Washington’s Version of “Shelter in Place”: What it Means for the Construction Industry

On the evening of March 23, 2020, Governor Jay Inslee issued a “Stay Home, Stay Safe” order. Governor Inslee advised residents they must stay home unless they are “pursuing an essential activity.” A fourteen-page memorandum advises what qualifies as essential industries, including the obvious sectors of health care, public health and emergency services. Those in “public works” – including “construction of critical or strategic infrastructure”, as well as dams, locks, levees, bridges, waters, sewer mains, and those in the construction industry related to provision of safety and sanitation (e.g. plumbers and electricians) – are also deemed “essential.”

In addition to the specific set asides, the Order also notes those construction roles related to supporting the following industries: agriculture, timber, electricity, oil, natural gas, transportation, highways, maritime, mass transit, communications and the “IT Sector” are essential.

All “[c]onstruction 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” are deemed essential.

In addition, a set aside is made for “critical manufacturing,” which includes: Primary Metals Manufacturing, Machinery Manufacturing, Electrical Equipment, Appliance, and Component Manufacturing, Transportation Equipment Manufacturing Products made by these manufacturing industries are essential to many other critical infrastructure sectors.

Here in Seattle, what does that mean? Those construction projects for Amazon, Google, Microsoft which are integral to supporting the “IT Sector”, Sound Transit, WSDOT, SDOT, public utility districts and residential construction (if structural or emergency repairs are involved) appear to be within the confines of the Order. Commercial construction outside of these specified areas but supporting other essential activities may continue as well, meaning to the extent construction projects for companies such as Amazon, Google, and Microsoft support essential work from those owners, appear to be within the activities permitted by the Order. Commercial construction outside of the identified sectors and residential construction without ongoing repairs, structural issues and/or “emergency” repairs remain in the grey area.

For those contractors operating in the federal sphere, “personnel working for companies, and their subcontractors, who perform under contract to the Department of Defense providing materials and services to the Department of Defense, and government-owned/contractor-operated and government-owned/government-operated facilities” are also exempt. Arguably, a construction contract is providing a service to the government. (Although we note, the federal government has already largely been issuing stop work and/or suspension of work notices under FAR 52.242-15 and 52.242-14.)

Governor Inslee attempted to issue an Order that addressed what was, and was not, covered (unlike California that has been issuing countless addendums to try and clarify an overly broad order). Despite that attempt – there are still many questions as to precisely what is exempt and how it will be enforced. For now, it appears that the state of Washington is relying on “self-enforcement.

However, even though a construction role may be deemed “exempt” from the Order, it does not mean that your construction site continues with business-as-usual-pre-COVID-19. Businesses and entities that provide essential services still must only permit essential members of its workforce to continue working and must implement rules that help facilitate social distancing of at least six feet. For construction sites that may mean staggering start and finish times, crew rotations, providing bottled water instead of water jug stations required by OSHA, virtual morning safety meetings, virtual job site meetings, provision of additional hand washing stations, limitations on people in the lift/elevator and restrictions on the sharing of common tools without standardized cleanings in between uses. Governor Inslee’s order refers to the following links for protocols: United States Department of Labor’s Guidance on Preparing Workplaces for COVID-19 at https://www.osha.gov/Publications/OSHA3990.pdf and the Washington State Department of Health Workplace and Employer Resources & Recommendations at https://www.doh.wa.gov/Coronavirus/workplace.

In the midst of all of this uncertainty – track your impact: create job cost codes, schedules showing the inefficiencies of reduced labor and re-sequenced work, send your required notices to the owner or general contractor. In the current climate – everyone must work together in order for life to resume in a semblance of what we were all accustomed. But that does not mean that those in the industry can ignore their the contract terms and you must track the impacts to sort out where things stand when we do come out on the other side of it all.

If you feel your industry is not clearly defined by the memorandum, or is missing altogether, you may clarify or certify status, and/or to petition to be added to this list, by visiting: Washington State Business Re-Entry Registration website at: https://mil.wa.gov/business-re-entry-registration. In addition, industry groups are currently gathering questions and concerns from members in an effort to clarify Governor Inslee’s Order. This is a rapidly changing situation, and much is still unknown about the scope of this Order.

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.