On April 29, 2020, Governor Jay Inslee signed and issued additional guidance regarding the Phase 1 Construction Restart Plan previously issued on April 24, 2020. This additional guidance provides clarification on what construction is allowed to continue by more clearly defining “authorized construction” and adding a Frequently Asked Questions document.
(Last Updated: April 29, 2020).
The additional guidance clarifies that, although Proclamation 20-25 and the Governor’s March 25, 2020, memo’s restrictions on construction are superseded by the Phase 1 Construction Restart Plan, those documents will still be used to determine whether a construction project was previously authorized. Accordingly, the additional guidance specifically identifies two categories of projects which may continue work under the Phase 1 Construction Restart Plan:
Construction previously authorized under Proclamation 20-25 and the Governor’s March 25, 2020 memo; and
Construction not previously authorized under Proclamation 20-25 and the March 25, 2020 memo that was in existence on March 23, 2020.
The FAQs further clarify the definitions of previously authorized construction, newly authorized construction, and existing construction:
Previously authorized construction is construction activity that was permitted to continue operations under Proclamation 20-25 and subsequent guidance. Examples include the construction of medical offices and grocery stores, and construction needed to avoid damage or unsafe conditions.
Newly authorized construction is construction activity that: a) Was in existence prior to the issuance of Proclamation 20-25, “Stay Home, Stay Healthy”. b) Was not authorized under Proclamation 20-25 and subsequent guidance. This includes, for example, most residential construction like remodels, renovations, and speculative construction.
Existing construction is construction that: a) Is needed to fulfill an obligation under a contract effective prior to March 23, 2020. b) Is authorized by a government-issued permit obtained prior to March 23, 2020. For existing construction, contracts can include pre-lease, construction contracts, design contracts, and sale contracts. Notably, part a) of the definition of existing construction also does not require that any work pursuant to the contract has begun. This means that projects meeting the March 23, 2020 contract requirement are deemed existing construction even if work has not started.
As before, the Phase 1 Construction Restart COVID-19 Job Site Requirements are required as long as Proclamation 20-25 is in effect or if adopted as rules by a federal, state or local regulatory agency. Note that individual county or city authorities may impose more stringent restrictions than those set forth in this protocol.
The Associated General Contractors of Washington has provided several resources to help contractors streamline the process required by Washington’s Phase 1 Construction Restart Plan, including site-specific work plans, health-screening memos, COVID-19 awareness training videos, and templates for COVID-19 site supervisor responsibility and jobsite compliance posters that can be customized with firm and supervisor names, for posting at jobsites.
This article is intended to provide you with general information regarding the impact of the coronavirus pandemic on construction work in Washington state. This article is not intended to provide specific legal advice. If you have any questions about the contents of this article or if you need legal advice on an issue, please contact Heffernan Law Group at contact@heffernanlawgroup.com.