This update reevaluates conclusions from our prior blog post in light of amendments to certain orders since March 23, 2020.
On March 22, 2020, Colorado Governor Jared Polis issued Executive Order D 2020 013, requiring employers to reduce on-site workforces by 50% starting March 24, 2020. Gov. Polis’ Order came on the heels of the CDPHE’s March 18, 2020, Public Health Order 20-23 (now superseded) Implementing Social Distancing Measures.
Gov. Polis then issued Stay at Home Order (20-017), and the CDPHE issued PHO 20 24. On March 26 and 27, the CDPHE amended PHO 20 24, indicating that the order supersedes PHO 20 23 and clarifying that all construction falls under the “Critical Business” designation. Critical Businesses are exempt from the Stay at Home Order so long as Social Distancing measures are implemented “to the greatest extent possible” (See Order 20 24, §III.C).
If complying with Social Distancing measures would make it impossible to carry out “critical functions” of the construction business, the business is exempt from complying to the extent necessary to carry out those “critical functions” (See Order 20 24, §II.A.). Unfortunately, Order 20 24 does not define the term “critical function,” so construction companies must exercise their best judgment and should evaluate each situation by balancing the potential harm in ignoring Social Distancing measures against the need to perform the given task a certain way.
Companies should explore alternative means of getting their work done in a manner that observes Social Distancing, and should document their efforts to do so. Additionally, construction companies should consider giving their employees a form to carry with them prepared by the company’s executives. It should indicate that the employee is part of an exempt Critical Business (construction), and the employee’s services are needed to continue essential activities and critical functions of the construction business. A sample form can be found here.
If implementing Social Distancing measures will cause delays or add costs to your project, you should look at your contract’s force majeure or delay provisions. There may be ways to obtain additional contract time and money as a result of the COVID-19 outbreak. Note, however, that the exemption for construction could take away some grounds for asserting a force majeure event.
For questions or concerns, please contact Dan Wennogle, Co-Chair of the Construction Group. This blog post was co-authored by Bobby Dishell, Law Student Intern at Moye White.