With the number of reported cases of coronavirus (COVID-19) increasing, the governors of Pennsylvania, New Jersey, New York, and Delaware, among others, continue to increase social distancing measures to reduce the spread of the virus. Updated executive orders and related guidance seems to be issued almost hourly. With the constant barrage of updates and changes in directives, it is difficult for contractors and other stakeholders in the construction industry to keep apprised of the current status of their projects. To assist contractors in navigating this unprecedented and uncharted territory, a summary of the current status of various executive orders and directives in place in the Mid-Atlantic region is provided below.
Pennsylvania
On March 19, 2020, Governor Wolf issued an executive order requiring all businesses that are not “life-sustaining” to shut down. Under initial guidance, all construction was considered not life-sustaining and was required to cease operations. Since that time, Governor Wolf relaxed restrictions on the construction industry, albeit slightly. While construction remains classified as not life-sustaining, the Governor has implemented exceptions for “emergency repairs” and for the “construction of health care facilities.” Additionally, enforcement of the Governor’s order was delayed from Saturday, March 21 to Monday, March 23rd, effective at 8:00 AM.
On Sunday, March 22, the City of Philadelphia issued a “stay-at-home” order, which takes effect at 8:00 AM on Monday, March 23, and remains in effect until further notice. Additionally, Governor Wolf issued a stay-at-home order for Allegheny, Bucks, Chester, Delaware, Monroe, and Montgomery Counties, effective at 8:00 PM on March 23. The stay-at-home requirements do not apply to essential business or essential personal activities as previously set forth by the Governor and the Mayor of Philadelphia. The Philadelphia Mayor’s office also made clear that the order does not limit previous guidance given by the City’s Department of Licenses and Inspections, which allows construction activities to continue until 5:00 PM on Friday, March 27, but only where continued work may help secure the project site or prevent unnecessary property damage. The General Building Contractors Association provides guidelines for the operations to cease or suspend all construction activities.
New Jersey
On March 21, Governor Murphy entered an order closing all businesses in the State of New Jersey with some limited exceptions, including construction, construction-related activities, utility work, and repair work. As a result, contractors may continue their physical construction activities in New Jersey. The Governor also mandated that all New Jersey residents remain in their homes until further notice. The shelter-in-place order has certain exceptions, such as seeking medical attention, securing essential goods and services, and engaging in outdoor exercise activities. In addition, the Governor mandated that all for-profit and not-for-profit entities, where practicable, must accommodate their workforce with remote working arrangements. The Governor’s March 21 direction supersedes all local government orders.
New York
Effective Sunday, March 22 at 8:00 PM, Governor Cuomo ordered the closure of all non-essential businesses in the State of New York. Construction continues to be identified as an essential business in New York. Therefore, contractors are exempt from the statewide shutdown and may continue field operations. Any management, office, or support staff necessary to support essential construction operations are considered exempt as well.
Delaware
As of 8:00 AM on Tuesday, March 24, all residents of Delaware are to remain in their homes except for essential activities, until May 15th or until the public health threat is lifted by order of Governor Carney. Similarly, the Governor ordered all nonessential businesses to close. The Governor’s guidance makes clear that construction remains an essential industry, and thus, projects may continue unabated.
Maryland
On Monday, March 23, Governor Hogan issued an executive order, which mandates the closure of all non-essential businesses, establishments, and facilities in Maryland, effective at 5:00 PM on March 23. The Governor also suggested that all residents stay at home and that employers should promote work-from-home arrangements to the greatest extent possible. The Maryland Office of Legal Counsel issued interpretive guidance that provides a non-exhaustive list of businesses that are deemed essential. Under that guidance, Maryland has exempted many businesses in critical infrastructure sectors, including all commercial and residential construction companies, plumbers, electricians, mechanical service contractors, roofers, and landscapers. Consequently, construction projects in Maryland may maintain course and continue field operations.
Washington, DC and Virginia
While the Governor of Virginia and the Mayor of Washington, DC have issued orders limiting public gatherings and events and are encouraging social distancing, their orders are much less restrictive than those issued by their neighboring governors to the north. To date, Washington, DC and Virginia have not closed non-essential businesses as in Pennsylvania, New Jersey, New York, Delaware, and Maryland. As such, construction continues and contractors may continue their operations both in the field and at the office.
Conclusion
Details surrounding COVID-19 continue to unfold day-by-day, hour-by-hour, and even minute-by-minute. These ever-changing circumstances present many novel questions for contractors, suppliers, and owners alike. Questions like:
- Can my construction project continue?
- Can I obtain an exemption to a shut-down order for my business?
- Who bears responsibility and liability for delays? Disruptions? Increased costs?
- What do I need to do to ensure the safety of my employees?
- Should I update my safety manual?
- Should my office employees be telecommuting?
As you navigate these uncertain waters, be proactive, not reactive. Seek legal counsel now rather than later to best protect yourself, your employees, and your business from the unwanted effects of coronavirus.
