By Jesse S. Keene of Cozen O’Connor
Published April 27, 2020
On April 24, 2020, Washington Governor, Jay Inslee, signed an addendum to Proclamation 20-25 that allows a limited restart to construction projects in the state. Developed by the governor’s Construction Working Group, the Phase I Construction Restart Requirements are reasonably straight-forward, and must be read in their entirety and implemented before recommencing work.
Below are some of the key takeaways from the Phase I Construction Restart Requirements.
Existing construction projects may resume.
Existing construction projects to resume work provided they comply with the requirements. It remains unclear whether new projects may commence.
Only work that can be performed while social distancing may take place.
Only those activities that do not require workers to be closer than six feet may take place. An activity is not safe and cannot proceed if workers must be within six feet of each other to perform work. Observing this requirement will certainly impact some activities more than others. As we stated in our COVID-19 Strategies for the Construction Industry, contractors should continue to document where and how working while observing social distancing impacts productivity, efficiency, and activity durations.
Develop and post a COVID-19 site safety plan.
Before starting work again, contractors are required to develop and post at each jobsite a comprehensive COVID-19 exposure, control, mitigation, and recovery plan. The plan must include policies regarding the following:
- PPE utilization
- On-site social distancing
- Hygiene and sanitation
- Symptom monitoring
- Incident reporting
- Site decontamination procedures
- COVID-19 safety training
- Exposure response procedures
- Post-exposure incident project wide-recovery plan.
This plan must be available on each jobsite during work and available for inspection by state and local authorities. Failure to meet the posting requirement will result in sanctions and the jobsite being shut down.
Appoint a COVID-19 Site Supervisor.
Contractors must designate a COVID-19 site supervisor at every project who is responsible for enforcing the contractor’s COVID-19 jobsite safety plan. This supervisor must be on-site and present at all times during construction work.
Must hold COVID-19 safety training.
The contractor must conduct a safety training, stand-down, or tool box talk on the first day back on site to explain the contractor’s COVID-19 job site safety plan. Attendance for all workers must be taken.
Stagger breaks.
To maintain social distancing, breaks and lunch breaks should be staggered in shifts.
Workers must wear masks, eye protection, and gloves at all times.
Masks, eye protection, and gloves must be work at all times by every employee on site. Contractors must provide PPE for their workers. If contractors cannot do so, the work site must be shut down.
Provide handwashing stations.
As the guidelines provide, soap and running water shall be abundantly available on-site for frequent handwashing. If running water is not available, portable washing stations with soap must be provided.
Post sanitation and cleanliness guidelines.
Contractors must post sanitation/cleanliness guidelines. These must include (but are not limited to):
- Don’t touch face with unwashed hands or gloves;
- Wash hands for at least 20 seconds;
- Use hand sanitizer with at least 60 percent alcohol;
- Clean and disinfect frequently touched objects and surfaces such as workstations, keyboards, telephones, handrails, machines, shared tools, elevator control buttons, and doorknobs;
- Covering mouth when coughing or sneezing;
- Other hygienic recommendations issued by the Centers for Disease Control (CDC).
Encourage workers to stay home if sick.
Develop a policy that encourages workers to stay home or leave the work site if feeling sick or if they have been in close contact with a confirmed positive case.
Employees with COVID-positive family member.
If an employee has a family member test positive for COVID-19, that employee must follow the isolation/quarantine requirements established by the Washington Department of Health.
Screen workers at the beginning of shifts.
Contractors must screen all workers at the beginning of their shifts. Screening can occur either by:
- Taking worker’s temperature: Must use a “no touch” or “no contact” thermometer to the greatest extent possible. Any worker with a temperature of 100.4 or greater must be sent home.
- Asking whether the worker has:
- Fever;
- Cough;
- Shortness of breath;
- Fatigue;
- Muscle aches; or
- New loss of taste or smell.
Any worker experiencing any of these symptoms must be sent home.
Reporting symptoms.
Contractors must instruct workers to report to their supervisor if they develop any COVID-19 symptoms during a shift and be sent home. Workers experiencing these symptoms may not return to work until they have been evaluated by a health care provider.
Follow expanded family and medical leave requirements.
Employees shall be allowed to remove themselves from the site if they do not believe it is safe to work. Employers must follow the expanded family and medical leave requirements included in the Families First Act or allow the worker to use unemployment benefits, paid time off, or any other available form of paid leave.
Workers from outside Washington, Idaho, or Oregon must self-quarantine.
Any workers coming to the jobsite from outside of Washington, Idaho, or Oregon must self-quarantine for a period of 14 days before they are eligible to work on a job in Washington.
Compliance will be strictly enforced.
The governor’s addendum — and the requirements themselves — make clear that they will be strictly enforced and are subject to enforcement actions by the Department of Labor and Industries Division of Occupational Safety & Health.
This action is an example of the evolving response to the COVID-19 pandemic and its effects on the construction industry. For strategies on responding to and documenting impacts from these government actions and COVID-19 in general, please refer to our previous client alert, COVID-19 Strategies for the Construction Industry. Additionally, follow Cozen O’Connor’s COVID-19 website for new updates.
Jesse S. Keene is Member of the Washington, DC office of Cozen O’Connor. His practice is focused on construction law and government contracts with particular concentration on litigation, international and domestic arbitration, claim preparation, and strategic project advice. He can be reached at jkeen@cozen.com or 202.747.0795.