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 \u201cHow does this affect my operations?\u201d 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 \u201cessential\u201d.<\/p>\n
In many of the states and localities that have ordered \u201cnonessential\u201d 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 \u2013 Cyber and Infrastructure (\u201cCISA\u201d) – 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<\/strong>.<\/p>\n Under CISA many construction activities have been deemed to be \u201cessential\u201d This means that, for that States that are following CISA, in general, construction and construction supply companies may continue operations.<\/p>\n 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.<\/p>\n 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.<\/p>\n *This List has been updated as of March 27, 2020<\/strong>, (3:15 pm EST<\/strong>)<\/p>\n Jurisdictions Direct Impact on Construction Companies and Projects<\/p>\n California<\/strong>: California ordered that all workers must stay home, except workers deemed \u201cEssential Critical Infrastructure Workers.\u201d<\/p>\n Generally, construction workers are \u201cessential\u201d to critical infrastructure. See Guidance. Therefore, construction companies may continue to operate and construction workers may go to work.<\/p>\n Specifically designated as essential are:<\/p>\n \u2022 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;<\/p>\n \u2022 Engineers, technicians and associated personnel responsible for infrastructure construction and restoration, including contractors for construction and engineering of fiber optic cables;<\/p>\n \u2022 Construction Workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing construction);<\/p>\n \u2022 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).<\/p>\n Los Angeles, San Francisco, and San Diego<\/strong>:<\/p>\n 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.\u00a0 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.<\/p>\n Delaware<\/strong>: Delaware ordered the closure of all nonessential businesses.<\/p>\n Construction, however has been deemed to be an \u201cessential\u201d category. See List. Therefore, construction companies may continue to operate and construction workers may go to work.<\/p>\n Specifically designated in the Order as essential are:<\/p>\n \u2022 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;<\/p>\n \u2022 Engineers, technicians and associated personnel responsible for infrastructure construction and restoration, including contractors for construction and engineering of fiber optic cables.<\/p>\n \u2022 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;<\/p>\n \u2022 Businesses that supply materials and hardware to those engaged in the construction of residential or non-residential structures; Washington DC<\/strong>:\u00a0\u00a0\u00a0\u00a0 Washington D.C. ordered the closure of all nonessential businesses except for \u201cMinimum Basic Operations.\u201d<\/p>\n \u201cConstruction and Building Trades\u201d are, however, classified as \u201cEssential Businesses\u201d per the Order. Therefore, construction companies may continue to operate.<\/p>\n 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 \u2018big box\u2019 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.<\/p>\n Florida<\/strong>:\u00a0\u00a0\u00a0\u00a0 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.<\/p>\n Miami:<\/strong><\/p>\n Miami has ordered that all nonessential retail and commercial establishments close.<\/p>\n The following, among other industries, have been deemed essential:<\/p>\n \u2022 Open construction sites, irrespective of the type of building;<\/p>\n \u2022 Architectural, engineering, or land surveying services;<\/p>\n \u2022 Contractors and other tradesmen \u2026 who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences and other structures.<\/p>\n 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.<\/p>\n Georgia: Georgia has closed only bars and nightclubs. See March 23 Order. Therefore, construction companies may continue to operate.<\/p>\n Atlanta<\/strong>:<\/p>\n Atlanta has ordered that all nonessential businesses close and that residents of Atlanta stay at home unless engaging in essential activities.<\/p>\n One exception is for residents to leave to \u201cwork for essential businesses.\u201d<\/p>\n Construction is essential infrastructure per the Order. Specifically, \u201cindividuals may leave their residence to provide any services or perform any work necessary to the operations and maintenance of \u2018Essential Infrastructure,\u2019 including, but not limited to public works, construction, airport operations, utility, water, sewer, gas, electrical, oil refining, roads and highways, railroads, public transportation \u2026 provided that they carry out those services or that work in compliance with Social Distancing Requirements as defined herein, to the extent possible.\u201d<\/p>\n Therefore, construction companies may continue to operate in Atlanta.<\/p>\n Illinois<\/strong>:\u00a0\u00a0\u00a0 Illinois ordered the closure of all nonessential businesses. Illinois has also ordered that all residents stay home unless leaving to perform an \u201cessential function.\u201d<\/p>\n The Order categorizes construction as essential infrastructure. Therefore, construction companies may continue to operate and construction workers may go to work.<\/p>\n 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.<\/p>\n Chicago<\/strong>:<\/p>\n Chicago joined in the announcement of the statewide order, which is more expansive and preempts its local orders.<\/p>\n Maryland<\/strong>: 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 (\u201cCISA\u201d). See CISA Guidance.<\/p>\n As CISA guidance has been used in other states to justify construction related activities as \u201cessential\u201d it is likely that construction related activities will be permitted to continue in Maryland.<\/p>\n The Governor has ordered that all nonessential businesses close. The order defines \u201cnonessential\u201d as anything not part of the critical infrastructure sectors identified in the Cybersecurity and Infrastructure Security Agency\u2019s (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.<\/p>\n The Maryland Office of Legal Counsel (OLC) published interpretive guidance. The interpretive guidance includes \u201ccommercial and residential construction companies\u201d in the list of businesses that are not required to close under the category of Commercial Facilities.<\/p>\n 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.<\/p>\n Massachusetts<\/strong>:\u00a0\u00a0 Massachusetts ordered the closure of all nonessential businesses.<\/p>\n Generally, construction is \u201cessential\u201d to critical infrastructure. See Guidance. Therefore, construction companies may continue to operate.<\/p>\n Specifically designated as essential are:<\/p>\n \u2022 Construction workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing construction);<\/p>\n \u2022 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;<\/p>\n \u2022 Workers \u2013 including contracted vendors \u2013 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);<\/p>\n \u2022 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;<\/p>\n \u2022 Engineers, technicians and associated personnel responsible for infrastructure construction and restoration, including contractors for construction and engineering of fiber optic cables.<\/p>\n Boston<\/strong>:<\/p>\n Boston suspended all regular activity at construction sites.<\/p>\n Boston provided the following guidance:<\/p>\n \u2022 Employers should maintain the necessary crews to keep their sites safe and secure, keep any materials from blowing away, and prevent trespassing.<\/p>\n \u2022 After sites have been secured, skeleton crews will be permitted for the remainder of this suspension to ensure safety.<\/p>\n \u2022 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.<\/p>\n That essential work includes:<\/p>\n \u2022 emergency utility, road or building work, such as gas leaks, water leaks and sinkholes 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.\u00a0 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).<\/p>\n Nevada<\/strong>:\u00a0\u00a0\u00a0\u00a0 Nevada ordered the closure of \u201cnonessential\u201d businesses that either \u201cpromote recreational gatherings\u201d or \u201cpromote extended periods of public interaction where risk of transmission is high.\u201d<\/p>\n 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.<\/p>\n Las Vegas<\/strong>:<\/p>\n Las Vegas listed construction as an essential business, per the Governor\u2019s Order.<\/p>\n 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.<\/p>\n New Jersey\u2019s order does not apply to the construction industry. The state further clarified that \u201cheavy construction\u201d and \u201cother commercial operations\u201d may continue to operate, but should limit onsite staff to essential operations. Therefore, construction companies may continue to operate.<\/p>\n New York<\/strong> :\u00a0\u00a0\u00a0\u00a0\u00a0 New York ordered the closure of all nonessential businesses.<\/p>\n In general, construction is an essential industry. See Guidance. The guidance INITIALLY and specifically includes:<\/p>\n \u2022 Skilled trades such as electricians, plumbers; That initial guidance was modified today, March 27th : https:\/\/esd.ny.gov\/guidance-executive-order-2026. …9. Construction<\/p>\n \u2022 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).<\/p>\n \u2022 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.<\/p>\n \u2022 For purposes of this section construction work does not include a single worker, who is the sole employee\/worker on a job site.<\/p>\n Therefore, construction companies may continue to operate but only if they fall into the above specific exempt categories.<\/p>\n New York City<\/strong>:<\/p>\n The city has adopted the Governor\u2019s Order.\u00a0 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\u2019s Order.<\/span><\/p>\n Per the guidance, only the following projects will be permitted by the New York City Department of Buildings until further notice:<\/span><\/p>\n 1. Emergency construction: <\/span><\/p>\n a. Project necessary to protect the health and safety of the occupants: <\/span><\/p>\n i. Emergency work ordered by the New York City Department of Buildings; <\/span><\/p>\n ii. Restoration of essential services \u2013 heat, hot water, cold water, gas, electricity, or other utility services; or <\/span><\/p>\n iii. Work necessary to address any condition requiring immediate corrective action that severely affects life, health, safety, property, or significant number of persons. <\/span><\/p>\n 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. <\/span><\/p>\n \u00a0<\/span>2. Essential construction: <\/span><\/p>\n a. Utilities; <\/span><\/p>\n b. Hospitals or health care facilities; <\/span><\/p>\n c. Transitional and\/ or Homeless shelters; <\/span><\/p>\n 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. <\/span><\/p>\n e. Other essential construction as approved by the New York City Department of Buildings. <\/span><\/p>\n \u00a0<\/span><\/p>\n 3. Work that is limited to a single worker, who is the sole employee\/worker on a job site. <\/span><\/p>\n Pennsylvania<\/strong>:\u00a0\u00a0\u00a0 Pennsylvania has ordered the closure of all non-life-sustaining businesses.<\/p>\n Construction, as a general category, is not \u201clife-sustaining\u201d per Pennsylvania\u2019s published list of industry types. See Guidance.<\/p>\n 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.<\/p>\n Philadelphia<\/strong>:<\/p>\n 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.<\/p>\n Texas<\/strong>: Texas has closed only bars, dining, and gyms. See March 19 Order. Therefore, construction companies may continue to operate.<\/p>\n 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.<\/p>\n Virginia<\/strong>: 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.<\/p>\n 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.<\/p>\n We can be reached at any of the following email addresses and will direct your inquiry to the appropriate person within our COVID Taskforce \u2013 Brad Molotsky<\/strong> – bamolotsky@duanemorris.com; Elizabeth Mincer – emincer@duanemorris.com; Sharon Caffrey – slcaffrey@duanemorris.com; <\/strong>or Dominica Anderson – dcanderson@duanemorris.com<\/strong>.<\/p>\n Be safe.<\/p>\n","protected":false},"excerpt":{"rendered":" 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 \u201cHow does this affect my operations?\u201d In this post, we focus on the Construction Industry and how it fits into the Federal, state and municipal mosaic of what … <\/p>\n
\n\u2022 Workers involved in activities related to the design and apportionment of residential and non-residential structures.<\/p>\n
\n\u2022 new utility connections to occupied buildings
\n\u2022 mandated building or utility work
\n\u2022 work at public health facilities, healthcare facilities, shelters, including temporary shelters and other facilities that support vulnerable populations
\n\u2022 work which ensures the reliability of the transportation network, and
\n\u2022 other work necessary to render occupied residential buildings fully habitable.<\/p>\n
\n\u2022 Other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes.<\/p>\n
\nUnder the revised guidance:<\/p>\n