United States: Coronavirus Impact On Construction Of Energy Projects

•  On March 23, the Governor issued Executive Order 2020-12 which prohibits the closure of essential services.

•  The order states that no county, city or town may make or issue an Order, rule or regulation that restricts or prohibits any person from performing any function designated as an essential function.

•  Essential Infrastructure Operations are listed as an essential function. These operations include construction, operation and maintenance of utilities, electrical (including power generations and distribution).

•  Order issued by Governor on March 19

•  Order requires all persons to stay at home except as needed to maintain continuity of 16 infrastructure sectors, identified in the CISA Advisor, as vital to the security, public health and safety of the state.

•  Energy is listed as one of the critical infrastructure sectors. 

•  The federal guidance includes construction workers as workers that are “essential to continued critical infrastructure viability.” 

•  On March 20, the Governor issued an Order ordering all workers at “nonessential” businesses to stay home.

•  The Department of Economic and Community Development (“DECD”) issued lawfully binding guidance on March 22, about which businesses are essential.

•  The following construction categories are considered essential: (i) all skilled trades such as electricians, HVAC, and plumbers, (ii) general construction, both commercial and residential, (iii) other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes, (iv) planning, engineering, design, bridge inspection, and other construction support activities.

•  On March 24, the Governor issued Executive Order 20-83 implementing protective measures for vulnerable populations, gatherings of private citizens, and density of the workforce.

•  The Order directs the State Surgeon General and State Health Officer to issue a variety of public health advisories including an advisory against all social or recreational gatherings of 10 or more people and urging those who can work remotely to do so.

•  On March 27, the Governor issued Executive Order 20-86, which requires individuals that enter the State of Florida from any area with “substantial community spread” to self-quarantine for a period of 14 days.  This requirement does not apply to individuals who enter the state for “infrastructure response, or persons involved in any commercial activity”.

•  On April 1, the Governor issued Executive Order 20-91, which requires all residents to stay home except as necessary to obtain or provide essential services or conduct essential activities. "Essential Services" means those listed on the CISA guidance published by the U.S. Department of Homeland Security, which includes workers in the energy industry, as discussed in more detail above. The Governor clarified in Executive Order 20-92 that Executive order 20-91 supersedes any conflicting action issued by local officials.

•  On March 23, 2020, the Governor issued an Executive Order that ordered: 1) the closure of bars; 2) that no businesses shall allow more than 10 persons to gather at a single location if such gathering requires persons to be within six feet of another person; and 3) certain at-risk populations to isolate, quarantine or shelter in place  This order will remain in effect for 14 days, beginning on March 24, 2020 and continuing until April 6, 2020.

•  On April 2, 2020, the Governor issued an updated Executive Order mandating a stay-at-home order to take place.

o  An exception is made for critical infrastructure workers who are actively engaged in the performance of, or travel to and from, their respective employment.

o  Critical infrastructure shall refer to businesses, establishments, corporations, non-profit corporations, and organizations as defined by the CISA Advisory and suppliers which provide essential goods and services to the critical infrastructure workforce.  This includes the energy sector.

o  Critical infrastructure that continues in-person operation will abide by specific requirements, such as: screening and evaluating workers who exhibit signs of illness, requiring workers who exhibit signs of illness to not report to work or seek medical attention.

o  Order goes into effect on Friday, April 3, 2020 at 6:00 PM through 11:59 PM on Monday, April 13, 2020.

•  Stay at Home Order issued by Governor on March 20, 2020 in effect until April 30, 2020.

•  Order requires all persons to stay home unless leaving for “essential activities,” including performing work providing essential products and services at Essential Businesses or Operations (which includes “Essential Infrastructure” and “Manufacturing” or supplying essential products and services for the energy industry). 

•  Essential Infrastructure includes “construction (including, but 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);”

•  The Order notes that, “Essential Infrastructure shall be construed broadly to avoid any impacts to essential infrastructure, broadly defined.”

•  Manufacturing includes companies, distributors, and supply chain companies producing and supplying essential products and services in and for industries such as energy.

•  On March 22, the Governor issued Proclamation Number 33 JBE 2020, implementing a statewide Stay at Home Order.

•  The Governor issued an Extension Order on April 3, 2020 extending the Stay at Home Order until Thursday, April 30, 2020 unless terminated sooner.

•  The order makes reference to critical infrastructure workers outlined in the CISA Advisory, which includes energy industry workers.

•  The Office of the Governor posted Illustrative Examples of Critical Infrastructure Businesses, which includes construction in connection with Critical Trade, Manufacturing, and Essential Infrastructure.  

•  On March 23, the Governor issued Executive Order 20-03-23-01, to close all non-essential Maryland businesses, effective at 5 PM the same day, and to announce a $175 million business relief program for state business and workers. The Governor adopted the federal guidelines issued in the CISA Advisory about “critical infrastructure sectors” to define those businesses that would be deemed essential and not subject to closure.  

•  The “non-exhaustive” list of businesses, organizations and facilities in the Interpretive Guidance identified 89 industries/businesses in the fifteen sectors including Commercial Facilities, which includes commercial construction, and Energy.

•  On March 30, the Governor issued a stay-at-home order requiring all persons living in Maryland to stay in their homes except for essential activities. The Order is effective on March 30 at 8:00 PM.

•  On March 15, 2020, the Governor issued an Order prohibiting the assemblage of people in groups of over 25 people.  

•  The related Guidance issued with the Order specifies that the Order does not apply to normal operations at airports, bus and train stations, medical facilities, libraries, shopping malls and centers, polling locations, grocery or retail stores, pharmacies, or other spaces where 25 or more persons may be in transit. 

•  On March 23, the Governor issued an Order requiring all businesses and organizations that do not provide “COVID-19 Essential Services” to close their physical workplaces and facilities to workers, customers and the public as of Tuesday, March 24th at noon until Tuesday, April 7th at noon.  

•  The list of “COVID-19 Essential Services” includes construction related to critical or strategic infrastructure, which includes energy services.

•  The state has also published FAQs that address questions related to energy and expressly states that construction and development of electric generation, including residential solar, are considered essential.

•  Boston and Cambridge have halted all construction in their respective cities. All projects must be stopped and the work zones secured for at least two weeks (until April 5). 

•  The Governor issued a “Stay Home / Stay Safe” Order, effective On March 24, at 12:01 AM, which exempted Critical Infrastructure Workers as defined in the CISA Advisory, which includes energy workers. Previously on March 16, the Governor had issued an Order which temporarily prohibited large assemblages and events and school closures, but had exempted construction activities from the Order.

•  The Stay Home/Stay Safe Order is in effect from March 24, 2020 at 12:01 AM through April 13, 2020 at 11:59 PM.

•  On April 1, the Governor issued Executive Order 2020-33, rescinding and replacing Executive Order 2020-4 which declared a state of emergency, but did not rescind or replace the Stay Home / Stay Safe Order. The new Order declares a state of emergency expansion and a state of disaster, and mandates the Emergency Management and Homeland Security Division of the Department of State Police to coordinate and maximize all state efforts to assist local governments and officials. The state of emergency and state of disaster will terminate when such conditions cease and appropriate recovery programs have been implemented.

•  On March 21, the Governor issued an Order ordering all residents to stay home and all nonessential retail businesses to close by 9 PM on March 21. 

•  To the extent a business or non-profit has employees that cannot perform their functions via telework or work-from-home arrangements, the business or non-profit should make best efforts to reduce staff on site to the minimal number necessary to ensure that essential operations can continue.

•  Examples of employees who need to be present at their work site in order to perform their job duties include construction workers.

•  The Governor issued an Order mandating that 100% of the workforce must stay home, but excludes those providing essential services from the order. 

•  A previous order had defined essential services generally, and further Guidance provided additional detail on what constitutes an “Essential Service,” which specified that Construction, including skilled trades such as electricians and plumbers and other related construction firms and professionals for infrastructure or for emergency repair and safety purposes are included as essential services. 

•  On March 29, the Governor issued a modification to the previous Order, which reverses the initial position that all construction is essential.  At this time, only “certain construction” is deemed essential, and the New York Empire State Development Corporation is tasked with determining which construction projects are deemed “essential”.

•  The Empire State Development Corporation issued Guidance as to what qualifies as an “essential business” on March 27.  The guidance states that the operation of public and private utilities including power generation constitute essential infrastructure, and that “essential construction… includes…utilities.” All non-essential construction other than emergency construction must be shut down.  In addition, any construction sites that remain in operation must maintain appropriate social distancing. 

o  The Empire State Development Corporation recently issued an updated FAQ addressing whether construction on energy projects are considered essential. The FAQ’s clarify that operational and maintenance work for existing power generation, and construction on existing or expanding grid or other critical infrastructure are essential business activities, as are new renewable energy projects that are necessary to the continued operation of any of the above. Specifically, construction on energy projects servicing transit facilities, health care facilities, affordable housing and homeless shelters are explicitly identified as being essential, as are utility scale new power generation for projects with an in-service date of September 1 or sooner. A process for appealing to be considered an essential project is provided in the guidance.

o  These guidelines were reiterated in guidance issued by NYSERDA on March 31, and on a webinar discussion held on April 3, NYSERDA indicated that the exceptoins would be very narrowly construed.

•  On March 23, the Governor issued an Order limiting mass gatherings. The Order is effective at 5:00 PM on Wednesday, March 25, 2020, and shall remain in effect for 30 days unless rescinded or superseded.

•  On March 27, the Governor issued an Order requiring all individuals in the state to stay at home and to leave only for essential activities, essential government operations, or to participate in or access COVID-19 essential businesses and operations, including businesses operating in critical infrastructure sectors. The Order also requires non-essential businesses and operations to cease. The Order is effective March 30, 2020 at 5:00 PM and shall remain in effect for 30 days unless repealed, replaced, or rescinded.

•  The Order defines a mass gathering as any event or convening that brings together more than 10 persons (down from 100 and 50 in previous orders) in a single room or single space at the same time, such as an auditorium, stadium, arena, large conference room, meeting hall, or any other confined indoor or outdoor space. 

•  A mass gathering does not include normal operations at airports, bus and train stations, medical facilities, shopping malls and centers. It also does not include office environments, factories, grocery stores, and child care facilities.

•  On March 9, 2020, the Governor issued an Executive Order declaring a State of Emergency and ordered all citizens to heed the advice of the Department of Health.  

•  On March 22, 2020, the Ohio Department of Health issued a Director’s Stay At Home Order that requires businesses to cease all activities except minimum basic operations, and encourages all “Essential Businesses and Operations” to remain open.

•  The Director’s Order defines construction and power generation and distribution as Essential Infrastructure, and Essential Infrastructure is a subset of Essential Business and Operations.

•  The Director’s Order went into effect on March 23, 2020 at 11:59 p.m. and will remain in place until April 6, 2020 unless it is rescinded or modified.

•  Ohio’s Stay-at-Home order has been extended until May 1, 2020.

•  On March 23, the Governor issued Executive Order 20-12, ordering individuals to stay at their place of residence and avoid non-essential social and recreational gatherings, regardless of size, and requiring certain businesses to close, for which close personal contact is difficult or impossible to avoid.

•  The order also requires all businesses to implement work-from-home strategies to the extent possible. If impossible, the business must establish appropriate social distancing policies.

•  On March 19, the Governor issued an Order that prohibits operation of business that is not a “life sustaining business regardless of whether the business is open to members of the public”

•  Order includes a list of life sustaining businesses that may remain open (updated on March 20, 2020)

•  No construction industries are deemed life sustaining per such list, except that emergency repairs are permitted

•  Enforcement actions will be taken against non-compliant businesses beginning March 23, 2020 at 8:00 A.M.

•  On March 24, the Governor published a list of frequently asked questions regarding what constitutes a life-sustaining business.  The guidance suggests that any industry not included on the Governor’s prior list of life-sustaining businesses should suspend operations.  Any business that is not considered “life sustaining”, but is included in any “critical infrastructure category” on the CISA Advisory should submit a waiver to the Pennsylvania Department of Community and Economic Development to seek an exemption from the Governor’s order.

Construction work on renewable energy projects must be suspended until further notice. Construction of renewable energy projects may fall into a critical infrastructure category and may be entitled to a waiver from the state; however, construction should remain suspended until a waiver is obtained.

A Department of Community and Economic Development spokesperson has reported receiving over 15,000 such waiver requests (state-wide for all sectors) as of March 24.

•  On March 19, the Governor issued Executive Order No. GA-08 relating to COVID-19 preparedness and mitigation.

•  The Order is effective on a statewide basis at 11:59PM on March 20, and continuing until 11:59PM on April 3, subject to extension.

•  The order states that all critical infrastructure will remain operational.

•  On March 24, the Governor issued an Order that requires the closure of all businesses in the state except those deemed “Essential Businesses and Operations.”

•  The Order defines energy as a critical infrastructure sector, and considers construction as an essential business.

•  The Order went into effect on March 25, 2020 at 8:00 a.m. and will remain in place until April 24 unless suspended by a subsequent order.