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I. Introduction
Last night, Governor Inslee issued Proclamation 20-25, the Stay Home-Stay Healthy emergency order (“Stay Home Order”) for the state of Washington, which goes into effect at Midnight on Wednesday, March 25, 2020, for companies doing business in Washington.
Pursuant to the Stay Home Order, “all people in Washington State are immediately prohibited from leaving their home or place of residence except to conduct or participate in (1) essential activities, and (2) employment in providing essential business services[.]” The Stay Home Order further provides that “employment in essential business services means an essential employee performing work for an essential business as identified in the ‘Essential Critical Infrastructure Workers’ list, OR carrying out minimum basic operations (as defined in Section 3(d) of this Order) for a non-essential business.” For construction industry companies, this raises three critical questions: (1) who is an essential employee, (2) what is an essential business; and (3) what are minimum basic operations? According to the Seattle Times, the Governor’s office has indicated “a range of activities will be shut down, such as construction on buildings not considered essential. That includes Key Arena, which is undergoing a renovation for professional hockey, and commercial office towers going up around Amazon’s campus in South Lake Union.” This should be kept in mind when reviewing this analysis.
II. What Construction Activities Constitute “Essential Business Services”?
In conjunction with the Stay Home Order, Governor Inslee issued a lengthy list of “Essential Critical Infrastructure Workers”, identifying thirteen (13) different industry sectors and numerous sub-categories within those sectors. Construction is expressly referenced as a sub-category in the “Other Community-Based Government Operations and Essential Functions” industry sector:
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