Helsell Fetterman

COVID-19 and the Restart of Construction Projects

By Scott Johnson / April 28, 2020

On Friday, April 24, 2020, Governor Inslee announced that construction projects that have been suspended under his Stay Home, Stay Safe order would be allowed to proceed subject to compliance with a set of safety requirements intended to prevent the spread and resurgence of the coronavirus.  The addendum to the order implements the first of what are envisioned to be three phases for restarting all construction projects.  Projects must be prepared to comply with all requirements before resuming.  The first phase likely will primarily affect smaller residential projects since those projects can more readily comply with the social distancing requirements.  However, these requirements also apply to construction projects that have been allowed to proceed as “essential services”.  Those projects must be in compliance with the phase I requirements by Friday, May 1^st, in order to continue activity.

The requirements for the phase I restart were negotiated between state and local officials, trade unions and contractor associations.  The addendum to the Stay Home, Stay Healthy order implementing phase 1 can be found here.  The Phase 1 Construction Restart COVID-19 Job Site Requirements can be found here.  The requirements for restarting construction include:

• Develop a COVID-19 exposure control, mitigation, and recovery plan (“COVID-19 Safety Plan”)
• Post a description of the work that will be performed under the restart requirements and include a signed commitment to complying with the restart requirements.
• Compliance will be subject to WISHA enforcement
  • Sites can be shut down if violations are found
• Designated Site Supervisor responsible for ensuring compliance with COVID-19 Safety Plan
  • The supervisor must be on the worksite at all times
  • However, the supervisor is not required if single-family construction with less than 7 people on site
• Training
  • Hold a training session on the first day of the restart and each week thereafter
  • Maintain social distancing and try to keep meetings under 10 minutes
  • Post appropriate posters at the worksite regarding the subjects contained in the COVID-19 Safety Plan, e.g. handwashing, sanitizing high-touch surfaces, and social distancing.
    • Should be in languages that are likely to be used at the worksite
  • Social Distancing
    • Employees 6 feet apart at all times with breaks and lunch staggered
      • An exception will be made for on-going “essential services” worksites if property distancing cannot be achieved if a sufficient hazard assessment and control plan is in place.
    • Only one trade/subcontractor on worksite at one time if possible
    • Avoid person-to-person hand off of equipment and materials
    • Special precautions if performing remodel of owner-occupied home
  • PPE provided by Employer
    • Workers must wear face masks, eye protection, and gloves at all times while on the worksite.
      • Work must stop if there is an inadequate supply of PPE
    • Sanitation and Cleanliness
      • Provide hand-washing facilities and instructions for proper practices
        • Must be running water. Disinfectant can supplement, but is not an acceptable alternative.
      • Provide supplies for cleaning high-touch surfaces
    • Employee Health/Symptoms
      • Employer’s monitor employees’ health each day
        • Mostly by daily survey of each employee, but also could use contactless thermometers to take temperature.
      • Employees reporting or showing symptoms need to stay home or be sent home if develop symptoms at worksite. Return when symptom-free for 72 hours.
      • Employees exposed to persons known to have COVID-19 need to stay home for 14 days after exposure
      • Deep clean areas where workers who have had to leave the worksite have worked
      • Inform other employees of potential exposure without disclosing identity of sick/exposed worker
        • Generally, “exposure” requiring isolation means being within 6 feet of someone for a “prolonged” period of time. Amount of time depends on type of exposure.  See CDC guidelines.
      • Employees must be allowed to stay away from the worksite if they feel it is unsafe because of the risk of exposure to COVID-19.
        • Allow employee to access available benefits including paid leave and unemployment and comply with other legal requirements (see below).
      • Workers coming from out of state (other than Oregon and Idaho), must quarantine for 14 days before coming onto worksite.
      • Remember to follow laws regarding paid and unpaid leave for affected workers, some of which may have new requirements or restrictions related to the COVID-19 pandemic.
        • In particular, be aware the of provisions of the Family First Coronavirus Response Act.
          • See description of the Act here, with updates here and here
        • Keep daily log of workers and visitors who are present on the job site.

One area of continuing uncertainty is inspections.  Some jurisdictions are not allowing inspections for the projects that the Governor has allowed to resume.  In particular Seattle has not resumed inspections beyond the very limited inspections that have been allowed from the start of the emergency.  As of this writing, SDCI indicates that it is asking for additional guidance from the Governor and will resume inspections “very soon”, sometime this week (by May 1^st).

The foregoing is a brief summary of the requirements for restarting construction projects under the Governor’s directive.  Please review the material cited above (and other related guidance) and seek appropriate assistance when planning for the restart of a project. The “toolkit” developed by the Master Builders Association is a valuable resource for that purpose.  The attorneys at Helsell Fetterman are available to assist you in this process as well.

While these measures will add to the cost of construction, keep in mind that they allow for construction to restart before many other businesses are allowed to resume operations.  Also note that the memorandum documenting the Governor’s authorization to restart construction does not specify how long the phase I requirements must remain in place or what metrics will be used to decide when to remove them or to move on to phase 2.  Therefore, phase I requirements may be in place until the Stay Home, Stay Healthy order is lifted. If the stay-at-home order is extended for a prolonged period, it’s likely that some of the phase I restrictions will be removed over time if restarting construction proves not to contribute to a rebound in infections.  If it does, the moratorium on construction projects could be re-imposed.  In other words, we remain in uncertain times.

Update:  On April 29, the Governor issued a clarification regarding the scope of the Phase I construction restart authorization.  The Governor clarified that the authorization only applies to projects that were allowed to continue under prior orders (i.e. “essential services”) and to the restart of “existing construction” defined as construction that:  a) Is needed to fulfill an obligation under a contract effective prior to March 23, 2020, or b) Is authorized by a government-issued permit obtained prior to March 23, 2020.   The clarification states that “contracts” for the purposes of defining “existing construction” can include pre-leases, construction contracts, design contracts, sale contracts, etc.

The Governor also clarified that the Phase I authorization applies to contracted landscape construction projects, including the installation of greenery and hardscape, but does not include routine outdoor maintenance like mowing and weeding by professionals.    However, outdoor maintenance by a professional is still permitted if needed to prevent damage or spoliation.

In addition, the clarification stated that back office staff who support our construction firms restarting projects may return to work.  However, employees who can work remotely are encouraged to do so