orders contain two “Construction Safety Protocols,” one for small projects, and another for larger projects. The Construction Safety Protocols are extensive and detailed and provide as follows:
Small Construction Projects Safety Protocol (“SCP Protocol”)
Applicability:
- Residential projects, including single-family, multifamily, senior, student, or other residential construction consisting of 10 units or less. Not applicable to construction work performed on own current residence.
- Commercial projects consisting of 20,000 square feet of floor area or less.
- Mixed-use projects consisting of both 10 units or less and 20,000 square feet of floor area or less.
- All other projects not subject to the Large Construction Project Safety Protocol.
OSHA/Cal-OSHA Compliance: Comply with OSHA and Cal-OSHA laws and regulations. In the event of any conflict between OSHA, Cal-OSHA and the Small Construction Project Safety Protocol (“SCP Protocol”), the stricter standard is to apply. Note that both OSHA and CalOSHA have recently provided new guidance applicable to the construction industry.
COVID-19 Personnel:
- Designate a COVID-19 supervisor or supervisors to enforce SCP Protocol.
- COVID-19 supervisor must be on site at all times during construction activities.
- COVID-19 supervisor must review SCP Protocol with all workers and visitors to project site.
Screening/Attendance Log/Cleaning Protocol:
- Establish daily screening protocol to ensure potentially infected workers do not enter project site.
- Post daily screening protocol at all exit/entry points. More information on screening can be found athttps://www.cdc.gov/coronavirus/2019ncov/community/index.html.
- If workers leave project site during day and return same day, establish cleaning and decontamination protocol prior to exit and re-entry at project site.
- Maintain daily attendance log of all workers and visitors entering project site including name, phone number, address, and email.
Notice Requirements: Notice must be posted in conspicuous area visible to all workers and visitors advising them to:
- Not touch face with unwashed hands or with gloves.
- Frequently wash hands with soap and water for at least 20 seconds or use hand sanitizer with at least 60% alcohol.
- Clean and disinfect frequent touched objects and surfaces including work stations, keyboards, telephones, handrails, machines, shared tools, elevator control buttons, and doorknobs.
- Cover mouth and nose when coughing or sneezing or cough or sneeze into crock of arm.
- Do not enter project site if you have fever, cough, or other COVID-19 symptom. If you feel sick, or have been exposed to anyone who is sick, stay home.
- Maintain minimum six-foot distance at all times when not wearing PPE.
- Do not carpool to or from jobsite except with household members or for workers with no other means of transportation.
- Do not share phones or PPE.
In addition, daily screening protocol must be posted at all exit/entry points.
PPE Requirements:
- Provide personal protective equipment (“PPE”), including gloves, goggles, face shields, and face coverings as appropriate for activity.
- Face coverings must cover mouth and nose.
- PPE must not be shared.
- Medical-grade PPE may not be used unless required due to medical nature of project site (e.g., work at hospital).
On Site Requirements:
- Workers are required to maintain minimum six-foot distance unless necessary to carry out construction-related task.
- Prohibit gatherings on jobsites, including gatherings for eating and breaks, except for meetings regarding compliance with Small Project Protocol, or as strictly necessary to carry out construction tasks, including safety meetings.
- Water should be provided in single-serve containers. Sharing of food or beverages is strictly prohibited. If sharing is observed, worker must be sent home for day.
- Strictly control “choke points” and “high-risk areas” where workers are unable to maintain minimum six-foot distancing requirements.
- Minimize interactions, and maintain minimum six-foot distance with site visitors including architects, engineers, government representatives, inspectors, and others.
- Stagger trades as necessary to reduce number of workers at project site and to maintain minimum six-foot distance.
- Discourage workers from using others’ desks, work tools and equipment. If more than one worker uses an item, item must be cleaned and disinfected.
- Portable wash stations or hand sanitizers must be provided at entrances and at multiple locations at project site, as warranted, if handwashing facilities are not available at project site.
- Handwashing facilities, portable wash stations, restroom areas and other enclosed areas, as well as high-touch areas, tools and other items, including exit/entry areas, should be cleaned and disinfected daily.
On-Site Requirements at Occupied Facilities: Where construction work occurs within an occupied residential, commercial or mixed use building:
- Work areas must be sealed off with physical barriers (e.g., plastic sheeting, closed doors sealed with tape), to the extent possible.
- Workers must access work areas from alternative exit/entry points not used by residents or others, if possible.
- Available windows and exhaust fans must be used to ventilate work area (only applicable to residential units).
- If residents have access to work area, work area must be cleaned and sanitized at the beginning and end of each workday (only applicable to residential units).
- Every effort must be taken to minimize contact between workers and residents including maintaining minimum six-foot distance.
Large Construction Projects Safety Protocol (“LCP Protocol”)
Applicability:
- Residential projects, including single-family, multifamily, senior, student or other residential construction, consisting of more than 10 units.
- Commercial projects consisting of more than 20,000 square feet of floor area.
- For construction of Essential Infrastructure, any project that requires five or more workers at the jobsite at any one time.
OSHA/Cal-OSHA Compliance: Comply with OSHA and Cal-OSHA laws and regulations. In the event of any conflict between OSHA, Cal-OSHA and the Large Construction Project Safety Protocol (“LCP Protocol”), the stricter standard is to apply. Note that both OSHA and CalOSHA have recently provided new guidance applicable to the construction industry.
Site-Specific Health and Safety Plan: Prepare a Site-Specific Health and Safety Plan to address COVID-19-related issues:
- Site-Specific Health and Safety Plan must include COVID-19 community spread reduction plan addressing, at a minimum: (i) Prohibition of carpool to or from jobsite except with household members or for workers with no other means of transportation; (ii) Water to be provided in single-serve containers. Sharing of food or beverages is strictly prohibited. If sharing is observed, worker must be sent home for day; (ii) Prohibit use of microwaves, water coolers and other similar shared equipment.
- Site-Specific Health and Safety Plan must identify individual designated as SCO.
- Site-Specific Health and Safety Plan must be translated as necessary to ensure understanding by non-English speaking workers.
- Post Site-Specific Health and Safety Plan at all exit/entry points.
- Copy of Site-Specific Health and Safety Plan must be provided to county governmental official upon request.
COVID-19 Containment: In the event of a confirmed case of COVID-19 at a project site the following actions must be taken:
- Infected individual must be immediately removed from project site with directions to seek medical care.
- Each location where the infected individual was at must be decontaminated and sanitized by an outside vendor certified in hazmat clean up and work in these areas must cease until decontamination and sanitation is complete.
- County Public Health Department must be notified immediately and any additional requirements of the County Public Health Department must be completed including any tracing requirements.
COVID-19 Personnel: Designate a COVID-19 Safety Compliance Officer (“SCO”). SCO’s responsibilities include:
- Ensuring implementation of all COVID-190-related safety and sanitation requirements at the project site.
- Compiling daily written verification that each jobsite is compliance with the LCP Protocol. A copy of each verification must be made available to a county governmental official upon request.
- Establishing a daily screening protocol to ensure potentially infected workers do not enter project site. Post daily screening protocol at all exit/entry points. More information on screening can be found athttps://www.cdc.gov/coronavirus/2019ncov/community/index.html.
- If workers leave project site during day and return same day, establish cleaning and decontamination protocol prior to exit and re-entry at project site.
- Conducting daily briefings in person or by telephone covering: (i) new jobsite and pre-job site travel restrictions to prevent spread of COVID-19; (ii) review of sanitation and hygiene procedures; (iii) solicitation of worker feedback on improving safety and sanitation; (iv) coordination of construction site daily cleaning/sanitation requirements; (v) conveying updated information regarding COVID-19; (vi) emergency protocols in the event of exposure or suspected exposure to COVID-19.
- Developing and ensuring implementation of remediation plan to address non-compliance with LCP Protocol. Post remediation plan at exit/entry points during remediation period. Remediation plan must be translated as necessary to ensure understanding by non-English speaking workers.
- Not permitting any construction activity to continue without bringing activity in compliance with LCP Protocol.
- Reporting repeated non-compliance with LCP Protocol to appropriate jobsite supervisor and a designated county official.
Assign a COVID-19 Third-Party Jobsite Safety Accountability Supervisor (“JSAS”) who, at a minimum, holds an OSHA-30 certificate and first-aid training within the last two-years, and who is trained in LCP Protocol:
- Within seven (7) calendar days of each jobsite visit, the JSAS must complete a written assessment identifying any failure to comply with LCP Protocol. Written assessment must be made available to a county governmental official upon request.
- If JSAS discovers that a project site is not in compliance with LCP Protocol, JSAS must work with SCO to develop and implement a remediation plan.
- JSAS must coordinate with SCO to prohibit continuation of work activity not in compliance with LCP Protocol.
- Remediation plan must be sent to designated county official within five (5) calendar days of JSAS discovery of failure to comply.
Screening/Attendance Log/Cleaning Protocol:
- Establish cleaning and decontamination protocol prior to entry and exit from project site.
- Post cleaning and decontamination protocol at all exit/entry points.
- Maintain daily attendance log of all workers and visitors entering project site including name, phone number, address, and email.
Notice Requirements: Notice must be posted in conspicuous area visible to all workers and visitors advising them to:
- Not touch face with unwashed hands or with gloves.
- Frequently wash hands with soap and water for at least 20 seconds or use hand sanitizer with at least 60% alcohol.
- Clean and disinfect frequent touched objects and surfaces including work stations, keyboards, telephones, handrails, machines, shared tools, elevator control buttons, and doorknobs.
- Cover mouth and nose when coughing or sneezing or cough or sneeze into crock of arm.
- Do not enter project site if you have fever, cough, or other COVID-19 symptom. If you feel sick, or have been exposed to anyone who is sick, stay home.
- Maintain minimum six-foot distance at all times when not wearing PPE.
- Do not carpool to or from jobsite except with household members or for workers with no other means of transportation.
- Do not share phones or PPE.
In addition, (i) daily screening protocol must be posted at all exit/entry points; (ii) LCP Protocol must be translated as necessary to ensure understanding by non-English speaking workers; and (iii) Site Specific Health and Safety Plan must be posted at all exit/entry points.
PPE Requirements:
- Provide personal protective equipment (“PPE”), including gloves, goggles, face shields, and face coverings as appropriate for activity.
- Ensure employees are trained in use of PPE. Maintain log of all PPE training.
- Face coverings must cover mouth and nose.
- PPE must not be shared.
- Medical-grade PPE may not be used unless required due to medical nature of project site (e.g., work at hospital).
On Site Requirements:
- Stagger start and end times for shift schedules to reduce number of workers at project site, to extent feasible.
- Clean and decontaminate high-traffic and high-touch areas including, at a minimum, meeting areas, jobsite lunch and break areas, exit/entry points, jobsite trailers, hand-washing areas, tools, equipment, restroom areas, stairs, elevators and lifts, in accordance with CDC guidelines.
- Workers are required to maintain minimum six-foot distance unless necessary to carry out construction-related task.
- Prohibit gatherings on jobsites, including gatherings for eating and breaks, except for meetings regarding compliance with Small Project Protocol, or as strictly necessary to carry out construction tasks, including safety meetings.
- Water should be provided in single-serve containers. Sharing of food or beverages is strictly prohibited. If sharing is observed, worker must be sent home for day.
- Strictly control “choke points” and “high-risk areas” where workers are unable to maintain minimum six-foot distancing requirements.
- Minimize interactions, and maintain minimum six-foot distance with site visitors including architects, engineers, government representatives, inspectors, and others.
- Stagger trades as necessary to reduce number of workers at project site and to maintain minimum six-foot distance.
- Discourage workers from using others’ desks, work tools and equipment. If more than one worker uses an item, item must be cleaned and disinfected.
- Portable wash stations or hand sanitizers must be provided at entrances and at multiple locations at project site, as warranted, if handwashing facilities are not available at project site.
- Handwashing facilities, portable wash stations, restroom areas and other enclosed areas, as well as high-touch areas, tools and other items, including exit/entry areas, should be cleaned and disinfected daily.
On-Site Requirements at Occupied Facilities: Where construction work occurs within an occupied residential, commercial or mixed use building:
- Work areas must be sealed off with physical barriers (e.g., plastic sheeting, closed doors sealed with tape), to the extent possible.
- Workers must access work areas from alternative exit/entry points not used by residents or others, if possible.
- Available windows and exhaust fans must be used to ventilate work area (only applicable to residential units).
- If residents have access to work area, work area must be cleaned and sanitized at the beginning and end of each workday (only applicable to residential units).
- Every effort must be taken to minimize contact between workers and residents including maintaining minimum six-foot distance.
California Construction Law Blog | Nomos LLP 
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[…] and, in particular, county health departments, for any job safety requirements such as the “Construction Projects Safety Protocols” currently required in the Bay […]