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

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

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

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

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

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

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

Jurisdictions Direct Impact on Construction Companies and Projects

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

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

Specifically designated as essential are:

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

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

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

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

Los Angeles, San Francisco, and San Diego:

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

Delaware: Delaware ordered the closure of all nonessential businesses.

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

Specifically designated in the Order as essential are:

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

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

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

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

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

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

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

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

Miami:

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

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

Open construction sites, irrespective of the type of building;

Architectural, engineering, or land surveying services;

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

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

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

Atlanta:

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

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

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

Therefore, construction companies may continue to operate in Atlanta.

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

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

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

Chicago:

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

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

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

The Governor has ordered that all nonessential businesses close. The order defines nonessential as anything not part of the critical infrastructure sectors identified in the Cybersecurity and Infrastructure Security Agencys (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 Bostons 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 Commonwealths Executive Order specifically overrides any municipal order to the contrary, and, as such the Governors 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 Governors 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 Jerseys 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 Governors Order.

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

Construction, as a general category, is not life-sustaining per Pennsylvanias 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.

See the article here:
Construction Activity in the Covid-19 Era: Essential Activity or Non-Essential Activity? - Lexology