Updated March 30, 2020 - We've updated this content with the most up to date and relevant information. Read our new post here.
After input from the construction industry, Governor Polis issued an Updated Public Health Order 20-24 Implementing Stay at Home Requirements and clarified that all construction is considered exempt as a “critical business.”
The section regarding the construction exemption, Section III.C.9, now says “Construction, Including but not Limited To:” (underlined text was added by the Governor on 3/26/20). This took away any ambiguity over whether the term “Including” was supposed to exclude items not expressly listed in Section III.C.9 or was intended to be inclusive of all construction, and that the examples given in III.C.9 were non-limiting examples. The latter is the case; all construction is exempt.
However, this does not relieve construction companies from complying with Social Distancing measures or other public health orders. Interestingly, though the CDPHE order 20-23 requires Social Distancing without qualification, Section III.C of Order 20-24 suggests a possible qualification, stating: “Critical Businesses must comply with Social Distancing Requirements and all PHOs currently in effect to the greatest extent possible and will be held accountable for doing so.” (underlining added).
The article below was written prior to the most recent amendment, but still contains some valuable input and a helpful graphic dealing with local Stay at Home Orders that are more restrictive than the statewide order.
As of 9:00 AM March 26, 2020, 19 counties and the State of Colorado have issued a variety of orders and requirements for businesses. Many of the county requirements are the same or similar to the state requirements. However, some differ.
On March 25, Governor Polis issued Executive Order D 2020 017, which remains in effect until 11:59 PM on April 11. This Order charges CDPHE to issue a public health order defining critical emergency personnel, infrastructure, government functions, and other activities that are exempt from the stay at home directives. As of 9:00 AM, CDPHE has not published these definitions. However, construction operations and projects are exempt from closure under this new statewide Shelter-In-Place order because they are considered a Critical Business. Construction companies still must comply with prior orders, requiring companies to certify that they are:
- Keeping staff to ten or fewer people in any indoor or outdoor enclosed space;
- Keeping six feet of separation between workers at all times; and
- Observing strict sanitary practices as a mandatory part of being on the job.
The State Orders and 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. These are also summarized below.
Cities and counties that have the same requirements as the state specifically reference residential and commercial construction. It is an open question as to whether industrial construction fits into the category of commercial construction. If the industrial construction is building something that supports an Essential Business or Infrastructure, then it is likely allowed to continue.
- 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 County, construction projects may continue, but they must receive written approval. The approval form can be found here.
- 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 ten 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.” (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.” (29 USC 651(a)(1)). It is unclear whether Colorado’s requirements as they stand mitigate the need to provide PPE to meet the OSHA requirements. Additionally, 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.
For questions about your specific county or how it affects your business, please contact Dan Wennogle, Co-Chair of Moye White's Construction Group. Co-authored by Bobby Dishell, Law Student Intern at Moye White.
*Click on image to see a larger version.
This article was originally published in Colorado Builder.