The Long Reach of the Six-Foot Rule: Social Distancing in the Construction Industry

On March 30, 2020, our Construction team updated this content with the most relevant and up to date information. Please read the new post here.

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 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 requirement that they certify all workers will remain at least six feet from one another at all times.

Keeping workers six feet apart at all times likely presents practical problems for contractors that could delay work, add cost, 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. Gov. 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 noon March 23, 2020, the CDPHE has not publicly released a copy of the certification form. Furthermore, at 2:00 pm Mayor Hancock issued a stay at home order for the City and County of Denver. Mayor Hancock’s administration clarified that all construction operations and projects will be exempt from the STAY AT HOME ORDER. However, this does not exempt construction projects from the social distancing requirements mentioned in this post.

Gov. Polis’ Order follows on the heels of the CDPHE’s March 18, 2020, Public Health Order 20-23 Implementing Social Distancing Measures. CDPHE Order 20-23 forbids “mass gatherings” over ten 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 ten people are present but social distancing measures of maintaining at least 6 feet between individuals, is standard.” The Order, however, does not explicitly address construction sites.

On March 30, 2020, our Construction team posted an update to this blog with the most relevant information. Please read the newest post here

Gov. Polis’ 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 ten 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. 

Before tomorrow, March 24, construction companies should mandate social distancing (including the six-foot rule) on every job site and should limit rooms or enclosed outdoor areas to ten 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.

Stay tuned for future updates and future posts on the following topics:

  • Ignore at your peril: Will whistleblowers become the CDPHE’s de facto enforcement officers for the COVID-19 Social Distancing and Workplace Restriction Orders?
  • Do exemptions from “social distancing” orders hurt contractors by limiting their availability to claim more time/cost or to terminate the contract under force majeure clauses?
  • Social Distancing, PPE Shortage, and OSHA Compliance: What are possible options to navigate this complex situation?

For questions or concerns, please contact Dan Wennogle, Co-Chair of the Construction Group. Co-authored by Bobby Dishell, Law Student Intern at Moye White.

This article was originally published in Colorado Builder.