Coronavirus – Page 2 – Project Development/Infrastructure/P3

April 29, 2020June 11, 2020 by Brad A. Molotsky

COVID-19: NJ Executive Order 128 allows for the use of Security Deposits to pay for Rental Obligations

Late last week (April 24, 2020), NJ Gov. Murphy signed Executive Order No. 128 (“EO”). The EO takes effect immediately and will remain in effect until the end of the public health emergency established by Executive Order No. 103 (2020). The EO applies in the context of residential leases (not commercial leases, given the ambit of the Security Deposit Act).

The EO allows residential tenants to use their security deposit for the payment of rent (per N.J.S.A. 46:8-19 et seq., a security deposit and any accumulated interest and earnings of such deposit remain the property of the tenant).

Upon a tenant’s written request, which may be an electronic communication, a security deposit that is governed by the provisions of N.J.S.A. 46:8-19 et seq. and the tenant’s portion of any interest or earnings that have accumulated may be applied or credited toward rent payments due during the public health emergency or up to 60 days after the public health emergency terminates. The use of a security deposit for the payment of rent will NOT be considered a violation of N.J.S.A. 46:8-19 et seq.

After a tenant has applied or credited the security deposit, interest or earnings to pay rent for the duration of the tenant’s current lease, the landlord can still charge the tenant any money the landlord expends that would have been reimbursable by the security deposit.

Per the EO, the tenant is NOT obligated to make any further security deposit relating to the current term of the contract, lease or license agreement.

If the tenant and landlord extend or renew their contract, lease or license agreement, the tenant will then be required to replenish the security deposit in full if it was previously used for the payment of rent, on the LATER of (A) the date that is 6 months following the end of the public health emergency and (B) on the date on which the current contract, lease or license agreement is extended or renewed.

Note: Pursuant to an earlier Executive Order, EO 106, residential evictions and foreclosures have been halted (i.e., “stayed”) for the time being until the public health emergency has been lifted by the Governor.

Duane Morris has created a COVID-19 Strategy Team to help organizations plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

For Further Information:

If you have any questions about this post, please contact Brad A. Molotsky, Paul Josephson, Elizabeth Mincer, Jimmy Greenberg or the attorney in the firm with whom you are regularly in contact.

Be well and stay safe!

April 22, 2020June 11, 2020 by Brad A. Molotsky

COVID-19: PA defers payment obligations and maturity dates by 3 months on loans from various Commonwealth Agencies (NOT a reduction in amount owed)!

Today, Department of Community and Economic Development (DCED) Secretary Dennis Davin announced that the Pennsylvania Industrial Development Authority (PIDA), Pennsylvania Minority Business Development Authority (PMBDA), and Commonwealth Financing Authority (CFA) are deferring loans and that the maturity dates and amortization schedules of all applicable loans are extended by three additional calendar months.

“As we look to the future for a phased reopening of Pennsylvania’s economy, it is imperative that we provide relief to businesses affected by the administration’s stay-at-home order,” said Sec. Davin. “Businesses statewide have been cooperative and made sacrifices for the health and safety of their communities, and we are committed to supporting them through the next steps ahead.”

PIDA borrowers with payments due in April, May, and June of 2020 are deferred. All other terms and conditions of all applicable loans remain unchanged.

PMBDA borrowers with payments due in April, May, and June of 2020, including principal, interest, and any associated feeds are deferred. Accrual of interest that would be included with deferred payments is suspended. All other terms and conditions of all applicable loans remain unchanged.

CFA borrowers except for PENNWORKS loans, with payments due in April, May, and June of 2020, including principal, interest, and any associated fees are deferred. Accrual of interest that would be included with deferred payments is suspended. All other terms of all applicable loans remain unchanged.
DCED continues to update its website with financial and other resources.

Businesses seeking further guidance and clarification from DCED can also contact its customer service resource account at ra-dcedcs@pa.gov.

For the most up-to-date information on COVID-19, Pennsylvanians should follow www.governor.pa.gov and www.doh.pa.gov.

For Further Information:

If you have any questions about this post, please contact Brad A. Molotsky, Matt LoBello or the attorney in the firm with whom you are regularly in contact.

April 14, 2020June 11, 2020 by Brad A. Molotsky

COVID-19: Update to Various State Construction Closure Orders – Continued Shifting Sands as States Refine and Modify Closure Orders and Essential Business Definitions

This list is current as of April 14, 2020 (4:00 p.m. EST) and is and Update to an earlier Alert we posted on April 3rd. Please note that these closure orders are changing almost daily so please make sure you are checking the applicable state in question when considering a closure question:

California:

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

Generally, construction workers are “essential” to critical infrastructure. 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 have a more limited view of which construction is essential (e.g., San Francisco) and as such permit construction to remain operational in narrow circumstances, which is at odds with the state’s position on construction. 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. Therefore, construction companies may continue to operate and construction workers may go to work.

Specifically designated as essential in the order 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 and nonresidential structures or infrastructure, and any workers who provide critical maintenance to residential or nonresidential structures;
• Businesses that supply materials and hardware to those engaged in the construction of residential or nonresidential structures;
• Workers involved in activities related to the design and apportionment of residential and nonresidential structures.

Washington, D.C.:

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 ordered the closure of all nonessential businesses. Florida has also ordered that all residents stay home unless leaving to perform an “essential services or conduct essential activities.”

Essential services includes the list detailed in the CISA Guidance, which was attached to the order, as well as businesses and activities designated essential by Miami-Dade County (see below). The state published a list of services deemed essential per the order.

The list includes:

• Workers who support construction in the petroleum, electricity, and energy industries;
• 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;
• Workers such as plumbers, electricians, exterminators, builders, contractors, HVAC Technicians, landscapers, pool care service providers, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, businesses and buildings such as hospitals, senior living facilities, any temporary construction required to support COVID-19 response;
• Engineers, technicians and associated personnel responsible for infrastructure construction and restoration, including contractors for construction and engineering of fiber optic cables, buried conduit, small cells, other wireless facilities, and other communications sector-related infrastructure. This includes construction of new facilities and deployment of new technology as these are required to address congestion or customer usage due to unprecedented use of remote services;
• Suppliers, designers, transporters and other workers supporting the manufacture, distribution and provision and construction of essential global, national and local infrastructure for computing services (including cloud computing services and telework capabilities), business infrastructure, financial transactions/services, web-based services, and critical manufacturing;
• Workers supporting essential maintenance, manufacturing, design, operation, inspection, security, and construction for essential products, services, and supply chain and COVID 19 relief efforts;
• Workers performing housing construction related activities to ensure additional units can be made available to combat the nation’s existing housing supply shortage; and
• Workers supporting the construction of housing.
Generally, construction appears to be an essential business, but not all types of construction. Therefore, construction businesses should evaluate projects on a case-by-case basis.

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 Miami-Dade 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 ordered the closure of all businesses that are not “critical infrastructure” except for minimal basic operations. The state has also ordered that all residents stay home unless conducting or participating in “essential services.”

“Critical infrastructure” refers to businesses defined as “essential critical infrastructure workforce” per the CISA Guidance. As explained above, many construction activities have been deemed to be “essential” per CISA and in general, construction and construction supply companies may continue operations. However, construction businesses should evaluate projects on a case-by-case basis.

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 was deemed essential infrastructure per the Atlanta order, but the state’s order preempts the Atlanta order. Construction businesses should follow state guidance.

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 CISA guidance.

The Maryland Office of Legal Counsel published interpretive guidance, which includes “commercial and residential construction companies” in the list of businesses that are not required to close under the category of commercial facilities. Therefore, construction companies may continue to operate.

Massachusetts:

Massachusetts ordered the closure of all nonessential businesses.

Generally, construction is “essential” to critical infrastructure and 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 interne, 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’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. The Commissioner of Inspectional Services for building-related work or the Commissioner of Public Works for street-related work will grant exceptions if the construction will support increased public health and safety.

The Massachusetts order specifically supersedes any local order that interferes with the continued operations of COVID-19 Essential Services, and therefore likely preempts Boston’s suspension.

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 state also ordered all resident to stay home, subject to certain exceptions, which include performing work for Essential Infrastructure.

The order specifically permits the construction labor force to continue operating, with social distancing measures.

Las Vegas:

Las Vegas listed construction as an essential business, per the governor’s order.

New Jersey:

New Jersey ordered the closure of all nonessential construction.

“Essential construction projects” are defined as:

• Projects necessary for the delivery of health care services, including but not limited to hospitals, other health care facilities, and pharmaceutical manufacturing facilities;
• Transportation projects, including roads, bridges, and mass transit facilities or physical infrastructure, including work done at airports or seaports;
• Utility projects, including those necessary for energy and electricity production and transmission, and any decommissioning of facilities used for electricity generation;
• Residential projects that are exclusively designated as affordable housing;
• Projects involving pre-K-12 schools, including but not limited to projects in Schools Development Authority districts, and projects involving higher education facilities;
• Projects already underway involving individual single-family homes, or an individual apartment unit where an individual already resides, with a construction crew of 5 or fewer individuals. This includes additions to single-family homes such as solar panels;
• Projects already underway involving a residential unit for which a tenant or buyer has already entered into a legally binding agreement to occupy the unit by a certain date, and construction is necessary to ensure the unit’s availability by that date;
• Projects involving facilities at which any one or more of the following takes place: the manufacture, distribution, storage, or servicing of goods or products that are sold by online retail businesses or essential retail businesses, as defined by Executive Order No. 107 (2020) and subsequent Administrative Orders adopted pursuant to that Order;
• Projects involving data centers or facilities that are critical to a business’s ability to function;
• Projects necessary for the delivery of essential social services, including homeless shelters;
• Any project necessary to support law enforcement agencies or first responder units in their response to the COVID-19 emergency;
• Any project that is ordered or contracted for by Federal, State, county, or municipal government, or any project that must be completed to meet a deadline established by the Federal government;
• Any work on a non-essential construction project that is required to physically secure the site of the project, ensure the structural integrity of any buildings on the site, abate any hazards that would exist on the site if the construction were to remain in its current condition, remediate a site, or otherwise ensure that the site and any buildings therein are appropriately protected and safe during the suspension of the project; and
• Any emergency repairs necessary to ensure the health and safety of residents.

Though essential construction is broadly defined, not all types of construction are included. Therefore, construction businesses should evaluate projects on a case-by-case basis.

New York:

New York ordered the closure of all nonessential businesses. Initial guidance categorized construction as essential, but the state has since updated the guidance twice, narrowing the type of construction that is essential.

The most recent modification on April 9 and states that all non-essential construction must safely 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, but only to the point that it is safe to suspend work).

Essential construction may proceed, to the extent that:

• the construction is for, or your business supports, roads, bridges, transit facilities, utilities, hospitals or healthcare facilities, homeless shelters, or public or private schools;
• the construction is for affordable housing, as defined as construction work where either (i) a minimum of 20% of the residential units are or will be deemed affordable and are or will be subject to a regulatory agreement and/or a declaration from a local, state, or federal government agency or (ii) where the project is being undertaken by, or on behalf of, a public housing authority;
• the construction is necessary to protect the health and safety of occupants of a structure;
• the construction is necessary to continue a project if allowing the project to remain undone would be unsafe, provided that the construction must be shut down when it is safe to do so;
• the construction is for projects in the energy industry in accordance with Question No. 14 in the FAQ at: https://esd.ny.gov/sites/default/files/ESD_EssentialEmployerFAQ_033120.pdf;
• the construction is for existing (i.e. currently underway) projects of an essential business; or
• the construction work is being completed by a single worker who is the sole employee/worker on the job site.

At every site, it is required that the personnel working on the site maintain an appropriate social distance. Sites that cannot maintain appropriate social distancing, as well as cleaning/disinfecting protocols must close.

Enforcement will be conducted by state and local governments, including fines up to $10,000 per violation.
Construction may continue solely with respect to those employees that must be present at the business location/construction site in support of essential business activities. No other employees/personnel shall be permitted to work in-person at the business location/construction site. Any other business activities being completed that are not essential are still subject to the restrictions provided by Executive Order 202.

As noted above, local governments, including municipalities and school districts, are allowed to continue construction projects at this time as government entities are exempt from these essential business restrictions. However, to the greatest extent possible, local governments should postpone any non-essential projects and only proceed with essential projects when they can implement appropriate social distancing and cleaning/disinfecting protocols. Essential projects should be considered those that have a nexus to health and safety of the building occupants or to support the broader essential services that are required to fulfill the critical operations of government or the emergency response to the COVID-19 public health crisis.

New York City:

The city has adopted the governor’s order. The New York City Department of Buildings issued guidance to owners and contractors regarding enforcement of essential versus nonessential construction in accordance with the order. The guidance was issued prior to the April 9 state guidance update, but appears to still be in effect.

Per the guidance, only the following projects will be permitted by the New York City Department of Buildings until further notice:

Emergency construction:

1. Project necessary to protect the health and safety of the occupants:
a. Emergency work ordered by the New York City Department of Buildings;
b. Restoration of essential services – heat, hot water, cold water, gas, electricity or other utility services; or
c. Work necessary to address any condition requiring immediate corrective action that severely affects life, health, safety, property or significant number of persons.

2. Project required to continue to the extent it would be unsafe to allow work to remain undone. Such projects may continue only until it is safe to shut the site.

Essential construction:

1. Utilities;
2. Hospitals or healthcare facilities;
3. Transitional and/or homeless shelters;
4. Affordable housing: Construction work on public housing, or a private or multiple dwelling or real property that is a new building (NB) or that is 100 percent vacant; or is work on unoccupied public housing units for the designation as housing for specific populations (i.e., shelter set aside, domestic violence referrals), or work on the exterior to address emergency conditions requiring immediate corrective action, set forth in Section 1(a)(iii) or within public housing, correction of critical systems for seasonal preparedness for the 2020-2021 heating season of an existing public housing building. Construction work on a private or multiple dwelling or real property that is a new building or that is 100 percent vacant that is now used or will be converted to such use: (i) For the provision of affordable inclusionary housing or mandatory inclusionary housing pursuant to the New York City zoning resolution; or (ii) Where no less than 30 percent of the residential units are subject to a regulatory agreement, restrictive declaration, or similar instrument with a local, state or federal governmental entity or a local housing authority in a city with a population of one million or more.
5. Other essential construction as approved by the New York City Department of Buildings.
Solo work- Work that is limited to a single worker, who is the sole employee/worker on a job site.

Pennsylvania:

Pennsylvania has ordered the closure of all non-life-sustaining businesses. The state has also ordered all residents to stay home, unless supporting a life-sustaining business.

Construction, as a general category, is not “life-sustaining” per Pennsylvania’s published list of industry types. The state is permitting construction, but only for emergency repairs and for building healthcare facilities. Therefore, construction companies may not operate unless they fall under an exception or obtain a waiver from the state.

Philadelphia:

The state’s order preempts all prior Philadelphia orders, and therefore construction companies may not operate unless they fall under an exception or obtain a waiver from the state.

Texas:

Texas has closed only bars, dining establishments and gyms. 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 retail, recreational and entertainment businesses.

Therefore, construction companies may continue to operate.

About Duane Morris:

Duane Morris has created a COVID-19 Strategy Team to help organizations plan, respond to and address this fast-moving situation. Please see our COVID-19 site or contact your Duane Morris attorney for more information. Prior Alerts are available on the team’s webpage.

For Further Information:

If you have any questions about this Alert, please contact Brad A. Molotsky, Elizabeth Mincer or any member of our COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.

April 8, 2020June 11, 2020 by Brad A. Molotsky

COVID-19 – NJ updates its Executive Order – “Non-Essential” Construction Activity Shut Down and Retail Limitations – effective April 8th – 8PM

Governor Murphy announced on Wednesday, April 8, 2020, an Executive Order (“EO”) that will impact business operations across the State of New Jersey. A copy of the Executive Order can be found at: https://nj.gov/infobank/eo/056murphy/pdf/EO-122.pdf

New Guidelines for “Non-Essential Construction“:

Per the EO, all non-essential construction operations in NJ must be shut down at 8 PM on 4-10-2020. Below is the definition for “essential construction” that may remain operational. The EO also requires construction projects that remain active to adopt special social distancing and cleanliness standards.

Projects necessary for the delivery of health care services, including but not limited to hospitals, other health care facilities, and pharmaceutical manufacturing facilities;
Transportation projects, including roads, bridges, and mass transit facilities or physical infrastructure, including work done at airports or seaports;
Utility projects, including those necessary for energy and electricity production and transmission, and any decommissioning of facilities used for electricity generation;
Residential projects that are exclusively designated as affordable housing;
Projects involving pre-K-12 schools, including but not limited to projects in Schools Development Authority districts, and projects involving higher education facilities;
Projects already underway involving individual single-family homes, or an individual apartment unit where an individual already resides, with a construction crew of 5 or fewer individuals. This includes additions to single-family homes such as solar panels;
Projects already underway involving a residential unit for which a tenant or buyer has already entered into a legally binding agreement to occupy the unit by a certain date, and construction is necessary to ensure the unit’s availability by that date;
Projects involving facilities at which any one or more of the following takes place: the manufacture, distribution, storage, or servicing of goods or products that are sold by online retail businesses or essential retail businesses, as defined by Executive Order No. 107 (2020) and subsequent Administrative Orders adopted pursuant to that Order;
Projects involving data centers or facilities that are critical to a business’s ability to function;
Projects necessary for the delivery of essential social services, including homeless shelters;
Any project necessary to support law enforcement agencies or first responder units in their response to the COVID-19 emergency;
Any project that is ordered or contracted for by Federal, State, county, or municipal government, or any project that must be completed to meet a deadline established by the Federal government;
Any work on a non-essential construction project that is required to physically secure the site of the project, ensure the structural integrity of any buildings on the site, abate any hazards that would exist on the site if the construction were to remain in its current condition, remediate a site, or otherwise ensure that the site and any buildings therein are appropriately protected and safe during the suspension of the project; and
Any emergency repairs necessary to ensure the health and safety of residents.

New Guidelines for Essential Retail Stores:

All essential retail must indefinitely limit the number of customers in their stores to 50 percent of their approved capacity.Customers and employees must wear face coverings. Stores must provide special shopping hours for high-risk individuals, erect physical barriers between customers and cashiers and baggers where practicable, and regularly sanitize areas used by their employees.

New Guidelines for Warehouses and Manufacturing Facilities:

The order will also put greater protections in place for the workers in warehouses and in manufacturing and will required social distancing to be practiced to its fullest extent.

About Duane Morris:

For Further Information:

If you have any questions about this Alert, please contact Brad A. Molotsky, Paul Josephson, Elizabeth Mincer, James Greenberg, or any member of our COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.

April 2, 2020June 11, 2020 by Brad A. Molotsky

NJ – NJEDA – Small Business Emergency Assistance GRANT Program – opens Friday, 4-3-20 at 9 am

The New Jersey Economic Development Authority (NJEDA) will launch the application for its Small Business Emergency Assistance Grant Program tomorrow, Friday, April 3, 2020 at 9:00 am. If you are thinking of applying, a link to the grant program application will be posted on the State’s COVID-19 Business Information Hub. The grant program is part of a package of initiatives announced last week to support businesses and workers facing economic hardship due to the outbreak of the novel coronavirus COVID-19.

This Grant program is a $5M program that will provide grants up to $5,000 to small businesses in retail, arts entertainment, recreation, accommodation, food service, repair, maintenance, personal and laundry services.

Eligibility Guidelines for Small Business Emergency Assistance Grant Program:

Businesses applying for the Small Business Emergency Assistance Grant Program must provide:

· A contact who is authorized to speak on behalf of the company.

· Basic information about the company:

· Registered legal name and “Doing Business As” name (available here: https://www.njportal.com/DOR/BusinessNameSearch/Search/BusinessName;

· Federal Employer Identification Number (EIN);

· Year your company was established;

· Full-time employees as of December 31, 2019 and Part-Time Employees as of December 31, 2019.

· Industry as defined by your NAICS code (available here: https://www.naics.com/search/).

· Answers to the State’s basic debarment questions (See .pdf of application here: https://cv.business.nj.gov).

· Certification that the business:

· Is not a home-based business;

· Is not a prohibited business;

· Has been impacted by the COVID-19 outbreak;

· Has a material financial need that cannot be overcome without the grant funds;

· Will make a best effort not to lay off any additional employees and re-hire any whom have already been laid off;

· The NJEDA may check your entries against other State sources of data.

NJEDA has developed an online Grant Award Size Estimate Calculator to help eligible businesses understand what their potential grant size might be.

About Duane Morris:

For Further Information:

If you have any questions about this Alert, please contact Brad A. Molotsky or James Greenberg or any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact and we can direct your inquiry to the appropriate place.

Be Well. Stay Safe. Stay Vigilant.

March 30, 2020June 11, 2020 by Brad A. Molotsky

NJ’s Response: Business Assistance and COVID – 19

In response to the current COVID-19 pandemic, Federal, State and Local governments are ushering in an array programs and tax relief measures to help mitigate the adverse economic impact of COVID-19 on business and nonprofit entities.

This Alert identifies and provides an overview of available economic programs, tax relief measures, and deadline extensions for applicable Pennsylvania and Philadelphia organizations effected by the COVID-19 pandemic and closures:

1. Economic Programs: Grants and Loans

a. Small Business Administration (SBA) Economic Injury Disaster Loan Program (EIDL).

i. Overview: Federal Disaster Loans to small businesses or private, non-profit organizations that suffer substantial economic injury as a result of the declared disaster, regardless of whether the entity sustained physical damage;

ii. Loan Amount: Up to $2 million;

iii. Interest Rate: Not exceed 4 percent per year;

iv. Term: Determined by applicant’s ability to repay the loan; and

v. Other: No upfront fees or early payment penalties charged by SBA. The disaster loan program is the only form of SBA assistance not limited to small businesses.

vi. More Information: Please see our more comprehensive Alert on this particular program at: https://www.duanemorris.com/alerts/small_business_administration_offers_economic_injury_disaster_loans_0320.html or
https://disasterloan.sba.gov/ela/Information/EIDLLoans

2. New Jersey Programs: Please see our earlier Alert on this topic, but in summary:

A new package of initiatives from the NJEDA includes a grant program for small businesses, a zero-interest program for mid-size companies, ,support for private-sector lenders and Community Development Financial Institutions (CDFIs), funding for entrepreneurs.

a. Small Business Emergency Assistant Grant Program– A $5M program that will provide grants up to $5,000 to small businesses in retail, arts entertainment, recreation, accommodation, food service, repair, maintenance, personal and laundry services.

b. Small Business Emergency Assistance Loan Program -A $10M program that will provide working capital loans of up to $100,000 to businesses with less than $5M in revenues. 10 year terms with zero percent for first 5 years.

c. CDFI Emergency Loan Loss Reserve Fund – A $10M capital reserve fund to take a first loss position on CDFI loans.

d. CDFI Assistance Grant Program– A $1.25M program that will provide grants of up to $250,000 to scale operations or reduce interest rates.

e. NJ Entrepreneur Support Program– A $5M program to encourage continued capital flows to new companies.

f. Small Business Emergency Assistance Guarantee Program– A $10M program that will provide 50 percent guarantees on working capital loans and waive fees on loans made through institutions participating in NJEDA’s existing Premier Lender or Premier CDFI programs.

g. Emergency Technical Assistance Program– A $150,000 program that will
support technical assistance to New Jersey based companies applying for State and US SBA programs

h. NJEDA Moratorium/Loan Fee Forgiveness Program– NJEDA has approved a 3-month payment moratorium of eligible businesses on direct loans and premier participation loans, and waiving late fees on loan repayments and loan modification fees for impacted businesses.

To see more about these programs, use the NJ COVID-19 Business Support Eligibility Wizard.

3. New Jersey COVID related Legislation:

a. NJEDA Programs – Pursuant to A3845, the NJEDA has been authorized to make grants during a state of emergency or public health emergency declared by the Governor. Allows Economic Development Authority to grant certain business documentation submission deadline extensions. Please see our earlier Alert on this topic.

b. Broadband – AJR 158 Urges Federal Communications Commission to take temporary measures to secure broadband access for those affected by COVID-19.

c. Telemedicine; Health Insurance – AB 3843 Requires health insurance and Medicaid coverage for testing of coronavirus disease 2019 and for telemedicine and telehealth during coronavirus disease 2019 state of emergency.

d. School Meals – AB 3840 Requires school districts to provide school meals or meal vouchers to students eligible for free and reduced price school meals during school closures due to COVID.

e. Time Off from Work – AB 3848 Concerns time off from work in connection with infectious disease.

f. Telehealth – AB 3860 Establishes certain requirements to use telemedicine and telehealth to respond to coronavirus disease 2019 (COVID-19).

g. Specimen Collection – AB 3854 Authorized all licensed health care facilities and labs to collect specimens to test for COVID 19; allows staffing ratio waivers.

h. Retail Returns – AB 3865 Limits the return of items purchased from retail food stores during a state of emergency declared in response to COVID-19.

i. SNAP Benefits – AC 165 – Urges Department of Human Services to apply for federal waivers to facilitate and increase access to SNAP benefits during coronavirus disease 2019 outbreak.

j. Personal Protective Equipment (PPE) – Executive Order No. 109, requires any business, non-hospital health care facility, or institution of higher learning in possession of personal protective equipment (PPE), ventilators, respirators or anesthesia machines not required for the provision of critical health care services to undertake an inventory of these supplies and send the information to the State by 5:00 pm on Friday, March 27. 2020.

k. Residential Eviction Moratorium – Pursuant to Executive Order No. 106, any lessee, tenant, homeowner or any other person shall not be removed from a residential property as the result of an eviction or foreclosure proceeding. This is a 90-day eviction moratorium. This applies only to residential mortgages, not businesses, as of yet and has received the support of Citigroup, JPMorgan Chase, U.S. Bank, Wells Fargo and Bank of America.

About Duane Morris:

For Further Information:

If you have any questions about this Alert, please contact James Greenberg, Sandra G. Stoneman, Brad A. Molotsky, Dan Mita or any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.

Be Safe. Stay Vigilant.

March 27, 2020June 11, 2020 by Brad A. Molotsky

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.

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. The New York City Department of Buildings issued further guidance to owners and contractors regarding enforcement of Essential vs. Nonessential construction in accordance with the Governor’s Order.

Per the guidance, only the following projects will be permitted by the New York City Department of Buildings until further notice:

1. Emergency construction:

a. Project necessary to protect the health and safety of the occupants:

i. Emergency work ordered by the New York City Department of Buildings;

ii. Restoration of essential services – heat, hot water, cold water, gas, electricity, or other utility services; or

iii. Work necessary to address any condition requiring immediate corrective action that severely affects life, health, safety, property, or significant number of persons.

b. Project required to continue to the extent it would be unsafe to allow work to remain undone. Such project may continue only until it is safe to shut the site.

2. Essential construction:

a. Utilities;

b. Hospitals or health care facilities;

c. Transitional and/ or Homeless shelters;

d. Affordable housing: Construction work on public housing, or a private or multiple dwelling or real property that is a new building (NB) or that is 100% vacant; or is work on unoccupied public housing units for the designation as housing for specific populations (i.e. shelter set aside, domestic violence referrals), or work on the exterior to address emergency conditions requiring immediate corrective action, set forth in Section 1(a)(iii) or within public housing, correction of critical systems for seasonal preparedness for the 2020-2021 heating season of an existing public housing building. Construction work on a private or multiple dwelling or real property that is a new building (NB) or that is 100% vacant that is now used or will be converted to such use: (i) For the provision of affordable inclusionary housing or mandatory inclusionary housing pursuant to the New York city zoning resolution; or (ii) Where no less than 30% of the residential units are subject to a regulatory agreement, restrictive declaration, or similar instrument with a local, state, or federal governmental entity or a local housing authority in a city with a population of one million or more.

e. Other essential construction as approved by the New York City Department of Buildings.

3. Work that is limited to a single worker, who is the sole employee/worker on a job site.

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 Molotsky – bamolotsky@duanemorris.com; Elizabeth Mincer – emincer@duanemorris.com; Sharon Caffrey – slcaffrey@duanemorris.com; or Dominica Anderson – dcanderson@duanemorris.com.

Be safe.

March 23, 2020June 11, 2020 by Brad A. Molotsky

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!

March 23, 2020June 11, 2020 by Brad A. Molotsky

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.

March 21, 2020June 11, 2020 by Brad A. Molotsky

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.