The full impact of the COVID-19 coronavirus pandemic on the construction industry remains uncertain. Construction contractors are facing challenges both common to all businesses and unique to the construction industry. Contractors have questions essential to operating their companies successfully and legally in the new COVID-19 environment, particularly regarding employment issues, continuation of construction work, and their rights and liabilities in the event of disruptions, delays, and suspensions. 

Enactment of the Families First Coronavirus Response Act and the Emergency Paid Sick Leave Act, effective April 1, 2020, established a new set of rules governing how all businesses with under 500 employees are to handle sick leave and family leave. We are here with answers to the most asked employment related questions posed by contractors and to provide you with information, insights and guidance on proceeding with construction projects and contract issues.

COVID-19 RESOURCE SECTIONS

• General COVID-19 Labor and Employment Questions & Answers [Click Here]

• Questions & Answers related to The Families First Coronavirus Response Act (the “Families First Act”) [Click Here]

• Small Business Exemption for New Paid Sick Leave and Emergency Family Medical Leave Requirements [Click Here]

• Information on Contract Rights, Contract Terms, Force Majeure, and Price Escalation Clauses [Click Here]

• State Executive Orders: State-by-state listing of whether and what types of construction may continue, [Click Here]

• Programs available to provide Financial Assistance to Contractors under the CARES Act (less than 500 employees) [Click Here]

• Department of Labor Finalizes Regulations Clarifying Paid Leave under Families First Coronavirus Response Act

  • Employees Subject to Stay at Home or Shelter in Place Orders

  • Employees Experiencing Symptoms of COVID-19

  • Small Business Exemption

  • Documentation Requirement

• OSHA Guidance: When a COVID-19 Illness is Recordable

• OSHA Provides Guidance to the Construction Industry on how to Address the COVID-19 Hazard

• Paycheck Protection Program Replenished [Click to view additional details]

• OSHA Supplements COVID-19 Guidance for the Construction Industry

• Significant Changes to the Forgiveness of PPP Loans Under The Cares Act

• OSHA Revises its Guidance for Recording Cases of COVID-19

• Returning to Work - Reducing the Risk of Exposure

• Southern California Tire Company to Pay Back Wages After Denying Paid Violating the Emergency Paid Sick Leave Component of the Families First Coronavirus Response Act

• Form I-9 and E-Verify News in light of the Coronavirus

• Coronavirus E-blast - EEOC Issues New Technical Assistance on COVID-19

WEBINARS & PODCASTS

• Webinar Replay: “COVID-19 Information for Roofing Contractors” Presented by HPSS Law for Georgia Roofing Contractors Association

• Webinar Replay: “Answering questions concerning COVID-19 and the Families First Coronavirus Response and Emergency Paid Sick Leave Acts

• The Roofer Show Podcast #158: "Families First Coronavirus Response Act: What You Need To Know”

• The Roofer Show Podcast #159: “Cash Is King: How To Get Paid”

• Webinar for Chicago Roofing Contractors Association - Webinar available in Members Only section

• Webinar: “COVID Information for Contractors” Presented by Philip Siegel, Stephen Philips and Scott Calhoun for Firestop Contractors International Association - View Webinar Transcripts

• Webinar for National Fireproofing Contractors Association – Webinar available in Members Only section

VALUABLE LABOR & EMPLOYMENT COMMUNICATIONS TOOLS

CONSTRUCTION HALL PASS
Download a letter of authorization (i.e. “Hall Pass”) your employees can carry when traveling to and from worksites.

DEPARTMENT OF LABOR NOTICE POSTER
Download the notice to employees’ poster the Federal Department of Labor requires employers to display pursuant to the Families First Coronavirus Response Act.

We have put together answers for many of the most pressing labor and employment related questions we have been receiving. The Q&As are below.

Please note: if you have a company handbook, we suggest you first consult and follow your company’s policies as published in your company handbook. Do not hesitate to call or email us with any additional questions.

We will be here for you throughout this pandemic. Stay safe.

Can we restrict business travel and require employees to work from home? 

Yes.  Whether your company chooses to restrict travel is up to you.  Restricting travel may have the effect of leaving some of your employees without any work.  Whether you are legally required to pay those employees while they are not working is a question we answer below.  Of course, those employees who continue to work from home will be due to be paid.

We have employees who are fearful of the virus and don’t want to come to work.  Do we have to pay them for the time they are away from work?

Absent an employment contract with the employee or an applicable collective bargaining agreement that addresses this subject, the answer for your non-exempt, hourly paid employees is likely no.  Under the Fair Labor Standards Act (“FLSA”), minimum wage and overtime pay for your non-exempt, hourly paid employees are dependent on hours actually worked in a work week.  Non-exempt, hourly paid employees who are not working are not entitled to wages.

But what about exempt, salaried employees?  If an employee is a salaried exempt employee, the employee must be paid if the employee performs any work during the work week, but the law allows you to make certain deductions from an exempt employee’s salary without jeopardizing the exempt status of the employee.  If the employee is not sick but chooses to stay home from work for a full day, you are permitted to make a deduction from the employee’s salary for the one day absence.  The law allows you to make a deduction for a full day absence for personal reasons, other than sickness or disability.

If an exempt, salaried employee chooses to stay home for an entire week and performs no work during the week, you may withhold the employee’s salary for the week.

If an employee decides to stay home to avoid getting sick, can we count these absences against any paid leave they may be entitled to? Can we count it as an unexcused absence?  Or are they protected absences?

First, consult your company handbook.  Any action concerning use of paid leave should be consistent with the company’s policy included in any company handbook.  If you have a policy which applies in this instance, follow it.  If the policy permits you to require use of paid leave time, then you can follow the policy, although we do caution you to consider the employee morale component of any such decision. 

Legally, the FLSA does not require employer-provided vacation time and does not entitle an employee to stay at home to avoid getting sick.  In the event that the employee does decide to stay home, the absences will generally not be protected, and you can consider the absence an unexcused absence, although consideration should be given to the effect such a policy may have on employee morale.

You will not be permitted to take adverse action against an employee who refuses to work because they believe an imminent danger exists in the workplace.  This is an OSHA issue.  OSHA defines an “imminent danger” to include “any conditions or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the [OSHA] enforcement procedures.”  Unless you have a confirmed or suspected case of COVID-19 coronavirus in the workplace, it is unlikely that such an imminent danger exists that would allow for the employee to legally refuse to work.

Do we have to pay employees if we close the office and the employees are unable to work from home or otherwise not working?

For your non-exempt, hourly paid employees, you do not have to pay them if they are not working, even if they are not working because you closed the office. 

As it concerns your exempt, salaried employees, if the office is closed for the entire week and the exempt, salaried employees perform no work during the week, you may withhold paying the employees’ salaries that week.  But if an exempt employee performs any work during the week that you close your business, he/she is entitled to his/her full salary for the week.

Please note that the U.S. House of Representatives introduced and passed H.R. 6201, the Families First Coronavirus Response Act, which would amend the FLSA and other employment related Acts.  As of writing, the bill has yet to become law (has not been passed by the Senate nor signed by the President).  If passed in its current form, the bill would immediately require, among other things, for employers with fewer than 500 employees to provide two weeks of paid sick leave, paid at the employee’s regular rate, if the employee must quarantine or seek a diagnosis or preventative care for COVID-19 coronavirus, comply with a public recommendation or order, or care for or assist a family member due to the COVID-19 coronavirus.  The bill would also require paid sick leave at two thirds the employee’s regular rate to care for a family member or care for a child out of school due to the COVID-19 coronavirus.

Can we make employees who are exhibiting symptoms of a contagious illness or the COVID-19 coronavirus go home from work for the day? Do we have to pay them if we send them home?

Yes, you can make employees who are exhibiting symptoms of the COVID-19 coronavirus or a contagious illness go home.  Pursuant to the CDC’s Interim Guidance for Businesses and Employers, the CDC recommends that employees who are exhibiting symptoms of a contagious illness or the COVID-19 coronavirus (i.e. cough, shortness of breath) be separated upon arrival to work and sent home immediately.  The CDC’s Interim Guidance for Businesses and Employers can be found here:  https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html.  The CDC’s current list of symptoms of the COVID-19 coronavirus can be found here: https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.htm.  

Whether you have to pay the employee who is sent home during the day is a function of whether the employee is an exempt, salaried employee or a non-exempt, hourly paid employee.  For the exempt, salaried employee, you are not permitted to make any deduction from the employee’s salary because the situation does not involve a full day absence from work.  You are under no obligation to pay the non-exempt, hourly paid employee after they are sent home from work. 

If the exempt, salaried employee remains out of work for full day absences due to his or her sickness, the law only permits you to make a deduction from the salaried employee’s pay without jeopardizing the exemption if the deduction is made in accordance with a bona fide plan, policy or practice of providing wage replacement benefits for such absences.

Whether your situation involves either a non-exempt, hourly paid employee or an exempt, salaried employee, be sure to consider your obligations under the Americans with Disabilities Act and Family Medical Leave Act, if any, if the employee requires extended time away from work.

Our business is suffering as a result of the COVID-19 coronavirus, and we are unable to keep our employees fully employed.  Are we permitted to lay off employees until we recover from the fallout surrounding the virus?  For employees that are laid off, can we continue to require them to pay the employee portion of their health insurance premiums?

Certainly, lack of work is a non-discriminatory, legitimate business reason for laying off employees, reducing hours, or terminating employees.  Be mindful, however, that while it is well known that terminating an employee’s employment will allow the employee to claim unemployment benefits, a layoff or reduction in hours may also entitle your employees to unemployment benefits in your state. 

Moreover, in addition to terminating the employment relationship, laying off an employee or reducing an employee’s work hours may be a triggering event under COBRA.  A reduction in hours will also constitute a qualifying event if the reduction in hours has the effect of excluding the individual from coverage under the terms of the plan.  If the reduction in hours has no effect on the employee’s coverage, it is not a COBRA event and you can still require the employee to pay the employee portion of the premium.

Can we take an employee’s temperature at work to determine whether the employee might be infected?

It depends.  The Americans with Disabilities Act (“ADA”) considers taking an employee’s temperature as a “medical examination,” and prohibits employers from requiring medical examinations unless the employer can show (1)  that the medical examination is job related and consistent with business necessity, or (2) the employer has reasonable belief that the employee poses a “direct threat” to the health or safety of the employee or others which cannot be eliminated or reduced by a reasonable accommodation.  A “direct threat” is defined as there being a significant risk of substantial harm.  In the event that the COVID-19 coronavirus is or becomes widespread in your community as assessed by the CDC or state or local health authorities, and you have an employee exhibiting symptoms of the COVID-19 coronavirus consistent with what is being reported, then you may take an employee’s temperature. 

If an employee has been absent from work, can we ask why the employee has been absent?

Yes.  An employer may ask an employee why the employee did not report to work.  It is not a disability-related question protected under the ADA.

Example:  During the COVID-19 coronavirus pandemic, an employer directs a supervisor to contact an employee who has not reported to work for five business days without explanation.  The supervisor asks this employee why he is absent and when he will return to work.  The supervisor’s inquiry is not a disability-related inquiry under the ADA.

If an employee has been absent from work because the employee has been sick, can we require the employee to provide a doctor’s note or release before returning to work? 

Yes.  Such a request would be permitted under the ADA either because it would not be a disability-related request or because the employee poses a “direct threat” to the health or safety of the employee or others.  You can ask the doctor to state the employee is not contagious or otherwise have the doctor identify any workplace modification that may be needed to protect the health and safety of others.  The note should not provide a diagnosis, however. 

 Does any of this implicate OSHA?

Yes.  You do have a legal obligation under OSHA to keep your workplace safe from known hazards your employees will be exposed to in the performance of their duties.  In this instance, OSHA  has published a guide that provides steps companies can take to meet their obligations under OSHA and protect their workplace.  You can access OSHA’s publication on the COVID-19 coronavirus at:  https://www.osha.gov/Publications/OSHA3990.pdf.  

State Executive Orders: Continuation or Suspension of Construction During COVID-19?

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, New York and Washington are exceptions, taking a much more restrictive approach limiting construction to only certain types of buildings and situations. Some local governments in California and elsewhere 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 highest 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 and determining what are essential activities that can continue. The CSA document identifies 16 critical infrastructure sectors. The CISA Guidance does, not reference construction specifically, but construction to support a critical infrastructure sector is implied. 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

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.

On March 28, 2020, CISA issued an “Advisory Memorandum on Identification of Essential Critical Infrastructure Workers During Covid-19 Response” and “Guidance on the Essential Critical Infrastructure Workforce.” The Advisory Memorandum includes workers engaged in maintaining and repairing critical infrastructure, working construction, public works, workers who support crucial supply chains and workers who enable functions for critical structures. Under the heading of Public Works and Infrastructure Support Services, CISA lists workers such as plumbers, electricians, exterminators, builders, contractors, HVAC technicians, landscapers and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, businesses and buildings such as hospitals, senior living facilities, and any temporary construction required to support COVID-19 response.

CISA emphasizes that its list of critical infrastructure sectors, workers and functions that should continue during COVID-19 response is advisory in nature and is not a federal directive or standard and is not intended as an exclusive list. Individual jurisdictions should add or subtract essential workforce categories based on their own requirements and discretion. Essential businesses that cannot work remotely are to use strategies to reduce the likelihood of spreading COVID-19 disease, including separating staff by off-setting shift hours or days and social distancing.

Alabama (updated APRIL 4, 2020)

Alabama issued a statewide stay-at-home order on April 3, 2020, effective at 5:00 p.m. on April 4, 2020, requiring every person to stay at his or her place of residence except as necessary to perform one of the enumerated “essential activities,” which include performing work at “essential businesses and operations” and performing essential work related activities. The order remains in effect until 5:00 p.m. on April 30, 2020.

Construction and construction-related services are identified in the Alabama order as an essential business and operation, including building and construction, lumber, building materials and hardware businesses, electricians, plumbers, other construction tradesmen and tradeswomen, exterminators; cleaning and janitorial, HVAC and water heating businesses; painting, moving and relocating services, other skilled trades, and other related construction firms and professionals for maintaining essential infrastructure.

Operators of “essential businesses and operations” may, but need not, issue credentials to their employees verifying their status as an employee of an essential business or operation. The decision to provide any such credentials is left to the discretion of the essential business or operation.

Essential businesses and operations shall take all reasonable steps for employees and customers to avoid gatherings of 10 persons or more and maintain a consistent six-foot distance between persons.

Arizona (updated APRIL 3, 2020)

On March 23, 2020, Governor Ducey issued an order prohibiting counties, cities and towns from making or issuing any order, rule or regulation that restricts or prohibits any person from performing an essential function. The order specifically includes construction as an Essential Infrastructure Operation, and it includes Building and Construction Tradesmen and Tradeswomen and other trades as Essential Businesses and Operations. Construction can continue, but the Governor’s March 30, 2020 Stay-At-Home Order (Executive Order 2020-18) requires construction business to “establish and implement social distancing and sanitation measures established by the United States Department of Labor or the Arizona Department of Health Services.”  The March 30, 2020 updated recommendations of the Arizona Department of Health Services require essential businesses to “implement rules and procedures that facilitate physical distancing and spacing of individuals of at least 6 feet.”

California (updated APRIL 9, 2020)

Governor Newsome issued 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.

Local Action:

San Francisco Area

The counties of Alameda, Contra Costa, Marin, San Francisco, San Mateo and Santa Clara, as well as the city of Berkeley have issued a revised stay at home order which is effective through May 3. Under the order, which by its terms is intended as a “complement” to the state-wide order, permissible activities are more limited.

“Essential Businesses” which are allowed to remain open and operating include Construction, but only of the types listed below:

1. Projects immediately necessary to the maintenance, operation, or repair of Essential Infrastructure;

2. Projects associated with Healthcare Operations, including creating or expanding Healthcare Operations, provided that such construction is directly related to the COVID-19 response;

3. Affordable housing that is or will be income-restricted, including multi-unit or mixed-use developments containing at least 10% income-restricted units;

4. Public works projects if specifically designated as an Essential Governmental Function by the lead governmental agency;

5. Shelters and temporary housing, but not including hotels or motels;

6. 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;

7. Construction 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; and

8. 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.

“Essential Infrastructure” is defined to include airports, utilities (including water, sewer, gas, and electrical), oil refining, roads and highways, public transportation, solid waste facilities (including collection, removal, disposal, and processing facilities), cemeteries, mortuaries, crematoriums, and telecommunications systems (including the provision of essential global, national, and local infrastructure for internet, computing services, business infrastructure, communications, and web-based services).

The text of the new order can be found here:
https://www.sccgov.org/sites/phd/DiseaseInformation/novel-coronavirus/Pages/order-health-officer-033120.aspx

Los Angeles County

Construction work is allowed to continue. 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. However, the Los Angeles Department of Building and Safety has issued specific restrictions and guidelines on construction activity, including use of PPE, specific sanitizing requirements, and the presence of a site specific COVID-19 Supervisor to enforce the requirements. The full text of the guidelines can be found here: http://www.ladbs.org/our-organization/messaging/news

Colorado (updated March 24, 2020)

Governor Polis issued a statewide order, Executive Order D 2020 013, which requires employers to reduce their in-person work forces by fifty percent beginning on March 24, 2020 and continuing until April 10, 2020. The order directs the Colorado Department of Public Health and Environment (CDPHE) to issue a public health order defining critical infrastructure and other activities that are exempt from the directive of the Governor’s order. The order does not apply to “authorized businesses” that the public health order identifies as exempt from the Governor’s order, or “to any employer that can certify that employees are no closer than six feet from one another during any part of their work hours.”

The Public Health Order 20-24 issued by CDPHE provides that Critical Businesses are exempt from Executive Order D 2020 013 and are encouraged to remain open. Critical Businesses are required to “comply with guidance and directives for maintaining a clean and safe work environment issued by the Colorado Department of Health and Environment and any applicable local health requirement.” They are also “encouraged to comply with Social Distancing Requirements and all PHOs [Public Health Orders] currently in effect to the greatest extent possible.” Construction is listed as a Critical Business; therefore, construction can continue.

Connecticut (updated APRIL 2, 2020)

Governor Lamont’s March 20, 2020 Executive Order 7H, which required non-essential businesses to reduce their personnel at each business location by 100%, includes construction as an “essential business.” In accordance therewith, the Connecticut Department of Economic and Community Development issued a guidance document which stated that construction includes:

• All skilled trades such as electricians, HVAC and plumbers

• General construction, both commercial and residential

• Other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes

• Planning, engineering, design, bridge inspection, and other construction support activities

The essential businesses designated in the guidance are not subject to the in-person restrictions. Governor Lamont’s Executive Order 7N, issued on March 26, 2020, prohibited gatherings of six (6) or more people. The 6-person limitation does not apply to government operations, private workplaces, retail establishments, or other activities that are not social or recreational gatherings.

Governor Lamont’s Executive Order 7H stated that essential businesses include, but are not limited to, the 16 critical infrastructure sectors as defined by the Cybersecurity and Infrastructure Security Agency (CISA) of the U.S. Department of Homeland Security.

Executive Order 7V requires essential businesses to take additional protective measures issued by the Commissioner of Economic and Community Development. Those Rules for Essential Employers are available at: https://portal.ct.gov/DECD/Content/Coronavirus-Business-Recovery/Safe-Workplace-Rules-for-Essential-Employers. The rules are fairly extensive and include, among other things, specific social distancing and cleaning/disinfecting requirements. They also include the following rules that are specific to construction sites:

• Clean portable bathrooms no less than every 2 days.

• Require employees to travel separately to and from, and within, worksites.

• Reschedule work to maximize the amount of work being performed outdoors, limit indoor or work lacking significant fresh air.

• Shift work to limit the size of the crews on the jobsite, especially indoors.

• Rotate lunch and coffee break shifts, requiring workers to follow the CDC social distancing guidelines during meals or breaks.

• Follow all safety and health protocols when using an elevator.

• Provide an adequate supply of PPE, including but not limited to cloth face masks, gloves, hand sanitizer or soap and water.

Florida (updated APRIL 3, 2020)

On April 1, 2020, Governor Ron DeSantis issued a state-wide stay-at-home Executive Order, which went into effect at 12:01 a.m. on April 3, 2020 and expires on April 30, 2020.

Pursuant to the stay-at-home order, senior citizens and individuals with significant underlying are required to stay at home and take all measures to limit risk of exposure to COVID-19. Further, all persons in Florida are required to limit their movements and personal interactions outside of their home to only those necessary to obtain essential services or conduct essential activities.

Florida defines “Essential Services” as:

• The list detailed by the U.S. Department of Homeland Security in its Guidance on Essential Critical Infrastructure Workforce v. 2 (March 28, 2020); and,

• The essential businesses set forth in Executive Order 20-89, which included the following construction-related essential business designations:

  • Contractors and other tradesman, appliance repair personnel, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operations of residences and other structures;

  • Open construction sites, irrespective of the type of building; and

  • Architectural, engineering, or land surveying services.

Accordingly, construction is allowed to continue in Florida. Notably, the March 28, 2020 CISA Advisory Memorandum on Identification of Essential Critical Infrastructure Workers adopted by Florida includes individuals engaged in “maintaining and repairing critical infrastructure” and “working construction.” Essential Critical Infrastructure Workers include those working on Commercial Facilities and Government Facilities.

All prior executive orders relating to COVID-19 remain in effect in Florida. In general, prior orders that set forth restrictions not necessarily overridden by the stay at home order are:

• Executive Order 20-80, which required all individuals that fly into Florida from states with substantial community spread, specifically including Connecticut, New Jersey, and New York, to self-isolate in Florida for the shorter of 14 days or the duration of their trip;

• Executive Order 20-86, which required all individuals that drive into Florida from states with substantial community spread, specifically naming Louisiana, to self-isolate in Florida for the shorter of 14 days or the duration of their trip. However, this Order exempted any person engaged in “commercial activities”;

The Governor’s stay-at-home order supersedes any conflicting local action or order issued by local officials in response to COVID-19. Accordingly, the state-wide order governs.

Stay-At-Home Executive Order 20-91 found here:
https://www.flgov.com/wp-content/uploads/orders/2020/EO_20-91-compressed.pdf

Amendment clarifying local application via Executive Order 20-92 found here:
https://www.flgov.com/wp-content/uploads/orders/2020/EO_20-92.pdf

Georgia (updated APRIL 3, 2020)

On April 2, 2020, Governor Kemp issued a statewide shelter-in-place order effective at 6:00 p.m. on Friday, April 3, 2020 and expiring at 11:59 p.m. on Monday, April 13, 2020. All residents and visitors to Georgia are required to remain in their place of residence and take every possible precaution to limit social interaction, unless they are:

1. Conducting or participating in Essential Services.

2. Performing Necessary Travel.

3. Are engaged in the performance of, or travel to and from, the performance of Minimum Basic Operations for a business, establishment, corporation, non-profit corporation, or organization not classified as Critical Infrastructure; or

4. Are part of the workforce for Critical Infrastructure and are actively engaged in the performance of, or travel to and from, their respective employment.

Construction is allowed to continue in Georgia. Georgia follows the definition of “Critical Infrastructure” and “essential critical infrastructure workforce” as defined in the March 19, 2020 and March 28, 2020 guidance memoranda issued by the Cybersecurity and Infrastructure Security Agency (“CISA”) of the U.S. Department of Homeland Security. The March 28, 2020 CISA Advisory Memorandum on Identification of Essential Critical Infrastructure Workers includes individuals engaged in “maintaining and repairing critical infrastructure” and “working construction.” Essential Critical Infrastructure Workers includes those working on Commercial Facilities and Government Facilities.

Critical Infrastructure businesses that continue in operation are to implement measures which mitigate the exposure and spread of COVID-19 among its workforce. Such measures may include, but are not limited to:

1. Screening and evaluating workers who exhibit signs of illness, such as a fever over 100.4 Fahrenheit, cough, or shortness of breath;

2. Requiring workers who exhibit signs of illness to not report to work or to seek medical attention;

3. Enhancing sanitation of the workplace as appropriate;

4. Requiring hand washing or sanitation by workers at appropriate places within the business location;

5. Providing personal protective equipment as available and appropriate to the function and location of the workers within the business location;

6. Prohibiting gatherings of workers during working hours;

7. Permitting workers to take breaks and lunch outside, in their office or personal workspace, or in such other areas where proper social distancing is attainable;

8. Implementing teleworking for all possible workers;

9. Implementing staggered shifts for all possible workers;

10. Holding all meetings and conferences virtually, whenever possible;

11. Delivering intangible services remotely wherever possible;

12. Discouraging workers from using other workers’ phones, desks, offices, or other work tools and equipment;

13. Prohibiting handshaking and other unnecessary person-to-person contact in the workplace;

14. Placing notices that encourage hand hygiene at the entrance to the workplace and in other workplace areas where they are likely to be seen;

15. Providing disinfectant and sanitation products for workers to clean their workspace, equipment, and tools; and

16. Increasing physical space between workers’ worksites to at least six (6) feet.

The Order states that operation of Critical Infrastructure shall not be impeded by county, municipal, or local ordinance. The Georgia Department of Economic Development is authorized to give guidance to any business, corporation, organization, or industry trade group regarding its status as Critical Infrastructure.

No business, establishment, corporation, non-profit corporation, organization, or county or municipal government shall allow more than ten (10) persons to be gathered at a single location if such gathering requires persons to stand or be seated within six (6) feet of any other person.

Any person who violates the Order shall be guilty of a misdemeanor. Officials enforcing the Order should take reasonable steps to provide notice prior to issuing a citation of making an arrest.

Governor Kemp’s prior 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.

The Governor’s shelter-in-place order supersedes any conflicting local action or order issued by local officials in response to COVID-19. Accordingly, the state-wide order governs.

Shelter-in-Place Executive Order found here:
https://gov.georgia.gov/document/2020-executive-order/04022001/download

Illinois (updated APRIL 3, 2020)

Governor J.B. Pritzker issued 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. The Illinois order currently extends through April 30, 2020.

Indiana (updated March 23, 2020)

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.

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 (updated March 29, 2020)

Governor Edwards issued a statewide stay-at-home order that went 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 (updated APRIL 2, 2020)

Governor Hogan issued a stay-at-home Executive Order on March 30, 2020 effective at 8:00 p.m. on March 30th. The Order did not change what businesses are deemed essential or nonessential. Commercial and residential construction can continue in Maryland. Maryland follows the federal guidance published by the Cybersecurity and Infrastructure Security Agency (CISA) of the U.S. Department of Homeland Security pertaining to essential businesses - currently described at https://cisa.gov/identifying-critical-infrastructure-during-covid-19. The Maryland Office of Legal Counsel issued Interpretative Guidance pertaining to Governor Hogan’s March 23, 2020 Executive Order which prohibited large gatherings and required closing of non-essential businesses and other establishments. The Interpretive Guidance states specifically under the Commercial Facilities Sector (which is one of the 16 essential sectors identified in the CISA guidance) that the sector includes: “building and property maintenance companies, including without HVAC service companies roofers, environmental services companies, exterminators, arborists, and landscapers” and “commercial and residential construction companies.”

Essential businesses are allowed to remain open and must make every effort to scale down their operations to reduce the number of required staff, to limit interactions with customers, and to institute telework for as much of the workforce as practical. Non-essential businesses are closed to the general public as of 5:00 pm on March 23, 2020. Gatherings of more than 10 people are prohibited. Governor Hogan’s Executive Order remains in effective until rescinded or superseded.

Maryland has a COVID-19 Layoff Aversion Fund and small business relief fund. Information about these programs is available at businessexpress.maryland.gov.

Massachusetts (updated APRIL 2, 2020)

Governor Baker’s March 23, 2020 Emergency Order on Essential Services, updated on March 31, 2020, lists businesses that provide essential services and workforces. The list of essential services under Construction-Related Activities includes:

• Workers such as plumbers, electricians, exterminators, builders, contractors, HVAC technicians, landscapers, inspectors and other service providers who provide services that are necessary to maintaining the safety, sanitation and essential operation of residences, businesses and buildings such as hospitals, health care facilities, senior living facilities, and any temporary construction required to support COVID-19 response.

• Workers -including contracted vendors - who support the operation, inspection and maintenance and repair of essential public works facilities and operations, including construction of critical or strategic infrastructure. Critical or strategic infrastructure includes public works construction, including construction of public schools, colleges and universities and construction of state facilities.

• Workers performing housing construction related activities, including construction of mixed-use projects that include housing.

• Workers supporting the construction of housing, including those supporting government function related to the building and development process, such as inspections, permitting and plan review services

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 ordered the halt of all but essential construction work in Boston (see below). It would seem that the Governor’s Order supersedes the Boston Mayor’s prior order shutting down non-essential construction sites in Boston.

All businesses and organizations that do not provide COVID-19 Essential Services are required to close their physical workplaces and facilities to workers, customers and the public. These businesses are encouraged to continue operations remotely. Gov. Baker’s order remains in effect until May 4, 2020.

On March 31, 2020, the Massachusetts Building Trades Council asked Governor Baker to suspend all non-emergency and non-essential construction work statewide from April 3rd through April 30th. The North Atlantic States Regional United Brotherhood of Carpenters has directed is members to ceasing working in Massachusetts on all construction site other than health care facilities, effective April 6, 2020, until it is safe to do so.

Local Action:

Boston

As of March 17, 2020, the City suspended all regular activity at construction sites. New regular projects cannot be started unless they qualify as essential work. After sites have been secured by March 23, 2020, skeleton crews will be permitted for the remainder of the suspension to ensure safety. The only work that will be permitted is emergency work, which needs to be approved by the City of Boston’s Inspectional Services Department. Essential work includes emergency utility, road or building work such as gas leaks and water leaks, mandated building or utility work, work at public health facilities and shelters, and other work necessary to render occupied residential buildings fully habitable.

In addition to the list of essential construction projects, the City will, on a case-by-case basis, review requests for exceptions to the temporary construction moratorium. These may be granted by the Commissioner of Inspectional Services for building-related work. These will be granted if they support increased public health and safety.

Michigan (updated APRIL 9, 2020)

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 has been extended through April 30, 2020. The order specifically references the CISA guidelines issued on March 19, 2020 in reference to essential infrastructure (and specifically NOT any further guidance issued by CISA), but there is no specific reference to construction activities.

Minnesota (updated March 29, 2020)

Gov. Walz issued an Executive Order on March 25, 2020, effective at 11:59 p.m. on March 27, 2020 and extending to 5 p.m. on April 10, 2020, ordering all persons currently living in Minnesota to stay at home except to engage in exempt activities and Critical Sector work. All workers who can work from home must do so. Workers who perform work that cannot be done at their home and can be done only at a place of work outside of their home are exempt if their work is listed under Exemptions – Critical Sectors.

Construction and critical trades, including workers in the skilled trades such as electricians, plumbers, HVAC and elevator technicians, and other related construction of all kind, are explicitly identified as a critical service exemption in the governor’s order. The critical services exemptions apply only to travel to and from an individual’s residence and place of work and an individual’s performance of work duties that cannot be done at home. Travel may include transportation to and from childcare or school settings as necessary to ensure the safe care of children.

Missouri (updated APRIL 6, 2020)

Effective April 6, 2020 and until April 24, 2020, the Missouri Department of Health and Senior Services has issued a statewide stay at home order. The order provides that “any entity that does not employ individuals to perform essential worker functions, as set forth in guidance provided by CISA shall adhere to the limitations on social gatherings and social distancing” specified in the order. Because the order applies the CISA guidelines, construction work is permitted. Gatherings are limited to 10 people or less and all workers and others at any gathering must maintain a social distance of six feet or more. The state-wide order does not limit the right of local authorities to make such further ordinances, rules, regulations, and orders not inconsistent with the Order which may be necessary for the particular locality under the jurisdiction of such local authorities.

Local Action:

The following cities and counties have issued stay at home orders. Definitions and specifics related to the construction industry vary by local jurisdiction.

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).

St. Louis (including St. Louis County, Jefferson County, and Perry County)

Construction is either exempt from the stay at home restrictions or is deemed an Essential Activity (in Perry County).

Branson

Construction is specifically designated as an Essential Business by the city’s Emergency Management Director and so is permitted.

Cass County, Clay County, Jackson County, Platte County, and Ray County

In each of these counties, plumbers and electricians fall within the definition of Essential Business. Public works construction and housing construction are included within the definition of Essential Infrastructure. Other construction activity falls within the stay at home orders.

Cole County, Randolph County, and the City of Columbia

In each of these jurisdictions, construction is included as an Essential Activity and so is permitted.

Springfield-Greene County

Construction is included with the definition Essential Business and so is permitted.

Montana (updated APRIL 6, 2020)

Gov. Bullock issued an Executive Order on March 26, 2020 directing all individuals to stay at home to the greatest extent possible. Persons may leave their homes only for Essential Activities or to operate Essential Businesses and Operations, which includes Essential Infrastructure. Individuals may leave their residence to perform work to provide, maintain or repair Essential Infrastructure which includes construction, including housing construction. The governor’s order includes “Critical trades” under “Essential Businesses and Operations” and lists, among others, building and construction tradesmen and tradeswomen, and other trades including but not limited to plumbers, electricians, exterminators, operating engineers, HVAC, painting and other service providers who provide services that are necessary to maintaining the safety, sanitation and essential operation of residences, Essential Activities and Essential Businesses and Operations.

The governor’s order defines Essential Businesses and Operations to encompass the workers identified in the Cybersecurity & Infrastructure Security Agency March 19, 2020 Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response, available at https://www.cisa.gov/publication/guidance-essential-critical-infrastructure-workforce.
Essential Infrastructure is to be construed broadly.

New Jersey (updated APRIL 10, 2020)

Executive Order 122 (available at https://nj.gov/infobank/eo/056murphy/pdf/EO-122.pdf) requires the physical operations of all non-essential construction projects to cease effective April 10, 2020 at 8:00 pm. “Essential construction projects” that may continue, provided they adopt policies with certain minimum requirements, are defined as follows:

a. Projects necessary for the delivery of health care services, including but not limited to hospitals, other health care facilities, and pharmaceutical manufacturing facilities;

b. Transportation projects, including roads, bridges, and mass transit facilities or physical infrastructure, including work done at airports or seaports;

c. Utility projects, including those necessary for energy and electricity production and transmission, and any decommissioning of facilities used for electricity generation;

d. Residential projects that are exclusively designated as affordable housing;

e. Projects involving pre-K-12 schools, including but not limited to projects in Schools Development Authority districts, and projects involving higher education facilities;

f. Projects already underway involving individual single-family homes, or an individual apartment unit where an individual already resides, with a construction crew of 5 or fewer individuals. This includes additions to single-family homes such as solar panels;

g. Projects already underway involving a residential unit for which a tenant or buyer has already entered into a legally binding agreement to occupy the unit by a certain date, and construction is necessary to ensure the unit’s availability by that date;

h. Projects involving facilities at which any one or more of the following takes place: the manufacture, distribution, storage, or servicing of goods or products that are sold by online retail businesses or essential retail businesses, as defined by Executive Order No. 107 (2020) and subsequent Administrative Orders adopted pursuant to that Order;

i. Projects involving data centers or facilities that are critical to a business’s ability to function;

j. Projects necessary for the delivery of essential social services, including homeless shelters;

k. Any project necessary to support law enforcement agencies or first responder units in their response to the COVID-19 emergency;

l. Any project that is ordered or contracted for by Federal, State, county, or municipal government, or any project that must be completed to meet a deadline established by the Federal government;

m. Any work on a non-essential construction project that is required to physically secure the site of the project, ensure the structural integrity of any buildings on the site, abate any hazards that would exist on the site if the construction were to remain in its current condition, remediate a site, or otherwise ensure that the site and any buildings therein are appropriately protected and safe during the suspension of the project; and

n. Any emergency repairs necessary to ensure the health and safety of residents.

Executive Order 122 requires businesses performing essential construction projects to adopt policies that include the following minimum requirements:

a. Immediately separate and send home workers who appear to have symptoms consistent with COVID-19 illness upon arrival at work or who become sick during the day;

b. Promptly notify workers of any known exposure to COVID-19 at the worksite, consistent with the confidentiality requirements of the Americans with Disabilities Act and any other applicable laws;

c. Clean and disinfect the worksite in accordance with CDC guidelines when a worker at the site has been diagnosed with COVID-19 illness; and

d. Continue to follow guidelines and directives issued by the New Jersey Department of Health, the CDC and the Occupational Health and Safety Administration, as applicable, for maintaining a clean, safe and healthy work environment.

New Mexico (updated March 24, 2020)

The New Mexico Department of Health issued a Public Health Order that directs all business, except “essential businesses”, to reduce their in-person workforce by 100%. The order allows “essential businesses” to remain open, but they have to minimize their operations and staff to the greatest extent possible. “Essential businesses” must adhere to social distancing protocol to the greatest extent possible, including maintaining at least 6’ social distancing from others, avoiding person-to-person contact, and directing employees to wash their hands frequently. They must also ensure that all surfaces are cleaned routinely. The definition of “essential businesses” includes public works construction, commercial construction, and residential construction. Thus, construction can continue.

New York (updated APRIL 10, 2020)

The New York Office of Empire State Development issued a guidance document (available at https://esd.ny.gov/guidance-executive-order-2026) for determining whether a business enterprise is subject to workforce reduction under New York’s Executive Orders. As updated April 9, 2020 at 8:00 am, this guidance document limits construction in New York as follows:

• All non-essential construction must safely 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, but only to the point that it is safe to suspend work).

• Essential construction may proceed, to the extent that:

  • the construction is for, or your business supports, roads, bridges, transit facilities, utilities, hospitals or healthcare facilities, homeless shelters, or public or private schools;

  • the construction is for affordable housing, as defined as construction work where either (i) a minimum of 20% of the residential units are or will be deemed affordable and are or will be subject to a regulatory agreement and/or a declaration from a local, state, or federal government agency or (ii) where the project is being undertaken by, or on behalf of, a public housing authority;

  • the construction is necessary to protect the health and safety of occupants of a structure;

  • the construction is necessary to continue a project if allowing the project to remain undone would be unsafe, provided that the construction must be shut down when it is safe to do so;

  • the construction is for projects in the energy industry in accordance with Question No. 14 in the FAQ at: https://esd.ny.gov/sites/default/files/ESD_EssentialEmployerFAQ_033120.pdf;

  • the construction is for existing (i.e. currently underway) projects of an essential business; or

  • the construction work is being completed by a single worker who is the sole employee/worker on the job site.

• At every site, it is required that the personnel working on the site maintain an appropriate social distance, including for purposes of elevators/meals/entry and exits. Sites that cannot maintain appropriate social distancing, as well as cleaning/disinfecting protocols must close. Enforcement will be conducted by state and local governments, including fines up to $10,000 per violation.

• Construction may continue solely with respect to those employees that must be present at the business location/construction site in support of essential business activities. No other employees/personnel shall be permitted to work in-person at the business location/construction site. Any other business activities being completed that are not essential are still subject to the restrictions provided by Executive Order 202.

• As noted above, local governments, including municipalities and school districts, are allowed to continue construction projects at this time as government entities are exempt from these essential business restrictions. However, to the greatest extent possible, local governments should postpone any non-essential projects and only proceed with essential projects when they can implement appropriate social distancing and cleaning/disinfecting protocols. Essential projects should be considered those that have a nexus to health and safety of the building occupants or to support the broader essential services that are required to fulfill the critical operations of government or the emergency response to the COVID-19 public health crisis.

Effective March 22, 2020 at 8:00 p.m., Executive Order 202.8 required reduction of in-person workforce at any work location by 100%, except for essential services and functions. Originally, according to guidance issued by Governor Cuomo March 20, 2020, construction was classified as an essential service. This was clarified and revised in Executive Order 202.13 and guidance issued by Empire State Development pursuant to the Governor’s Order.

North Carolina (updated APRIL 3, 2020)

On March 27, 2020, Governor Roy Cooper issued a state-wide stay-at-home Executive Order, which went into effect on March 30, 2020 at 5:00 p.m. and is in effect for 30 days.

Pursuant to the stay-at-home order, all individuals in the North Carolina are ordered to stay at home except as set forth in the Executive Order and to maintain Social Distance Requirements when outside their residence. Persons may leave their homes only for Essential Activities, Essential Government Operations, or to participate in or access COVID-19 Essential Businesses and Operations.

Under the order, among other defined Essential Activities, individuals may leave their home to perform at businesses authorized to remain open under the Order. North Carolina includes within its list of COVID-19 Essential Businesses the following construction-related categories:

• Businesses, not-for-profit organizations or education institutions operating in the federal critical infrastructure sectors outlined in the March 28, 2020 CISA Advisory Memorandum on Identification of Essential Critical Infrastructure;

• Essential Infrastructure Operations, specifically including “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, and essential commercial and housing construction)…”

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

• Critical Trades are defined to include, but are not limited to, building and construction tradesmen and tradeswomen, and other trades including, but not limited to, plumbers, electricians, HVAC, painting, landscaping and other service providers who provide services that are necessary to maintain the safety, sanitation, and essential operations of residence and COVID-19 Essential Businesses and Operations.

Accordingly, construction is allowed to continue in North Carolina. Notably, the March 28, 2020 CISA Advisory Memorandum on Identification of Essential Critical Infrastructure Workers adopted by North Carolina includes individuals engaged in “maintaining and repairing critical infrastructure” and “working construction.” Essential Critical Infrastructure Workers include those working on Commercial Facilities and Government Facilities.

All Essential Businesses, to the extent practicable, must maintain the Social Distancing requirements set forth in the order, which means:

• Maintaining at least six (6) feet distancing from other individuals;

• Washing hands using soap and water for at least twenty (20) seconds as frequently as possible or the use of hand sanitizer;

• Regularly cleaning high-touch surfaces;

• Facilitate online or remote access by customers if possible.

North Carolina’s stay-at-home order allows counties and cities to enact ordinances and issue state of emergency declarations which impose greater restrictions or prohibitions that those set forth in the Governor’s stay-at-home order.

The violation of the stay-at-home order is a Class 2 misdemeanor under North Carolina law.

North Carolina stay-at-home order found here:
https://files.nc.gov/governor/documents/files/EO121-Stay-at-Home-Order-3.pdf

North Carolina’s stay-at-home does not prevent local governments from putting additional measures in order.

Local Action: (Updated March 27, 2020)

The following cities and counties have issued stay-at-home orders:

Clemmons
https://www.clemmons.org/DocumentCenter/View/688/COVID-19---State-of-Emergency---Shelter-in-Place-Order

Durham
https://durhamnc.gov/DocumentCenter/View/30043/City-of-Durham-Mayor-Emergency-Dec-Second-Amdmt-3-25-20_FINAL

Winston-Salem
https://www.cityofws.org/DocumentCenter/View/13660/Mayor-Stay-At-Home-Order-for-COVID-19-PDF?bidId=

Buncombe County
https://www.buncombecounty.org/common/health/Decl%20St%20of%20Em%20BE%20SAFE_STAY%20HOME%203-25-2020.pdf

Guilford County
https://www.guilfordcountync.gov/home/showdocument?id=10202

Madison County
https://www.madisoncountync.gov/uploads/5/9/7/0/59701963/covid-19_shelter_in_place_psa.pdf

Mecklenburg County
https://www.mecknc.gov/news/Documents/Mecklenburg%20County%20Stay%20at%20Home%20Orders.pdf

Orange County
https://www.orangecountync.gov/DocumentCenter/View/10271/Orange-County-Declaration-Stay-at-Home-3-25-20--Final

Pitt County
https://www.pittcountync.gov/DocumentCenter/View/10436/2020-3-24_Second-Proclamation-of-Emergency-Restrictions-for-COVID-19-Response

Wake County
http://www.wakeGovernorcom/covid19/Documents/FinalSignedSOE3-26-20.pdf

Ohio (updated APRIL 3, 2020)

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:

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.

The Ohio order currently extends through May 1, 2020.

Pennsylvania (updated March 29, 2020)

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 (updated APRIL 6, 2020)

Gov. McMaster issued a stay-at-home order on April 6, 2020, effective at 5:00 p.m. on April 7, 2020, limiting movements outside of residences except for purposed of engaging in Essential Business, Essential Activities, or Critical Infrastructure Operations. Critical Infrastructure Operations include all operation and services identify in the Cybersecurity and Infrastructure Security Agency March 28, 2020 Memorandum. All residents and visitors are to practice “social distancing and take every possible precaution to avoid exposure to and slow the spread of COVID-19.

Local Action: (updated March 27, 2020)

Charleston
https://www.charleston-sc.gov/DocumentCenter/View/26251/Emergency-Ordinance-Stay-at-Home

Columbia
https://www.columbiasc.net/uploads/headlines/03-26-2020/stay-home-stay-safe-emergency-order/2020-034%20Stay%20Home%20Stay%20Safe%20Amended.pdf

Tennessee (updated APRIL 3, 2020)

On April 2, 2020, Governor Bill Lee amended his previously issued “safer-at-home” Executive Order, which went into effect on March 31, 2020 at 11:59 p.m. Central Daylight Time and is in effect until 11:59 p.m. Central Daylight Time on April 14, 2020. The amended order requires all persons in Tennessee to stay at home except when engaging in Essential Activity or Essential Services and, when engaging in such Essential Activities or Essential Services to follow the Health Guidelines set forth therein.

Under the order, among other defined Essential Services, Tennessee includes the following construction-related categories:

• Personnel identified on pages 5-15 of the March 28, 2020 CISA Advisory Memorandum on Identification of Essential Critical Infrastructure;

• Essential Infrastructure Operations, specifically including “construction-related services, 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, construction related to Essential Activities or Essential Services, and housing construction…”

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

• Critical Trades, defined to include, but not be limited to, building and construction tradesmen and tradeswomen, and other trades including, but not limited to, plumbers, electricians, HVAC, painting, landscaping and other service providers who provide services that are necessary to maintain the safety, sanitation, and essential operations of residence, Essential Activity, and Essential Services.

Accordingly, construction is allowed to continue in Tennessee.

The order further sets forth that all businesses that remain open, to the extent practicable, should equip and permit employees to work from home, and employees and their customers should practice good hygiene and observe the Health Guidelines and necessary precautions advised by the President and the CDC.

Tennessee’s stay-at-home order does not preempt or limit the authority of any locality to issue further orders or measures in relation to COVID-19. Accordingly, local governments can impose stricter requirements as long as they are accordance with the law.

Tennessee’s “safer-at-home” order is found here:
https://publications.tnsosfiles.com/pub/execorders/exec-orders-lee22.pdf

Amendment to “safer-at-home” order found here:
https://publications.tnsosfiles.com/pub/execorders/exec-orders-lee23.pdf

Tennessee’s “safer-at-home” order does not prevent local governments from putting additional measures in order.

Local Action: (Updated March 27, 2020)
The following cities and counties have issued stay at home orders:

Memphis
https://covid19.memphistn.gov/wp-content/uploads/2020/03/Executive-Order-No-03-2020.pdf

Nashville / Davidson County
Nashville/ Davidson County 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 business 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.
https://www.asafenashville.org/wp-content/uploads/2020/03/Directors-Order-3-Safer-At-Home.pdf

Knox County
https://covid.knoxcountytn.gov/pdfs/safer-at-home-order.pdf

Shelby County
https://www.shelbycountytn.gov/DocumentCenter/View/36518/Release---Shelter-In-Place-Executive-Order

Texas (updated APRIL 2, 2020)

Construction can continue in Texas. On March 31, 2020, Governor Abbott issued an executive order requiring every person in Texas, except where necessary to provide essential services, to minimize social gatherings and minimize in-person contact with people who are not in the same household. The order remains in effect until April 30, 2020 unless modified, rescinded or superseded by the governor.

“Essential services” are as described in the Cybersecurity and Infrastructure Security Agency (CISA) Guidance on the Essential Critical Infrastructure Workforce, Version 2.0 (March 28, 2020), plus religious services. Other essential services may be added with the approval of the Texas Division of Emergency Management.

Governor Abbott’s March 31, 2020 Executive Order supersedes any conflicting order issued by local officials in response to COVID-19, but only to the extent that a local order restricts essential services allowed by the Governor’s Order. Local officials are not to impose restrictions inconsistent with the governor’s order.

On March 26, 2020, Gov. Abbott issued an Executive Order requiring all persons who entered Texas as the final destination through an airport in New York, New Jersey, Connecticut or New Orleans to be subject to a 14-day self-quarantine at a quarantine location designated upon arrival in Texas, excepting people traveling in connection with military services, health response or critical-infrastructure activities.

Dallas, San Antonio, Austin, and Houston

On March 21, 2020, Dallas County Judge Clay Jenkins, the chief executive, 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.

On March 23, 2020, San Antonio Mayor Ron Nirenberg issued a stay home/work safe order in effect from March 24 to 11:5 pm on April 9, 2020. Businesses related to public works construction, construction of housing and commercial construction are among the Exempted Businesses in the Mayor’s order.

On March 24, 2020, Austin issued an order requiring businesses cease activities at all locations within the City except certain types of operations, including those defined as “Critical Infrastructure.” The City issued Guidance for the Construction Industry. Commercial and residential construction activities are prohibited except in very limited situations: public works construction projects, affordable housing projects, construction of facilities for individuals experiencing homelessness, construction of facilities that provide social services, construction of facilities that are defined in the Mayor’s Order as Essential Businesses, Essential Government Functions, or Critical Infrastructure and construction of facilities specifically required by the City in response to the COVID-19 emergency.

Houston/Harris County has adopted a stay home / work safe order that allows construction to continue.

Virginia (updated March 31, 2020)

Construction is allowed to continue in Virginia. It is not on the list of businesses that were required to close pursuant to Gov. Northam’s March 23, 2020 Executive Order #53. pertaining to restaurants, recreational, entertainment, gatherings, non-essential retail businesses and closure of schools. All businesses shall, to the extent possible, adhere to social distancing recommendations, enhanced sanitizing practices on common surfaces, and other appropriate workplace guidance from state and federal authorities while in operation.

Governor Northam issued a Temporary Stay at Home Order (Executive Order #55) on March 30, 2020 requiring individuals to remain in their place of residence unless exempted. The order remains in effect until June 10, 2020 unless amended or rescinded. The restriction does not apply to the operation of businesses not required to close under the governor’s prior executive order.

Washington (updated APRIL 6, 2020)

Governor Inslee issued guidance for construction on March 25, 2020 pertaining to his March 23, 2020 “Stay Home, Stay Healthy” Proclamation which required all people in Washington State to cease immediately leaving their home except to conduct or participate in essential activities or for employment in essential business services. The original proclamation seemed to allow most construction to continue. The governor’s March 25th construction guidance memorandum indicated that was not the intent. The memorandum states:

In general, commercial and residential construction in not authorized under the proclamation because construction is not considered to be an essential activity.

However, the governor’s guidance goes on to allow construction in the following limited circumstances:

(a) Construction related to essential activities as described in the governor’s order;

(b) To further a public purpose related to a public entity or government function or facility, including but not limited to publicly financed low-income housing;

(c) To prevent spoliation and avoid damage or unsafe conditions, and address emergency repairs at both non-essential businesses and residential structures.

The construction guidance states it is permissible for workers who are building, construction superintendents, tradesmen, or tradeswomen, of other trades including, but not limited to, plumbers, electricians, carpenters, laborers, sheet metal, iron workers, masonry, pipe trades, fabricators, heavy equipment and crane operators, finishers, HVAC technicians, painting and other service providers to provide services consistent with the above guidance.

All construction activity must meet social distancing and appropriate health and worker protection measures.

The Governor’s March 23, 2020 Order identified numerous Essential Workforce categories including:

• Workers who support the operation, inspection and maintenance of essential public works facilities and operations, including bridges, water and sewer breaks, fleet maintenance personnel, construction of critical or strategic infrastructure and other emergent issues.

• Workers such as plumbers, electricians, exterminators and other service provides who provide services that are necessary to maintain the safety, sanitation, and essential operation of residences.

• Construction workers who support the construction, operation, inspection and maintenance of construction sites and construction projects (including housing construction) for all essential facilities, services and projects included in this document [the Governor’s guidance document identifying essential infrastructure sectors and businesses] , and for residential construction related to emergency repairs and projects that ensure structural integrity

• Workers such as plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintain the safety, sanitation and essential operation of construction sites and construction projects

The Governor’s original March 23rd Stay at Home, Stay Healthy order was extended on April 2nd and is currently scheduled to remain in effect through May 4, 2020.

If a worker or business seeks clarification whether its work is an essential business or can be added to the list of essential businesses, an essential business inquiry form can be submitted.

Construction industry groups have sought a change in state policy to allow more construction to proceed as an essential activity.

Wisconsin (updated March 29, 2020)

The Wisconsin Department of Health Services issued its Safer at Home Emergency Order #12 on March 24, 2020, effective from 8:00 a.m. on March 25, 2020 and remaining in effect until 8:00 a.m. on April 24, 2020 or until a superseding order is issued. All individuals present within the State of Wisconsin are ordered to stay at home unless engaged in Essential Activities, Essential Government Functions, Essential Travel or to operate Essential Businesses and Operations. Essential Infrastructure is exempt. Individuals may leave their residence to provide any service or perform any work necessary to offer, provide, operate, maintain, and repair Essential Infrastructure.

Essential Infrastructure includes construction, including, but not limited to, construction required in response to the COVID-19 emergency, public works construction, school construction, Essential Business and Operations construction, construction necessary for Essential Governmental Functions, and housing construction, except that optional or aesthetic construction should be avoided. Essential Infrastructure is to be construed broadly to avoid any impacts to essential infrastructure, broadly defined.

The list of Essential Businesses and Operations includes critical trades, building and construction tradesmen and tradeswomen and other trades including but not limited to plumbers, electricians, carpenters, laborers, sheet metal, iron workers, masonry, pipe trades, fabricators, operating engineers, HVAC and other service providers who provide services that are necessary to maintaining the safety, sanitation and essential operation of residences, Essential Activities, Essential Governmental Functions, and Essential Businesses and Operations.

Businesses that supply construction materials and equipment are also included in the list of exempt Essential Businesses and Operations.

All Essential Businesses and Operations including Essential Infrastructure are to meet Social Distancing Requirements between all individuals on the premises and use technology to avoid meeting in person and work remotely to the greatest extent possible. Social Distancing Requirements include maintaining social distancing of 6’ between people; washing hands with soap and water for at least 20 seconds as frequently as possible or using hand sanitizer; covering coughs or sneezes into the sleeve or elbow; regularly cleaning high-touch surfaces; not shaking hands; and following al other public health recommendations issued by DHS and the U.S. Centers for Disease Control.

Essential Travel applies to any travel related to providing or access to Essential Activities, Essential Businesses and Operations or Minimum Basic Operations. Individuals engaged in Essential Travel must comply with Social Distancing Requirements to the extent possible.

Please feel free to contact any of the following attorneys for more information: 

C. Leanne Prybylski (clp@hpsslaw.com); Scott D. Calhoun (sdc@hpsslaw.com); J.T. Gallagher (jtg@hpsslaw.com); Stephen M. Phillips (smp@hpsslaw.com). 

If you have employment related questions, please contact Benjamin S. Lowenthal (bsl@hpsslaw.com) or Philip J. Siegel (pjs@hpsslaw.com).

As contractors monitor developments regarding the coronavirus (“COVID-19”) pandemic, they should be sure to implement measures to promote and protect the health and safety of their employees as recommended by the Centers for Disease Control and Prevention (CDC), OSHA and other public health and government officials. We recently prepared and distributed a memorandum entitled, COVID-19 Coronavirus Frequently Asked Employment Law Questions and Answers. If you’d like to receive a copy of this memorandum, please contact Attorney Ben Lowenthal at  bsl@hpsslaw.com. 

Below provides valuable information to assist with questions contractors have asked concerning potential job delays, delays in obtaining materials, inability to staff a job as originally contemplated, supply chain disruption, unexpected and substantial price increases and other potential cost impacts resulting from the COVID-19 pandemic with regard to ongoing and upcoming projects.  This section also provides you with some pertinent contract provisions.

Potential delays in commencement and completion of the work due to the COVID-19 pandemic may result from, among other things, workers being ill and/or quarantined and disruption in the supply chain causing slow or suspended production or delivery of materials and/or equipment.  Delays directly due to the COVID-19 pandemic should be classified legally as “excusable”  delays under force majeure clauses or other clauses that deal with delays beyond the reasonable control of the contractor.  Such clauses usually require you to provide timely written notice of the event causing the delay and information as to how the unexpected event beyond your control is impacting your ability to perform the contracted work.  The standard American Institute of Architects (AIA) Document A201TM – 2017 General Conditions of the Contract for Construction contains the following provisions:

§ 8.3 Delays and Extensions of Time

§ 8.3.1 If the Contractor is delayed at any time in the commencement or progress of the Work by (1) an act or neglect of the Owner or Architect, of an employee of either, or of a Separate Contractor; (2) by changes ordered in the Work; (3) by labor disputes, fire, unusual delay in deliveries, unavoidable casualties, adverse weather conditions documented in accordance with Section 15.1.6.2, or other causes beyond Contractor’s control; (4) by delay authorized by the Owner pending mediation and binding dispute resolution; or (5) by other causes that the Contractor asserts, and the Architect determines, justify delay, then the Contract Time shall be extended for such reasonable time as the Architect may determine.

§ 8.3.2 Claims relating to time shall be made in accordance with applicable provisions of Article 15.

§ 8.3.3 This Section 8.3 does not preclude recovery of damages for delay by either party under other provisions of the Contract Documents.

Even if you have an existing contract that does not contain a force majeure clause, you should still be certain to give timely notice to your customer if and when your performance of the contract is delayed or adversely affected by the COVID-19 pandemic.  We recommend you proceed in the same manner as if you were encountering any unforeseeable condition and requesting a change order for additional time and an adjustment to the contract sum in accordance with the contract provisions dealing with changes and claims.

Force majeure provisions typically allow for additional time, but not necessarily additional compensation. In addition, price increases in materials cannot normally be passed on to the customer in the absence of an explicit contract provision.  Therefore, you will want to include provisions in your contracts to address the potential adverse impacts caused by COVID-19.

What should you do with respect to existing contracts?  

You should review the contract to determine if it contains a force majeure clause and follow whatever notice and other requirements are stated in the contract.  You should give written notice as soon as and whenever you experience a delay or condition that is beyond your control and will adversely impact your work.  You may be required to provide specific information about the delay, such as information about products you are unable to obtain or the number of workers who are ill and/or quarantined.  If you anticipate seeking compensation for additional costs resulting from force majeure-type events, you will also need to provide notice and detailed information regarding the additional costs.

You should also review your contracts for other provisions that may allow you to recover additional costs (e.g., if the owner suspends the project, you may have a provision that explicitly allows additional time and compensation for additional costs incurred due to the suspension). Because there are so many unknowns with the COVID-19 pandemic, you should provide updated written notices about the types and length of delays and additional costs incurred as more information becomes available.

Even if you have an existing contract that does not include provisions to deal with such delays or additional costs, contractors should give written notice of the impacts to your scope of work, schedule and price. Certainly, contractors should give prompt written notice of material price escalation and delay or unavailability of products.

For projects where a contract has not yet been executed, you will want to take a pro-active approach in formulating the contract.  You will want to propose and insert contract provisions to address delays and increased costs resulting from the COVID-19 pandemic.  We have drafted two contract provisions for your consideration.

This first provision is a force majeure clause which allows the contractor additional time and potentially additional compensation if the contractor cannot perform work obligations as prescribed in the contract due to COVID-19: 

Force Majeure – Coronavirus Disease 2019 (“COVID-19”)

The parties acknowledge that the potential effects of the coronavirus disease (“COVID-19”) pandemic on the construction industry and the performance of construction projects are not yet fully known and are beyond the control of the parties.  The effects of this pandemic may adversely affect the contractor’s workforce, the supply chain for materials, the delivery of materials and/or otherwise adversely impact the contractor’s ability to perform as planned, causing delays in the prosecution and completion of the work and the project.  The parties agree that delays resulting from the effects of the COVID-19 pandemic are beyond the control of the parties, and if such delays occur, the contractor will be granted a reasonable extension of time and an equitable adjustment in the contract amount for the additional costs incurred by contractor resulting from the COVID-19 pandemic.  Contractor shall give owner/general contractor written notice of delay it experiences due to the COVID-19 pandemic and any additional costs it incurs due to such delay.

The second provision is to provide for an increase in the contract sum if the price of materials increases substantially due to COVID-19:

Price Volatility and Increased Costs Due to COVID-19:

The parties acknowledge that some of the materials and products to be used and installed in the construction of this project may become unavailable, delayed in shipment and/or subject to price increases due to circumstances beyond the control of the contractor, including the COVID-19 pandemic.  If a specified product is unavailable or shipment is delayed, contractor shall provide written notice and shall be afforded additional time and substitute products may be considered.  If there is an increase in price of materials, equipment or products between the date of this contract and the time when the job is ready for the installation of the affected material, the amount of this contract shall be increased to reflect the additional cost to obtain the materials, provided that the contractor gives the owner/general contractor written notice and documentation of the increased costs.

With the global impacts of the COVID-19 pandemic, we hope that owners, general contractors, and subcontractors will work together to navigate and fairly deal with all of the impacts of this pandemic. 

The above information is not a substitute for having an attorney review and provide advice regarding contracts and does not constitute legal advice. 

If you have questions about this information, please contact either Leanne Prybylski, Stephen M. Phillips or  Philip J. Siegel of  Hendrick, Phillips, Salzman & Siegel at (404) 522-1410 or via e-mail at clp@hpsslaw.com, smp@hpsslaw.com or pjs@hpsslaw.com.

Department of Labor Notice Poster

The Department of Labor issued a notice poster for employers to display pursuant to the new paid sick leave requirements under the Families First Coronavirus Response Act. The poster is available via the Department of Labor's website and can be downloaded here. 

The DOL also provides answers to frequently asked questions about the posting requirement here. 

As mentioned in our prior e-blast on the new paid sick leave requirements, all employers with fewer than 500 employees must display this poster in a conspicuous place in the employer's main office.

Since many employees are teleworking and are working out of the office, the Department of Labor is allowing employers to satisfy this notice requirement by emailing or direct mailing this notice to employees or posting this notice on an employee information internal or external website.

To satisfy the posting requirements, we recommend construction contractors send out an email with the poster to all current employees and, when possible, affix the poster where all other required notices are customarily kept.

Construction Hall Pass

We are hearing reports of construction employees being pulled over by police in jurisdictions subject to stay-at-home orders.

We prepared a Hall Pass for use by your employees, which you can access by clicking here. 

Please do not hesitate to call or email us with any additional questions you may have. We will be here for you throughout this pandemic. Stay safe.

Webinar: COVID-19 Information for Roofing Contractors

On 4/14/20, the attorneys from Hendrick, Phillips, Salzman & Siegel presented a webinar for the Georgia Roofing Contractors Association to cover COVID-19 topics and questions relevant to Roofing Contractors. From HPSS Law, Stephen Phillips addressed Construction and Contract Issues, Philip Siegel focused on Employment Issues and Scott Calhoun concentrated on Financial Assistance Programs and Corporate Issues.

Download: View transcripts and listen to audio of 4/14/20 HPSS Webinar

WEBINAR: ANSWERING QUESTIONS CONCERNING COVID-19 AND FAMILIES FIRST CORONAVIRUS RESPONSE ACT

On 3/27/20, the attorneys from Hendrick, Phillips, Salzman & Siegel presented a one-hour webinar to answer the most frequently asked questions concerning COVID-19, the new paid sick leave requirements under the Families First Coronavirus Response Act, and stay-in-place orders impacting construction contractors.

Download: View transcripts and listen to audio of 3/27/20 HPSS Webinar

PODCAST: The Roofer Show EPISODE #158 – "Families First Coronavirus Response Act: What You Need To Know"

Listen to Podcast 

PODCAST: The Roofer Show EPISODE #159 – "CASH IS KING: HOW TO GET PAID!"

Listen to Podcast