By Riley Smith
Special to North Carolina Construction News
On June 24, Gov. Roy Cooper signed Executive Order No. 147, extending North Carolina’s Phase 2 easing of coronavirus restrictions until 5:00 pm on July 17. Significantly, Executive Order No. 147 not only delays Phase 3 easing of restrictions, it also includes certain amendments to Governor Cooper’s original Phase 2 Order requiring additional protective measures to mitigate the spread of COVID-19.
These additional measures, which went into effect on June 26 include a requirement for face coverings at construction sites. Specifically, and pursuant to Section II of Order 147, Governor Cooper’s initial Phase 2 Order has been amended to require that all construction workers “must wear face coverings when they are or may be within six feet of another person.”
What construction contractors are impacted?
If your construction business falls within North American Industry Classification System sectors 236 (Construction of Buildings), 237 (Heavy and Civil Engineering Construction), or 238 (Specialty Trade Contractors), then Order 147’s requirements apply.
What are face coverings?
Order 147 amends Governor Cooper’s original Phase 2 Order to define face coverings as follows:
“Face covering” means a covering of the nose and mouth that is secured to the head with ties, straps or loops over the ears or is simply wrapped around the lower face. A face covering can be made of a variety of synthetic and natural fabrics, including cotton, silk or linen. Ideally, a face covering has two or more layers. A face covering may be factory-made, sewn by hand or can be improvised from household items such as scarfs, bandanas, t-shirts, sweatshirts or towels. These face coverings are not intended for use by healthcare providers in the care of patients.
“Surgical mask” means American Society for Testing and Materials Level 1, 2 or 3 approved procedural and surgical masks. An N95 respirator approved by the National Institute for Occupational Safety and Health (or a respirator from another country allowed by the Occupational Safety & Health Administration (OSHA), the Food & Drug Administration, or the Centers for Disease Control and Prevention (CDC)) is not recommended for general public use or use in public settings, as it should be reserved for healthcare providers and other medical first responders in a health care setting. However, if worn, these respirators would meet both the face covering and surgical mask requirements of this Executive Order. A face shield that covers the nose and mouth also meets the face covering requirements of this Executive Order.
Are there any exceptions?
Yes. Of particular relevance on construction sites, employees operating equipment or a vehicle that find their face covering impedes their vision are excepted from Order 147. Other exceptions may be found in Section II of Order 147.
How will order 147 be enforced, and for how long? Are there any penalties?
State and local law enforcement officers are empowered to issue citations to businesses and organizations that violate Order 147. Under North Carolina law, N.C. Gen. Stat. § 14-288.20A, violations of executive orders may be prosecuted as a Class 2 misdemeanor. Order 147 does not authorize law enforcement personnel to criminally enforce the face covering requirements against individual workers, customers, or patrons. However, if an individual refuses to wear a face covering and enters a premises, or refuses to leave one, they may be charged with trespassing or other violations.
Order 147 will remain in effect through 5:00 pm on July 17 unless repealed, replaced or rescinded by another applicable Executive Order.
Are there any best practices construction contractors can employ?
Construction contractors are responsible for jobsite safety and, with that in mind, the following best practices may aide compliance with Order 147:
- Define face coverings in your jobsite safety plans, ensuring alignment with relevant laws and regulations;
- If reusable face coverings are allowed, consider specifying care and sanitation requirements;
- Require all employees and subcontractors to wear face coverings in your jobsite safety plan, and specify enforcement procedures and punishments for violations;
- Provide face coverings to your employees and mandate that subcontractors and other jobsite visitors do the same;
- Train employees, subcontractors, inspectors, and other jobsite visitors on your safety policies, social distancing and proper use of face coverings;
- Review proper workplace hygiene, social distancing, and proper use of face coverings during weekly toolbox talks;
- Identify crews and workers that are likely to be working in close proximity and consider providing additional task specific training and PPE, such as respirators or visors;
- Emphasize that wearing face coverings does not supersede or replace more stringent safety regulations, such as OSHA’s silica standards;
- As authorized by Order 147, if anyone refuses to wear a face covering and enters your jobsite or refuses to leave it, consider alerting law enforcement personnel;
- Document all of your efforts by, for example, amending your safety plans, sending alert emails, creating jobsite posters and/or banners, and recording and maintaining meeting minutes.
Note that the above best practices are non-exhaustive and should only be considered as general information and education, not legal advice. Every jobsite is different and construction contractors should adopt a compliance plan that fits their specific facts and circumstances.
Riley Smith is a lawyer with Poyner Spruill LLP based in Raleigh.