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Governor Inslee’s Implementation of Phase 1 Construction Restart—Next Steps

May 1, 2020

Overview

On April 24, 2020, Governor Inslee announced a plan to allow current construction projects to be completed based upon the recommendations of construction workers, contractors, health and safety experts, and local government officials. Significantly, the plan only applies to projects that were underway on March 23, 2020. New projects that have not broken ground are not allowed to commence under this clarified order. All existing projects must be brought into compliance by Friday, May 1, 2020.

Read the Governor's 30 point plan along with Schwabe's commentary on best practices

Governor Inslee signed an Addendum to Proclamation 20-25 (“Addendum”) that serves as the criteria for a limited Phase 1 Construction Restart. The Addendum includes the comprehensive Phase 1 Construction Restart COVID-19 Job Site Requirements (“Requirements”) that apply to all construction activities in Washington as long as Proclamation 20-25 (the “Proclamation”), or any extension thereof, is in effect. Additionally, on April 29 the Governor’s office issued answers to FAQs and a memo on Phase I Restart. The April 24 Addendum rescinds previous guidance related to construction from the “Essential Critical Infrastructure Workers” issued on March 23, 2020, as amended, and allows for all activities meeting a low-risk threshold of six foot distancing to operate as soon as the contractor can meet and maintain all Requirements, including providing the materials, schedules, and equipment necessary to comply. Projects that were operating under the Proclamation must be in compliance with the Addendum and Requirements by May 1, 2020. Adherence to the six foot social distancing, the Addendum, and the Requirements will be strictly enforced.

Contrary to some expectations that the Governor would allow a reopening of residential construction only, the Addendum draws no distinction between residential, office, or commercial projects. Nor is any distinction made between public and private work. The Governor’s order is dependent not on the type of construction, but the job function of the worker. The overarching operating principal is maintenance of the six foot barrier between workers and imposition on general contractors of exhaustive, strenuous, and expensive safety measures. Paramount among those are (1) a site-specific COVID-19 safety officer, (2) daily wellness checks, including mandatory daily temperature checks, and (3) continual cleaning and disinfecting operations. It also appears clear that the primary duty for meeting the 30 point plan lies with general contractors, who must manage their subcontractor and supplier compliance and the expectation of the owners for a COVID-19 compliant site.

These regulations will undoubtedly cost every general contractor more to implement and manage. Compensation for the extra costs will largely be determined by force majeure or emergency cost clauses in contracts. Likewise, general contractors may see additional costs passed on by subcontractors for personal protective equipment (“PPE”) equipment and cleaning supplies as well as increased labor costs and labor inefficiency claims that would result from the six foot rule.

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On April 29, 2020, Governor Inslee provided additional guidance related to the Addendum that specifically indicates that authorized construction now includes (1) construction previously authorized under the Proclamation and Governor Inslee’s March 25, 2020 memo on construction; and (2) construction not previously authorized under the Proclamation and Governor Inslee’s March 25, 2020 memo on construction that was in existence on March 23, 2020. Importantly, in existence means construction activity that is (1) needed to fulfill an obligation under a contract effective prior to March 23, 2020, or (2) authorized by a government-issued permit obtained prior to March 23, 2020. Projects that were either previously authorized or that were not in existence on March 23, 2020 may not start now. No new project is allowed under the Phase I reopening.

Along with his April 29, 2020 Memo on Construction, Governor Inslee issued FAQS on the Governor’s April 29, 2020 Memo on Construction (“FAQs”). Some highlights from the FAQS include:

  • Landscape construction projects (installation of greenery and hardscape but not including routine outdoor maintenance) are treated identically to structural projects.
  • Outdoor maintenance by a professional is only permitted if needed to prevent damage or spoliation.
  • Public works projects are treated identically to other previously authorized projects.
  • Office staff of a construction firm may return to work. However, employees who can work remotely are encouraged to do so. That would include employees in on-site job trailers.
  • Phase 1 is intended as an interim step related to the unique challenges facing existing construction already under contract. Additional construction reopening is under consideration under a Phase 2 order.

If a work activity requires workers to be closer than six feet, it is not considered low-risk and is not authorized to proceed. However, there is a limited exception for construction projects that were previously authorized under the Proclamation. Such previously authorized construction projects must implement a hazard assessment and control plan that identifies appropriate PPE used in accordance with the Department of Labor & Industries’ (“L&I”) Coronavirus (COVID-19) Prevention: General Requirements and Prevention Ideas for Workplaces (“L&I Guidance”) to proceed with construction activities without maintaining six foot distancing. Although the Addendum does not directly address this, it would appear that if workers must remain in very close proximity to others, approved respirators, such as N95s, may be necessary to proceed. L&I Guidance, Page 3, Personal Protective Equipment.

No other projects are permitted to break social distancing standards during Phase 1.

Prior to recommencing low-risk work, all contractors must do the following:

  • Develop and post at each jobsite a comprehensive COVID-19 exposure control, mitigation, and recovery plan.
    “The plan must include policies regarding the following control measures: PPE utilization; on-site social distancing; hygiene; sanitation; symptom monitoring; incident reporting; site decontamination procedures; COVID-19 safety training; exposure response procedures; and a post-exposure incident project wide recovery plan. A copy of the plan must be available on each job site during any construction activities and available for inspection by state and local authorities. Failure to meet posting requirements will result in sanctions, including the job being shut down.” 

Schwabe comment: Every general contractor should separately cost code the costs of preparing the plan and examine their contract with the owner to see if the cost of compliance with the requirements is compensable both for time and costs.

  • Post at each jobsite written notice to employees, subcontractors, and government officials the Phase 1 work that will be performed at that jobsite and signed commitment to adhere to the requirements listed in this document.

Schwabe comment: This appears to require a daily notice of the work to be done that day.

  • Continue to adhere to their general obligation to keep a safe and healthy worksite in accordance with state and federal law.

  • Comply with the following COVID-19 worksite-specific safety practices:
    • The Proclamation
    • Washington State Department of Labor & Industries General Coronavirus Prevention Under Stay Home–Stay Healthy Order[1]
    • Washington State Department of Health Workplace and Employer Resources & Recommendations[2]

It is vital that contractors understand each of these requirements to ensure that they are able to recommence low-risk work, i.e., work that may be performed while maintaining proper social distancing, without fear of sanctions such as having the jobsite shut down. The development of a COVID-19 exposure control, mitigation, and recovery plan will require a broad analysis of the jobsite, schedules, trade work, safety measures and trainings, supplies, equipment, and site supervision. It also requires general contractors to coordinate with their subcontractors on what job functions cannot be performed without violation of the six foot rule. Further, it will require general contractors to revisit critical path schedules and critical activities and become proactive in the use of short-term look-ahead schedules Once these prerequisites are met, all contractors must adhere to the following specific safety requirements under the Addendum and the Requirements while performing low-risk work.

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30 point plan along with our commentary on best practices

 
Table of Contents

COVID-19 Site Supervisor

COVID-19 Safety Training

Social Distancing

Personal Protective Equipment (“PPE”) – Employer Provided

Sanitation and Cleanliness

Employee Health/Symptoms

Job Site Visitors

 

COVID-19 Site Supervisor

1. A site-specific COVID-19 Supervisor shall be designated by the contractor at every job site to monitor the health of employees and enforce the COVID-19 job site safety plan. A designated COVID-19 Supervisor must be present at all times during construction activities, except on single-family residential job sites with 6 or fewer people on the site.

Schwabe comment: While the 30 point plan requires a site-specific COVID-19 Supervisor (one per site), it does not dictate that the individual’s job function be limited to COVID-19 matters. Each general contractor will have to determine, given the physical size of the project and the number of trades involved at any one time, if the job functions can be combined. For instance, a high rise with workers involved in HVAC, controls, and electric work may require one designated individual, while an excavation or pile driving operation could have a combined function in one person.

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COVID-19 Safety Training

2. A Safety Stand-Down/toolbox talk/tailgate training must be conducted on all job sites on the first day of returning to work, and weekly thereafter, to explain the protective measures in place for all workers. Social distancing must be maintained at all gatherings.

Schwabe comment: A set once a week meeting at the same time appears to be the best practice.

3. Attendance will be communicated verbally and the trainer will sign in each attendee.

Schwabe comment: This sign-in requirement cannot be ignored. L&I has compliance power and can ask to review the weekly lists. These should be maintained at the jobsite.

4. COVID-19 safety requirements shall be visibly posted on each jobsite. (Emphasis added.)

Schwabe comment: Posting the safety requirements at each jobsite entrance would appear to be the best approach.

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Social Distancing

5. Social distancing of at least 6 feet of separation must be maintained by every person on the worksite at all times. (Emphasis added.)

Schwabe comment: The six foot separation rule has tremendous impacts, and cost effects, on every project. It is the most significant cost impact of the 30 point plan. It will be strictly enforced. The six foot requirement is required everywhere on a jobsite, including in transporting workers by manlifts. The transportation of workers in vertical spaces must be managed. Even laborers moving materials on site must maintain the six foot distance. It appears that a six foot distance must also be maintained between desks in jobsite trailers.

6. Gatherings of any size must be precluded by taking breaks and lunch in shifts. Any time two or more persons must meet, ensure minimum 6 feet of separation.

Schwabe comment: The cooperation of trade unions in staggering breaks and shifts must be considered. Consideration might be given to each trade taking breaks at separate times or in the work location they are in at the time of the break.

7. Identify “choke points” and “high-risk areas” on job sites where workers typically congregate and control them so social distancing is always maintained.

Schwabe comment: General contractors will need plans to maintain social distancing at job entrances and manlifts.

8. Minimize interactions when picking up or delivering equipment or materials, ensure minimum 6 foot separation.

9. To the extent practical allow only one trade/subcontractor at a time on a jobsite and maintain 6-foot separation social distancing for each member of that trade. If more than one trade/subcontractor must be on the job to complete the job then at a minimum all trades and subcontractors must maintain social distancing policies in accordance with this guidance. (Emphasis added.)

Schwabe comment: General contractors will need to pay special attention to avoid overlapping or stacking of trades.

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Personal Protective Equipment (“PPE”) – Employer Provided

10. Provide personal protective equipment (PPE) such as gloves, goggles, face shields and face masks as appropriate, or required, for the activity being performed. 

Schwabe comment: This requirement is placed first on the general contractor, but through flow-down provisions, the obligation can be passed on to subcontractors.

11. Masks, in accordance with Washington Department of Health guidelines, or as required by Washington Department of Labor & Industries (L&I) safety rules, must be worn at all times by every employee on the worksite. On May 2, L&I provided a matrix for acceptable masks and face coverings for Phase 1 construction.

Schwabe comment: See above.

12. Eye protection must be worn at all times by every employee while on worksite.

Schwabe comment: No exceptions are allowed.

13. Gloves must be worn at all times by every employee while on worksite. The type of glove worn should be appropriate to the task. If gloves are not typically required for the task, then any type of glove is acceptable, including latex gloves.

Schwabe comment: This is the general contractor’s duty to enforce, but again should be required of subcontractors through flow-down provisions.

14. If appropriate PPE cannot be provided, the worksite must be shut down. 

Schwabe comment: L&I also possesses the power to shut down the site.

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Sanitation and Cleanliness

15. Soap and running water shall be abundantly provided on all job sites for frequent handwashing. Workers should be encouraged to leave their workstations to wash their hands regularly, before and after going to the bathroom, before and after eating and after coughing, sneezing or blowing their nose. 

16. When running water is not available, portable washing stations, with soap, are required, per WAC 296-155-140 2(a)–(f). Alcohol-based hand sanitizers with greater than 60% ethanol or 70% isopropanol can also be used, but are not a replacement for the water requirement.

Schwabe comment: General contractors will need to consider whether to bring in more portable washing stations and weigh that cost against productivity losses from infrequently spaced stations.

17. Post, in areas visible to all workers, required hygienic practices, including not to touch face with unwashed hands or with gloves; washing hands often with soap and water for at least 20 seconds; use hand sanitizer with at least 60% alcohol; cleaning and disinfecting frequently touched objects and surfaces such as workstations, keyboards, telephones, handrails, machines, shared tools, elevator control buttons, and doorknobs; covering the mouth and nose when coughing or sneezing as well as other hygienic recommendations by the U.S. Centers for Disease Control (CDC).

Schwabe comment: The best practice is to post the notice at each wash station.

18. Make disinfectants available to workers throughout the worksite and ensure cleaning supplies are frequently replenished. 

Schwabe comment: Keep track of extra costs through specific COVID-19 impact job cost codes.

19. Frequently clean and disinfect high-touch surfaces on job sites and in offices, such as shared tools, machines, vehicles and other equipment, handrails, doorknobs, and portable toilets. If these areas cannot be cleaned and disinfected frequently, the jobsite shall be shut down until such measures can be achieved and maintained. 

Schwabe comment: In addition to a site specific COVID-19 Supervisor, depending on the number of workers on any given site and its state of completion, the general contractor may choose to add laborers whose sole function is to disinfect surfaces. For instance, a manlift operator may need to be equipped with a disinfectant spray. A tenant improvement project in a close-out phase will require more cleaning and disinfecting than a project at a steel erection stage.

20. When the worksite is an occupied home, workers should sanitize work areas upon arrival, throughout the workday and immediately before they leave, and occupants should keep a personal distance of at least 10 feet.

21. If an employee reports feeling sick and goes home, the area where that person worked should be immediately disinfected. (Emphasis added.)

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Employee Health/Symptoms

22. Create policies which encourage workers to stay home or leave the worksite when feeling sick or when they have been in close contact with a confirmed positive case. If they develop symptoms of acute respiratory illness, they must seek medical attention and inform their employer.

Schwabe comment: The onus is on the contractor to be proactive in frequent wellness checks of all workers on site.

23. Have employees inform their supervisors if they have a sick family member at home with COVID-19. If an employee has a family member sick with COVID-19, that employee must follow the isolation/quarantine requirements as established by the State Department of Health. 

Schwabe comment: This will need to be implemented by both notices posted on a jobsite and by written notifications to subcontractors through flow-down provisions.

24. Screen all workers at the beginning of their shift by taking their temperature and asking them if they have a fever, cough, shortness of breath, fatigue, muscle aches, or new loss of taste or smell. Thermometers used shall be “no touch” or “no contact” to the greatest extent possible. If a “no touch” or “no contact” thermometer is not available, the thermometer must be properly sanitized between each use. Any worker with a temperature of 100.4°F or higher is considered to have a fever and must be sent home. 

Schwabe comment: Best practices to protect the contractor from L&I penalties, and to assure compliance, would be to document and retain these readings and checks consistent with the Health Insurance Portability and Accountability Act (“HIPAA”).

25. Instruct workers to report to their supervisor if they develop symptoms of COVID-19 (e.g., fever, cough, shortness of breath, fatigue, muscle aches, or new loss of taste or smell). If symptoms develop during a shift, the worker should be immediately sent home. If symptoms develop while the worker is not working, the worker should not return to work until they have been evaluated by a healthcare provider.

Schwabe comment: See 23 above.

26. Failure of employees to comply will result in employees being sent home during the emergency actions.

Schwabe comment: See 23 above.

27. Employees who do not believe it is safe to work shall be allowed to remove themselves from the worksite and employers must follow the expanded family and medical leave requirements included in the Families First Coronavirus Response Act or allow the worker to use unemployment benefits, paid time off, or any other available form of paid leave available to the worker at the worker’s discretion. 

28. Any worker coming to work on a construction site in Washington from any state that is not contiguous to Washington must self-quarantine for 14 days to become eligible to work on a job site in Washington. 

Schwabe comment: Though innocuous at first blush, for certain specialty work and those areas where trade workers have been scarce or difficult to find in recent years (e.g., elevator technicians), and considering the uncertainty of how long the Phase I reopening might last, contractors should be thinking ahead and checking with subcontractors whose workforces travel to the jobsite from out of state so as to assure adequate local labor in advance of the work to be scheduled.

29. If an employee is confirmed to have COVID-19 infection, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA). The employer should instruct fellow employees about how to proceed based on the CDC Public Health Recommendations for Community-Related Exposure. 

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Job Site Visitors

30. A daily attendance log of all workers and visitors must be kept and retained for at least four weeks. The log must include the name, phone number, and email address of all workers and visitors. [3]

Schwabe comment: Jobsite visitors also need to comply with all PPE requirements and maintain six foot distancing.

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Compliance with the Addendum and Requirements is certain to have major effects on all projects that recommence work, both in time and cost impacts. Contractors will likely see increased project safety costs related to the development and implementation of a COVID-19 exposure control, mitigation, and recovery plan; the designation of a COVID-19 Site Supervisor; ongoing COVID-19 safety training; employer-provided PPE; and maintaining strict sanitation/cleanliness requirements. Similarly, a decrease in work productivity and/or labor inefficiency could be likely to occur for the reasons mentioned above along with the Requirements’ guidance to allow only one trade/subcontractor at a time on a jobsite when “practical.” The one trade rule focuses on practicality. It does not prohibit more than one trade at a time as much as it depends on the physical size of the job and the locations where the trades will be working. Again, scheduling impacts and labor efficiency issues have to be the primary concern of the general contractor moving forward.

The key for contractors will be to address the increased project costs and potential work productivity/labor inefficiency proactively by providing notice of additional time and/or costs to the project’s owner and enforcing notice requirements with subcontractors. This may be an update to a prior notice given to the owner after the Proclamation, or it may require its own separate notice depending on the project’s specific contract provisions. In those circumstances where a notice was given based on the March 23 Proclamation, we strongly recommend a new notice for the cost and time impacts associated with the specific 30 point Phase 1 reopening requirements in the April 24 Addendum. As always, contractors must closely scrutinize their contracts to ensure that they comply with the notice provisions and preserve their right to additional time and/or costs. Often contracts include very tight windows to provide such notice, such as one or two business days, and failure to comply very likely serves as a waiver of any potential entitlement to additional time and/or costs. Time limits in public contracts tend to be much shorter than similar time limits in private contracts.

We strongly recommend that contractors, both general and subcontractors, track the increase in project costs related to COVID-19 compliance measures under one or more separate job cost codes or sub-codes to properly capture all costs incurred, including but not limited to supplies, materials, equipment, labor hours (related to cleaning/disinfecting, temperature checks, etc.), and other related items. To the extent possible under job cost coding systems, the costs of labor should be separately tracked as either new or unanticipated costs, or greater or extended costs. Depending on the form of contract (stipulated sum or cost plus, for example), the segregation of such extra costs may determine if they are compensable. Projects will overrun projected budgets because of these extra measures, and contractors should be in the position to be able to demonstrate through specific job cost accounting where those costs were accrued. Contemporaneously maintaining and updating such records, along with providing any contractually required follow-up notices or updates to the owner, will help to preserve and bolster any request for additional time and/or costs.

Even taking the steps above, contractors may encounter difficulty in receiving additional time and/or costs related to COVID-19. The language of each project’s contract will control. Quantifying the impact of potential work productivity and/or labor inefficiency will be the most important factors in determining entitlement consistent with the contract provisions. Collaborative discussions with the project’s owner may be the best first alternative for contractors to explore potential solutions to the increased job cost, but contractors must be wary of potentially forfeiting their rights under the project’s contract. Any such discussion should be taken with great care to preserve a contractor’s potential entitlement to additional time and/or costs should contractual remedies be necessary through an analysis of the specific contract.

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To learn more, view helpful videos, or read additional articles about COVID-19, please visit Schwabe’s COVID-19 resource page.

[1] DOSH Directive 1.70: https://lni.wa.gov/dA/36e85758be/DD170.pdf

[2] https://www.doh.wa.gov/Coronavirus/workplace.

[3] All items except numbers 28 and 30 are subject to enforcement action under L&I’s Division of Occupational Safety and Health (“DOSH”).

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