Update Regarding March 25, 2020 Clarification to
Washington COVID-19 Executive Order
By: Trent Cotney
Cotney Construction Law, LLP
866.303.5868 | info@cotneycl.com
On March 25, 2020, Washington Governor Jay Inslee provided additional guidance on his Stay Home, Stay Healthy Proclamation, by providing specific information for the construction industry. Governor Inslee did so by issuing a memorandum indicating that “In general, commercial and residential construction is not authorized under the Proclamation because construction is not considered to be an essential activity."
While the Governor’s additional guidance and clarification renders the Stay Home, Stay Healthy Proclamation more restrictive than originally thought, there are three circumstances outlined in which construction work would be deemed to be essential, and thus permitted. As such, any company desiring to perform work would have to show they are working under one of these three circumstances:
1)
Construction related to essential activities as described in the Governor’s Proclamation/Order.
a.
If the work being performed can be shown to be related to essential activities which are outlined within the Governor’s Proclamation/Order, then a construction company may be able to perform that work. This will need to be evaluated on a project by project basis. The full list of essential business and activities can be found here:
https://coronavirus.wa.gov/whats-open-and-closed/essential-business
2)
Construction being done 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.”
a.
If the work being performed is a government job, then a construction company may be able to argue that the work is related to furthering a
public purpose, and would therefore fall under an exemption, allowing performance of that work.
3)
Construction being done to prevent spoliation and avoid damage or unsafe conditions, and address emergency repairs at both non-essential businesses and residential structures.
a.
If the work being performed is repair work to either commercial or residential structures, it is likely to be considered exempt, as such work is going to prevent further damage to those properties. That said, even some new construction roofing work could arguably fit into this circumstance. This is because if the work being done would protect a building by preventing damage to the new construction, then that type of work should be permitted to be performed at
any commercial or residential structure.
In the event work can be performed, please be aware the Governor’s office has indicated “that all construction activity must meet social distancing and appropriate health and worker protection measures before proceeding.”
Our hope is that our advice will continue to help you navigate some of the novel workplace issues that this outbreak continues to present to the industry; but as is the case with most legal issues, especially those dealing with unprecedented events like the outbreak of COVID-19, specific legal questions should be analyzed with your attorney on a case-by-case basis. For any questions of the sort, feel free to give us a call.
Author’s note:
The information contained in this article is for general educational purposes only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.
Cotney Construction Law is an advocate for the roofing industry, General Counsel of National Roofing Contractors Association (NRCA) and several other industry associations throughout the U.S. For more information, contact the author at 866.303.5868 or go to www.cotneycl.com.
