Guidance for Owners and Contractors with Construction Projects in Oregon in Light of the Statewide “Stay Home” Order

On March 23, 2020, Oregon Governor Kate Brown issued Executive Order No. 20-12 directing Oregonians to “Stay Home, Save Lives.”

Unlike “stay home” orders in some other states—which prohibit the operation of all business unless specifically exempted—the Oregon Order prohibits the operation of specific categories of businesses identified in the Order (e.g., amusement parks, aquariums, etc.).  Presumably, this means that if a category of business is not identified, then it is not subject to the prohibition.

Because “construction” is not specifically identified as a prohibited business, it is reasonable for owners and contractors to presume that their projects in Oregon may continue for the time being.  While not explicitly part of the Oregon Order, some are characterizing it as  “permission by omission,” meaning that the omission of a business on the prohibited business list means you have permission to operate that business.  But proceeding under that assumption is not entirely without risk, and there are other important considerations for both owners and contractors to bear in mind, including:

• 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 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 practical or even possible.
• 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 make good business sense to presume that these additional requirements apply to work performed in non-office settings, such as construction sites, in 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, 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.
• In addition, if the number of confirmed COVID-19 cases rapidly increases in Oregon, there is the possibility (if not probability) that the Order will be revised to expand the businesses and / or business operations on the prohibited business list. For example, Oregon could—like Washington—allow only certain types of construction projects to move forward (such as public projects or emergency repair projects).  Because of this risk, some analysis should be undertaken to determine whether continuing with a project that could soon be shut down under a revised order poses greater risk than shutting that project down now.  This must be determined on a case-by-case basis.
• Another factor is the availability of personnel and their willingness to report to work on a construction project. Despite the Oregon Order allowing work to continue, 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.
• The decision to move forward with a project or to stop a project is complex and involves a cost/benefit analysis that should be done in conjunction with—or at least after discussion with—other project team members, including the owner, the prime contractor, and key subcontractors and suppliers.  The fact that the Oregon Order allows projects to continue does not necessarily mean that continuing in the current environment is the best thing to do for all projects.

Finally, construction projects in Oregon will not necessarily be immune from the impacts of shutdown orders in other states.  For instance, material suppliers located in states with more restrictive orders may be delayed in making deliveries to Oregon jobsites.  Owners and contractors alike should consider these (and other) broader impacts of the COVID-19 pandemic.

Thus, while the Order appears to allow construction to continue in Oregon, it is important for owners and contractors to separately consider each project and what action (or inaction) is needed to comply with the Order and avoid related entanglements with employees and subcontractors.  Local governments may also impose their own restrictions, so it is important to review the applicable websites and other resources for updates and directives from those bodies.