Washington’s “Stay At Home” Proclamation: Construction Update

As this is a fast moving topic, please note that this article is current as of 3/26/20. 

On March 23, 2020, Governor Inslee issued a “Stay at Home” Proclamation, in which he directed non-essential businesses throughout the State to close. In that Proclamation, Governor Inslee included a list of “essential” businesses that mentioned “construction” 11 separate times, but ultimately provided more questions than answers as to what construction projects may continue throughout the duration of the Proclamation. An analysis of that Proclamation can be found here. There have been near constant questions related to Governor Inslee’s Proclamation since it was issued Monday, and an update issued on March 25, 2020 provides some clarification. Following numerous inquiries from those in the construction industry, Governor Inslee issued an update to his Proclamation with respect to what construction operations are deemed “essential.” In the Update, Governor Inslee clarified that “[i]n general, commercial and residential construction is not authorized under the Proclamation because construction is not considered an essential activity.”

However, his clarification does still acknowledge three specific carve outs allowing construction activities to continue:

• Construction related to essential activities as described in the order;
• To further a public purpose related to a public or governmental function or facility, including but not limited to publicly financed low-income housing; and
• To prevent spoliation and avoid damage or unsafe conditions, and address emergency repairs at both non-essential businesses and residential structures.

Unfortunately, his first clarification does little to assist those in the industry in understanding whether their projects that could fall into a category in the March 23, 2020 Order, are in fact “essential.” Looking at this update from a policy level, it is important to note that Governor Inslee felt the need to specifically clarify that in general, construction is not considered “essential.” As a result, any interpretation of the original Proclamation, the list of essential activities, and this update must be read fairly restrictively. This is notably distinct from California’s Addendum, which clarified construction, including commercial construction, to be “essential”. (It is more similar to that of Boston – which halted most construction).

The first category likely means that projects without a clear tie to one of the essential activities described in the order, which include healthcare, emergency services, food and agriculture, energy, water, energy, communications and IT, and more, are deemed non-essential unless they fall into one of the other two categories. For example, if you are working on a cloud processing plant for Amazon, you are probably allowed to continue; if you are working on a cosmetic tenant improvement for Amazon, you likely are not. The second category is the most clearly defined and is limited to public or governmental functions or publicly financed low-income housing. The third category leaves the most room for interpretation. If construction work is required to prevent “damage or unsafe conditions,” whether at a non-essential commercial project or a residential structure, construction may continue. Who makes that determination as to whether the construction is necessary under the third category remains unclear.

While these categories leave some room for interpretation, the Governor’s intent can be determined by looking to his actions. If construction work is not in direct support of an essential activity, is not a public project, and is not necessary to prevent property damage or unsafe conditions, it may not continue under this order. Residential construction is generally barred, with the exception of publicly funded low-income housing and work necessary to prevent damage or unsafe conditions.

In addition, any job that is permitted to continue is still required to meet the standards set forth by both the US Department of Labor and Washington Department of Health: United States Department of Labor’s Guidance on Preparing Workplaces for COVID-19, here, and the Washington State Department of Health Workplace and Employer Resources & Recommendations, here. Before any contractor or subcontractor resumes work under the Order (and its clarification), we suggest asking for clear guidance on what necessary and required safety precautions have been put in place by the owner and/or developer and construction team and to ensure a clear plan is in place to effectuate those sanitation and safety procedures.

While there have been significant confusion, rumors and misinformation since the order first went public, it should be noted that at this time, there are no statewide special registration requirements or notices/statement of work letters that must be carried by employees working on essential jobs.

This remains a constantly changing situation, and while the Governor’s update has provided some level of clarity, significant questions remain.

Meghan A. Douris, Partner, 206.467.7452

Ryan M. Gilchrist, Attorney, 206.467.7479

This document is intended to provide you with general information regarding the impact of the COVID-19 pandemic. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact your regular Oles Morrison Rinker & Baker LLP attorney.