HITTING THE HIGHLIGHTS OF GOVERNOR’S MASSACHUSETTS RE-OPENING PLAN

Published on: May 19, 2020

CONSTRUCTION LIMITATIONS

On May 18, 2020 Governor Baker laid the groundwork for phased re-opening of Massachusetts.  The soft re-opening starts with construction, manufacturing and places of worship.  The protocols for construction projects in Massachusetts are intense.

Construction protocols should be of concern to condominium boards and property managers that are dealing with common area construction projects, as they will need to ensure that contractors that they hire are compliant with the regulations.  Condominium construction projects are especially complex and intense in the COVID-19 Era because they typically involve construction with a multitude of residents living at the property, who may come into contact with contractors and sub-contractors working on a site.

It may also be useful because every construction project in Massachusetts now requires a COVID-19 officer.  It may be advisable for property managers or condominium boards to ask for information and reports and/or to communicate with the COVID-19 officer for any interior unit construction projects to understand protocols for lessening impacts on the common areas.

Contractors and developers should be aware of the protocols.

The construction protocols include:

  1. Designation of a site-specific COVID-19 officer for every site except for renovations in 1-3 family residences. The COVID-19 officer may be the safety and compliance officer for the project (if they have one).
  1. COVID-19 officers are also required for construction in 1-3 family renovation projects; however, the COVID-19 officer does not need to be site specific. The contractor in charge of the project can supervise multiple small sites if the contractor has multiple small sites.
  1. COVID-19 officers are responsible for managing and attempting to control COVID-19 illness, restrictions, distancing and symptoms on the property. The obligations include daily reports.  Large and complex sites may have additional reporting requirements imposed by Town’s or Cities.
  1. All construction site will require self-certification by every worker prior to the start of every shift that: (1) they have not had a fever, cough or trouble breathing within the last 24 hours, (2) have not had close contact with infected persons, and (3) have not been asked to quarantine. The regulations provide a zero-tolerance policy for anyone on the site that feels sick or is observed to be sick.
  1. No handshakes, field offices are locked down for authorized personnel, no congregation, social distancing.
  1. All construction workers must wear non-tear gloves. Eye protection is strongly recommended but not required.
  1. Masks are required where social distancing is impossible.
  1. Contractors should drive to the work site alone in a single vehicle and not carpool with co-workers.
  1. Contractors must keep confidential the names of sick and/or quarantined employees, although there are reporting requirements by the COVID-19 Officer to the site owner and the Board of Health.
  1. If someone becomes sick at the site, the contractor shall disinfect to sanitize and clean common areas and direct work spaces. Sanitation must be conducted with personnel, equipment and material approved for COVID-19 sanitization.  In my view this means using a third-party vendor.
  1. There are also additional requirements for construction projects that were under way prior
  2. to May 17, 2020 and that will be re-started following the Governor’s May 18, 2020 Order.

These are just the highlights for the Construction Checklist [click here].

OFFICES ARE RESTRICTED TOO!

Not all condominiums are residential.  Office condominiums do exist.  Beyond that, many of our condominium industry partners, such as lawyers, property managers and accountants are considered offices under the Governor’s Order.

Offices (outside of Boston—Boston is slated to re-open June 1, 2020) are slated to re-open on May 25, 2020.  The requirements are similarly intense and provide:

  1. Openings should be 25% of certificate of occupancy or similar permit or the organization’s typical occupancy as of March 1, 2020. For example, if you have 40 employees in your office, then your operations are limited to 10 employees at any one time going forward.  This raises questions about offices that have multiple floors.  Is it 25% of occupancy per floor or the total?
  2. Businesses that are considered essential as of May 18, 2020, have until July 1, 2020 to comply with the Order, which hints that these restrictions are here to stay likely well into the summer.
  1. Businesses may exceed these minimum office occupancy thresholds based upon a demonstrated need to exceed the occupancy limits to deliver critical services.
  1. Ensure separation of work spaces by 6 feet. Limit movement in the building or facility.  Stagger work schedules and improve ventilation (i.e. open windows).  Encourage tele-commuting.  When spaces cannot be separated partitions are required which must exceed the height of the individual in the space.
  1. Close or reconfigure common spaces where workers may congregate, such as kitchens and lunch areas. Eliminate reasons for congregation of employees such as “office donuts” or “office lunches” and meetings.
  1. Post required signage. Provide directional controls around the office.
  1. Clean and disinfect regularly and keep logs of the same.
  1. Log in visitors and employees each day to allow for contact tracing.
  1. Establish a COVID -19 prevention plan.
  1. In event of a positive case shut down for a deep cleaning and disinfecting of workplace in accordance with CDC guidelines.

These are just the highlights; for the Office Checklist [click here].

ENFORCEMENT

The Governor’s Order provides for enforcement by the Department of Labor and Department of Public Health concurrently with municipal Boards of Health for violation of the above and attached rules and regulations.  The Governors Order also provides for $300.00 per violation fines and or injunctive relief to be sought in the District Courts.  To read Governor Baker’s May 18, 2020 Re-Opening Order [click here].

CONSTITUITONAL CONCERNS

Some people may question the legal enforceability of the Governors Orders, especially the limitations that they impose inside private facilities.  Stay at home orders and similar restrictions have been ruled unconstitutional in Wisconsin and Oregon and additional challenges are in progress.  Until there is a challenge, compliance is advised.  There is some precedent involving Massachusetts dating back to 1905 to uphold the Government’s ability to fine and order compliance in the midst of a public health crisis.

In the case of Jacobson v. Massachusetts, 197 U.S. 11 (1905), Mr. Jacobson was a resident of Cambridge who did not want to be inoculated with a vaccine for Smallpox.  The Massachusetts legislature had passed a law requiring mandatory inoculation against smallpox, the failure of which resulted in a criminal fine of Five Dollars.  Mr. Jacobson was arrested, prosecuted, tried and convicted of the crime of refusing inoculation.  Jacobson appealed the case on the grounds that his 14th Amendment rights to deprivation of life, liberty and property without due process of law, i.e. the ability of the government to forcibly stick a needle in his arm.  The case worked its way to the United States Supreme Court which decided in a 7-2 decision that the State had the authority in a public health emergency or crisis to fine Mr. Jacobson for non-compliance with the order…BUT the Court declined to require vaccination.  Expect the Jacobson case and a line of cases dealing with abortion rights to be addressed in Courts across the County when it comes to mask wearing orders and other orders that are arguably seen to involve restrictions on life and liberty.  It will be even more interesting if and when a vaccine is developed and if inoculation is mandated by the government.

 

 

Written by Ed Allcock

eallcock@meeb.com