Under the updated guidance, most on-site construction work is now considered nonessential and is subject to a 100 percent workforce reduction.
As the COVID-19 pandemic rages on, many states are implementing increasingly strict measures to prevent further spread of the virus. These measures include travel restrictions, extended school closures and requirements that individuals stay at home except as necessary to provide certain essential business and government services. Until recently, New York state considered construction to be an essential business, as outlined in Governor Andrew Cuomo’s Executive Order 202.6.
In the wake of pressure from various labor organizations and community groups, however, Governor Cuomo issued Executive Order 202.13, dated March 29, 2020. The new Executive Order states, in pertinent part, as follows:
Executive Order 202.6 is hereby modified to clarify that construction which was an essential service not subject to the in-person work restrictions is modified to provide only certain construction is considered exempt from the in-person restrictions as of March 28, 2020.
Executive Order 202.13 further empowers Empire State Development Corporation, New York’s chief economic development agency, with the authority to determine which construction projects are essential in accordance with guidance developed by the agency. Empire State Development Corporation issued updated guidance concerning the definition of essential businesses on March 27, 2020. Under the updated guidance, most on-site construction work is now considered nonessential and is subject to a 100 percent workforce reduction.
The updated Empire State Development Corporation guidance states that all nonessential construction must shut down, excepting only emergency construction. Emergency construction is defined as “a project necessary to protect the health and safety of the occupants, or to continue a project if it would be unsafe to allow it to remain undone until it is safe to shut the site.”
Emergency construction may be broadly interpreted to include, for example, the completion of:
- Support of excavation work necessary to protect the stability of adjacent properties and other structures that, if left unprotected by open excavation activities, are at risk of settlement or collapse;
- Certain exterior components of occupied buildings such as roofing and windows that, if left incomplete, may cause water damage;
- Mechanical, electrical and plumbing work in occupied buildings necessary to maintain proper health, safety and sanitary conditions therein; and
- Site fence installations and other safety barriers necessary to ensure security of a construction site for the duration of a shutdown.
Contractors working on projects that do not qualify as essential under the updated guidance should take immediate steps to wind down all work and ensure that sites are safe and secure, in compliance with all applicable legal requirements. No new work should be commenced or installed unless it constitutes emergency work.
Essential construction projects are permitted to remain open under the updated Empire State Development Corporation guidance. Such projects include roads, bridges, transit facilities, utilities, hospitals or healthcare facilities, affordable housing and homeless shelters.
At all project sites that remain open, whether the ongoing construction is essential or emergency nonessential, measures must be put into place to ensure workers maintain social distance. This is especially important in elevators and entry and exit from the project site. Project sites that cannot maintain social distance and best safety practices must close.
Enforcement of this provision will be provided by the state in coordination with city and local governments, and will include fines of up to $10,000 per violation.
Businesses that believe they are incorrectly classified as nonessential under the updated Empire State Development Corporation guidance may apply for an essential business designation via an online form available on the Empire State Development Corporation website.
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Duane Morris has created a COVID-19 Strategy Team to help companies plan, respond to and address this fast-moving situation. Prior Alerts on the topic are available on the team’s webpage.
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If you have any questions about this Alert, please contact Meghan DiPerna, Kenneth H. Lazaruk, Brian A. Shue, any of the attorneys in our Construction Group, members of the COVID-19 Strategy Team or the attorney in the firm with whom you are in regular contact.
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