COVID-19 Shutdown Orders Allow Construction Work to Proceed in Some States but Limit it in Others - May 27 Update

Gregory M. Boucher and W. Matthew Bryant and James E. Goodrich and Kevin M. Levy and Donald A. Rea
Published May 28, 2020

Jurisdictions Limiting Construction Work

Massachusetts: Construction generally is allowed in Massachusetts for all residential construction and certain “essential” commercial construction, including in the City of Boston, as of May 26, 2020. However, certain cities and towns that have limited construction work, such as Cambridge, Somerville, and Martha’s Vineyard towns of West Tisbury and Chilmark, may start re-opening in phases, starting in late May and June 2020.     

New York: New York’s initial shutdown order deemed construction an “essential business” that may remain open. However, the governor issued an updated order: “[a]ll non-essential construction must shut down except emergency construction (e.g., a project necessary to protect the health and safety of the occupants, or to continue a project if it would be unsafe to allow it 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.” However, Governor Cuomo announced a plan that allowed some construction projects to re-start as of May 26, 2020 in all regions except New York City, and a goal to re-start some construction in New York City by the middle of June 2020.   

Jurisdictions Allowing Projects to Proceed

Delaware: The State of Delaware directed the shutdown of “Non-Essential Businesses” but is allowing “Essential Businesses” to remain open. The order classifies “construction” as an “Essential Business” if it fits in any of the following categories or employs or utilizes the following types or workers: 

  1. Workers who are engaged in the construction of residential or non-residential structures or infrastructure, or any workers who provide critical maintenance to residential or non-residential structures.
  2. Businesses that supply materials and hardware to those engaged in the construction of residential or non-residential structures.
  3. Workers involved in activities related to the design and apportionment of residential and non-residential structures.

The District of Columbia: On March 24, 2020, the District of Columbia issued an order directing the closure of “Non-Essential Business” but allowing “Essential Businesses” to remain open. Among the “Essential Business” are: “Construction and Building Trades, including 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, and HVAC distributors; and other businesses that provide services that are necessary to maintaining the safety, sanitation, and operation of residences and Essential Businesses[.]”

Florida: On April 1, 2020, Florida’s governor issued a broad “stay-at-home” order. However, construction is deemed to be an “essential service” under the new order and is allowed to proceed. Although construction is generally permitted, some local jurisdictions have implemented additional site safety requirements related to social distancing and worker hygiene, while other jurisdictions have modified their permitting and building inspection processes to address the COVID-19 risks.

Illinois: Construction is permitted to proceed with social distancing and other appropriate safety measures. 

Maryland: The governor of Maryland issued a “stay-at-home” order that went into effect on March 30, 2020 at 8:00 p.m. That order references the U.S. Cybersecurity and Infrastructure Security Agency (CISA) guidelines on essential and non-essential businesses. We have confirmed with the Governor’s Office of Legal Counsel that, notwithstanding the stay-at-home order, “commercial and non-residential construction companies” may continue operations. 

Minnesota: On March 25, 2020, Minnesota’s governor issued an Executive Order directing Minnesotans to stay at home. The order identified as exempt critical workers any workers performing “any construction as required in response to the COVID-19 peacetime emergency, including but not limited to construction of heath care facilities and essential businesses and services, or construction as required for emergency repairs and safety purposes[.]” The order also referenced as to essential critical infrastructure workers the CISA guidelines and a Minnesota list of critical sector workers. That Minnesota list of critical workers includes workers engaged in residential building construction, non-residential building construction, architectural, engineering, and related services, and foundation, structure and building exterior construction.

New Jersey: After initially limiting construction to only essential work, all construction has been allowed in New Jersey since May 18, 2020, contingent upon compliance with social distancing requirements. 

Pennsylvania: As of May 26, 2020, all construction projects may resume in the Commonwealth of Pennsylvania. The Commonwealth has imposed various levels of worker safety regulations and requirements, which vary for different “zones” within the Commonwealth. Those regulations include social distancing, making handwashing available, and staggering of work where practicable. The Commonwealth has also created a formula for worker capacity at indoor jobsites based on square footage. Municipalities in Pennsylvania also have issued regulations and restrictions. For example, as of April 29, 2020, Philadelphia has required additional training certifications for construction managers.

Further updates will be provided as these unprecedented circumstances unfold. Please visit our COVID-19 Resource Page here or contact attorneys in Saul Ewing Arnstein & Lehr’s Construction Practice Group for further information.