Throughout the United States, state and local governments continue to issue and update orders restricting activities of individuals and businesses in response to the COVID-19 pandemic. Generally, such orders provide exemptions from the restrictions for essential businesses, services and/or functions, and most states consider performance of construction an essential service. Pennsylvania is an exception because it prohibits construction, except for emergency repairs and construction of health care facilities. Some local governments in California have also put some restrictions on construction.
This memorandum is intended to provide information and guidance with respect to orders issued by various state and local governments. Please keep in mind that this is a very fluid situation. State and local governments continue to issue and update orders, sometimes as frequently as hourly. We will continue to monitor the situation and update this information as quickly as possible, but please check with us or your state and local governments for the most updated information and restrictions.
Of course, the health and safety of employees is the first priority for all contractors. Thus, as construction proceeds in many states, please ensure that you are following the latest guidelines issued by OSHA and the Centers for Disease Control ("CDC") with respect to COVID-19 and safety and health in the workplace.
Federal Government
The Cybersecurity and Infrastructure Security Agency ("CISA"), a part of the U.S. Department of Homeland Security, released guidance on March 19, 2020, following up on President Trump's March 16, 2020 updated Coronavirus Guidance for America. Many states refer to the CISA list of 16 critical infrastructure sectors in announcing state policy. The 16 critical infrastructure sectors listed in the CISA Guidance do not reference construction specifically. Included in the 16 critical infrastructure sectors are:
Commercial Facilities Sector
Critical Manufacturing Sector
Defense Industrial Base Sector
Energy Sector
Chemical Sector
Financial Services Sector
Government Facilities Sector
The CISA Guidance states: "If you work in a critical infrastructure industry, as defined by the Department of Homeland Security, such as healthcare services and pharmaceutical and food supply, you have a special responsibility to maintain your normal work schedule." CISA states that its guidance is not binding and is intended to help inform decisions by state and local jurisdictions, but does not compel prescriptive action. The list does not impose any mandates on state or local jurisdictions or private companies.
Alabama (last updated 03/23/2020, 12:00 p.m. Eastern)
No statewide stay-at-home order has been issued by Governor Kay Ivey. There is a local stay-at-home order in Jefferson County. Jefferson County's Health Officer has ordered all nonessential businesses and services be closed as of 5 pm on March 20, 2020. Construction is not listed as a nonessential service and can continue
California (last updated 03/23/2020, 11:30 a.m. Eastern)
Governor Newsomeissued a statewide stay-at-home order on March 19, 2020. As outlined in the Order, construction workers are included as critical infrastructure workers. However, local jurisdictions have put in place their own orders, some of which are more restrictive than the state mandate.
San Francisco and surrounding counties: Most commercial construction projects are to be treated as NON-ESSENTIAL. However, any business construction related to maintaining or upgrading essential businesses will be considered essential. Those essential projects include: public works (roadway infrastructure and utilities), housing (in particular affordable housing), airport, water-sewer-gas-electrical projects.
Los Angeles county: Essential workers include construction workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects, including but not limited to, public works construction, construction of commercial, office and institutional buildings, and construction of housing.
Connecticut (last updated 03/23/2020, 12:00 p.m. Eastern)
Governor Lamont issued a statewide stay-at-home order on March 20, 2020, ordering workers at 'nonessential' businesses to stay home during coronavirus outbreak. Construction is an essential business and can continue. Per Executive Order 7H, "essential business" means:
1. Essential workers in the 16 Critical Infrastructure Sectors as defined by the Department of Homeland Security unless otherwise address in a prior or future executive order.
3. Infrastructure
7.
Services including: legal and accounting services
9.
Construction, including all skilled trades such as electricians, HVAC and plumbers; general construction, both commercial and residential
Grocery stores, pharmacies, banks, gas stations and other necessary businesses will be allowed to remain open. Restaurants will be open for takeout services and package stores will remain open. Order takes effect at 8 pm on Monday, March 23, 2020. Businesses could face punishment if they do not comply. The Order is in effect for an indefinite time period. Offices, malls, clothing stores and all other non-essential retail businesses are closed. Essential businesses include, but are not limited to, the 16 critical infrastructure sectors as defined by the U.S. Department of Homeland Security. Businesses and entities that provide other essential services should implement rules that facilitate social distancing of at least six feet. Individuals should not travel in groups; groups must be limited to workers providing essential services. Everyone should keep away from each other at least 6' whenever possible.
Florida (last updated 03/23/2020, 1:00 p.m. Eastern)
No statewide stay-at-home order has been issued by Governor Ron DeSantis.
Broward and Miami-Dade counties have closed all non-essential businesses pursuant to local emergency orders and in accordance with Governor DeSantis's executive orders. "Contractors and other tradesmen" are exempted from the Broward and Miami-Dade orders as they have been deemed essential. Palm Beach County has closed certain business by local public safety order, which do not include the construction industry, in accordance with Governor DeSantis's executive orders pertaining to Palm Beach County.
Georgia (last updated 03/23/2020, 1:00 p.m. Eastern)
No statewide stay-at-home order has been issued by Governor Kemp nor have any local governments issued stay-at-home orders. However, reports are indicating that the Mayor of Atlanta, Keisha Lance Bottoms, has held off from issuing a stay-at-home order for Atlanta at the request of the Governor. The Governor has scheduled a press conference for 5:00 p.m., Monday, March 23, 2020.
Notably, the Governor's executive order of March 14, 2020, allows contractors to retain "private professional providers" to perform plan review and inspection services pursuant to O.C.G.A. §8-2-26(g)(5) immediately. This executive action would allow construction projects to continue to meet inspection requirements in situations where a local jurisdiction ceases providing inspection services due to COVID-19.
Illinois (last updated 03/23/2020, 12:30 p.m. Eastern)
Governor J.B. Pritzker issues a stay-at-home order on March 20, 2020. Construction is expressly included within the definition of Essential Infrastructure. The Illinois order also expressly provides that "Essential Infrastructure" is to be broadly defined.
Indiana (last updated 03/23/2020, 4:00 p.m. Eastern)
Most recent Executive Order issued by Governor on March 24, 2020, effective as of 11:59 pm on March 24, 2020. All individuals are ordered to stay at home, except as allowed in this Executive Order. Must maintain 6' distancing. May leave homes for Essential Activities, Essential Government Functions or to participate in Essential Businesses and Operations. Construction is listed as an Essential Infrastructure activity.
All Essential Businesses and Operations are encouraged to remain open and shall comply with the Social Distancing Requirements, including maintaining 6' social distancing for both employees and members of the general public at all times.
Individuals may leave their homes for:
- Health and Safety
- Necessary Supplies and Services
- For Outdoor Activity
- For Certain Types of Work
To perform work providing essential products and services at Essential Businesses or Operations, which includes Essential Governmental Functions and Essential Infrastructure.
Individuals may leave their homes in order to provide services or perform work to offer, provision, operate, maintain and repair Essential Infrastructure.
Essential infrastructure includes, but is not limited to, distribution, construction (including but not limited to construction related to this public health emergency, hospital construction, essential business construction and housing construction), building management and maintenance.
The phrase "Essential Infrastructure" shall be broadly construed in order to avoid any impacts to essential infrastructure, broadly defined.
Louisiana (last updated 03/23/2020, 12:15 p.m. Eastern)
Governor Edwards issued a statewide stay-at-home order that goes into effect at 5 pm on Monday March 23, 2020. Stay-at-home order does not include essential workers. Guidance issued March 22, 2020 lists construction as essential infrastructure.
Maryland (last updated 03/23/2020, 12:00 p.m. Eastern)
No statewide stay-at-home order has been issued by Governor Larry Hogan nor any restriction governing construction work. Governor Hogan issued an amended executive order on March 16, 2020 ordering closure of fitness centers, health clubs, aquatic centers, self-defenses schools, theaters, bingo halls, restaurants, bars and similar establishments that sell food or beverages for consumption on premises effective as of 5 pm on March 16, 2020. Food or beverages can be promptly taken from the premises on a carry-out or drive-through basis and delivered to customers. A person who violates the Order is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding one year or a fine not exceeding $5,000 or both. March 16, 2020 Executive Order prohibited social, community, spiritual, religious, leisure and sporting gatherings and events of more than 10 people. Closure of enclosed malls, gatherings limited to 10, restrictions at BWI.
Massachusetts (last updated 03/23/2020, 12:00 p.m. Eastern)
No statewide stay-at-home order has been issued by Governor Baker nor any restriction governing construction work. Governor Baker ordered all Massachusetts restaurants and bars to offer only takeout and delivery for the foreseeable future and announced an order restricting gatherings of 25 people or more. All K-12 schools closed for three weeks effective until at least April 5, 2020.
Governor Baker's order supersedes and renders inoperative any order or rule issued by a municipality that will or might in any way impede or interfere with the objectives of the Governor's Order, including any order or rule issued by a municipality that would interfere with ensuring the continued operation of COVID-19 Essential Services. Boston Mayor Martin Walsh did order the halt of all but essential construction work in Boston. However, it would certainly seem that the Governor's Order supersedes the Boston Mayor's prior order shutting down all construction sites in Boston.
Michigan (last updated 03/23/2020,2:15 p.m. Eastern)
Governor Whitmer issued a statewide stay-at-home order on March 23, 2020, which becomes effective at 12:01 a.m. on Tuesday, March 24, 2020 and remains in effect for at least three weeks. The order specifically references the CISA guidelines in reference to essential infrastructure, but there is no specific reference to construction activities.
Missouri
(last updated 03/23/2020, 12:15 p.m. Eastern)
No state-wide stay at home order has yet been issued. City and county orders vary. Certain construction should be exempt, but not all commercial construction is designated as "Essential" in all jurisdictions. For example:
Kansas City: "Essential Infrastructure" shall mean to include, but not be limited to, public works construction, construction of housing, airport operations, water, sewer, gas, electrical, oil refining, railroad and rail systems, roads and highways, public transportation, solid waste collection and removal, internet, and telecommunications systems (including the provision of essential infrastructure for computing services, business infrastructure, communications, and web-based services).
Jackson County (Kansas City area): Essential Infrastructure includes, but is not limited to, public works construction, construction of housing (in particular affordable housing or housing for individuals experiencing homelessness), airport operations, water, sewer, gas, electrical, oil refining, roads and highways, public transportation, solid waste collection and removal, internet, and telecommunications systems (including the provision of essential global, national, and local infrastructure for computing services, business infrastructure, communications, and web-based services).
Johnson County, Kansas (Kansas City area): Essential Infrastructure, including, but not limited to, public works construction, construction or repair of housing (in particular affordable housing or housing for individuals experiencing homelessness), commercial construction, airport operations, water, sewer, gas, electrical, oil refining, roads and highways, public transportation, solid waste collection and removal, internet, and telecommunications systems (including the provision of essential global, national, and local infrastructure for computing services, business infrastructure, communications, and web-based services).
NOTE that the above three definitions differ in small but significant ways. Johnson County, Kansas specifically includes commercial construction in "Essential Infrastructure" - Kansas City and Jackson County (Mo.) limit their definitions to public works and housing construction.
New Jersey (last updated 03/22/2020, 2:45 p.m. Eastern)
Currently, construction can continue in New Jersey. Effective March 21, 2020 at 9:00 PM, Executive Order 107 requires all residents to remain at home or their place of residence, unless they fall into an exception. Residents reporting to or performing their job are exempt from the stay at home order.
Businesses are required to accommodate their workforce by allowing them to telework or work from home whenever possible. To the extent workers cannot perform their functions via teleworking or working from home, the businesses are required to make best efforts to reduce staff onsite to the minimal number necessary to ensure essential operations can continue. Construction is included in the list of examples of employees who need to be physically present at work to perform their job duties.
New York (last updated 03/23/2020, 10:14 a.m. Eastern)
Currently, construction can continue in New York. Effective March 22, 2020 at 8:00 PM, Executive Order 202.8 requires reduction of in-person workforce at any work location by 100%, except for essential services and functions. According to guidance issued by Governor Cuomo March 20, 2020, construction is an essential service.
North Carolina (last updated 03/23/2020, 1:00 p.m. Eastern)
No statewide stay-at-home order has been issued by Governor Roy Cooper nor have any local governments issued stay-at-home orders. However, Governor Cooper indicated in a press conference today that he would issue an executive order extending the closure or schools, banning mass gatherings, and closing additional businesses.
Ohio (last updated 03/23/2020, 11:45 a.m. Eastern)
Construction projects are exempt from the stay-at-home order issued by Director of Ohio Department of Health. Construction is included in the essential infrastructure exception:
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, school construction, essential business construction and housing construction).
Also, listed among Essential Businesses and Operations:
k. Critical trades. Building and Construction Tradesman and Tradeswomen, and other trades including but not limited to plumbers, electricians, exterminators, HVAC, painting and essential operation of residences, Essential Activities, and Essential Businesses and Operations.
The Ohio order specifically provides that the definition of essential infrastructure is to be construed broadly.
Pennsylvania (last updated 03/22/2020, 2:45 p.m. Eastern)
Most construction is suspended. Effective March 23, 2020 at 8:00 AM (deadline extended from March 19 at 8:00 PM), all non-life-sustaining businesses are required to shut down. This includes construction, except for emergency repairs and construction of health care facilities.
South Carolina (last updated 03/23/2020, 1:00 p.m. Eastern)
No statewide stay-at-home order has been issued by Governor McMaster, nor have any local governments issued stay-at-home orders. Governor McMaster has a press conference set for 4:00 p.m., Monday, March 23, 2020 to provide an update on South Carolina's response to COVID-19.
Tennessee (last updated 03/23/2020, 1:00 p.m. Eastern)
No statewide stay-at-home order has been issued by Governor Lee.
The Mayor of Nashville, John Cooper, issued a stay-at-home order on March 22, 2020, to go into effect at 12:01 a.m. on Monday March 23, 2020 for the City of Nashville and Davidson County. All businesses that do not perform essential services were ordered to close under the Mayor's order. However, the order deemed construction, architectural, engineering, and surveying services to be essential.
Texas (last updated Sunday evening, 03/22/2020)
No statewide stay-at-home order has been issued by Governor Abbott.
But Dallas County Judge Clay Jenkins issued a shelter-at-home order for Dallas County starting at 11:59 pm on Monday, March 23, 2020. The order requires all individuals anywhere in Dallas County to shelter in place except for certain "essential activity." As defined by Judge Jenkins, essential activity includes work necessary to the operations and maintenance, including residential and commercial construction, of the 16 critical infrastructure sectors as identified by the CISA's March 19, 2020 guidance.
Virginia (last updated 03/22/2020, 2:45 p.m. Eastern)
Construction can continue in Virginia. Governor Northam issued an Executive Order on March 20, 2020 restricting the number of patrons allowed in restaurants, fitness centers, and theaters to 10 patrons or less.
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Please feel free to contact any of the following attorneys for more information:
If you have employment related questions, please contact Benjamin S. Lowenthal ([email protected]) or Philip J. Siegel ([email protected]).
