The long reach of the six-foot rule—Social distancing in the construction industry

On March 22, 2020, Gov. Jared Polis issued Executive Order D 2020 013, requiring employers to reduce onsite workforces by 50% starting March 24, 2020, in order to slow the spread of coronavirus. Polis’ order does not specifically mention an exemption for the construction industry, although the notice from his office accompanying the order suggests that the construction industry will be exempt if construction companies can prove they are implementing social distancing protocols, including the requirement that they certify all workers will remain at least six feet from one another at all times.

[Related: Builders’ guide to managing COVID-19]

Keeping workers six feet apart at all times likely presents practical problems for contractors that could delay work, add costs or make work impossible to perform. Failure to abide by the order, however, will carry penalties that the Colorado Department of Public Health and Environment (CDPHE) will establish. Further, providing a false certification to the CDPHE that one’s company is complying with social distancing measures will also carry penalties.

Polis tasked the CDPHE with creating a certification form to allow employers to claim an exemption to the order, including the six-foot rule. However, as of March 23, the CDPHE has not publicly released a copy of the certification form.

Monday afternoon, Denver Mayor Michael Hancock issued a stay-at-home order for the City and County of Denver. Fortunately, Hancock’s administration clarified that all construction operations and projects will be exempt from the stay-at-home order. Unfortunately, as of March 23, this does not exempt construction projects and operations from the governor’s six-foot distancing requirement.

Polis’ order follows on the heels of the CDPHE’s March 18 Public Health Order 20-23, “Implementing Social Distancing Measures.” CDPHE Order 20-23 forbids “mass gatherings” over 10 persons in a single room or “confined outdoor space,” and carries penalties of up to $1,000 and one year in jail for violations. CDPHE’s order exempts certain government buildings where “essential government services are offered,” and other “office environments … or factories, where more than 10 people are present but social distancing measures of maintaining at least six feet between individuals, is standard.” The order, however, does not explicitly address construction sites.

The governor’s March 22 order does not specifically negate or amend the CDPHE’s Order 20-23, so construction companies may be barred from operations involving more than 10 people in a room or enclosure at one time. It appears, however, that the orders are meant to work in harmony and that a construction company may be able to claim an exemption under both orders if, like other “office environments or factories,” it can mandate the six-foot rule and certify that fact to the CDPHE. 

Construction companies should immediately mandate social distancing (including the six-foot rule) on every jobsite and should limit rooms or enclosed outdoor areas to 10 or fewer people if possible. If implementing social distancing measures will cause delays, added costs or make the job impossible or impracticable, affected construction companies should look at their respective contracts. There may be ways to obtain additional contract time and the possibility to recover cost impacts of the COVID-19 outbreak.

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.