It’s been an eventful week for COVID-19 + Construction. Here’s a rundown of what’s happened and the current state of things.
Stay Home, Stay Healthy Order. Gov. Inslee issued a “Stay Home, Stay Healthy” proclamation (here) on Monday tightening restrictions on construction projects across the state, though the governor also provided a list of essential critical infrastructure exempt from the Stay Home order (here). Some industry trade groups immediately touted nearly all construction as “essential critical infrastructure.” But the governor responded on Wednesday by issuing additional guidance that generally prohibited private commercial and residential construction. For public works projects, the governor’s additional guidance largely left it open to agencies and local governments to decide for themselves if their projects were essential, and therefore, exempt from the governor’s earlier Stay Home order.
School Construction Allowed. Among other things, the additional guidance carved out an exemption for projects that “further a public purpose related to a public or governmental function or facility.” In light of our state constitution’s mandate making public education a “paramount duty of the state,” school construction comfortably fits within the additional guidance exempting construction “related to a public or governmental function or facility.” While the decision whether to proceed is being left to the individual school districts, by all accounts, school construction is continuing across the state.
Contractors working on public housing projects also fit within the governor’s latest guidance on exempted construction, which expressly used such projects as an example of essential construction relating to a “public or governmental function or facility.”
Status of Other Public Works. Outside of public education and housing projects, WSDOT projects have largely been suspended, and Sound Transit has reportedly scaled back active construction on roughly 50% of their projects.
Certainly there are more projects than public education and housing that fit within the governor’s exemptions, and there are several excellent arguments available to those contractors that are comfortable in proceeding with work. PNW Construction Law is more than happy to discuss these arguments (free of charge) with contractors weighing their options. The governor’s office has also established a website where businesses can seek specific guidance as to whether a business and presumably a specific project qualifies as essential, and therefore, is exempt from the Stay Home order.
Industry groups like the AGC of Washington and the Washington chapter of the National Utility Contractors Association (NUCA) have done a tremendous job in seeking clarification from the governor’s office and limiting the reach of the governor’s moratorium on construction to allow as many projects as possible that are able to proceed in a safe manner to be able to do so. At this point, contractors are advised to address the issue of whether to proceed on an owner-by-owner and project-by-project basis.
Should Work Proceed? In addition to addressing the issue of whether the project can proceed, there’s always the question of whether the project should proceed. Contractors’ appetites for risk and reasons for continuing work vary widely—even at the same project. Where a general contractor may wish to proceed with a project, understandably, not all of their subcontractors will share that desire. Similarly, a general contractor may not proceed with a project despite its subcontractors wanting to. Both views have their merits.
The projects themselves also have a significant influence on deciding whether work should proceed. For instance, a project requiring outdoor work performed largely by workers in an individual capacity, such as equipment operators moving dirt, would be “safer” than a project that has stacked trades, such as plumbers, electricians, and HVAC subs, roughing-in utilities into framed walls and ceilings. There is no one-size-fits-all answer to these many questions—it’s instead a series of imperfect answers and factors to consider.
In an economy significantly hobbled by this pandemic, construction is one of the few sectors that continue to provide families with living-wage jobs. So there’s an excellent argument that those who can safely continue working should do so. At the same time, though, there is a natural concern for the liability that a contractor may have as a result of proceeding with construction. Contractors want to provide gainful employment for their workers. But at the same time, no contractor wants their workers or their workers’ families to be placed in danger of falling ill.
Proceeding With Work. Those contractors that decide to continue working should certainly take every reasonable step possible toward ensuring their workers’ safety, including regularly taking temperatures, spot-checking workers for symptoms and potential exposures, and keeping workers from working within close proximity to one another. Contractors should utilize site-specific safety plans following CDC guidelines. There are both national guidelines available and “aggressive” recommendations for King, Snohomish, and Pierce counties. Equally critical is following those site-specific safety plans.
The recordability of COVID-19 infections remain one of the several factors for contractors to consider in deciding whether to proceed with a project. OSHA currently views such infections as a recordable incident. And L&I has so far been following suit. Industry efforts are underway to make such an infection not a recordable incident, considering the near impossibility of tracing the cause of the infection to workplace exposure and the near impossibility of fully protecting workers from infection. But unless (and until) that happens, contractors must contend with the potential cost that a COVID-19 infection (or infections) could have on the contractor’s recordable incident rate.
We will continue to post updates to this ever-changing situation as they develop, so check back often!
