Can (or Should) My Project Continue During the Shutdown?

Now that several weeks have passed since Governor Brown formally ordered all Oregonians to “Stay Home, Save Lives,” owners, project designers, and contractors all have had the opportunity to absorb its initial impacts.  And while many stakeholders were initially relieved that construction projects in Oregon could apparently continue—subject to the various social distancing and travel restrictions described in the Order—that does not mean that proceeding with ongoing or planned construction projects is without impact or risk from COVID-19.

Thus, as we face the apparent likelihood that the Order will remain in place for several more weeks if not into the summer, it is a good time to revisit the considerations that all project participants should keep in mind when deciding whether to continue with or start a construction project.  These include:

• The Order requires that “[w]hen individuals need to leave their homes or residences, they should at all times maintain social distancing of at least six feet from any person who is not a member of their immediate household, to the greatest extent possible, and comply with the other Social Distancing Requirements guidance issued by the Oregon Health Authority.” This general directive would appear to require social distancing at construction sites.  Depending on the nature of the project or the work of a specific construction trade, achieving the required social distancing measures may not always be safe, practical, or even possible.  Some states have dispatched enforcement teams to check construction sites for compliance and possibly issue fines or shutdown orders.  It is unclear to what extent this may be happening in Oregon thus far.
• The Order further requires that “[w]hen telework and work-from-home options are not available, businesses and non-profits must designate an employee or officer to establish, implement, and enforce social distancing policies, consistent with guidance from the Oregon Health Authority.” While this statement is included in the broader context of discussing work in offices, it may be wise to presume that these additional requirements apply to work performed in non-office settings, such as construction sites, construction trailers, lunch areas, restroom lines, etc.
• The Order directs individuals to “minimize travel, other than essential travel to or from a home, residence, or workplace; for obtaining or providing food, shelter, essential consumer needs, education, health care, or emergency services; for essential business and government services; for the care of family members, household members, elderly persons, minors, dependents, persons with disabilities, or other vulnerable persons, pets or livestock.” Again, while this language appears to allow travel to a workplace—presumably including a construction site—owners and contractors will again want to consider the restrictions in the context of each specific project.
• If we see a local spike in COVID-19 cases or if there is reason to expect a spike may occur, there is the possibility that Governor Brown will revise the Order—either before or after its current expiration—to allow only certain projects deemed essential to move forward.  This is the approach taken in several other states, where the question of what is and is not essential is often far from clear.
• Of course, separate and apart from whether construction may continue is the question of whether personnel will remain willing (or able) to work on a construction project. Whether construction employers can or should direct employees to report to work is another tricky question that should be determined on a case-by-case basis with the help of an employment attorney.
• That the Oregon Order currently does not expressly prohibit construction does not necessarily mean that continuing in the current environment is the best thing to do for all projects.  Whether a project should continue—or be suspended for a period of time—is a complex decision that requires discussion with all team members.

Of course, apart from the immediate question of whether construction can and should continue in light of the stay home Order, project participants likely face other contractual or commercial considerations, such as whether the pandemic or related governmental orders trigger force majeure provisions or otherwise excuse delayed performance.  Many contractors assume that simply sending notice that COVID-19 is impacting the project is enough.  But owners will justifiably require greater explanation of the specific impact and how it affects the critical path of the project.  Again, these issues are project and contract specific.  They will take time—and collaboration—to resolve.

Originally published as “OP-ED: Can (or should) my project continue during the shutdown?” by the Oregon Daily Journal of Commerce, April 17, 2020.