FALL 2024 LEGISLATIVE UPDATE:

Review of (a) RCW 60.30.010-020, (b) RCW 49.17.530, (c) RCW 19.95.020, (d) RCW 39.116.005, et seq., (e) RCW 36.70B.080, and (f) RCW 39.12.010 and .13

While much of the focus on the recent legislative updates has been on RCW 39.04.360, a number of other legislative changes may also have significant impacts on Washington’s construction industry. Six of these changes are summarized below.

A. RCW 60.30.010 and .020 (SSB 6108) – Concerning Retainage on Private Construction, Effective June 6, 2024

Last year, ESSB 5528 imposed restrictions and obligations related to retainage and timing of final payment on private (non-public works) projects.  It capped retainage at 5%, required prompt payment on final payments, and required owners to accept a retainage bond on private construction projects, excluding single-family residential construction less than 12 units.

This year, SSB 6108 adds suppliers to the statutes (RCW 60.30.010 and 0.020) pertaining to retainage on private construction projects.

B. RCW 49.17.530 (EHB 2266) – Concerning Accommodations for Employee Pregnancy-Related Health Conditions, Effective June 6, 2024

Requires the Department of Labor and Industries to adopt rules that require employers in the construction industry to provide reasonable accommodations for employees who menstruate or express milk.

C. RCW 19.95.020 (SHB 2156) – Concerning Consumer Protections for Solar Energy Contracts, Effective June 6, 2024

  1. Contractors must be licensed as an electrical contractor.
  2. Designers must either be a licensed electrical contractor, an architect, or an engineer.
  3. Contracts must be written, in the same language, and contain terms used in the sales presentation made to the customer.  A copy of the contract must be given to the customer and must contain certain listed provisions.
  4. Roofing work must be itemized in the contract and invoiced separately.
  5. Customers have three (3) days to cancel.
  6. The utility must approve interconnection application before installation.
  7. A violation of the statute is considered an unfair or deceptive trade practice and an unfair method of competition under the CPA

D. RCW 39.116.005, et seq. (2ESHB 1282) – Concerning Environmental and Labor Reporting for Public Building Construction and Renovation Material, Effective June 6, 2024

Beginning in 2025 (and 2027 for smaller projects), construction firms must submit data on covered products used in public building projects over 100,000 square feet, including Environmental Product Declarations, Health Product Declarations, manufacturer information, and supplier codes of conduct.

Construction firms must also collect and report on the actual production facilities and working conditions at those facilities that provide the covered products.  The statute directs the Department of Commerce to develop and maintain a public database to facilitate this reporting and promote transparency.

Environmental Product Declarations present environmental information on the lifecycle of a product, including measurements of embodied greenhouse gas emissions of construction material and products.

Health Product Declarations are for reporting building product content and associated health information.

Reporting requirements do not apply if the awarding authority determines the data collection and reporting requirements for a covered product would: (1) cause a significant delay in completion; (2) cause a significant increase in overall project cost; or (3) result in only one product supplier being able to provide the covered product.

E. RCW 49.17.400 – .445 (2SHB 2022) – Concerning Crane Safety, Effective January 1, 2025

Increases the safety requirements for working with cranes:

  1. Requires a prime contractor to obtain a permit before performing any work involving the operation, assembly, disassembly, or reconfiguration of a tower crane.
  2. Establishes procedures and requirements for a valid permit, including requirements for safety conferences, inspections, and notifications.
  3. Creates criminal penalties for certain violations.
  4. Requires local governments to align permit issuance for street closures and provide certain notices when a tower crane is being assembled, disassembled, or reconfigured.
  5. Requires tower crane manufacturers and distributors to make available certain operational and safety information about tower cranes located in the state

F. RCW 39.12.010 and .130 (SHB 2136) – Concerning Prevailing Wage Sanctions, Penalties, and Debarment, Effective January 1, 2026

Adds a definition of “contractor” to the Washington State Prevailing Wages on Public Works Act:

“Contractor” means any prime contractor, subcontractor, or other employer as defined by rules adopted by the department of labor and industries.  “Contractor” includes an entity, however organized, with substantially identical operations, corporate, or management structure to an entity that has been found in violation under RCW 39.12.050, 39.12.055, or 39.12.065, or any associated rules.  The nonexclusive factors used to determine substantial identity include an assessment of whether there is:  Substantial continuity of the same business operation; use of the same machinery, equipment, or both tangible and intangible real or personal property; similarity of jobs and types of working conditions; continuity of supervisors; and similarity of product or services.  An entity with operational, corporate, and management structures distinct from an entity that has been found in violation under RCW 39.12.050, 39.12.055, or 39.12.065, or any associated rules, shall not be deemed a substantially identical entity.

Comment: Each year the legislature passes a number of new laws impacting Washington’s construction industry. Contractors and homeowners should review these updates with counsel to determine their impacts on new construction projects.

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