Identifying “High-Risk” Workers During the Pandemic is Crucial to Continue Essential Construction Business in Washington State

On April 13, 2020, Governor Inslee issued Proclamation 20-46, specifically addressing protections for high-risk employees and worker’s rights¹. This Order applies to ongoing construction work deemed essential under the Stay Home, Stay Healthy Proclamation, and includes yet another requirement for employers managing construction companies to be aware of in this ever-changing environment.

High-risk employees are not just found in office jobs, but also in the construction business, as many conditions that are considered “high-risk” in terms of COVID-19, would not preclude individuals from working on construction sites. “High-risk” conditions protected by this Order can be broken down into three main categories affecting employees, they are: (1) employees 65 and older; (2) employees with chronic medical conditions and (3) employees that are immuno-compromised.² Individuals of any age may have chronic medical conditions, which are allotted special protection during this pandemic. Chronic medical conditions include asthma, chronic lung disease, heart disease, diabetes, severe obesity, high blood pressure (even if controlled by medication), liver disease, kidney disease, COPD and or other conditions identified by the Center for Disease Control as putting someone at higher risk of severe illness from COVID-19. Immuno-compromised individuals may include conditions that are short-term or long-term in nature and may affect people of any age. They include pneumonia, cancer, HIV, auto-immune diseases such as lupus, multiple sclerosis and rheumatoid arthritis, as well as individuals that smoke or are on medication which weakens their immune system, such as corticosteroids.

The Order requires employers to seek out alternative work arrangements, including telework, remote work locations, reassignment and social distancing measures to provide high-risk employees a safer option to their customary in-person jobs. Alternative work arrangements can be difficult, if not impossible on the construction site, therefore, if it is not feasible, the employer must give employees the decision to use accrued leave or unemployment insurance while they remain out of work, while continuing to maintain employees’ health insurance benefits. To ensure that essential construction continues, employers may hire temporary workers to fill jobs of employees that cannot work due to high-risk conditions. However, employers must ensure employees their roles are available when it is safe for them to return to work, without retaliation.

Most importantly, Governor Inslee’s Order supersedes all employee and labor union contracts that would obstruct the protections set forth in Proclamation 20-46. This proclamation is in effect until June 12, 2020 and may extend beyond that date by order of the Governor. Any person found in willful violation of the Order, may be guilty of a gross misdemeanor, punishable by one year in jail and/or $5,000 fine³. If you don’t have that kind of money, consider getting arrest bail bonds from a reliable bail bond agent or bail bonds crow. Given the serious nature of this Order and since these conditions affect people of any age and may not be obvious to employers, it is imperative that construction companies ensure that their workers understand their rights under this Proclamation and follow the guidelines as set forth in the Order.

Visit our COVID-19 Hub for ongoing updates.
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¹ Proclamation by the Governor Amending Proclamation 20-05: 20-46 High-Risk Employees – Workers’ Rights
² Center for Disease Control and Prevention: Coronavirus Disease 2019 “People Who Are at Higher Risk for Severe Illness”
³ RCW 43.06.220(5)

Idaho’s Stay Home Order Extended: What this Means for Construction

On March 25, Governor Little issued an Order to Self-Isolate for the State of Idaho.¹ On Wednesday, April 15, Governor Little extended Idaho’s stay-at-home order through April 30. The Order directs all individuals living within the State of Idaho to self-isolate at their place of residence. Individuals may only leave their place of residence for “Essential Activities”, “Essential Government Functions”, or to operate “Essential Businesses”.² Relevant, particularly, to contractors is the following:

• Idaho’s Order permits individuals to leave their residence to provide any services or perform any work necessary to the operation and maintenance of “Essential Infrastructure”, including, but not limited to, according to a lanarkshire specialist public works construction, commercial construction, construction of housing (particularly [but not limited to] affordable housing or housing for individuals experiencing homelessness), water, sewer, gas, electrical, oil, refining, mining, roads and highways, provided that Social Distancing Requirements³ as further defined by the Order are followed to the extent possible .
• The Order goes on to expressly provide that “Essential Businesses” is defined to include “Essential Infrastructure,” i.e. construction activities.⁴
• Further, incorporated into Idaho’s Order is the Cybersecurity and Infrastructure Security Agency of the United States Homeland Security’s March 19 Memorandum on Identification of Essential Critical Infrastructure Workers relative to the Country’s COVID-19 response. The memorandum provides that workers, such as plumbers, electricians, exterminators, builders, contractors, HVAC technicians, landscapers, and other service providers necessary to maintain the safety, sanitation and essential operation of residences, businesses, and buildings such as hospitals, senior living facilities, and any temporary construction required to support the COVID-19 response are defined as “Essential” Workers.⁵

The federal guidance comes with the caveat that construction-related activities may continue to the extent they are related to our Nation’s fight against the COVID-19 pandemic. Idaho’s Order is much broader. In Idaho, it is clear that construction services and work is deemed “Essential” and may continue, including public works and both commercial and residential construction. The Order expressly provides that “[a]ll Essential Businesses are strongly encouraged to remain open.”⁶

Failure to comply with Governor Little’s Order through the end of April exposes you to a misdemeanor, punishable by fine, imprisonment or both.⁷

Note that, under the extended directive, out-of-state people visiting Idaho for non-essential travel will need to self-quarantine for 14 days. “We don’t need people coming here from a place with a high community spread,” Governor Little said.

In summary, the following guidance is offered:

• In-state and out-of-state contractors should clearly identify their essential activity-related purpose to any law enforcement officer when not self-isolating in their residence. For example, if you are driving to a job site for work, make sure to identify this purpose to law enforcement if questioned.
• Social Distancing should be practiced to the extent possible. Again, this may be easier to do for, say, a landscape sub on a small residential project. This may be more difficult for other trades that normally work in closer proximity. General contractors should manage their schedule and subs to practice Social Distancing to the fullest extent possible.
• Minimize on-site project staffing to the extent possible.
• Enable employees to practice additional sanitation efforts, including self-care and the project environment (i.e. provide hand-washing stations, hand sanitizer, wipe down project surfaces, including small handheld tools and equipment).
• Provide masks and gloves to employees (i.e. Personal Protection Equipment or “PPE”).
• Do not share water or other PPE.

The construction attorneys at Gordon & Rees are here to help you navigate this unprecedented time. Let us assist you take the necessary steps to protect yourself now, including a review of your contracts and applicable law. COVID-19 is effecting the supply chain, workforce, and other project delays and impacts across the construction industry. Contact our office to understand your rights and potential remedies for the impacts you are encountering on the job site.

Visit our COVID-19 Hub for ongoing updates.
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¹ Idaho Department of Health and Welfare Order of the Director, Order to Self-Isolate, dated March 25, 2020 (the “Order”).
² As defined by Section 8 of the Order.
³ See Order, at Paragraph 8(j) (defining “Social Distancing Requirements” as “maintaining at least six-foot social distancing from other individuals, washing hands with soap and water for at least twenty (20) seconds as frequently as possible or using hand sanitizer, covering coughs and sneezes (into the sleeve or elbow, not hands), regularly cleaning high-touch surfaces, and not shaking hands.”).
⁴ See Order, at Paragraph 8(f)(i).
⁵ Memorandum on Identification of Essential Critical Infrastructure Workers During Covid-19 Response issued by the Cybersecurity and Infrastructure Agency of the United States Homeland Security, dated March 19, 2020.
⁶ See Order, at Paragraph 5.
⁷ See Order (citing Idaho Code § 56-1003(7)(c) (“[A]ny person who violates an order of isolation or quarantine shall be guilty of a misdemeanor.”).