On March 18, Nevada’s governor issued the Nevada Health Response COVID-19 Risk Mitigation Initiative. The Nevada Occupational Safety and Health Administration (NVOSHA) followed suit by publishing a set of guidelines to support the March 18 Risk Mitigation Initiative. Those guidelines established social distancing protocols for essential businesses operating in the mining, construction and manufacturing industries. Since that time, as the COVID-19 pandemic has evolved, so too have the various governmental agencies’ responses and plans, including those of NVOSHA.
Essential businesses in the mining, manufacturing and construction industries are expected to restrict gatherings to 10 people or fewer, maintain social distancing and conduct daily surveys of the health of their workforce, among other requirements.
With respect to the mandate for employers to actively monitor the health and well-being of their employees, employers may achieve this goal by:
• Monitoring workers that enter and leave the workplace.
• Conducting temperature checks.
• Inquiring about recent travel, symptoms and contact with individuals outside of work.
It is important to note that the lack of a fever is not a definitive indication that somebody does not have COVID-19, as some infected individuals remain asymptomatic, according to the Centers for Disease Control and Prevention. That is why it is important for employers to have the pulse of their workforce and be actively involved in knowing how employees and those with whom they interact are feeling. It is also important to note that the CDC expanded its list of the most common symptoms of COVID-19 to include difficulty breathing, chills, repeated shaking with chills, muscle pain, headache, sore throat, and new loss of taste or smell, in addition to cough, shortness of breath and fever. Employers should monitor employees for these symptoms throughout the day, including during breaks, to ensure social distancing is maintained at all times.
Unlike manufacturing and mining protocols, NVOSHA recently updated its protocols for essential businesses in the construction industry on April 20. In addition to reiterating specific measures that most essential businesses must implement (restrict gatherings to 10 or fewer people, provide sanitation and cleaning supplies, survey the health conditions of employees, maintain social distancing, etc.), the NVOSHA protocols explicitly place the onus on employers to proactively protect the health and safety of their workforce and job sites. The new protocols caution that NVOSHA will actively enforce these safety protocols. While each employer should take responsibility for its own labor force, NVOSHA will also expect the general contractor to have overall control of the job site and to ensure that safety protocols are being followed.
In its April 20 directive, NVOSHA relaxed some of its prior mandates by providing an avenue for employees to work within 6 feet of each other when 6 feet of social distancing is infeasible or impractical. In those instances, the employer must create specific safety protocols to be implemented to reduce the risk of contracting or spreading COVID-19. This includes creating a Job Hazard Analysis (JHA) that is at least as effective as 6 feet distancing. Employers should identify those specific tasks that will require two or more workers to be within 6 feet and then create specific safety precautions to be implemented in those instances. If a JHA already exists for a specific task, that JHA may be amended to include the COVID-19 related precautions. If a JHA does not exist for a specific task, a new JHA should be created. Some recommended measures include wearing face coverings, safety glasses, gloves and other personal protective equipment (PPE). For tasks that will require workers to be in close contact for longer durations, employers may consider additional measures such as physical barriers between the workers.
Employers must be prepared to present the JHAs to OSHA staff upon request, as well as to demonstrate they are providing training and monitoring of specific measures identified in each JHA. This should include instruction to superintendents, foremen, project managers or others in supervisory or leadership roles to actively ensure compliance with the NVOSHA measures and each JHA.
NVOSHA also relaxed its social distancing requirements with respect to transportation to and from a job site. For tasks that require workers to be within 6 feet, people may travel in the same vehicle within 6 feet of each other, if there are specific safety measures in place, such as face coverings, glasses/goggles and possibly gloves, as necessary. However, these guidelines have not been relaxed and remain in full force in the mining and manufacturing industries.
Nevada OSHA is taking a proactive approach to enforcement and is conducting random on-site inspections to ensure compliance with the Nevada governor’s mandates and related safety protocols.
NVOSHA is working under the direction of the governor’s emergency directives as public safety officers, which provide broader enforcement capabilities by OSHA than during normal non-emergency operations. NVOSHA has indicated that noncompliance with the established protocols may be cause to close the project site in addition to citations and penalties. If NVOSHA stops by a construction site and sees workers within 6 feet of each other without face coverings, the employer can likely expect a citation. If NVOSHA notices that workers are within 6 feet of each other but utilizing face coverings and/or other safety precautions, the employer can likely expect to receive an inquiry letter from NVOSHA requesting additional information on any applicable JHA and related safety practices, training and monitoring protocols.
Federal and state authorities also have issued protocols for all essential businesses in the event an employee is sick. A March 27 technical bulletin issued by the Nevada Department of Health and Human Services to all Nevada businesses and industries specifies that employers should actively encourage sick employees to stay home, to send employees who have COVID-19 symptoms home. And, to only allow individuals with confirmed or suspected COVID-19 cases to return to work and discontinue home isolation only after they have been symptom-free for at least 72 hours (without the use of fever-reducing medications), and at least seven days have elapsed since their symptoms first appeared. This guidance largely echoes guidance published by the CDC. In the event an individual with confirmed or suspected COVID-19 has been in the workplace, the CDC recommends specific disinfecting procedures, which require an employer to close off any area that was used by the sick individual. A company need not close operations if they have the ability to close off affected areas. Workers without close contact with the affected individual may resume work following disinfection, while those who have had close contact should self-isolate and self-monitor for up to 14 days.
Every employer in a designated essential industry should be actively involved in ensuring the safety and well-being of its employees and their families, and should be committing resources to further those efforts. Non-compliance may lead to lawsuits, workers’ compensation claims, project shutdowns, or further restrictive measures by governmental agencies, in addition to citations and penalties.
Lucas Foletta is a partner at McDonald Carano, a business law firm. Philip Mannelly is an associate at the firm.