2020 has been the year of continuous changes in the construction industry brought about by the COVID-19 virus and its regulatory impact. Our construction team continues to monitor and provide timely counsel on meeting those challenges, whether on the project site or back in the company office. This update addresses the most recent orders impacting construction in both Oregon and Washington and what may come next.

Washington Update

Governor Inslee once again ordered sweeping restrictions on indoor gatherings, restaurants, bars, and gyms as COVID-19 cases spike in Washington State. For now, these new restrictions have not been extended to construction projects. But that may change if the virus is not curbed.

The new order, which went into effect midnight on November 16 and is set to last four weeks, is less restrictive than the original Stay at Home decree issued back in March 2020. But the warning was clear that if the level of infections is not reduced, a full shut down might once again be the reality going into the busy holiday season.

Indoor Social Gatherings: The new order largely targets social gathering and venues that have been identified at the major source of the COVID-19 spread. This includes bars, restaurants (inside seating specifically), theaters, gyms and other related venues. It also limits occupancy for retail stores to 25 percent, including grocery stores. In addition, it targets professional services and miscellaneous venues, suggesting that most office events should not exceed the 25 percent occupancy. This may impact many offices that have allowed staffing to return to pre-COVID levels. Check with your employment professionals on the how this impacts your office.

Construction Projects: As expected, construction projects were not included in this order. However, the Governor, in response to question from a reporter, made it clear that there have been problems at some construction sites with the spread of the virus and that his office would be “watching very closely” to see that COVID protocols were being followed and that better compliance was achieved in order to escape further restrictions.

This video clip covers those parts of the Governor’s comments on construction.

In short, if these limited restrictions are not enough to stop the spread, we should expect new constraints to be added and a new round of closures.

Oregon Update

On November 17, 2020, Oregon Governor Kate Brown issued Executive Order No. 20-65, implementing a “Two-Week Statewide Freeze” as an “urgent, immediate, and decisive response to quell the current surge in COVID-19 infections.”

The restrictions impact both social and business activities, and are effective from November 18, 2020 to December 2, 2020. During this time, Oregonians must limit social gatherings to no more than six people from no more than two households. Gatherings at faith-based organizations cannot exceed 25 people for outdoor activities and 50 people for indoor activities. Restaurants, grocery stores, and pharmacies may continue with certain restrictions. Restaurants, for example, cannot offer dine-in service. Other businesses such as gyms, fitness facilities, and live-event venues must close entirely. A full list of the restrictions and the executive order can be found here.

Despite this “freeze” on public life, there are no restrictions for on-site construction activities. This means that construction work can continue during the freeze period so long as Oregon OSHA’s new guidelines are followed. These new significant guidelines govern physical distancing, mask use, sanitation, and verification, among other issues, and can be found here.

However, construction activities may be impacted by Governor Brown’s restrictions on all business generally. All businesses are expected to work from home to “the greatest extent possible and close offices to the public.” This applies to project managers, project engineers, and project support regardless of whether the individual is stationed at the home office or at a construction site.

Contractors that believe these restrictions or any COVID-related impacts are causing project delay or otherwise complicate contract performance should review their contract for any applicable notice provisions and track the cost of the impact with as much specificity as possible.