FAQ: Washington’s COVID-19 Response and the Construction Industry
Updated: Apr 24, 2020
Governor Inslee’s “Stay Home – Stay Healthy” Proclamation 20-25 (the “Governor’s Proclamation”) has shut down most construction projects in Washington through May 4, 2020, with the possibility of the shutdown being extended beyond that. Below are some frequently asked questions regarding the effect of the Governor’s Proclamation on the construction industry in Washington.
(Last Updated: April 22, 2020)
Background on the Governor’s Proclamation
The Governor’s Proclamation was issued on March 23, 2020 in response to the COVID-19 pandemic, including a list of “Essential Critical Infrastructure Workers” permitted to work during the shutdown. On March 25, 2020, the Governor issued a further construction guidance memorandum clarifying that construction work was generally not classified as essential work in Washington, subject to a few listed exceptions as set forth below.
On April 13, 2020, Washington joined with California and Oregon to form the Western States Pact, committing all three states to a coordinated approach to reopening their respective state’s economies and developing strategies for controlling COVID-19. The commitment does not include a particular timeline for resuming standard activities. Instead, the commitment anticipates a coordinated approach by all three states in evaluating the direct impact of the COVID-19 pandemic, the impacts of efforts to control the pandemic, and the capacity of health care systems in each state. Washington, California, and Oregon still have their own regulatory approaches to combating COVID-19. Each state will still be responsible for its own state-specific plan and timeline.
On April 21, Governor Inslee indicated that certain activities, including “a limited return to construction with safety measures in place,” could potentially resume prior to the end of the statewide shutdown. Governor Inslee did not give a timeline for when these certain activities would resume, instead saying that they could resume in the upcoming weeks, contingent on a decrease of the spread of COVID-19. Additionally, Governor Inslee indicated that the Governor’s Proclamation will remain in place through May 4 and may be extended beyond that as public health requires. This post will be updated as more information about the potential reopening of certain construction work becomes available.
Is Construction Work an Essential Business Under the Governor’s Proclamation?
No, most commercial and residential construction work is deemed nonessential in Washington and therefore must shutdown through May 4, 2020, with the possibility of the shutdown being extended beyond that date. Washington is one of only six states where construction is deemed nonessential. The Governor’s Proclamation declares certain types of residential and commercial construction work as essential, exempting it from the shutdown. These exemptions are detailed in the next question.
Which Construction Work is Essential Under the Governor’s Proclamation?
The following types of residential and commercial construction work are deemed essential under the Governor’s Proclamation and therefore are exempt from the shutdown:
Construction related to “essential activities” as described in the Governor’s Proclamation (detailed below);
Construction to further a public purpose related to a public entity or governmental function or facility, including but not limited to publicly financed low-income housing; or
Construction to prevent spoliation and avoid damage or unsafe conditions, and address emergency repairs at both non-essential businesses and residential structures.
Construction work relating to essential activities exempted from the shutdown includes construction services performed for the health sector, emergency services, public works, energy, transportation systems, and communications and information technology. The Governor’s office has provided specific information about what work is considered “essential critical infrastructure,” which can be found here.
If you have additional questions regarding whether your construction work is considered “essential” under the Governor’s Proclamation, please contact Heffernan Law Group PLLC at firstname.lastname@example.org.
How Can You Receive Clarification Regarding Whether Your Construction Project is Essential?
As there are still many questions about what construction work is permitted under the Governor’s Proclamation and the essential service designations, Washington State offers clarification for businesses that want to know if they are included on the exemptions list. The form for requesting clarification from Washington State is found here:
If You Are an Essential Business, What Safety Steps Should You Take in Your Workspace?
The Department of Labor and Industries Division of Occupational Safety and Health released its enforcement policy on April 7 for evaluating workplace implementation of social distancing, sanitation, and sick employee practices. Businesses deemed essential under the Governor’s Proclamation shall implement certain practices, including:
Ensure that employee workstations are separated by at least six feet or have physical barriers;
There must be regular cleaning of the workspace to prevent build-up of dirt and clutter, and there must be frequent cleaning of commonly-touched surfaces. Cleaning supplies must be available to employees to do spot-cleaning as necessary;
Employees must have frequent access hand washing facilities, including hot and cold running water and soap;
Employers must have a program to prevent sick employees from entering the workplace and for sending sick employees home when needed, which includes having a plan for adequate cleaning of the workspace after the sick employee is sent home, and;
Employers should consider how to comply with all of these basic elements in light of the specific demands of their industries, which may include potential job modifications and the use of personal protective equipment.
Every essential business operating in Washington should review the Department of Labor and Industries’ enforcement policy guideline in deciding what health and safety practices should be implemented at their workplace.
Can Temporarily Laid-Off Construction Employees Qualify for Unemployment?
Employees may qualify for unemployment while the construction work is suspended. Washington’s Employment Security Department has provided a helpful guideline for employers, which includes relevant information such as:
A temporarily laid-off construction employee that files for unemployment benefits should select “Laid off” and “Company temporarily closed” in their application;
Work search requirements and the one-week waiting period for filing are both temporarily waived, and;
Employees can now qualify for standby status for up to 12 weeks.
What Resources Should You Monitor for COVID-19 Regulatory Updates in Washington?
As the response to COVID-19 is developing on a daily basis, we recommend a handful of websites for monitoring regulatory updates and information about best practices:
Washington State’s Coronavirus Response page summarizes news and the latest response efforts by the state: (https://www.coronavirus.wa.gov/).
Washington State Department of Health provides the latest public information regarding the pandemic: (https://www.wslc.org/covid-19/).
The Associated General Contractors of Washington: (https://www.agcwa.com/covid-19-updates/).
The Building Industry Association of Washington: (https://www.biaw.com/COVID19).
The Master Builders Association of King and Snohomish Counties: (https://www.mbakscovid19.org/updates). All provide news and analysis of COVID-19’s impact on the construction industry.
Construction Connect offers a helpful state-by-state comparison of how each state’s COVID-19 response affects the construction industry: (https://www.constructconnect.com/covid-19-construction-activity-report).
The U.S. Chamber of Commerce provides an overview of government financial relief available to certain U.S. businesses: (https://www.uschamber.com/co/small-business-coronavirus).
A variety of federal government resources regarding the COVID-19 response are compiled here: (https://www.usa.gov/coronavirus).
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 email@example.com.