Category Archives: General

Construction Activity in the Covid-19 Era: Essential Activity or Non-Essential Activity?

As more and more states and localities shut down entire industries and order workers and citizens to stay home and shelter in place, many companies are asking “How does this affect my operations?” In this post, we focus on the Construction Industry and how it fits into the Federal, state and municipal mosaic of what is being defined as “essential”.

In many of the states and localities that have ordered “nonessential” industries to cease physical location, in-office or in-facility work, the orders or guidance categorize construction as essential infrastructure. Some of this is on their own volition, other States have relied or been guided by Federal Guidance that has been published by Homeland Security – Cyber and Infrastructure (“CISA”) – Essential Critical Infrastructure Workers During COVID-19 Division. This publication is commonly referred to as CISA. https://www.cisa.gov/news/2020/03/19/cisa-releases-guidance-essential-critical-infrastructure-workers-during-covid-19.

Under CISA many construction activities have been deemed to be “essential” This means that, for that States that are following CISA, in general, construction and construction supply companies may continue operations.

However, not all Executive Orders are created equal. Governors and mayors have created a patchwork of mandates to attempt to flatten the corona virus curve, and not all sectors of the construction industry have a green light to stay open and running. It is vital to carefully review Orders and associated guidance to determine how it applies to the construction industry as a whole, and specific subsections of the construction industry. Moreover, these Orders are subject to change as we saw this morning in New York state. As such, please make sure you are looking at the latest guidance that has been issued or feel free to give us a call or email to discuss your questions.

Below is a list of how California, Nevada, Delaware, Florida, Georgia, Washington, DC, Pennsylvania, Texas, Massachusetts and New Jersey are treating construction in the context of non-essential business physical closure Orders and how some specific jurisdictions such as Philadelphia, Miami, Las Vegas, Atlanta San Francisco, Los Angeles and San Diego have responded all of which directly affects construction industry operations.

*This List has been updated as of March 27, 2020, (3:15 pm EST)

Jurisdictions Direct Impact on Construction Companies and Projects

California: California ordered that all workers must stay home, except workers deemed “Essential Critical Infrastructure Workers.”

Generally, construction workers are “essential” to critical infrastructure. See Guidance. Therefore, construction companies may continue to operate and construction workers may go to work.

Specifically designated as essential are:

• Workers who support the operation, inspection, and maintenance of essential public works facilities and operations, including bridges, water and sewer main breaks, fleet maintenance personnel, construction of critical or strategic infrastructure, construction material suppliers, traffic signal maintenance, emergency location services for buried utilities, maintenance of digital systems infrastructure supporting public works operations, and other emergent issues;

• Engineers, technicians and associated personnel responsible for infrastructure construction and restoration, including contractors for construction and engineering of fiber optic cables;

• Construction Workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing construction);

• Workers such as plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, construction material sources, and essential operation of construction sites and construction projects (including those that support such projects to ensure the availability of needed facilities, transportation, energy and communications; and support to ensure the effective removal, storage, and disposal of solid waste and hazardous waste).

Los Angeles, San Francisco, and San Diego:

These cities in California have each taken separate positions – some view construction as essential (e.g., San Francisco) and as such permit construction to remain operational which is at odds with the State position on construction (other than as noted above) being deemed to be NON-essential.  Care should be taken in these cities to evaluate the State Executive Order in the context of City Orders, noting that in most cases the more restrictive interpretation is likely to rule the day.

Delaware: Delaware ordered the closure of all nonessential businesses.

Construction, however has been deemed to be an “essential” category. See List. Therefore, construction companies may continue to operate and construction workers may go to work.

Specifically designated in the Order as essential are:

• Workers who support the operation, inspection, and maintenance of essential public works facilities and operations, including bridges, water and sewer main breaks, fleet maintenance personnel, construction of critical or strategic infrastructure, traffic signal maintenance, emergency location services for buried utilities, maintenance of digital systems infrastructure supporting public works operations, and other emergent issues;

• Engineers, technicians and associated personnel responsible for infrastructure construction and restoration, including contractors for construction and engineering of fiber optic cables.

• Workers who are engaged in the construction of residential, nonresidential structures, or infrastructure, and any workers who provide critical maintenance to residential or non-residential structures;

• Businesses that supply materials and hardware to those engaged in the construction of residential or non-residential structures;
• Workers involved in activities related to the design and apportionment of residential and non-residential structures.

Washington DC:     Washington D.C. ordered the closure of all nonessential businesses except for “Minimum Basic Operations.”

“Construction and Building Trades” are, however, classified as “Essential Businesses” per the Order. Therefore, construction companies may continue to operate.

The Order specifically includes the following as essential under that category: plumbers, pipefitters, steamfitters, electricians, boilermakers, exterminators, roofers, carpenters, bricklayers, welders, elevator mechanics, businesses that sell supplies and materials for maintenance of commercial and residential buildings and homes, including ‘big box’ supply stores, plumbing distributors, electrical distributors, HVAC distributors, and other businesses that provide services that are necessary to maintaining the safety, sanitation, and operations of residences and Essential Businesses.

Florida:     Florida has closed only bars and nightclubs at the moment (note, however, given the growth of cases in the last 48 hours, this may change). See March 23 Order. Therefore, construction companies may continue to operate.

Miami:

Miami has ordered that all nonessential retail and commercial establishments close.

The following, among other industries, have been deemed essential:

• Open construction sites, irrespective of the type of building;

• Architectural, engineering, or land surveying services;

• Contractors and other tradesmen … who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences and other structures.

Generally, construction appears to be an essential business, but not all types of construction. Though open construction sites may remain open, the Order does not specifically include construction that has not yet commenced, except for specific purposes. Therefore, construction businesses should evaluate projects on a case-by-case basis.

Georgia: Georgia has closed only bars and nightclubs. See March 23 Order. Therefore, construction companies may continue to operate.

Atlanta:

Atlanta has ordered that all nonessential businesses close and that residents of Atlanta stay at home unless engaging in essential activities.

One exception is for residents to leave to “work for essential businesses.”

Construction is essential infrastructure per the Order. Specifically, “individuals may leave their residence to provide any services or perform any work necessary to the operations and maintenance of ‘Essential Infrastructure,’ including, but not limited to public works, construction, airport operations, utility, water, sewer, gas, electrical, oil refining, roads and highways, railroads, public transportation … provided that they carry out those services or that work in compliance with Social Distancing Requirements as defined herein, to the extent possible.”

Therefore, construction companies may continue to operate in Atlanta.

Illinois:    Illinois ordered the closure of all nonessential businesses. Illinois has also ordered that all residents stay home unless leaving to perform an “essential function.”

The Order categorizes construction as essential infrastructure. Therefore, construction companies may continue to operate and construction workers may go to work.

It specifically includes, but is not limited to: construction required in response to this public health emergency, hospital construction, construction of long-term care facilities, public works construction, and housing construction.

Chicago:

Chicago joined in the announcement of the statewide order, which is more expansive and preempts its local orders.

Maryland: Maryland ordered the closure of all nonessential businesses that are not part of the critical infrastructure sectors identified by the Cybersecurity and Infrastructure Security Agency (“CISA”). See CISA Guidance.

As CISA guidance has been used in other states to justify construction related activities as “essential” it is likely that construction related activities will be permitted to continue in Maryland.

The Governor has ordered that all nonessential businesses close. The order defines “nonessential” as anything not part of the critical infrastructure sectors identified in the Cybersecurity and Infrastructure Security Agency’s (CISA) guidance. See attached; https://www.cisa.gov/identifying-critical-infrastructure-during-covid-19 Construction is not a specific category under CISA, but is mentioned in relation to the other categories.

The Maryland Office of Legal Counsel (OLC) published interpretive guidance. The interpretive guidance includes “commercial and residential construction companies” in the list of businesses that are not required to close under the category of Commercial Facilities.

Note: Maryland has 2x updated its list of businesses that are “essential” during the week – which list now includes title companies, engineers, architects, and nurseries. Please make sure to check these updates for your specific business.

Massachusetts:   Massachusetts ordered the closure of all nonessential businesses.

Generally, construction is “essential” to critical infrastructure. See Guidance. Therefore, construction companies may continue to operate.

Specifically designated as essential are:

• Construction workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing construction);

• Workers who support the operation, inspection, and maintenance of essential public works facilities and operations, including roads and bridges, water and sewer main breaks, fleet maintenance personnel, construction of critical or strategic infrastructure, traffic signal maintenance, emergency location services for buried utilities, maintenance of digital systems infrastructure supporting public works operations, and other emergent issues;

• Workers – including contracted vendors – involved in the construction of critical or strategic infrastructure including public works construction, airport operations, water, sewer, gas, electrical, nuclear, oil refining and other critical energy services, roads and highways, public transportation, solid waste collection and removal, and internet, and telecommunications systems (including the provision of essential global, national, and local infrastructure for computing services);

• Workers such as plumbers, electricians, exterminators, inspectors and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, construction sites and projects, and needed facilities;

• Engineers, technicians and associated personnel responsible for infrastructure construction and restoration, including contractors for construction and engineering of fiber optic cables.

Boston:

Boston suspended all regular activity at construction sites.

Boston provided the following guidance:

• Employers should maintain the necessary crews to keep their sites safe and secure, keep any materials from blowing away, and prevent trespassing.

• After sites have been secured, skeleton crews will be permitted for the remainder of this suspension to ensure safety.

• The only work that will be permitted moving forward will be emergency work, which will need to be approved by the City of Boston’s Inspectional Services Department.

That essential work includes:

• emergency utility, road or building work, such as gas leaks, water leaks and sinkholes
• new utility connections to occupied buildings
• mandated building or utility work
• work at public health facilities, healthcare facilities, shelters, including temporary shelters and other facilities that support vulnerable populations
• work which ensures the reliability of the transportation network, and
• other work necessary to render occupied residential buildings fully habitable.

Boston has a process to review requests for exceptions to the temporary construction moratorium. These may be granted by the Commissioner of Inspectional Services for building-related work or the Commissioner of Public Works for street-related work. These will be granted if they support increased public health and safety.  Notwithstanding this helpful process, the Commonwealth’s Executive Order specifically overrides any municipal order to the contrary, and, as such the Governor’s Executive Order provides the critical guidance on this issue (see above – construction is generally essential).

Nevada:     Nevada ordered the closure of “nonessential” businesses that either “promote recreational gatherings” or “promote extended periods of public interaction where risk of transmission is high.”

The Order specifically permits the construction labor force to continue operating, though it must adopt social distancing measures. Therefore, construction companies may continue to operate.

Las Vegas:

Las Vegas listed construction as an essential business, per the Governor’s Order.

New Jersey: New Jersey ordered the closure of all brick-and-mortar premises of non-essential retail businesses, as well as recreational and entertainment businesses and restaurants and bars.

New Jersey’s order does not apply to the construction industry. The state further clarified that “heavy construction” and “other commercial operations” may continue to operate, but should limit onsite staff to essential operations. Therefore, construction companies may continue to operate.

New York :      New York ordered the closure of all nonessential businesses.

In general, construction is an essential industry. See Guidance. The guidance INITIALLY and specifically includes:

• Skilled trades such as electricians, plumbers;
• Other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes.

That initial guidance was modified today, March 27th : https://esd.ny.gov/guidance-executive-order-2026.
Under the revised guidance:

…9. Construction

• All non-essential construction must shut down except emergency construction, (e.g. a project necessary to protect health and safety of the occupants, or to continue a project if it would be unsafe to allow to remain undone until it is safe to shut the site).

• Essential construction may continue and includes roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing, and homeless shelters. At every site, if essential or emergency non-essential construction, this includes maintaining social distance, including for purposes of elevators/meals/entry and exit. Sites that cannot maintain distance and safety best practices must close and enforcement will be provided by the state in coordination with the city/local governments. This will include fines of up to $10,000 per violation.

• For purposes of this section construction work does not include a single worker, who is the sole employee/worker on a job site.

Therefore, construction companies may continue to operate but only if they fall into the above specific exempt categories.

New York City:

The city has adopted the Governor’s Order.

Pennsylvania:    Pennsylvania has ordered the closure of all non-life-sustaining businesses.

Construction, as a general category, is not “life-sustaining” per Pennsylvania’s published list of industry types. See Guidance.

The state is permitting construction BUT only for emergency repairs and to construction of health care facilities. Therefore, construction companies may not operate unless they fall under an exception or obtain a waiver from the state.

Philadelphia:

Philadelphia ordered that certain businesses close and initially permitted construction through March 27th. Furthermore, Philadelphia is currently under a state-ordered stay-at-home order, but there is an exception for workers traveling to and working for life-sustaining businesses.

Texas: Texas has closed only bars, dining, and gyms. See March 19 Order. Therefore, construction companies may continue to operate.

Various localities in Texas have enacted expansive business restrictions. As with all states, it is important to analyze local law to determine if there are restrictions for business operations.

Virginia: Virginia has only ordered the closure of specific types of recreational and entertainment businesses. See March 23 Order. Therefore, construction companies may continue to operate.

If you have any questions or concerns, please do not hesitate to contact us via email and we will call you back to discuss your concerns.

We can be reached at any of the following email addresses and will direct your inquiry to the appropriate person within our COVID Taskforce – Brad Molotskybamolotsky@duanemorris.com; Elizabeth Mincer – emincer@duanemorris.com; Sharon Caffrey – slcaffrey@duanemorris.com; or Dominica Anderson – dcanderson@duanemorris.com.

Be safe.

COVID-19 – White House, Senators Strike Deal on $2T Massive Stimulus Package – 3-25-2020

Early in the morning on 3-25-2020, the Trump administration struck a deal with Senate Democrats and Republicans on an historic rescue package that tees up more than $2 trillion in spending and tax breaks to bolster the hobbled U.S. economy and fund a nationwide effort to stem the coronavirus.

“At last we have a deal,” Senate Majority Leader Mitch McConnell said early Wednesday on the chamber’s floor. “I’m thrilled that we’re finally going to deliver to the country.” Senate Democratic leader Chuck Schumer called it an “outstanding agreement.”

The legislation was still being drafted but McConnell said the Senate would vote on it Wednesday. It would still have to pass in the House before it gets to President Donald Trump’s desk. House Speaker Nancy Pelosi had consulted with Schumer throughout his negotiations with Treasury Secretary Steven Mnuchin.

The plan includes about $500 billion that can be used to back loans and assistance to companies, including $50 billion for loans to U.S. airlines, as well as state and local governments. It also has more than $350 billion to aid small businesses. Then there is $150 billion for hospitals and other health-care providers for equipment and supplies.

Direct Payments:

For individuals the package provides direct payments to lower- and middle-income Americans of $1,200 for each adult, as well as $500 for each child. Unemployment insurance would be extended to four months, the benefits would be bolstered by $600 weekly, and eligibility would be expanded to cover more workers.

Democrats demanded and won a series of restraints on corporations that would benefit from loans or investments from the Treasury Department, as well as an oversight mechanism for who gets money.

Any company receiving a government loan would be subject to a ban on stock buybacks through the term of the loan plus one additional year. They also would have to limit executive bonuses and take steps to protect workers. The Treasury Department would have to disclose the terms of loans or other aid to companies and a new Treasury inspector general would oversee the lending program.

Notably, Democrats won language that would bar any business owned by Trump or his family from getting loans from Treasury. Businesses owned by members of Congress, heads of executive departments and Vice President Mike Pence also would be blocked.

In a letter to his fellow Democrats, Schumer highlighted a series of transparency measures that would prevent keeping loans secret and create a new inspector general to oversee the program.

Schumer also said that hundreds of billions would be spent on Democratic priorities, including the expansion of unemployment benefits, money for hospitals, as well as more funding for cities and transportation.

Democrats also rejected the $3 billion sought by the Trump administration to buy oil to fill the Strategic Petroleum Reserve.

Pelosi said on Tuesday that the House could quickly approve a Senate-passed coronavirus stimulus with a voice vote that does not require members to travel to Washington — as long as the bill does not have any “poison pills” Democrats object to.

That would also require the unanimous consent of all House Republicans. The second-ranking House Republican, Representative Steve Scalise of Louisiana, told his vote-counting team during a conference call Tuesday night that the best option is to accept a Senate-passed economic stimulus bill, according to Scalise spokesperson Lauren Fine.

Eric Ueland, the White House legislative affairs director, said after the agreement was reached that the “the president and his team look forward to swift action for urgently needed assistance to the American people and powerful aid to the nation’s economy as we work through this crisis.”

The size of the stimulus package is unprecedented, dwarfing the approximately $800 billion Obama stimulus that passed five months after the 2008 financial crash.
Together with Fed intervention, the proposed legislation amounted to a $6 trillion stimulus, according to White House economic adviser Larry Kudlow, or about 30% of annual GDP.

The package will likely more than double a U.S budget deficit that was already set to hit $1 trillion this year before the outbreak. It also may not be the last infusion of government spending in response to the spread of the virus.

Lawmakers universally expressed a sense of urgency as the nation’s economy deteriorates and the health outlook grows more dire. The World Health Organization said the U.S. has the potential to become the new epicenter of the global pandemic as the number of known infections soars.

The proposal is the third — and biggest — plan by Congress to confront the coronavirus crisis as the disease spreads.

An initial $8 billion plan passed by Congress March 5th is funding emergency health care needs stemming from the coronavirus, and a second plan enacted last week will provide many Americans with paid sick leave, food assistance, and free coronavirus testing. It also will send tens of billions in fresh aid to states.

The Senate meets at noon and will resume consideration of the motion to proceed to H.R. 748, the shell bill for the coronavirus response package. The Senate will look for agreement to pass the bill today.

Our Legislative Group will continue to track and monitor developments as they progress, If you have any questions do not hesitate to reach out to us and we can connect you with Patty Mackavage and Eric Martins of Duane Morris Governmental Affairs.

Stay safe.

PA – Modifications to the Life-Sustaining Businesses List on 3-24

Good afternoon and we hope you and yours are keeping up your spirits and remaining in good health.

Earlier this afternoon, March 24th, the Department of Commerce and Economic Development updated their List of Life-Sustaining Businesses and now include on the list of approved businesses (along with those previously approved):

Manufacturing – Veneer, Plywood and Engineered Wood Product Manufacturing and Other wood product manufacturing

Manufacturing – Aerospace Product and Parts for defense industrial base and transportations manufacturing under CISA advisory is permitted

Wholesale Trade – Lumber and Other Construction Materials Merchant Wholesalers

Retail Trades – Health and Person Care Stores are NOT permitted BUT pharmacies are now permitted

Non-Store Retailers – NOT permitted except fuel sellers and bottle water sellers ARE permitted

Information – Telecommunications – Telecommunications resellers are now Permitted – Note that retailers selling devices at physical locations are still NOT permitted

Educational Services – all are still marked as Prohibited but now there is direction to the PA Department of Education guidance at education.pa.gov/COVID19

Healthcare and Social Assistance – update to Child Care Services which are Prohibited but now reference Stay at Home Guidance

Leisure and Hospitality – Food Services and Drinking Places – Drinking Places are still Prohibited but reference to takeout and delivery is Permitted

Attached is the updated list of life-sustaining and non-life sustaining businesses as of 2:30 pm on 3-24-20 – NOTE that this list has been modified 3x since original date of publication on Thursday so please make sure you are looking at the most up to date list – https://www.pa.gov/guides/responding-to-covid-19/#ForBusinesses

The updated list is available at: https://www.scribd.com/document/452553026/UPDATED-2-30pm-March-24-2020-Industry-Operation-Guidance

We will continue to track local and national information and report as new news becomes available through our COVID taskforce. If you care to look directly, go to www.governor.pa.gov and www.doh.pa.gov.

If you have any questions or concerns, please do not hesitate to contact us via email and we will call you back to discuss your concerns.

We can be reached at any of the following email addresses and will direct your inquiry to the appropriate person within our COVID Taskforce – bamolotsky@duanemorris.com; emincer@duanemorris.com; slcaffrey@duanemorris.com; or dcanderson@duanemorris.com.

Be safe.

Delaware – COVID and State filings 3-23-20

Good afternoon and we hope you are doing well in these trying times.

With respect to corporate filings for the entities that are incorporated in the State of Delaware, the Division of Corporations has posted on its website that it is open for business, however, “in-person” access is by appointment only. The Division is encouraging that all filings be made through the document upload service. On-line services remain available through the Division’s website.

The latest order from the Governor provides that effective March 24, 2020 at 8:00 a.m. E.D.T., and until further notice, State offices will remain open, except that all State of Delaware employees able to telecommute are required to telecommute (work from home) wherever possible, in accordance with Department of Human Resource’s guidance. This includes the Division of Corporations so businesses with filing needs should be able to continue with business as usual.

We will continue to track local and national information and report as new news becomes available through our COVID taskforce.

If you have any questions or concerns regarding this post, please do not hesitate to contact Nanette Heide via email at Ncheide@duanemorris.com.

If you have other COVID type questions, you can reach at any of the following COVID team members and we will direct your inquiry to the appropriate person within our COVID Taskforce – bamolotsky@duanemorris.com; slcaffrey@duanemorris.com; jsegal@duanemorris.com or dcanderson@duanemorris.com.  We have created a webpage for your convenience as well that can be found at Duane Morris Covid.

Stay safe!

Delaware’s Governor Issues Closure Order for Non-Essential Businesses effective 8 AM on March 24, 2020

Governor John Carney issued his Forth Modification of the Declaration of a State of Emergency for the State of Delaware Due to a Public Health Threat, pursuant to which he has ordered the closure of non-essential business and commercial establishments in the state of Delaware (the “Non-Essential Business Closure Order”).

The order takes effect on Tuesday, March 24, 2002, at 8:00 a.m. and remains in effect “until after May 15, 2020, or the public health threat of COVID-19 has been eliminated . . . .” Violations of the Non-Essential Business Closure Order constitute a criminal offense.

While “Essential Businesses”—as defined in the Governor’s Order and highlighted below—may continue to operate, such businesses must continue to comply with certain health-protecting guidelines and measures promulgated by the Centers for Disease Control and Prevention (“CDC”) or the Delaware Department of Health and Social Services’ Division of Public Health (“DPH”).

Among the measures Essential Businesses are required to observe while they remain open for employees and customers are the following: (a) implementing flexible and non-punitive sick-leave policies; (b) excluding employees who are actively exhibiting signs of illness or have had close contact with persons diagnosed with, or suspected of having COVID-19; and (c) the adoption and encouragement of certain personal hygiene and property sanitizing practices.

The Non-Essential Business Closure Order, appears to be fairly liberal in adopting Delaware’s definition of what businesses or industries are considered Essential Businesses. To that end, businesses that employ or utilize workers in the following general areas are considered “Essential Businesses” and may remain operational to provide functions critical to the day-to-day needs of Delaware’s citizens:

• Healthcare/Public Health: Not surprisingly, the list of workers related to the Healthcare/Public Health industry is quite broad and not only includes those persons directly responsible for providing healthcare services, but also workers and businesses that are critical to the support of such healthcare functions.

• Law Enforcement, Public Safety, First Responders

• Food and Agriculture: Here, too, the list of essential functions broadly captures a wide swath of the food and agriculture segment to ensure that this critical industry remains functional. Thus, the directive generally declares as essential workers and businesses critical to the production of, distribution of, and the sale of food and beverage products not only for human consumption, but also for pets and livestock.

• Energy: This industrial category is broken down into the following sub-categories: (a) Electricity Industry; (b) Petroleum Industry (including transport, storage, refining, distribution, and sales); and (c) Natural Gas and Propane.

• Water and Wastewater

• Transportation and Logistics: This category broadly covers persons and businesses needed to move goods and services, as well as to maintain the assets used in transportation and logistics activities.

• Public Works

• Communications and Information Technology

• Other Community-Based Government Operations and Essential Functions: This category covers workers such as: (a) election personnel; (b) weather forecasters; (c) educators; and (d) hotel workers, among others.

• Manufacturing: This category broadly encompasses: “Workers necessary for the manufacturing of materials, goods, products, or similar distribution.”

• Hazardous Materials

• Financial Services and Insurance

• Chemical

• Defense Industrial Base

• Construction: This category includes both the persons engaging in the construction and repair of residential and non-residential structures and the businesses that supply materials and hardware to those trades.

• Necessary Products Retailers: This category lists a number of “Necessary Products” that include: (a) medical and hygiene supplies, (b) dry goods; (c) agricultural supplies; (d) pet and animal food supplies; (e) hardware; (f) products and equipment needed to work from home; (g) alcohol, beer and wine; and (h) “any other household consumer products or other products necessary to maintain the safety, sanitation, and essential operations of residences.”

• Necessary Retail and Service Establishments: This category lists twenty-six types of Necessary Retail and Service Establishments that include: (a) businesses that sell to or supply such businesses; (b) plumbers, electricians, exterminators, etc.; (c) lawn and garden retail facilities; (d) marinas; (e) childcare facilities; (f) professional services such a legal and accounting; (g) hotels and taxis; and (h) pet sitters.

• Open Air Recreation Facilities

The Non-Essential Business Closure Order also contains a list of types of businesses that are considered “Non-Essential Businesses,” which includes places such as casinos, racetracks, sporting facilities, theaters and concert halls, among others. This list appears to cover a number of facilities in which large numbers of people might ordinarily gather together.

To determine the specific status of a specific type of business or worker, the State of Delaware has published an industry status list, in which the industries named above are broken down into their 4-digit North American Industry Classification System (NAICS) code. The industry classification list states—by code number—which types of businesses may or may not operate (or operate with certain listed restrictions) during the time the order is in force. Moreover, in a set of FAQ published by the State, it is noted that if a business has more than one NAICS code, “[y]ou may follow the instructions for the least restrictive NAICS code your business is classified under.”

CONCLUSION

Delaware’s Non-Essential Business Closure Order appears to broadly define Essential Businesses in a manner that will allow many aspects of Delaware’s manufacturing, commercial and business or landscape to continue to operate, and therefore, to afford Delaware’s citizens the most normal day-to-day life possible in these challenging circumstances and secure in their knowledge that essential aspects of daily lives will not be unnecessarily restricted.

If you have questions regarding how the Non-Essential Business Closure Order might affect your business, the lawyers of Duane Morris, LLP, have had in place a COVID-19 rapid response team for several weeks now and are ready to assist with your legal needs. Information about Duane Morris’ capabilities may be found at www.duanemorris.com.

Feel free to email us as well if easier – bamolotsky@duanemorris.com; slcaffrey@duanemorris.com; dcanderson@duanemorris.com; jsegal@duanemorris.com and we will direct your inquiry accordingly.

Be Safe.

PA – “Non-Life Sustaining” Business Closure of Physical Locations Questions and Waiver Process – Required Shut Downs

As you are likely aware, on Thursday, March 19th, by Executive Order, the Wolf Administration ordered the physical location shut down of all “non-life sustaining” businesses in order to attempt to slow the spread of COVID-19.

A list of what qualifies as “non-life sustaining” was published on line and is attached for your review. Some businesses like grocery stores, pharmacies, hospitals, e.g., are very logical, others are a bit more surprising (e.g., beer and liquor sales).

Per Governor Wolf’s and the Department of Health’s orders, businesses that were non-life sustaining were ordered to close their physical locations on March 19, at 8:00 PM.

As of last evening, March 20th, these orders are still effective, however, the enforcement timing will change and become effective on Monday, March 23, at 8:00 AM.

If you are not sure if your business falls within a GREEN area (one that is permitted and life sustaining) or a RED area (one that is not deemed to be life sustaining and therefore must close your physical location) per the Commonwealth’s chart, there is a process to inquire, ask questions, and ask for a waiver.

Questions and Waiver Requests:

Those businesses requesting clarification on whether they are defined as life-sustaining should check the list, https://www.scribd.com/document/452553026/UPDATED-Industry-Operation-Guidance-March-20-2020 and can email the Department of Community and Economic Development (DCED) customer service resource account at ra-dcedcs@pa.gov, or call 1-877-PA-HEALTH and select option 1 to reach DCED staff.

Please note that the list has been modified since its original posting on Thursday and some additional notes have been added (including some construction related notes).

For businesses that determine from the list that they are non-life sustaining, but would like to seek a waiver, there is an online waiver application.

When a business completes a waiver form, a team of professionals at DCED will review each request and respond based on the guiding principle of balancing public safety while ensuring the continued delivery of critical infrastructure services and functions. Those requesting a waiver will be notified via email if their operations may re-open.

NOTE – Per updates issued last night, businesses applying for a waiver are REQUIRED to remain closed until a decision is made about their application. This is NEW.

Also, please be aware that DCED offers working capital loans that could be of assistance to businesses impacted by COVID-19. Resources and information will be posted to http://dced.pa.gov/resources as they become available.

In addition, Governor Wolf announced the availability of low-interest loans for small businesses and eligible non-profits in all 67 counties in Pennsylvania through the U.S. Small Business Administration (SBA).

Attaching the updated list of life-sustaining and non-life sustaining businesses as of 5:45 pm on 3-21-20 – NOTE that this list has been modified 2x since original date of publication on Thursday so please make sure you are looking at the most up to date list –  https://www.pa.gov/guides/responding-to-covid-19/#ForBusinesses

To list is attached and available here: https://www.scribd.com/document/452553026/UPDATED-5-45pm-March-21-2020-Industry-Operation-Guidance

We will continue to track local and national information and report as new news becomes available through our COVID taskforce. If you care to look directly, go to www.governor.pa.gov and www.doh.pa.gov.

If you have any questions or concerns, please do not hesitate to contact us via email and we will call you back to discuss your concerns.  We can be reached at any of the following email addresses and will direct your inquiry to the appropriate person within our COVID Taskforce – bamolotsky@duanemorris.com; slcaffrey@duanemorris.com; jsegal@duanemorris.com or dcanderson@duanemorris.com.

Be safe.

NJ COVID-19 – NJEDA Launching a Jobs and Hiring Portal for Employers needing Employees

Governor Phil Murphy and the New Jersey Economic Development Authority (NJEDA) will be launching a COVID-19 Jobs and Hiring Portal to help employers who have critical hiring needs amid the COVID-19 pandemic.

However, the first step is to gather details on employers’ immediate hiring needs.

NJEDA now has a live intake tool for employers with urgent COVID 19-related hiring needs to complete ASAP. Employers can access this tool in two ways:

  1. Through an online portal available at https://jobs.covid19.nj.gov/intake
  2. As an Excel spreadsheet that can be downloaded at https://jobs.covid19.nj.gov/intakeexcel and then emailed to covid19jobs@njeda.com.

Please note: if an employer is hiring for more than five positions or hiring for a specific position at more than five locations, it is recommend they complete the intake process using the Excel form.

Information can be found at the NJEDA website and the jobs.covid19.nj.gov sites.  Be safe and check it out if needed.

Corona Impact – Governor Wolf mandates the closure of physical sites for all but life-sustaining business – TONIGHT – 3-19 – 8PM

Per the Philadelphia Business Journal, Gov. Tom Wolf on Thursday afternoon ordered “all non-life-sustaining businesses” in Pennsylvania to close their physical locations beginning at 8 p.m. Thursday for an undetermined amount of time.

He also said enforcement for non-compliant businesses would begin at 12:01 a.m. Saturday.

“To protect the health and safety of all Pennsylvanians, we need to take more aggressive mitigation actions,” Wolf said. “This virus is an invisible danger that could be present everywhere. We need to act with the strength we use against any other severe threat. And we need to act now before the illness spreads more widely.”

Notwithstanding that the City of Philadelphia had its own version of business closure mandates from earlier this week, the Governor’s pronouncement applies to the entire Commonwealth – WOW!

Difficult times call for difficult decisions.

“Non-life sustaining” is defined by a chart published by the Administration that you can find online at https://www.governor.pa.gov/wp-content/uploads/2020/03/20200319-Life-Sustaining-Business.pdf

Be safe.

From the Land of OZ – My Top Ten Favorites from the Final Regs

Now that we have all had a chance to celebrate a Merry Christmas, a Happy Kwanzaa or a Happy Hanukah, and have had the chance to digest 544 pages of final OZ regs – what, you say you have not really studied the new final regs yet – can’t be the case :) !

Read more in our new Opportunity Zones blog.