COVID-19 Update: Washington Governor Issues Construction Guidance Memorandum

On March 25, 2020, Washington Governor Jay Inslee issued a memorandum that provided members of the construction industry with additional guidance regarding the Stay Home, Stay Healthy Proclamation (20-25) issued on March 23, 2020 in response to the COVID-19 pandemic. The Proclamation raised a number of questions in the industry, including whether all residential construction was deemed an essential service. The Proclamation seemed to indicate in a parenthetical that “housing construction” was permitted but then went on to limit “residential construction” to “emergency repairs and projects that ensure structural integrity.” Because of the resulting confusion, some residential projects began shutting down, while many did not, with the trades on those projects expecting to continue with work.

Yesterday’s memorandum confirms that there is no blanket treatment of residential construction under the Proclamation, and not all residential construction is an essential service. Just as with commercial construction, for a residential construction project to proceed, it must fit into one or more of the following:

1. Construction related to essential activities as described in the order;
2. 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; or
3. To prevent spoliation and avoid damage or unsafe conditions, and address emergency repairs at both non-essential businesses and residential structures.

The memorandum goes on to say, “[t]o that end, it is permissible for workers who are building, construction superintendents, tradesmen, or tradeswomen, or other trades, including, but not limited to, plumbers, electricians, carpenters, laborers, sheet metal, iron workers, masonry, pipe trades, fabricators, heavy equipment and crane operators, finishers, exterminators, pesticide applicators, cleaning and janitorial staff for commercial and governmental properties, security staff, operating engineers, HVAC technicians, painting, moving and relocation services, forestry and arborists, and other service providers to provide services consistent with this guidance.”

The memorandum doesn’t add any clarity on whether essential projects are required to follow the United States Department of Labor’s Guidance on Preparing Workplaces for COVID-19 at https://www.osha.gov/Publications/OSHA3990.pdf or the Washington State Department of Health Workplace and Employer Resources & Recommendations at https://www.doh.wa.gov/Coronavirus/workplace, or both.