After input from the construction industry, Gov. Jared Polis and CDPHE Executive Director Jill Ryan issued Updated Public Health Order 20-24 to clarify that all construction is considered exempt from the stay-at-home requirement as a “critical business.” This supersedes Public Health Order 20-24, banning gatherings of more than 10 people, among other restrictions.
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The updated order now exempts construction entirely from the stay-at-home requirements of the initial order. The original order included a list of certain exempt construction activities under the heading “Construction, Including,” and this caused confusion over whether the list that followed was meant to be an exclusive list of exempt activities or a non-exclusive list of examples. The updated order added the phrase “but not limited to” after the word “including” to clarify that all construction activities are exempt.
However, this does not relieve construction companies from complying with social distancing measures (six-foot separation between employees; handwashing and hygiene practices mandatory; efforts to limit the number of people in the same space; covering coughs or sneezes; regularly cleaning high touch surfaces; not shaking hands) “to the greatest extent possible” (See PHO 20-24, Section III.C.).
If these requirements would make a “critical function” of construction impossible, it appears that the social distancing requirements do not need to be followed strictly (See PHO 20-24 II.A.). Unfortunately, Order 20-24 does not define “critical function,” so construction companies still need to make judgment calls about whether an activity is impossible while observing social distancing, and whether the activity is a “critical function” of the construction project. Companies should try to strike a reasonable balance between continuing business and public safety, erring on the side of safety.
Construction companies should also consider filling out certification forms for employees to carry with them, indicating that the employees are traveling to and working on a jobsite for a construction project and are essential to the critical functions of the construction business. If those employees must violate Social Distancing measures, it would help to provide a short explanation of why complying with them would be impossible, and of how the company is otherwise complying. A sample certification form can be found here.
Order 20-24 and its social distancing requirements act as a floor. Cities and counties are permitted to have stricter requirements than the state. The map below shows counties that have issued orders and how they differ from the state requirements. The differences are also summarized below. The following information was updated as of March 29.
- In Pitkin and San Miguel counties, construction can continue for essential businesses or essential infrastructure. If the project is not for either of these two purposes, minimum basic operations can be maintained. For construction, this means the minimum necessary activities to maintain the value of the business’s inventory, ensure security, process payroll and employee benefits, or for related functions.
- In Larimer County, residential construction and construction for essential businesses are permitted. Other construction can maintain minimum basic operations.
- In Gunnison and Saguache counties, construction projects may continue, but they must receive written approval. Gunnison County’s approval form can be found here. Saguache County has not put forward an exemption form.
- In Hinsdale and Mineral counties, construction can continue, but there must be a sanitizing station.
- In Routt County, the limit is five people per worksite instead of 10 like the rest of the state. However, if the gathering is “necessary for employment,” then groups larger than five may be on one site.
- Lastly, in San Juan County, construction is permitted, but no new construction can commence unless it is for public health and safety.
Please keep in mind that OSHA still requires employers to provide PPE to employees “wherever it is necessary by reason of hazards of process or environment” (See 19 CFR 1910). Employers also have an obligation to furnish each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm” (See 29 USC 651(a)(1)). OSHA has issued temporary enforcement guidance for the respiratory protection standard, granting field offices enforcement discretion on the annual fit testing requirement. OSHA has provided its own COVID-19 response. One should consult these when attempting to determine the proper steps to take on a givenjob site to be in compliance.
[Check out Colorado Builder’s resource page, Coping with COVID-19.]
Dan Wennogle is a partner and co-chair of Moye White’s Construction Group. He focuses on construction and property rights matters, including contract disputes, delay claims, lien and bond claims (public and private), construction defect claims, quiet title actions, easement disputes, and condemnation. He can be reached at [email protected] or 303-292-7938.