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.
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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.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.