Ontario's Premier announced on May 14, 2020 that select workplaces could start reopening as stage 1 of the Framework for Reopening the Province was given the green light. As part of the first stage, the previous restrictions on certain construction projects and activities were lifted.

On Tuesday, May 19, 2020 at 12:01 am, the list of essential workplaces was amended to permit all construction activities, projects and related services that support construction projects to reopen and all of the industry has effectively been back online since then. Although some restrictions have lifted, it is certainly not business as usual and construction companies are continuing to face and address the challenges posed by COVID-19.

Considerations for healthy and safe job sites in Ontario

Both employers and constructors have a duty under the Occupational Health and Safety Act (OHSA) to protect workers from workplace hazards and dangers - and this includes COVID-19. Employers in the construction industry face unique challenges in keeping their workplace safe. To help address these, it would be prudent to consider and regularly check the Ministry of Labour's resources specifically geared to the construction industry.

In addition to complying with all normally required health and safety measures on the job site, employers and constructors would be wise to give careful consideration to the following high level tips on how to protect against workplace hazards and dangers during COVID-19:

  • Assess risks and hazards for COVID-19 transmission on site, and implement policies outlining health and safety measures to mitigate those hazards. Implement a screening and reporting procedure for workers to identify anyone who may have been exposed to COVID-19.
  • All health and safety policies should be posted at entry points and on site, and distributed to anyone who will be on site, including subcontractors and any suppliers delivering to site.
  • Ensure sites are equipped with adequate hand-washing and sanitizing stations.
  • Provide workers with their own tools and equipment where possible, and sanitize shared equipment frequently.
  • Modify schedules as necessary to ensure workers on site can comply with physical distancing. This may include changing shifts, staggering start and stop times to minimize the number of workers entering and leaving the site, and limiting the number of workers working on a single task at once.
  • Where physical distancing is not possible (or even where it is possible), provide workers with additional personal protective equipment such as face masks.
  • Maintain accurate records of every worker, trade, delivery and service person on site, including the date, when and for how long each person was on site. This will help employers identify anyone who may have been exposed to COVID-19, if there is a positive case or risk of exposure.

This begs the question: who is to pay for all of these extra measures?

For OHSA purposes, responsibility for job site safety ultimately rests with whichever party is considered the "constructor" of the site. In practice, most standard form construction contracts typically designate the general contractor as the "constructor". For example, the CCDC 2 2008* provides at General Clause 9.4.1 that it is the general contractor who has sole responsibility for construction safety and for compliance with "the rules, regulations and practices required by the applicable construction health and safety legislation" as well as being responsible for "initiating, maintaining and supervising all safety precautions and programs" in connection with the work.

However, while general contractors typically have the ultimate responsibility to ensure site safety, they are not necessarily the ones left holding the whole bag. Indeed, contractors incurring additional costs related to safety may, in some cases, manage these contractually. This can be facilitated through change provisions and any associated notice requirements, and/or by contractually flowing obligations to protect against danger and hazards, like providing personal health equipment to all subcontractors and suppliers (provided that whoever is the "constructor" is still responsible for ensuring compliance with safety protocols, even if they are not the party paying for them).

Take-aways

Looking ahead, it can be expected that new and changing safety measures will be mandated to ensure safe operations on the job site. As a result, owners and contractors alike would be wise to consider their existing contracts, specifically where any financial responsibility lies in respect of health and safety measures on the job site, and how to plan and budget for future projects in light of the new normal.

* For readers not familiar with the terminology frequently used in the Ontarian construction industry, please note that "CCDC" means "Canadian Construction Documents Committee" Further, please note that "CCDC 2 2008" is the title of a standard form contract.

Originally published 08 June 2020

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