UPDATED 03/31/2020

UPDATE: What does Governor Inslee’s “Stay Home – Stay Healthy” Proclamation Mean for the Construction Industry in Washington?

This memorandum should not be construed as legal advice. If you have any questions about how your company or its employees should proceed, please consult your attorney.

Link to the proclamation: Proclamation by the Governor Amending Proclamation 20-25   

Effective Wednesday, March 25, 2020 at midnight, all non-essential businesses in Washington were required to cease operations, except that non-essential businesses can still perform basic minimum operations.

1.  Employees may still work if “providing essential business services”

The proclamation provides that employment in essential business services means an essential employee performing work for an essential business as identified in the critical workers list, or carrying out minimum basic operations for a non-essential business.

Contrary to some early online postings we have seen, the construction industry is not given carte blanche to continue working in Washington (unlike Oregon). Governor Inslee’s proclamation applies significantly greater restraints on the construction industry in Washington than have been imposed in Oregon. If you have employees and/or projects in Oregon, you will want to consider which standards will apply.

a.  Are you an essential business?

For contractors, the answer to this question is complicated. Governor Inslee’s proclamation breaks down “essential critical infrastructure workers” by industry, which means that your answer to this question very much depends on the type of work that you are doing. Pursuant to the Governor’s additional guidance for construction companies, commercial and residential construction is not generally allowed under the proclamation.

Link to the proclamation memorandum: Governor’s Inslee’s March 25, 2020 guidance memorandum

Under this guidance, there are only three scenarios where construction in Washington is allowed to continue:

Construction related to essential activities described in the original order.

The order generally allows construction related to essential industries. These include:

Emergency services (public works): “Workers who support the operation, inspection, and maintenance of essential public works facilities and operations, including bridges, water and sewer main breaks, fleet maintenance personnel, construction of critical or strategic infrastructure, traffic signal maintenance, emergency location services for buried utilities, maintenance of digital systems infrastructure supporting public works operations, and other emergent issues.” This does not mean that any public works construction project is automatically considered critical, as the plain language specifically calls out only public works that are for critical or strategic infrastructure.

Communication: “Engineers, technicians and associated personnel responsible for infrastructure construction and restoration, including contractors for construction and engineering of fiber optic cables.”

Construction of essential facilities, services, and projects: “Construction workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing construction) for all essential facilities, services and projects included in this document, and for residential construction related to emergency repairs and projects that ensure structural integrity.” This likely means that if you are working on a commercial project supporting one of the essential industries (i.e., healthcare, food, public safety, energy, water and waste water, transportation, etc.), you can continue working on that project.

Maintenance of safety, sanitation, and essential operations of construction sites and projects: “Workers such as plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of construction sites and construction projects (including those that support such projects to ensure the availability of needed facilities, transportation, energy and communications; and support to ensure the effective removal, storage, and disposal of solid waste and hazardous waste).”

While the list is a long read (14 pages), you should read it and determine for yourself whether your project—or your business as a whole—is essential.

Link to essential worker list: Essential Critical Infrastructure Workers

Construction to further a public purpose related to a public entity or governmental function or facility.

The order allows work that advances a public purpose. This is a very narrow exception that will largely involve public works or publicly-funded projects (for example, construction of low-income housing is specifically called out as allowed).

We recommend that you ask any project owner to determine whether they believe their project is essential, and if so, on what basis. Of course, an owner’s determination will not necessarily protect you, your company, or your employees, but it will help provide you with additional guidance. It will also help guide your conversations with your attorney as you determine how each of your projects is affected by the Governor’s proclamation.

Work to prevent spoliation and avoid damage or unsafe conditions, and to address emergency repairs at non-essential businesses and residences.

This provision allows contractors to do the minimum work necessary to protect worksites and equipment from damage and to protect workers and the public from unsafe conditions. It also allows contractors to conduct emergency repairs.

b.  If you are not an essential business, then the question is whether the employee is carrying out minimum basic operations

Minimum basic operations are only those required to maintain the value of the business’s inventory, preserve the condition of the business’s physical plant and equipment, ensure security, process payroll and employee benefits, facilitate employees being able to work remotely, and perform related functions.

2.  If you stay open, you should take additional steps to prevent the spread of COVID-19

Even if you are an essential business or you have determined that a particular project is essential, you should still take additional precautions.

a.  Establish and implement written procedures for social distancing and sanitation

The measures have been established by the Department of Labor. While the measures themselves (from DOL) do not establish any new legal obligations, the Governor’s proclamation does require implementation of the measures in order to keep operating.

The DOL guidance advises, among other things: (a) develop an infectious disease preparedness and response plan, (b) prepare and implement infection prevention measures, (c) develop policies and procedures for prompt identification and isolation of sick people, (d) develop, implement, and communicate about workplace protection and flexibility, and (e) implement workplace controls.

Link to Occupational Safety and Health Administration publication: Guidance on Preparing Workplaces for COVID-19 

b.  Practical advice on implementing these procedures

Create social distancing: All workers should be at least six feet away from each other whenever possible (understanding this is not always possible on a construction site). Allow employees who are not on a jobsite to work from home. Conduct meetings by video or telephone conference. If in-person meetings are necessary, meet in a large room that allows for social distancing, or even consider holding meetings outside. Close lunch rooms or other areas where people gather. Limit visitors—and have written protocols for dealing with necessary visitors (this includes visitors to jobsites).

Dealing with sick employees: Tell sick employees to stay home. Check your sick-leave policies to make sure they address the current situation and communicate them to your employees. Encourage handwashing. Consider providing personal protective equipment.

Cleaning and sanitation: Regularly clean all areas that are touched frequently, such as handrails, door handles, elevator buttons, and counters. Provide wipes or towels to use for cleaning (or opening doors, for example). Make sure your cleaning products are effective against the novel coronavirus.

Link to Washington State Department of Health Recommendation: Workplace and Employer Resources & Recommendations

3.  Violation of the Governor’s proclamation can come with significant penalties

On March 30, 2020, Governor Inslee provided additional guidance as to how his “Stay Home – Stay Healthy” order could be enforced.

The enforcement will have three tiers: First, law enforcement will issue a warning and, likely, an order to cease and desist. Second, if the business does not comply, the state will take action through its regulatory agencies, including with citations, suspensions of permits, revocation of business licenses, and the like. Finally, if those measures don’t bring a business into a compliance, the most severe enforcement could include criminal charges (gross misdemeanor) and/or civil actions (Consumer Protection Act violation actions, for example).

The Governor’s order specifically does not require “walking papers” or any kind of permission to be out in public or at work. However, if you feel this is necessary for your employees, please consult your attorney.

The online form to report businesses that are in violation can be found here: Violation of the Governor’s Proclamation

4.  What else can you do?

This proclamation has been especially confusing for the construction industry. To submit a request to the Governor’s office to determine if your business (or project) is essential, please visit the following website: Essential Business Inquiries

ADDED 03/26/2020

This memorandum should not be construed as legal advice. If you have any questions about how your company or its employees should proceed, please consult your attorney.

Governor Inslee’s Proclamation (20-25)

Effective Wednesday, March 25, 2020 at midnight, all non-essential businesses in Washington shall cease operations except for performing basic minimum operations.

1. Employees may still work if “providing essential business services”

The proclamation provides that employment in essential business services means an essential employee performing work for an essential business as identified in the critical workers list, or carrying out minimum basic operations for a non-essential business.

Contrary to some of the online postings we have seen, the construction industry is not given carte blanche to continue working in Washington (unlike Oregon). Governor Inslee’s proclamation appears to apply significantly greater restraints on the construction industry in Washington than have been imposed in Oregon. If you have employees and/or projects in Oregon, you will want to consider which standards will apply.

a. Are you an essential business?

For contractors, the answer to this question is complicated. Governor Inslee’s proclamation breaks down “essential critical infrastructure workers” by industry, which means that your answer to this question very much depends on the type of work that you are doing. While we are hopeful that the Governor will provide more guidance for construction companies, these are the situations where construction is currently conceivably allowed to continue:

Emergency services (public works): “Workers who support the operation, inspection, and maintenance of essential public works facilities and operations, including bridges, water and sewer main breaks, fleet maintenance personnel, construction of critical or strategic infrastructure, traffic signal maintenance, emergency location services for buried utilities, maintenance of digital systems infrastructure supporting public works operations, and other emergent issues” (emphasis added). This does not mean that any public works construction project is automatically considered critical, as the plain language specifically calls out only public works that are for critical or strategic infrastructure.

Communication: “Engineers, technicians and associated personnel responsible for infrastructure construction and restoration, including contractors for construction and engineering of fiber optic cables” (emphasis added).

Construction of essential facilities, services, and projects: “Construction workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing construction) for all essential facilities, services and projects included in this document, and for residential construction related to emergency repairs and projects that ensure structural integrity” (emphasis added). This likely means that if you are working on a commercial project supporting one of the essential industries (i.e., healthcare, food, public safety, energy, water and waste water, transportation, etc.), you can continue working on that project.

Maintenance of safety, sanitation, and essential operations of construction sites and projects: “Workers such as plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of construction sites and construction projects (including those that support such projects to ensure the availability of needed facilities, transportation, energy and communications; and support to ensure the effective removal, storage, and disposal of solid waste and hazardous waste)” (emphasis added).

While the list is a long read (14 pages), you should read it and determine for yourself whether your project—or your business as a whole—is essential.

Governor Inslee’s Proclamation (20-25) Appendix

Important practical advice: We recommend that you ask each project owner to determine whether they believe their project is essential, and if so, on what basis. Of course, an owner’s determination will not necessarily protect you, your company, or your employees, but it will help provide you with additional guidance. It will also help guide your conversations with your attorney as you determine how each of your projects is affected by the Governor’s proclamation.

b. If you are not an essential business, then the question is whether the employee is carrying out minimum basic operations

Minimum basic operations are only those required to maintain the value of the business’s inventory, preserve the condition of the business’s physical plant and equipment, ensure security, process payroll and employee benefits, facilitate employees being able to work remotely, and perform related functions.

2.  If you stay open, you should take additional steps to prevent the spread of COVID-19

Even if you are an essential business or you have determined that a particular project is essential, you should still take additional precautions.

a.  Establish and implement written procedures for social distancing and sanitation

The measures have been established by the Department of Labor (DOL). While the DOL’s measures themselves do not establish any new legal obligations, the Governor’s proclamation does require implementation of the measures in order to keep operating. Specifically, the Governor’s proclamation provides that violators of the order may be subject to criminal penalties (violation is a gross misdemeanor under RCW 43.06.220). While it does not appear that law enforcement agencies have been ordered to cite for violations at this point, you should still be aware of the potential implications of a violation.

The DOL guidance recommends, among other things: (a) develop an infectious disease preparedness and response plan, (b) prepare and implement infection prevention measures, (c) develop policies and procedures for prompt identification and isolation of sick people, (d) develop, implement, and communicate about workplace protection and flexibility, and (e) implement workplace controls.

b.  Practical advice on implementing these procedures

Create social distancing: All workers should be at least six feet away from each other whenever possible (understanding this is not always possible on a construction site). Allow employees who are not on a jobsite to work from home. Conduct meetings by video or telephone conference, or meet in a large room (or even outside) that allows for social distancing if in-person meetings are necessary. Close lunch rooms or other areas where people gather. Limit visitors and have written protocols for dealing with necessary visitors (this includes visitor to jobsites).

Dealing with sick employees: Tell sick employees to stay home. Check your sick-leave policies to make sure they address the current situation—and communicate them to your employees. Encourage hand washing. Consider providing personal protective equipment.

Cleaning and sanitation: Regularly clean all areas that are touched frequently, such as handrails, door handles, elevator buttons, and counters. Provide wipes or towels to use for cleaning (or opening doors, for example). Make sure your cleaning products are effective against COVID-19.

3.  What else can you do?

This proclamation has been especially confusing for the construction industry. Please submit questions to the Governor from the online form for essential business inquiries: Essential Business Inquiries. When submitting questions, please be as concise and detailed as you can, state exactly what you want to know, and list the organization and industry you represent.

In addition, you can register your business online (this is a strictly voluntary program