Washington State Resumes Some Construction Amid COVID-19, But With Strict Conditions
For more than a month now, Washington State’s construction industry has felt the pain of restrictions and prohibitions which shut down vast swaths of industry activity following Governor Jay Inslee’s Proclamation 20-25, known as the “Stay Home- Stay Healthy” order. On April 24, 2020, the Governor made a monumental announcement that, following weeks of negotiations, planning, and deliberations with various stakeholders, certain construction activity which was banned by Proclamation 20-25, could resume as long as businesses comply with certain requirements. This is apparently the first of several phases of slowly returning the construction industry to normal activity, so the newly permitted activity can be referred to as “Phase 1 work.”
What additional activity is now allowed? Subject to conditions (see below), this reopening applies only to existing construction projects which were underway when Proclamation 20-25 was issued on March 23, 2020. If you are wanting to break ground on a new project, you will have to demonstrate that the project falls within an allowed exception under Proclamation 20-25 (such as low income housing, support of certain government functions, or other essential business activities- see my earlier post on that topic here: https://beresfordlaw.com/coronavirus-and-residential-construction-in-washington-state/). Only construction activity that does not require workers to work closer than six feet together is allowed.
What do you have to do to resume work on a construction project under Phase 1? The numerous requirements are quite stringent- here are the most noteworthy aspects:
- Develop a written comprehensive COVID-19 plan to mitigate the risk of exposure and to respond to incidents of exposure. This plan must be available on the job site.
- Designate a COVID-19 Supervisor for every job site (except on single family residential job sites with 6 or fewer people on the site), who must be present during all construction activities to monitor the health of employees and enforce the COVID-19 job site safety plan
- Provide all workers with COVID-19 safety training
- Post on the job site a written notice of the Phase 1 work being performed with a signed commitment to comply with the Phase 1 requirements
- Adhere to worksite-specific safety practices as outlined by the Washington State Department of Labor & Industries Directive 1.70 (which can be found here: https://www.lni.wa.gov/safety-health/safety-rules/enforcement-policies/DD170.pdf). The five main areas for compliance include: (1) education of workers and customers; (2) maintaining 6 feet of spacing; (3) regular cleaning of work areas, especially common-touch surfaces; (4) providing facilities for frequent handwashing; and (5) establishing procedures to deal with employee illness
- Comply with certain social distancing requirements as specified in the Phase 1 requirements
- Provide employees with personal protective equipment (“PPE”), such as gloves, goggles, face shields, etc. (this is mandatory- if PPE cannot be provided, the worksite must be shut down!)
- Employees with someone at home who has COVID-19 must follow isolation and quarantine requirements
- Employers must take the temperature of each worker at the beginning of their shift, and workers with a temperature of 100.4 degrees Fahrenheit must be sent home
- Employees who do not believe it is safe to work shall be allowed to remove themselves from the worksite and employers must follow the expanded family and medical leave requirements included in the Families First Coronavirus Response Act or allow the worker to use unemployment benefits, paid time off, or any other available form of paid leave available to the worker at the worker’s discretion
- Workers arriving at a construction site from out of state (other than from Oregon or Idaho) must self-quarantine for 14 days before being eligible to work on a job site in Washington
- Keep a written daily log of contact information for all persons (workers or visitors) on a job site for at least four weeks
If you have any employees who are confirmed to have COVID-19, the law requires you to strike a delicate balance between the rights of the infected worker and fellow employees. On one hand, the Americans with Disabilities Act requires you to maintain confidentiality and not broadcast that a specific employee became infected. On the other hand, employees have a duty to protect fellow employees who have been exposed. To comply with both obligations, employers should “inform fellow employees of their possible exposure to COVID-19 in the workplace.” This should be done without disclosing the identity of specific employees who had/have the virus.
Contractors should not view COVID-19 as just a passing thing. It will likely require risk management far into the future. Under RCW 49.17.060, employers are required to “furnish to each of their employees a place of employment free from recognized hazards that are causing or likely to cause serious injury or death to his or her employees.” COVID-19 has now become a “recognized hazard,” and as such, employers would be well served to remain vigilant about hygiene protocols at the workplace.
The full text of the Phase 1 work requirements can be found here: https://www.governor.wa.gov/sites/default/files/Phase%201%20Construction%20COVID-19%20Safety%20Requirements%20%28final%29.pdf