Elizabeth Mincer – Page 5 – Project Development/Infrastructure/P3

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

COVID-19: NJ names 21 Member COVID Taskforce

NJ has officially announced the 21 members of its COVID Taskforce. According to Governor Murphy, the NJ taskforce “is composed of experts in a multitude of fields — from academia to industry to the arts to labor, and so much more,” he said. “They bring passion and vision to the table. And, if there’s anything we need right now, it’s both.”

The group will include 16 members and 5 ex-officio members from the Murphy administration. It will be co-chaired by Merck Chair and CEO Ken Frazier and former Princeton President Shirley Tilghman.

“They will address core economic issues, but also issues which directly impact economic health — notably public health, workforce issues and transportation,” he said. “And, they will seek ways to sustain our recovery by maximizing future federal support, especially for our small business sector.”

The members are:

Co-chairs:

Ken Frazier, Merck chairman and CEO;

Shirley Tilghman, president emerita of Princeton University and professor of molecular biology & public policy.

Sitting members:

Ben Bernanke, former two-term chair of the Federal Reserve and distinguished fellow in residence with the Economic Studies Program at the Brookings Institution;

Rich Besser, CEO and president of the Robert Wood Johnson Foundation and former acting director of the Centers for Disease Control and Prevention;
Evelyn McGee Colbert, founding board member and president of Montclair Film, and vice president of Spartina Productions;

Anthony Coscia, chairman of Amtrak, partner and executive committee member of Windels Marx Lane & Mittendorf, and chairman of Suez North America Inc.;

Jessica Gonzalez, founder and CEO of InCharged and founder of Experience VendX.

Jonathan Holloway, incoming Rutgers University president;

Lisa Jackson, vice president of environment, policy and social initiatives at Apple Inc. and former administrator of the U.S. Environmental Protection Agency under President Barack Obama;

Jeh Johnson, former secretary of homeland security under Obama, and partner at the law firm Paul, Weiss, Rifkind, Wharton & Garrison LLP;

Charlie Lowrey, chairman and CEO of Prudential Financial Inc.;

Denise Morrison, founder of Denise Morrison & Associates, senior adviser for PSP Partners and former CEO and president of Campbell Soup Co.;

Bill Rodgers, professor of public policy and chief economist at the Heldrich Center for Workforce Development at Rutgers University and former chief economist at the U.S. Department of Labor;

Neera Tanden, president of the Center for American Progress and CEO of the Center for American Progress Action Fund;

The Rev. Dr. Regena Thomas, director of the Human Rights and Community Relations Department of the American Federation of Teachers and former New Jersey secretary of state;

Richard Trumka, national president of the AFL-CIO.

Ex-officio members:

Sheila Oliver, lieutenant governor;
Judith Persichilli, health commissioner;
George Helmy, chief of staff;
Matt Platkin, chief counsel;
Kathleen Frangione, chief policy adviser

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, James Greenberg or the attorney in the firm with whom you are regularly in contact.

Be well and stay safe!

April 27, 2020 by Brad A. Molotsky

COVID-19: PA Announces May 1 reopening for Golf Courses, Marinas and Privately Owned Camp Grounds

As of May 1, PA will allow golf courses and marinas and privately owned campgrounds to re-open.

Golf Courses – as reported by Paul Gough of the Pittsburgh Gazette, the reopening will be statewide but also include specific physical-distancing guidelines, including “no gatherings of any kind and appropriate social distancing of 6 feet between individuals is strictly abided” by the golf courses, according to the regulations updated Monday afternoon.

Only 1 person will be permitted per cart without caddies. Only takeout or delivery is allowed for restaurants and banquets and social gatherings at the club houses are NOT allowed.

Marinas – will be required to adhere to physical distancing, and chartered watercraft or rental activity isn’t allowed.

State campgrounds – will remain closed until May 14, 2020.

For Further Information:

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

Be well and stay safe!

April 27, 2020 by Brad A. Molotsky

COVID-19: NJ Announces 6-Point Plan and Methodology for ReOpening the State – “The Road Back”

Gov. Murphy announces NJ’s 6-point reopening plan called “The Road Back: Restoring Economic Health Through Public Health.”

The Governor also reiterated that his “Stay-at-Home” executive order will remain in effect until further notice.” The plan also calls for a measurable drop in cases over a 14-day period before a reopen happens.

Murphy’s press conference focused on:

• The Shore – hoping “we have some semblance of norm” at the Jersey Shore this summer, beginning on Memorial Day weekend, but “I just don’t envision being in tight spaces without real restrictions on capacity and social distancing.”

• Workplaces – the first workplaces and venues to reopen will be the ones where the state has a “high confidence” that social distancing can take place.
• Bigger Gatherings – concerts, he said, are not going to happen “anytime soon.”

• Parks – he hopes “sooner or later” that parks can reopen, saying he may agree with the argument that they’re essential “for mental health and other reasons.”

• Schools – he indicated that NJ is “still a number of weeks away” from a full reopening, but that there is “a chance” schools could reopen by May 15.

The 6 key principles (based in science and facts) will guide “the process for lifting restrictions and restoring New Jersey’s economic health through public health.”

“Restarting New Jersey’s economy and returning people to work will be done methodically, strategically, and responsibly,” he said.

Principle 1: Demonstrate Sustained Reductions in New COVID-19 Cases and Hospitalizations:

• The state must show a 14-day trend lines showing appreciable and sustained drop in cases, hospitalizations, and other metrics; and
• Hospitals must step down from functioning under crisis standards of care.

Principle 2: Expand Testing Capacity:

• The state must at least double current diagnostic testing capacity;
• The state must prioritize testing for health care workers, essential personnel, and vulnerable populations;
• The state must provide a flexible testing plan accessible to all residents;
• The state must expand partnerships with institutions of higher education, private-sector labs, and the federal government; and
• The state must ensure that those who test positive are linked to a health care provider.

Principle 3: Implement Robust Contact Tracing:

• The state must recruit and deploy an army of personnel who will identify and follow-up with contacts. The state Health Department has said it’s going to need to hire anywhere from 15 to 81 contact tracers per 100,000 people, or 1,500 to 7,000 people statewide;
• The state must leverage technological data and innovative solutions to increase efficiency; and
• The state must coordinate the approach of local and state health officials, which will have a coordinated county/regional component.

Principle 4: Secure Safe Places and Resources for Isolation and Quarantine:

• To the greatest extent possible, the state must provide individuals who do test positive in the future with a safe and free place to isolate and protect others from COVID-19; and
• The state must ensure that quarantined contacts are provided supportive services, if needed.

Principle 5: Execute a Responsible Economic Restart:

• The state must create the “Governor’s Restart and Recovery Commission” to advise on the process and recommend responsible and equitable decisions;
• The state must plan for a methodical and strategic return to work based on level of disease transmission risk and essential classification;
• The state must continue social distancing measures where feasible and appropriate; and
• The state must leverage any available federal funds and programs to support health care, individual, and small business recoveries.

Principle 6: Ensure New Jersey’s Resiliency:

• The state must learn from the lessons of COVID-19 and prepare for the possibility of a resurgence;
• The state must ensure hospitals, health care systems, and other health delivery facilities have inventories of personal protective equipment and ventilators;
• The state must build its own state personal protective equipment and ventilator stockpile; and
• The state must create a playbook for future administrations for the next pandemic.

For Further Information:

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

Be well and stay safe!

April 27, 2020 by Brad A. Molotsky

COVID-19: PA Announces Methodology for Phased Re-Opening Approach (50 new cases per 100,000 of population for 14 days)

Governor Wolf elaborated on the PA Department of Health metrics for Re-Opening and included an example to aid in calculation.

A target goal for reopening has been set at having fewer than 50 new confirmed cases per 100,000 population reported to the department in the previous 14 days. So, for example, an area with a population of 800,000 people would need to have fewer than 400 new confirmed cases reported in the past 14 days to meet the target. An assessment will determine if the target goal has been met. The administration will work closely with county and local governments to enable the communities to reopen and transition back to work.

The target data goal is not the only metric to be met before reopening a region. Additionally, the Commonwealth is also focusing on ensuring that there is:

• Testing – Enough testing available for individuals with symptoms and target populations such as those at high risk, health care personnel and first responders.

• Case Investigation – Robust case investigation and contact tracing infrastructure in place to facilitate early identification of cluster outbreaks and to issue proper isolation and quarantine orders.

• Safeguards – Identification of an area’s high-risk settings including correctional institutions, personal care homes, skilled nursing facilities and other congregate care settings, and assurance that facilities have adequate safeguards in place such as staff training, employee screening, visitor procedures and screening and adequate supplies of PPE to support continued operations.

PA will be relying on a modeling dashboard under development and evaluation by Carnegie Mellon University to take a regional and sector-based approach to re-openings, the easing of restrictions and public health response.

The full PA plan is available here: https://www.governor.pa.gov/process-to-reopen-pennsylvania

For Further Information:

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

Be well and stay safe!

April 27, 2020 by Brad A. Molotsky

COVID-19: NY announces Phased Approach for Re-Opening

On April 27th, Governor Cuomo outlined a phased plan to re-open New York starting with construction and manufacturing. Based on CDC recommendations, once a region experiences a 14-day decline in the hospitalization rate they may begin a phased re-opening. The plan will be implemented in phases and will be based on regional analysis and determinations. NY is closely monitoring the hospitalization rate, the infection rate and the number of positive antibody tests, as well as the overall public health impact, and will make adjustments to their plan and other decisions based on these indicators.

• Phase 1 – Phase 1 will include opening construction and manufacturing functions with low risk.

• Phase 2 – Phase 2 will open certain industries based on priority and risk level. Businesses considered “more essential” with inherent low risks of infection in the workplace and to customers will be prioritized, followed by other businesses considered “less essential” or those that present a higher risk of infection spread. As the infection rate declines, the pace of reopening businesses will be increased.

• Large Gatherings – the region must not open attractions or businesses that would draw a large number of visitors from outside the local area.

• 2 week Monitoring – there will be two weeks in between each phase to monitor the effects of the re-opening and ensure hospitalization and infection rates are not increasing.

• Coordination – the plan will be implemented with multi-state coordination, especially in downstate New York. The plan will also coordinate the opening of transportation systems, parks, schools, beaches and businesses with special attention on summer activities for downstate, public housing and low-income communities, food banks and child care.

• Employee Protections – the phased re-opening will also be based on individual business and industry plans that include new measures to protect employees and consumers, make the physical work space safer and implement processes that lower risk of infection in the business. The state is consulting with local leaders in each region and industry to formulate these plans.

For Further Information:

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

Be well and stay safe!

April 24, 2020April 28, 2020 by Brad A. Molotsky

COVID-19: PA Construction Guidance – May 1, 2020 Return to Work – Philadelphia Follows Form

As the construction industry prepares to resume work, the Wolf Administration today issued guidance for all construction businesses and employees to attempt to mitigate the spread of COVID-19.

All businesses in the construction industry in Pennsylvania are permitted to resume in-person operations starting on Friday, May 1 – one week earlier than previously announced.

Previously, Governor Tom Wolf and Secretary of Health Dr. Rachel Levine ordered most construction projects to cease unless they were supporting life-sustaining businesses or activities or were granted an exemption to perform or support life-sustaining activities.

The guidance, developed from guidance created by the General Contractors Association of Pennsylvania, provides universal protocols for all construction activity, as well as specific additional guidance for residential, commercial and public construction projects.

All business and employees in the construction industry are required to adhere to the Secretary of Health’s order providing for business safety measures, which requires that every person present at a work site wear masks/face coverings unless they are unable for medical or safety reasons and requires that businesses establish protocols upon discovery that the business has been exposed to a person who is a probable or confirmed case of COVID-19.

All construction projects must maintain proper social distancing and provide hand washing and sanitizing stations for workers, as well as cleaning and sanitizing protocols for high risk transmission areas. Businesses must identify a “pandemic safety officer” for each project or work site, or, for large scale construction projects, for each contractor at the site.

Residential construction projects may not permit more than 4 individuals on the job site at any time, not including individuals who require temporary access to the site and are not directly engaged in the construction activity.

For non-residential or commercial projects, the number of individuals permitted on enclosed portions of a project varies depending on the size of the enclosed site. Commercial construction firms have been encouraged to strongly consider establishing a written safety plan for each work location containing site specific details for the implementation of this guidance to be shared with all employees and implemented and enforced by the pandemic safety officer.

Contractors performing work at the direction of the Commonwealth, municipalities or school districts should defer to those public entities to determine what projects may continue.

Local governments may elect to impose more stringent requirements than those contained in the guidance and in such instances, businesses must adhere to those more stringent requirements.

Local officials have been tasked with ensuring that construction businesses are aware that this guidance exists and notifying businesses that a complaint of noncompliance was received.

Businesses that have questions about whether guidance applies to them, may email the Department of Labor and Industry at RA-LIBOIS-BUILDINGS@pa.gov.

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

Philadelphia Mayor Jim Kenney said on 4-28 that with some limited exceptions, construction projects that were subject to the State Shutdown Order on March 20 will be allowed to resume in Philadelphia this Friday, May 1. This decision comes in light of the earlier announcement by Governor Wolf that construction business in Pennsylvania can resume on Friday.

“We are currently reviewing that order with respect to construction work in Philadelphia, and we will have more details tomorrow on the extent to which work can return in the city,” said the Mayor. “Construction managers and workers will have to consistently follow practices that keep their workers and the community safe. I’m confident that this will prove to be a much-needed boost to economic activity in the city. And I’m equally confident that everyone involved will be vigilant about adhering to these safe procedures and protocols as this work resumes.”

https://www.phila.gov/2020-04-28-city-provides-update-on-covid-19-for-tuesday-april-28-2020/

For Further Information:

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

Be well and stay safe!

April 20, 2020April 24, 2020 by Brad A. Molotsky

COVID-19: PA Extends Closure Order until May 8th but will relax Auto Sales, Liquor Sales and some Construction Activities Restrictions (May 1)

On April 20, Governor Tom Wolf extended Pennsylvania’s stay-at-home order until May 8, 2020.

The governor indicated he would be using a region-by-region approach that is data-driven and will include strict social-distancing measures as he considers reopening parts of Pennsylvania.

However, he announced three actions that offer some flexibility to businesses, including permitting curbside pickup of orders at state liquor stores, allowing auto sales online and opening what he said were various construction activities statewide on May 1st. More specific guidelines will be released at a later date.

To read the full text of this Duane Morris Alert, please visit the firm website.

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 9, 2020April 9, 2020 by Brad A. Molotsky

COVID-19: New York Issues Updated Guidance on the definition of “Essential Business” and “Non-Essential Business” – Executive Order 202.6

On April 9, the Governor issued and updated Executive Order (202.6) to provide further guidance on determining whether a business is “Essential” (and thereby permitted to operate) or “Non-Essential” (and, thereby NOT permitted to operate).

ESSENTIAL BUSINESSES OR ENTITIES, including any for-profit or non-profit, regardless of the nature of the service, the function they perform, or its corporate or entity structure, are NOT subject to the in-person restriction. Essential Businesses must continue to comply with the guidance and directives for maintaining a clean and safe work environment issued by the Department of Health (DOH) and every business, even if essential, is strongly urged to maintain social distancing measures to the extent possible.

This guidance is issued by the New York State Department of Economic Development d/b/a Empire State Development (ESD) and applies to each business location individually and is intended to assist businesses in determining whether they are an essential business.

With respect to business or entities that operate or provide both essential and non-essential services, supplies or support, only those lines and/or business operations that are necessary to support the essential services, supplies, or support are exempt from the workforce reduction restrictions.

State and local governments, including municipalities, authorities, and school districts, are exempt from these essential business reductions, but are subject to other provisions that restrict non-essential, in-person workforce and other operations under Executive Order 202.

For purposes of Executive Order 202.6, “Essential Business,” shall mean businesses operating in or as:

1. Essential health care operations including:

research and laboratory services
hospitals
walk-in-care health clinics and facilities
emergency veterinary, livestock medical services
senior/elder care
medical wholesale and distribution
home health care workers or aides for the elderly
doctor and emergency dental
nursing homes, residential health care facilities, or congregate care facilities
medical supplies and equipment manufacturers and providers
licensed mental health providers
licensed substance abuse treatment providers
medical billing support personnel
emergency chiropractic services
physical therapy, prescribed by medical professional
occupational therapy, prescribed by medical professional

2. Essential infrastructure including:

public and private utilities including but not limited to power generation, fuel supply, and transmission
public water and wastewater
telecommunications and data centers
airlines/airports
commercial shipping vessels/ports and seaports
transportation infrastructure such as bus, rail, for-hire vehicles, garages
hotels, and other places of accommodation

3. Essential manufacturing including

food processing, manufacturing agents including all foods and beverages
chemicals
medical equipment/instruments
pharmaceuticals
sanitary products including personal care products regulated by the Food and Drug Administration (FDA)
telecommunications
microelectronics/semi-conductor
food-producing agriculture/farms
household paper products
defense industry and the transportation infrastructure
automobiles
any parts or components necessary for essential products that are referenced within this guidance

4. Essential retail including:

grocery stores including all food and beverage stores
pharmacies
convenience stores
farmer’s markets
gas stations
restaurants/bars (but only for take-out/delivery)
hardware, appliance, and building material stores
pet food
telecommunications to service existing customers and accounts
delivery for orders placed remotely via phone or online at non-essential retail establishments; provided, however, that only one employee is physically present at the business location to fulfill orders

5. Essential services including:

trash and recycling collection, processing, and disposal
mail and shipping services
laundromats and other clothing/fabric cleaning services
building cleaning and maintenance
child care services
bicycle repair
auto repair
automotive sales conducted remotely or electronically, with in-person vehicle return and delivery by appointment only
marine vessel repair and marinas, but only to support government or essential commercial operations and not for recreational purposes
warehouse/distribution and fulfillment
funeral homes, crematoriums and cemeteries
storage for essential businesses
maintenance for the infrastructure of the facility or to maintain or safeguard materials or products therein
animal shelters and animal care including dog walking, animal boarding
landscaping, but only for maintenance or pest control and not cosmetic purposes
designing, printing, publishing and signage companies to the extent that they support essential businesses or services
remote instruction or streaming of classes from public or private schools or health/fitness centers; provided, however, that no in-person congregate classes are permitted

6. The news media

7. Financial Institutions including:

banks or lending institution
insurance
payroll
accounting
services related to financial markets, except debt collection

8. Providers of basic necessities to economically disadvantaged populations including:

homeless shelters and congregate care facilities
food banks
human services providers whose function includes the direct care of patients in state-licensed or funded voluntary programs; the care, protection, custody and oversight of individuals both in the community and in state-licensed residential facilities; those operating community shelters and other critical human services agencies providing direct care or support

9. Construction:

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, including for purposes of elevators/meals/entry and exits. 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.

10. Defense – defense and national security-related operations supporting the U.S. Government or a contractor to the US government

11. Essential services necessary to maintain the safety, sanitation and essential operations of residences or other businesses including:

law enforcement, including corrections and community supervision
fire prevention and response
building code enforcement
security
emergency management and response, EMS and 911 dispatch
building cleaners or janitors
general maintenance whether employed by the entity directly or a vendor
automotive repair
disinfection
residential moving services

12. Vendors that provide essential services or products, including logistics and technology support, child care and services including, but not limited to:

logistics
technology support for online services
child care programs and services
government owned or leased buildings
essential government services
any personnel necessary for online or distance learning or classes delivered via remote means

13. Recreation

Parks and other open public spaces, except playgrounds and other areas of congregation where social distancing cannot be abided

However, golf courses are not essential and the use of boat launches and marinas for recreational vessels are not considered essential

14. Professional services with extensive restrictions

Lawyers may continue to perform all work necessary for any service so long as it is performed remotely. Any in-person work presence shall be limited to work only in support of essential businesses or services; however, even work in support of an essential business or service should be conducted as remotely as possible.

Real estate services shall be conducted remotely for all transactions, including but not limited to title searches, appraisals, permitting, inspections, and the recordation, legal, financial and other services necessary to complete a transfer of real property; provided, however, that any services and parts therein may be conducted in-person only to the extent legally necessary and in accordance with appropriate social distancing and

cleaning/disinfecting protocols; and nothing within this provision should be construed to allow brokerage and branch offices to remain open to the general public (i.e. not clients).

Pursuant to Executive Order 202.10, all non-essential gatherings of individuals of any size for any reasons (e.g. worship services, parties, celebrations, or other social events) are canceled or postponed.

Congregate services within houses of worship are prohibited. Houses of worship may only be used by individuals and only where appropriate social distancing of, at least, six feet between people can be maintained. Further, individuals should not gather in houses of worship, homes, or other locations for religious services until the end of this public health emergency. If possible, religious leaders should consider alternative forms of worship, replacing in-person gatherings with virtual services, such as phone or conference calls, videoconference calls, or online streaming.

If the function of your business is not listed, but you believe that it is essential or it is an entity providing essential services or functions, the guidance allows you to request designation as an essential business.

Note, however, that pursuant to the Governor’s Executive Orders, the following businesses are specifically enumerated as non-essential and are, therefore, unable to request a designation:

Any large gathering or event venues, including but not limited to establishments that host concerts, conferences, or other in-person performances or presentations in front of an in-person audience;

Any dine-in or on-premise restaurant or bar service, excluding take-out or delivery for off-premise consumption;

Any facility authorized to conduct video lottery gaming or casino gaming;

Any gym, fitness centers, or exercise classes, except the remote or streaming service noted above;

Any movie theater;

Any indoor common portions of retail shopping malls with 100,000 or more square feet of retail space available for lease;

All places of public amusement, whether indoors or outdoors, including but not limited to, locations with amusement rides, carnivals, amusement parks, water parks, aquariums, zoos, arcades, fairs, children’s play centers, funplexes, theme parks, bowling alleys, family and children’s attractions; and

Any barbershops, hair salons, tattoo or piercing parlors and related personal care services, including nail technicians, cosmetologists and estheticians, and the provision of electrolysis, laser hair removal services.

About Duane Morris:

For Further Information:

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

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.