COVID-19 Shutdown Orders Allow Construction Work to Proceed in Some States but Limit it in Others - May 13 Update

COVID-19 Shutdown Orders Allow Construction Work to Proceed in Some States but Limit it in Others - May 13 Update

May 13, 2020

Jurisdictions Limiting Construction Work:

Massachusetts: Construction generally is allowed in Massachusetts for all residential construction and certain “essential” commercial construction. However, certain cities and towns have limited construction work, such as the City of Boston, which initially shut down nearly all construction. Just recently, in early May 2020, Boston’s Mayor announced plans to allow certain construction activities to restart as of May 18 (provided the particular project has a COVID-19 safety plan) and to allow all essential construction to resume as of  May 26 (provided the project has a COVID-19 safety plan). A few other Massachusetts localities (such as Cambridge, Somerville, and Martha’s Vineyard towns of West Tisbury and Chilmark) have restricted construction work.

New Jersey: New Jersey issued an executive order effective on April 10, 2020 that orders “non-essential” construction projects to cease but allows “essential” construction projects to continue. However, during a press briefing on Wednesday May 13, 2020, Governor Murphy announced that he soon would sign an executive order allowing non-essential construction projects to resume as of Monday May 18, 2020 so long as they follow social distancing guidelines. 

Essential construction projects include projects for healthcare, transportation, utility, affordable housing residential, schools, projects to support essential businesses, and data centers.

General commercial construction projects are not included among “essential” construction projects, although that “any work to secure and protect a non-essential construction project for its suspension” is allowed.

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 health and safety of the occupants, or to continue a project if it would be unsafe to allow 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, in early May, Governor Cuomo announced a plan that will allow some construction projects to re-start  in certain upstate counties (Finger Lakes, Southern Tier & Mohawk Valley Regions) as of  May 15. 

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: By an executive order dated March 20, 2020, the Governor ordered the closure of “all businesses and operations in the state except “Essential Businesses and Operations.” The Order’s definition of “Essential Businesses” that are allowed to remain open includes “Essential Infrastructure.” The order permits individuals to “leave their residence to provide any services or perform any work necessary to offer, provision, operate, maintain and repair Essential Infrastructure”.  “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)” and “building management and maintenance[.]” This Executive Order has been extended through May 29, 2020.

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.

Pennsylvania: On April 22, 2020, the Governor of Pennsylvania announced that as of May 1, 2020 the Commonwealth would lift its general construction shutdown order and allow construction projects to resume, subject to any local prohibitions. Projects must follow strict worker safety regulations issued by the Pennsylvania Department of Health and the Centers for Disease Control and Prevention. 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 jobsites indoors which is based on square footage. Municipalities in Pennsylvania also have issued regulations and restrictions. For example, on April 29, 2020, Philadelphia issued restrictions that limit authorized construction in the City to projects that received building or demolition permits on or before March 20, 2020.

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