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To say that Oregon developers, contractors and design professionals have been shifting project operations (and business priorities in general) to account for the effects of the COVID-19 pandemic is an understatement. With that said, construction in Oregon is experiencing 鈥渂usiness as usual鈥� more so than other less-fortunate industries, such as retail and hospitality.

But for construction industry players in the state of Washington, COVID-19 impacts have been even more significant given Gov. Jay Inslee’s decision to shut down almost all construction activity. However, two weeks ago, Inslee provided the construction industry with some relief. With so many Oregon companies operating in Washington, we thought it would be helpful to provide an overview of what the first phase of construction’s resumption in Washington entails.

On April 24 鈥� based on input from construction workers, contractors, health and safety experts, and local government officials 鈥� Inslee announced a plan to allow current projects to restart. This plan did not allow the construction industry to go back to pre-pandemic business as usual, but rather permit only projects that were in existence prior to March 23 to restart if certain requirements can be met.

New construction projects in Washington will not be allowed until Phase II, which will not be enacted until three weeks after the governor’s stay-at-home order is removed. Tentatively, Phase II is projected to begin around June 1. This April 24 plan is technically an addendum to Inslee’s 鈥渟tay-at-home鈥� Proclamation 20-25, and it rescinds previous guidance related to construction from the 鈥淓ssential Critical Infrastructure Workers鈥� list issued on March 23.

On April 29, the state issued guidance clarifying that construction聽activity that was in existence on March 23 can restart. Importantly,聽鈥渋n existence鈥澛爉eans construction activity that is (1)聽needed to fulfill an obligation under a contract effective prior to March 23, 2020, or (2)聽authorized by a government-issued permit obtained prior to March 23, 2020. Again, no new projects of any nature are allowed.

For existing projects, Washington now permits jobsite activities meeting聽a聽low-risk threshold of six-foot distancing to operate聽as soon as the contractor can meet and maintain requirements listed in the Phase 1 Construction Restart COVID-19 Job Site Requirements. These include a 30-point plan with protocols similar to those introduced at many Oregon construction sites after Gov. Kate Brown’s March 23 stay-at-home order was enacted. Both projects that were operating under the proclamation and newly authorized projects under the addendum needed to be in compliance by May 1, 2020, and adherence to the six-foot social distancing rule, the addendum, and the requirements will be聽strictly enforced.

Contrary to some expectations that the governor would allow a reopening of residential construction only, the addendum draws no distinction between residential, office and commercial projects. Nor is any distinction made between public and private work. The governor’s order is dependent not on the type of construction, but the聽job function of the worker. The overarching operating principle is maintenance of the six-foot barrier between workers and imposition on general contractors of exhaustive, strenuous and expensive safety measures. Paramount among those are (1)聽a site-specific COVID-19 safety officer, (2)聽daily wellness checks, including mandatory daily temperature checks, and (3)聽continual cleaning and disinfecting operations. It appears clear that the primary duty for meeting the 30-point plan lies with general contractors, who must manage their subcontractor and supplier compliance and owners’ expectations for a compliant site.

If a work activity requires workers to be closer than six feet, it is not considered 鈥渓ow risk鈥� and is聽not聽authorized to proceed. This is obviously problematic given the many tasks on a job that must be performed by workers in closer proximity. However, there is a limited exception for construction projects that were previously authorized under the proclamation. For such previously-authorized projects, teams must implement a hazard assessment and control plan that identifies appropriate PPE used in accordance with the Department of Labor & Industries’ Coronavirus (COVID-19) Prevention: General Requirements and Prevention Ideas for Workplaces to proceed with construction activities without maintaining six-foot distancing. Follow-up requirements from the state mandate that cloth masks must be worn at all times by every employee on the worksite. On May 3, Labor & Industries provided a matrix outlining acceptable masks and face coverings for Phase 1 construction and for different types of construction activity.

These regulations will undoubtedly increase costs for every general contractor to implement and manage and may also trigger delay and/or inefficiency claims. In addition, general contractors will likely see additional costs passed on by subcontractors for PPE and cleaning supplies as well as increased labor costs and labor inefficiency claims that may result from the six-foot rule. Compensation for the extra costs will largely be determined by force majeure or emergency cost clauses in contracts. As much as we would like to provide bright-line guidance on how these clauses will be interpreted, every case is fact-specific and requires tailored evaluation. These clauses often initially trigger more questions than answers. Early and consistent communication between project teams about impacts and discussion about a process for resolving COVID-19 issues in short order can best serve all parties.

Joseph Straus is a real estate and construction attorney at Schwabe, Williamson & Wyatt. Contact him at 206-407-1575 or [email protected].

Kainui Smith is a real estate and construction attorney at Schwabe, Williamson & Wyatt. Contact him at 206-407-1567 or [email protected].

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the authors and do not reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the authors nor the 91视频 guarantee the accuracy or completeness of any information published herein.