The number of confirmed COVID-19 cases spiked substantially in Michigan this month, causing the state's Occupational Safety and Health Administration to extend its emergency temporary standard to Oct. 14, 2021 — one year to the day since it was issued.

As of April 26, Michigan had a seven-day average of 5,423 new daily cases, the highest in the country after Florida, and an average of 68 deaths a day, the highest death rate in the country, according to data compiled by the New York Times. The combined category of construction and manufacturing ranks first in the state for most new coronavirus outbreaks, according to the state health department.

Despite the surge, construction projects in the state are progressing as they have through most of the pandemic, according to Damian Hill, president of Associated General Contractors of Michigan. He told Construction Dive that his members are continuing to follow coronavirus protocols put in place last spring, including masks and social distancing and that many construction workers in the state have been vaccinated. In Michigan, all essential workers became eligible for the vaccine in Phase 1c, which began mid-March.

Construction's response

The MIOSHA emergency rules mandate that businesses that require in-person work have a written COVID-19 preparedness and response plan, provide proper training, use proper PPE and notify workers on how to report symptoms of or a confirmed diagnosis of COVID-19. 

Construction firms that work in the state have kept their eye on the regulations and recommendations since the coronavirus first shut down work for six weeks in March 2020. At that time, Southfield, Michigan-based Barton Malow halted more than 100 projects in Michigan, and drafted formal COVID-19 safety guidelines, Neal Morton, senior vice president of planning, safety and risk management told Construction Dive. Due to that early work at the outset, the contractor was prepared for the current wave of cases.

"Aside from reinforcing our guidelines on a regular basis and making sure that our on-site workers are staying compliant, little has changed," Morton said. "We know how this virus spreads and what needs to be done to mitigate this spread, and we also know that the workplace guidelines that we've enacted pose a very low risk of transmission when followed."

Other efforts Barton Malow has taken include more frequent disinfection of jobsites, incorporating better ventilation and air filtration and encouraging but not mandating vaccinations, Morton said. 

"It's always a concern when there's a surge in cases, especially when you couple this surge with new, more contagious variants," Morton said. "Despite Michigan's surge in cases, there was much more concern in the early days of the pandemic than there is now, and that's largely because we know so much more about the virus, how it spreads, and how to prevent spread."

Looking ahead

Even as construction is able to continue, there are other, long-term factors that builders should consider, said Benjamin Briggs, labor and employment partner at Cotney Construction Attorneys.

"While not necessarily as dire as a complete shutdown, the extension of MIOSHA's COVID-19 rules do carry significant legal implications for employers," Briggs said. Violations of the emergency rules can subject employers to fines of up to $7,000 per violation, with increased penalties for repeated violations, for instance.

Beyond fines, widespread cases could lead to jobsite exposure, which could have ancillary impacts for contractors, Briggs said, such as a decline of available workforce in the state and complications on completion dates of projects. As a result, he advised contractors to ensure that all of their contracts have force majeure clauses, which could excuse delays brought on by COVID-19 shutdowns or workforce shortages. 

Additionally, implementing the new protocols on jobsites may increase costs, Briggs said, so, contractors should review their contracts to see if such increases are compensable and submit change orders for them. 

Other states that have issued emergency standards include:

• Virginia, which issued a emergency temporary standard in July of 2020, then enacted a permanent standard in January 2021.
• Oregon, which issued a temporary rule effective Nov. 12, 2020 through May 4, 2021.
• California, which issued temporary emergency standards in November.