New York Solar Projects Face Compliance Challenges In Restarting Construction
All regions of New York State other than New York City have re-opened to construction activities, including residential and commercial solar energy projects. While there are no specific guidelines for solar construction, the State has published detailed guidelines for all construction projects (the “Guidance”). Projects must affirm their compliance with all State guidelines and post a compliance plan at all project sites.
The Guidance is organized around three categories: people, places and processes.
The people-related Guidance maximizes social distancing. The guidelines directed at outdoor activities are more relevant to solar construction. Even for outdoor projects, a minimum distance of six feet must be maintained among workers, unless safety concerns require a closer distance (for example, when two or more workers are required to safely lift heavy items). When conditions require workers to work closer than six feet apart, proper face coverings (covering mouth and nose) must be worn. Proper face coverings may include homemade and disposable masks except where work conditions would ordinarily require stronger protection, such as N95 respirators or other personal protective equipment (“PPE”), in accordance with OSHA guidelines.
To maintain required social distancing, workstations and other seating areas should be adequately restricted, and barriers, such as plexiglass dividers or plastic curtains, should be installed. Elevators, vehicles and other confined spaces must be restricted to a single worker unless proper face coverings are worn by all workers. In any event, such spaces must be operated at no more than fifty percent of capacity. Bi-directional jobsite foot traffic should be minimized by placing direction arrows or tape to encourage coordinated traffic flows in single, separate directions in narrow spaces, and distance markers should be placed in areas of congregation or where lines form (such as clock-in/out areas and health screening stations), to demonstrate six feet of distance.
Signage must be posted throughout the jobsite in accordance with State Department of Health (“DOH”) guidelines pertinent to COVID-19. Signage should remind workers to maintain adequate distancing, wear proper face coverings, report any symptoms, follow recommended hand-washing/sanitizing regimens, and properly maintain and dispose of PPE.
In-person gatherings should, to the greatest degree, be replaced by videoconferencing. In-person gatherings that must occur should be held in highly-ventilated open spaces while maintaining six-foot distances. Practices must be implemented for confined areas (such as restrooms and break rooms) to maintain adequate distancing, and signage indicating occupancy must be in place to resist high gathering levels where distancing is not possible. Breaks, meals and shift stoppage/starting should be staggered to reduce overall capacity. Buffet-style meals must be prohibited and adequate space to support social distancing must be provided for workers to eat.
Steps should be taken to reduce workplace interaction, including restricting site access to workers who must be on site and requiring those who can work from home to do so. Other possible steps include: creating A and B teams, prioritizing tasks that lend themselves to social distancing, and adjusting workplace hours. Separate entrance and egress areas should be established to create a safe flow of workers changing shifts. Designated pick-up and drop-off areas should be established, and the areas should be limited to required personnel.
The places-related Guidance addresses protective measures to be implemented at the jobsite. Reopening activities should be conducted through a phased approach to iron out operational issues that may arise before returning to normal levels of activity. Compliant PPE must be furnished to all employees at work. Face coverings must be cleaned (in accordance with CDC guidelines) or replaced daily, and they may not be shared. Although employers must supply PPE, employees must be permitted to use their own acceptable, OSHA-compliant PPE. Projects must comply with all OSHA regulations regarding prescribed PPE. Projects must either (i) limit the sharing of objects, such as tools, machinery, materials, and vehicles, as well as the touching of shared surfaces, such as railings and fences; (ii) require workers to wear gloves (trade-appropriate or medical) when in contact with shared objects, or frequently touched surfaces; or (iii) require workers to sanitize or wash their hands before and after contact. Workers must be trained in proper practices for putting on, removing, cleaning and discarding PPE.
Projects must adhere to CDC and DOH guidelines for hygiene and sanitation. Proper cleaning logs must also be maintained. Hand hygiene stations must be provided, with soap and running water or compliant hand sanitizer. Regular cleaning and disinfecting of worksite areas, including tools and equipment, must be implemented in accordance with DOH cleaning and disinfecting guidelines.
When a worker tests positive for, or is suspected to have, COVID-19, all areas where that person worked must be temporarily closed off and disinfected in accordance with CDC cleaning guidelines. If the area cannot be adequately closed off, operations must cease until the jobsite has been properly disinfected.
The processes-related Guidance establishes required practices for worker virus screening and responses to cases of infection. Projects must adopt daily health screening regimens. At a minimum, workers and other site visitors should complete questionnaires asking whether, in the past fourteen days, (i) they have been exposed to anyone who has tested positive for COVID-19 or has exhibited symptoms, or (ii) they have tested positive for COVID-19 or have experienced any COVID-19 symptoms. On-site temperature checks are also permitted, in compliance with Equal Employment Opportunity Commission or DOH regulations. Temperature records may not be kept, however. Workers and site visitors should be separated from each other and the jobsite until their screenings have been successfully completed. Remote screening, where possible, is also permitted. Projects must furnish acceptable PPE to all personnel conducting screenings.
Employees who screen positive must leave the worksite and quarantine for a fourteen-day period, although if an employee who is vital to operations screens positive, the latest local health department, CDC and DOH guidelines may be consulted to determine if a shorter quarantine is warranted. Asymptomatic employees who have had prolonged exposure to a person who has tested positive must notify their employers. These employees may work at the site; however they must self-monitor (under employer supervision) for any symptoms, wear a mask, maintain social distancing, and clean and disinfect all work areas. If an employee subsequently develops symptoms, the employee must leave work and follow quarantine protocols for a positive case.
Employers must notify the local health department and the DOH immediately if any worker tests positive at the site. Employers must cooperate with the local health departments in efforts to trace workplace contacts of workers who have tested positive, including reporting all workers and visitors who came into contact with any positive worker at the site within a forty-eight hour period prior to the time that the worker developed symptoms or tested positive. Employers should be mindful of HIPAA obligations with respect to any reporting of worker health information.
Employer Safety Plans
The Guidance requires employers to post safety plans in conspicuous areas on site. The safety plans outline steps taken by the employer to mitigate the spread of the novel coronavirus. The State has published a template for the safety plans.
Business owners (or their agents) are required to affirm online that they have read and will comply, and that their employees will comply, with the Guidance. The requirement applies to every company working on a jobsite, including subcontractors, as opposed to property owners.
Summary and Best Practices
The State has published a summary of the Guidance, including recommended best practices to assist business in its implementation.
Solar Industry Considerations
The New York Solar Energy Industries Association has taken the position that solar construction in all segments (residential, C&I, CDG) can resume in all regions that have reopened construction activities in accordance with State requirements. This position has been confirmed by NYSERDA for its projects.
Solar business will have to give special consideration to implementation of the Guidance. The Guidance poses particular challenges for rooftop projects, where construction must be conducted at residences or occupied commercial properties. For residential rooftop projects, developers should consider requiring employees to travel in their own vehicles to rooftop jobsites, leaving only one employee to drive a company vehicle carrying equipment. It is unclear whether safety plans must be posted in staging areas or other areas of rooftop jobsites, but developers should consider doing so. Developers should address with landlords or property managers ways to cooperate on signage and other means of controlling foot traffic flow in hallways and other narrow areas to which access may be required. Developers should also consider remote screening to avoid any gathering of workers on the landlord’s property while waiting to be screened, especially where there is a possibility of mingling with other building occupants, building staff or visitors to the property.
Finally, while the Guidance requires that positive cases be reported to the local health department and the DOH, it is silent on whether to report any positive or symptomatic cases to landlords or property managers. Developers should consider, however, coordinating with property owners to keep the owners informed about positive cases among personnel that have worked at an owner’s property, especially if there is a possibility that workers have come into contact with other building occupants, building staff or property visitors. Developers should attempt to maintain as little contact as possible between workers and other people they may encounter in a building. To the extent that contact is likely, especially with building maintenance staff, developers and property owners should consider coordinating to maintain records of any significant contact with workers in order to facilitate tracing efforts if positive cases are identified. Developers should also review their lease agreements to determine if there is a requirement (either explicit or which could be argued) to report positive cases. Any reporting of positive cases to property owners should be done with care to preserve the privacy and confidentiality of worker health information.
We continue to follow developments in this area for further detail.