Six Northern California Counties Have Issued New Shelter-in-Place Orders Impacting Construction Industry

Effective 11:59 p.m. on March 30, 2020, Alameda, Contra Costa, Marin, Santa Clara, San Francisco and San Mateo Counties shelter-in-place rules will be more detailed and restrictive. The construction industry will be significantly impacted. The order only allows the following kinds of construction projects to go forward:

• Projects immediately necessary to the maintenance, operation, or repair of Essential Infrastructure
• Projects associated with Healthcare Operations, including creating or expanding Healthcare Operations, provided that such construction is directly related to the COVID-19 response
• Affordable housing that is or will be income-restricted, including multi-unit or mixed-use developments containing at least 10% income-restricted units
• Public works projects if specifically designated as an Essential Governmental Function by the lead governmental agency
• Shelters and temporary housing, but not including hotels or motels
• Projects immediately necessary to provide critical non-commercial services to individuals experiencing homelessness, elderly persons, persons who are economically disadvantaged, and persons with special needs
• Construction strictly necessary to ensure that existing construction sites that must be shut down under this Order are left in a safe and secure manner, but only to the extent necessary to do so
• Construction or repair necessary to ensure that residences and buildings containing Essential Businesses are safe, sanitary, or habitable to the extent such construction or repair cannot reasonably be delayed

A significant amount of construction that is currently ongoing will now have to stop. It will be much more difficult to argue that certain projects should go forward due to ambiguity in the order.

Construction companies should be sure to carefully review the orders and work with counsel to evaluate their options and potential needs to issue notices of delays in order to protect claims for additional time and damages.

Visit our COVID-19 Hub for ongoing updates.

Construction is an Essential Service in Massachusetts

As in other parts of the country, the state and local response to COVID-19 has been universal but not uniform. On March 23, 2020 Massachusetts Governor Baker issued Order No. 13 directing “brick and mortar” businesses to close their physical doors until April 7, 2020, encouraging them to continue operations online. The list of “essential services” that can continue to operate as usual includes construction projects, utilizing social distancing practices, of course.

Following up on this Order, in a March 25, 2020 Guidance to municipalities, the Governor confirmed that Order No. 13 was issued under the Massachusetts Civil Defense Act. As such, any inconsistent municipal rule, regulation, ordinance, or by-law is inoperative. In particular, the most recent Guidance makes clear that construction projects are continuous essential projects requiring uniform, statewide management during this pandemic and should adhere to the state’s health and safety guidelines, rather than be subject to individual municipal requirements. The March 25, 2020 Guidance directs municipalities to follow the state’s guidelines for safety at construction sites allowing work to continue across the state.

The lack of uniformity comes with the fact that Boston Mayor Marty Walsh had earlier directed that construction in the City of Boston must cease, except for essential construction related to transportation and gas hookups. Mayor Walsh’s March 16, 2020 directive would seem to be superseded by the Governor’s Order No. 13 and March 25 Guidance.

In response to the Governor, Mayor Walsh affirmatively extended the City of Boston’s order pausing “non-essential” construction in the City. Such construction sites should have already been locked down by the time the Governor issued Order No. 13 on March 23, 2020, but may have been hoping to reopen.

Home Rule in Massachusetts was granted to cities and towns by constitutional amendment, and while viewed as very strong, the Commonwealth retained unlimited power to overturn local decision-making, which the Governor has exercised in this case. As such, the Governor’s Order is controlling, even in the City of Boston. The Mayor’s press release indicates that he is working with various partners including construction firms and the building trades to determine protocols that would allow these sites to safely re-open in Boston. The Governor’s office recommends that cities and towns implement guidance consistent with the state’s guidance to ensure safe and consistent practices.

Before restarting a construction project in the City of Boston, check the City’s Inspectional Services website for updates.

Please contact our Construction COVID-19 Task Force for assistance in developing your safety protocols or in any regard to assist in responding to the COVID-19 challenges on your existing projects or preparing your upcoming contracts and projects.

Visit our COVID-19 Hub for ongoing updates.

CISA Clarifies – Construction is Part of Critical Infrastructure Activities

After ongoing confusion by many over whether construction should be considered part of the “essential business,” during the COVID-19 pandemic, the Cybersecurity and Infrastructure Security Agency (CISA) issued an updated Coronavirus Guidance for America on March 28, 2020 to clarify construction’s critical role in supporting essential infrastructure. CISA’s initial advisory list referenced construction in regard to some areas such as energy and wastewater treatment, but it was unclear as to the whole of the construction industry. CISA’s update clarified that construction activities are included in its list of essential critical infrastructure workers. This new federal guidance should remove the ambiguity that led to varying responses by state and local officials halting some construction. The guidance clarifies that construction and related activities – including the manufacture and supply/delivery of supplies and equipment, permitting, safety, and inspections of projects – are covered as part of the critical infrastructure and economic activities.

The ongoing challenge will be for construction activities to proceed in a way that protects workers and the general public from the spread of coronavirus. However, contractors are always resourceful and have been implementing safety measures effectively on projects with an unwavering commitment to safety and are ready to meet this challenge. In addition to following the guidance from the CDC, we recommend that contractors implement a comprehensive safety program for their employees as well as for all parties that come onto the jobsite. It is critical that contractors have clear a clear plan for communications with their teams to ensure compliance with the CDC recommendations. This should include what has recently become standard protocol or social distancing, not hosting large group meetings and conducting meetings online or via conference call, maintaining a six-foot distance between people, discouraging hand-shaking or other contact, not sharing tools, and sanitizing reusable PPE. Contractors also should also be sure to place safety posters about “How to Protect Yourself” where they can be readily seen and encourage staying home when sick, cough and sneeze etiquette, and hand hygiene at the entrance of a jobsite. We also recommend heightened site security including interviewing anyone coming to the jobsite.

Contractors will also need to adjust on-site scheduling to avoid stacking trades, to manage their sites in a way that limits the number of people on a jobsite, and to allow non-essential personnel to work remotely.

Please contact our Construction COVID-19 Task Force for assistance in developing your safety protocols or in any regard to assist in responding to the COVID-19 challenges on your existing projects or preparing your upcoming contracts and projects.

Visit our COVID-19 Hub for ongoing updates.

COVID-19: Where is Construction an “Essential Business”?

With states and municipalities taking additional measures to limit the spread of COVID-19, including “shelter in place” and “stay-at-home” orders, which require non-essential businesses to close physical locations and limit operations to telecommuting the question for construction is, Are you an “essential business”? The answer will differ based on location and may change as states and cities continue to work in this fluid situation. It is important to verify before you proceed.

Essential Business

Some guidelines are available to assist businesses making this determination. First, the Cybersecurity and Infrastructure Security Agency (CISA) released a guidance document to assist state and local governments as well as businesses to determine which sectors’ workers should be considered essential, critical infrastructure workers. CISA has identified 16 sectors:

• Healthcare / Public Health
• Transportation and Logistics
• Information Technology
• Water and Wastewater
• Food and Agriculture
• Nuclear Reactor, Materials & Waste
• Energy
• Government Facilities
• Defense Industrial Base
• Emergency Services (Law Enforcement, Public Safety, First Responders)
• Financial Services
• Communications
• Critical Manufacturing
• Dams
• Chemical
• Commercial Facilities

The CISA Guide is a recommendation and ultimately is optional for states and location governments to use when adopting their own stay-at-home or workforce reduction orders. It is notable that, currently, there are six states that are following CISA guidance on the “essential business” definitions, nine CISA-modified, and eight with their own state-issued guides; the remaining states have not (yet) issued a stay-at-home order.

One of the most comprehensive assessments of the application of the CISA guidelines for an “essential” business has been compiled by MultiState Associates in its COVID-19 Policy Tracker. MultiState Associates’ Summary is a quick, ready-reference guide that also drills down in many instances to the local level.

However, there is still confusion as to whether and what types of construction projects fall under the “Essential Business” categorization.

A few states have made it very clear, but each local county and city may have their own regulations and restrictions. For example, in California, Governor Newsom’s Executive Order has clarified that construction (including residential construction) is an essential business, but the State has confirmed that the local governments may impose more restrictive measures. Each county and local jurisdiction is handling construction in its own way and therefore it is imperative to check before you proceed with your projects. On the other hand, New York has been more specific and limited the approved construction to include: skilled trades such as electricians, plumbers; and other related construction firms and professionals for essential infrastructure or for-emergency repair and safety purposes.

Gordon & Rees’ COVID-19 Task Force has been closely following each of the states’ and many key local jurisdictions’ guidance and stands ready to assist clients with compliance with the orders and determining where and what type of construction projects can continue.

Visit our COVID-19 Hub for ongoing updates.