PUBLIC ACTION
MATRIX

As the coronavirus pandemic continues to evolve, P&A’s COVID-19 Task Force is aware that the law is changing rapidly and new legislation is continuing to be passed. To keep track of all COVID-19 federal and state Executive Orders, legislation and related orders, we have developed a Coronavirus/COVID-19 Public Action Matrix to keep you up to date with the latest developments.

Each link within the Matrix links to the most relevant information we have identified, including a copy of the order or guidance, a short summary of the legislation, links to the government website, as well as links to any additional guidance and related P&A Client Alerts.

We will continue to update this page with all the latest developments as we identify them.

DHS – CISA Guidance

DHS-CISA Memo and Guidance - March 28 2020

The Department of Homeland Security Cybersecurity and Infrastructure Agency (“CISA”), issued Guidance on the Essential Critical Infrastructure Workforce, originally published March 19, 2020 and later updated on March 28, 2020 (“CISA Guidance”). During the COVID-19 response, State and local governments have the power to execute and enforce response activities, while the Federal Government performs a supporting role. The purpose of the CISA Guidance is, “[to assist] State, local, tribunal, and territorial jurisdictions and the private sector on defining essential critical infrastructure workers.” However, each jurisdiction is encouraged to consider additional public health measures unique to its community, and can add or eliminate sectors necessary to maintain critical infrastructure. Therefore, CISA’s guidance is not binding – it is merely a recommendation that state and local governments should consider. It should not be considered a federal directive.

CISA recommends that state and local government consider employees working within identified sectors to be critical and allowed to go to work. Even though construction itself is not listed as its own sector, to the extent a construction project may be critical to support one of the sectors identified by CISA, it arguably can fall within the sector and be permitted to continue during the jurisdiction’s COVID-19 response. CISA identifies 16 sectors that are considered critical and “have a special responsibility in these times to continue operations.” If your work falls within the 16 identified sectors, CISA considers your work to be part of an essential critical infrastructure workforce.  However, as noted above, it will ultimately be the state and local government that will make this determination for state, local, and commercial construction projects.

To the extent a state or locality’s stay at home order references the CISA Guidance without additional clarification, you will need to review the sectors to see if your project falls within one of the sectors. Whether your work or your subcontractor’s work may continue should be determined on a project-by-project basis. You should request direction from your owner.

Of the 16 identified sectors in the CISA Guidance, the sectors considered critical infrastructure work directly related to construction are:

1. Energy – This work includes:

– Supporting the construction of renewable energy infrastructure;

– Maintaining, ensuring, or restoring the generation, transmission, and distribution of electric power; or

– New or current construction projects supporting the petroleum industry, or the natural gas, natural gas liquids, propane and other liquid fuels industry, including pipeline construction, and platform and drilling construction and maintenance.

2. Water and Wastewater – Work that involves, “repairing water and wastewater conveyances and performing required sampling or monitoring, including required field staff” to support such operations.

3. Transportation and Logistics – Contractors “supporting transportation of chemicals, hazardous, medical, and waste materials to support critical infrastructure, capabilities, functions, and services, including specialized carriers, crane and rigging industry workers.”

4. Public Works – This work includes:

– “Support[ing] the operation, inspection and maintenance of essential public works facilities and operations, including bridges, water and sewer main breaks, fleet maintenance personnel…traffic signal maintenance, emergency location services for buried utilities, maintenance of digital systems infrastructure supporting public works operations, and other emergent issues”;

– “Support[ing] the operation, inspection and maintenance of essential dams, locks and levees”;

– Construction of critical or strategic infrastructure;

– Temporary construction required to support COVID-19 response;

– Providing “[w]orkers, 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”;

– Providing “support, such as road and line clearing to ensure the availability of needed facilities, transportation, energy and communications”;

– Providing support to ensure effective removal of solid waste and hazardous materials;

– “Support[ing] the inspection and maintenance of aids to navigation, and other government provided services that ensure continued maritime maintenance.”

5. Communications and Information Technology – This work includes:

– Work related to undersea cable infrastructure and support facilities;

– Supporting Department of Defense internet and communication facilities;

– Engineers, technicians and associated personnel responsible for infrastructure construction and restoration

6. Critical Manufacturing – This work includes the manufacturing of metals, industrial materials, and semiconductors to support certain critical infrastructure sectors.

7. HazMat – This work includes supporting hazardous materials response and cleanup.

8. Defense Industrial Base – This work includes:

– “Support[ing] the essential services required to meet national security commitments to the federal government and U.S. Military”, including, aerospace; mechanical and software engineers, manufacturing/production workers; IT support; security staff; security personnel; intelligence support, aircraft and weapon system mechanics and maintainers; or

– Contractors, including their subcontractors, who perform under contract to the Department of Defense providing materials and services to the Department of Defense, and government-owned/contractor- operated and government-owned/government-operated facilities.

9. Commercial Facilities – This sector entails those, who support the supply chain of building materials from production through installation, workers in hardware and building material stores, and workers distributing, servicing, repairing and installing HVAC systems, boilers, furnaces, and other heating, cooling, refrigeration, and ventilation equipment.

10. Residential/Shelter Facilities and Services – This work includes construction projects related to combating the country’s existing housing supply shortage, and construction of residential housing.

While this list above is not meant to be considered an exhaustive list, it encompasses workers and industries that perform a function “essential to continued critical infrastructure viability.” Even if your work falls within a critical infrastructure, you must still follow CDC and OSHA guidance to limit spread of the virus. Construction work by its nature cannot be performed remotely – even so, you should work with your project management team to determine if there are measures that can be taken to ensure social distancing.

DHS-CISA Memo and Guidance - March 28 2020
DHS-CISA Memo and Guidance - March 28 2020

OFCCP

The U.S. Dept. of Labor Office of Federal Contract Compliance Program (“OFCCP”) issued a Memorandum regarding Contracts for Coronavirus Relief Efforts, dated March 17, 2020 (“Memorandum”). In this Memorandum, OFCCP stated it has granted a limited exemption and waiver from certain affirmative action obligations under EO 11246, Section 503 of the Rehabilitation Act and Section 42412 of the Vietnam Era Veterans’ Readjustment Assistance Act, which require federal agencies to include certain equal opportunity clauses in covered construction contracts. However, this exemption and waiver described in the Memorandum does not apply to processing complaints of discrimination.

DOL - OFCCP Contracts for Coronavirus Relief Efforts
DOL - OFCCP Contracts for Coronavirus Relief Efforts

OMB (Office of Management and Budget)

OMB Issues Guidance on Managing Government Contract Performance Issues

On March 20, 2020, the Office of Management and Budget (“OMB”) issued a Memorandum to the Heads of Executive Departments and Agencies on Managing Federal Contract Performance Issues Associated with the Novel Coronavirus (COVID-19).  The Memorandum, as well as the attached Questions and Answers (“Q&As”), provides some useful guidance on how Contracting Officers should deal with their contractors.

Teleworking. OMB is urging the executive agencies to permit contractors to telework wherever possible.  OMB notes that the Government’s telework law and recent announcements only cover federal employees, not contractors or their employees.  Contractors are governed by their contracts as well as their own telework policies.  OMB recommends that contracts that do not allow telework be modified to permit teleworking where possible.  Where teleworking is not possible, OMB advises the agencies that they should be flexible on delivery schedule contract completion dates.

Contract Extensions. OMB is urging the executive agencies to be flexible in providing time extensions if telework or other flexible work solutions are not possible or if a contractor cannot timely perform due to quarantining, social distancing, or other COVID-19 related interruptions.  The Memorandum notes that there are various FAR clauses that provide for excusable delays, which may extend to quarantine restrictions due to exposure to COVID-19.  Epidemics and quarantine restrictions are listed as examples of excusable delay in these clauses.

Continuing Repair Work in Federal Buildings. One of the Q&As asks whether repair work in federal buildings that are closed to the general public should continue.  OMB’s position is that this question should be addressed on a case-by-case basis, taking into consideration the health and safety of government and contractor employees.  The parties should give consideration to guidance issued by the CDC and local public health officials to determine if there is a risk-based reason to stop work and, if work continues, steps that might need to be taken to address the health and safety of workers.

Equitable Adjustments Due to COVID-19 Safety Measures.  Another of the Q&As asks how the executive agencies should deal with requests for equitable adjustment for costs associated with implementing safety measures and performance disruptions caused by the Government (e.g., closure of an office building) when telework is not possible.  OMB’s position is that requests for equitable adjustment should be considered on a case-by-case basis taking into account, among other things, whether the costs are allowable and reasonable to protect the health and safety of contractor employees.  One factor is whether the contractor took actions consistent with the CDC guidance and whether the contractor discussed the actions with the Contracting Officer.

Managing Federal Contract Performance Issues Associated with the Novel Coronavirus (COVID-19) (OMB)
https://www.whitehouse.gov/...

California

California State Executive Order N-33-20

On March 19, 2020, Governor Gavin Newsom issued Executive Order N-33-20 directing all residents to stay home until further notice, except as necessary to maintain continuity of operations of federal critical infrastructure sectors and additional sectors designated as critical to protect Californian’s health and well-being. On March 21, 2020 Governor Newsom clarified that local governments are allowed to enforce tighter restrictions, but the state-wide order superseded any less stringent requirements.

Governor Newsom’s office has provided a nearly 14-page list of businesses and workers that are considered essential under the state’s order. Those involving construction include, but may not be limited to:

Workers who support the operation, inspection, and maintenance of essential public works facilities and operations, including bridges, water and sewer main breaks, fleet maintenance personnel, construction of critical or strategic infrastructure, construction material suppliers, traffic signal maintenance, emergency location services for buried utilities, maintenance of digital systems infrastructure supporting public works operations, and other emergent issues;

Engineers, technicians and associated personnel responsible for infrastructure construction and restoration, including contractors for construction and engineering of fiber optic cables;

Construction Workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing construction); and

Workers such as plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, construction material sources, and essential operation of construction sites and construction projects (including those that support such projects to ensure the availability of needed facilities, transportation, energy and communications; and support to ensure the effective removal, storage, and disposal of solid waste and hazardous waste).

https://covid19.ca.gov/img/...

Florida

Florida Executive Order 20-91 April 1, 2020

April 1, 2020, Florida Governor Ron DeSantis issued Executive Order (“EO”) 20-91, implementing a statewide stay-at-home order.  EO 20-91 requires that all Floridians, especially senior citizens and individuals with significant underlying health/medical conditions, stay at home and take all measures to limit the risk of exposure to COVID-19.  In addition, all persons in Florida shall limit their movements and personal interactions outside of their home to only those necessary to obtain or provide essential services or conduct essential activities.

Essential Services means and encompasses the list detailed by the U.S. Department of Homeland Security in its Guidance on the Essential Critical Infrastructure Workforce and includes those businesses and activities designated by Executive Order 20-89 and Miami-Dade County Mayor Carlos Gimenez’ Emergency Order 07-20, which is incorporated into EO 20-91.  Other Essential Services may be added under the EO and shall be updated on the Division of Emergency Management’s website at www.floridadisaster.org and the Florida Department of Health’s website at www.floridahealth.gov.

Businesses considered essential include, but are not limited to:  (1) Contractors and other tradesmen…who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences and other structures; (2) open construction sites, irrespective of the type of building; (3) architectural, engineering, or land surveying services; (4) factories, manufacturing facilities, bottling plants, or other industrial uses; and (5) businesses that supply other essential businesses with the support or supplies necessary to operate, and which do not interact with the general public.

Essential activities include: those that are necessary for the operation of essential business and or participation in essential services, including but not limited to:  (1) attending religious services conducted in churches, synagogues, and houses of worship; (2) participating in recreational activities (consistent with social distancing guidelines) such as walking, biking, hiking, fishing, hunting, running, or swimming; (3) taking care of pets; and (4) caring for or otherwise assisting a loved one or friend.  Social gathering in a public place is not an essential service and groups of people greater than ten are not permitted to congregate in any public space.  Social distancing guidelines are still in place.

EO 20-91 becomes effective at 12:01 am on April 3, 2020 and shall expire on April 30, 2020 unless extended by a subsequent order.  All previous Executive Orders remain in effect.

Florida Executive Order 20-91
Florida Executive Order 20-91

Florida State Executive Order 20-83

While on March 24, 2020, Governor Ron DeSantis issued executive order No. 20-83 directing the State Surgeon General and State Health Officer to issue an advisory urging people over 65 or with preexisting health conditions to stay home and otherwise limit their risk of exposure and urging all people to work from home when possible and not to congregate in groups of 10 or more, he has stopped short of issuing a shelter in place order.

However, Carlos Gimenez, the County Mayor of Miami-Dade County instituted Emergency Order 7-20, effective as of 9:00 p.m. on March  19, 2020 until the expiration of the existing Miami-Dade County State Local Emergency, as potentially extended, closing all non-essential retail and commercial establishments. Considered essential are: i) contractors and other tradesmen… who provide service that are necessary to maintaining the safety, sanitation, and essential operation of residences and other structures; ii) open construction sites, irrespective of the type of building; and iii) architectural, engineering, or land surveying services. While the order does not generally limit the number of persons who may be physically present while performing essential business, employers and employees are urged, but not required, to practice social distancing, including keeping six feet between persons and limiting groups to less than ten people.

On March 24, 2020 Mayor Gimenez also issued Emergency Order 10-20 which provides that essential commercial and retail establishments should continue to observe the Centers for Disease Control and Prevention’s social distancing guidelines of keeping six feet between persons and that failure to consistently observe same shall subject the establishment to closure. In addition, the Order urges individuals to remain home unless engaging in essential activities, including, travel to or from essential businesses and to attempt to observe social distancing guidelines.

Florida 20-83
https://www.flgov.com/wp-content/...

Illinois

Illinois State Executive Order 2019-08

On March 20, 2020, Governor Pritzker issued COVID-19 Executive Order No. 8 requiring non-essential businesses and operations in the State to cease all activities within the state except Minimum Business Operations and telecommuting.

Essential operations, which are allowed to proceed, include the provision of services or performance of work necessary to offer, provide, operate, maintain and repair Essential Infrastructure. Construction, including, but not limited to, construction required in response to this public health emergency, hospital construction, construction of long-term facilities, public works construction, and housing construction is considered part of Essential Infrastructure. Essential Infrastructure is construed broadly to avoid any impacts to essential infrastructure, broadly defined.

This Order was extended to April 30, 2020 by Illinois State Executive Order 16 (COVID-19 Executive Order No. 14).

Illinois State Executive Order 2019-08
Illinois State Executive Order (COVID-19 Executive Order No. 14)
https://www2.illinois.gov/Pages/government/...

Maryland

Maryland Executive Orders and Guidance as of March 30, 2020

On March 23, 2020, Governor Lawrence Hogan issued Executive Order No. 20-03-23-01 closing all businesses, organizations, establishments and facilities that are not part of the critical infrastructure sectors identified by the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (“Non-Essential Businesses”). Pursuant to the interpretative guidance issued by Governor Hogan’s Office of Legal Counsel, commercial and residential construction companies may remain open.

On March 30, 2020, Governor Hogan issued Executive Order No. 20-03-30-01 amending the March 23rd Order. This new Order requires all persons in the State to stay in their homes as of 8:00 p.m. on March 30th, except to conduct or participate in Essential Activities or to perform work in businesses that are not required to close. Construction remains a critical infrastructure activity which may remain open, according to interpretative guidance COVID19-04 issued by Maryland on March 23, 2020.  Maryland issued further guidance in COVID19-08 regarding documentation required for workers travelling to essential businesses. This order specified the form of travelling documentation the worker should carry, and clarified that workers residing out of state are permitted to travel into Maryland to their regular place of employment.

Maryland Guidance COVID19-08
Maryland Guidance COVID19-04
Maryland Guidance COVID19-08
Maryland Guidance COVID19-04

Maryland State Executive Order 20-03-23-01

The Governor of Maryland issued an Executive Order on March 23, 2020. Md. Exec. Order No. 20-03-23-01 (March 23, 2020). This Order mandates non-essential businesses to close. Id. If a businesses is not considered part of the critical infrastructure sector as defined by the CISA Guidance, then it is a non-essential business and must close to the public by close of business on March 23, 2020. Id. The Office of Legal Counsel of the Governor’s Office issued two letters providing Interpretive Guidance. The first letter issued on March 23, 2020 by the Office of Legal Counsel (“Initial Interpretative Guidance”), expressly provides that commercial and residential construction companies as part of the commercial facilities sector are performing critical infrastructure work. Interpretative Guidance, State of Md., (last visited March 23, 2020).  Additionally, “[c]ompanies that sell supplies and materials for maintenance of commercial and residential buildings, including…plumbing distributors, electrical distributors, and HVAC distributors” are not required to close.

The Office of the Legal Counsel issued a second letter providing Interpretative Guidance on March 23, 2020 (“Additional Interpretative Guidance”), which lists additional businesses that are not required to close under the recently issued Order. This Additional Interpretative Guidance states that, “[c]ompanies that provide portable tents, portable flooring, portable lighting, portable toilets, portable handwashing stations, portable HVAC and other related equipment” and “[c]ompanies that rent tools and/or equipment” are not required to close. Therefore, this recently issued Order does not require our clients, performing construction work or providing certain construction supplies, to close or cease operations in the State of Maryland. Id. The State of Maryland’s website clarified that if a business is permitted to operate then it must follow CDC’s health protocols, such as social distancing, and “do everything in [their] power to prevent groups of 10 or more people from congregating in one area.” Maryland’s COVID-19 Business Response, State of Md., (last visited March 23, 2020).

The State of Maryland enacted the COVID-19 Public Health Emergency Protection Act of 2020 (“MD COVID-19 Act”). COVID-19 Public Health Emergency Protection Act of 2020 (2020).[1] The MD COVID-19 Act empowers the Governor of the State of Maryland to take actions that may effect the construction industry including an “employer’s actions”. Id. More specifically, “[t]he Governor may prohibit an employer from terminating an employee solely on the basis that the employee has been required to be isolated or quarantined.” Id.

[1] This bill was recently signed by the Governor on March 19, 2020. Only the House Bill and Senate Bill are available as of March 20, 2020.

Maryland State Executive Order 20-03-23-01
https://governor.maryland.gov/...

Massachusetts

Massachusetts Essential Services Extension Order March 31, 2020

On March 31, 2020 Governor Baker issued an Essential Services Extension Order extending his March 23, 2020 Order requiring all non-essential businesses and operations to close their physical workspaces and facilities until May 4, 2020.

Pursuant to the Massachusetts’ government’s website “construction generally is allowed to continue if it is essential infrastructure or is related to essential products, services and supply chain in COVID-19 relief efforts. Work may also proceed if it is needed for the operation or maintenance of an existing building, is expressly permitted within the exemption for a specific essential industry, or involves the production of new housing units.” 

This Order is at odds with orders in Boston, Cambridge and Somerville which have required a moratorium on all construction, with some limited exceptions. It is not yet clear whether cities; orders overrule the State’s.

Massachusetts Essential Services Extension Order March 31, 2020
Massachusetts Essential Services Extension Order March 31, 2020

Massachusetts State Executive Order

On March 23, 2020, Governor Charlie Baker issued COVID-19 Order No. 13 requiring all non-essential businesses and operations to close their physical workspaces and facilities from March 24 at Noon until April 7 at Noon. Essential businesses are permitted to continue operation of brick and mortar facilities but are urged to follow social distancing protocols. Construction workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing construction) are considered essential under Governor Baker’s Order. The following individuals are also considered essential employees:

Workers who support the operation, inspection, and maintenance of essential public works facilities and operations, including roads and bridges, water and sewer main breaks, fleet maintenance personnel, construction of critical or strategic infrastructure, traffic signal maintenance, emergency location services for buried utilities, maintenance of digital systems infrastructure supporting public works operations, and other emergent issues;

Workers – including contracted vendors – involved in the construction of critical or strategic infrastructure including public works construction, airport operations, water, sewer, gas, electrical, nuclear, oil refining and other critical energy services, roads and highways, public transportation, solid waste collection and removal, and internet, and telecommunications systems (including the provision of essential global, national, and local infrastructure for computing services);

Workers such as plumbers, electricians, exterminators, inspectors and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, construction sites and projects, and needed facilities;

Engineers, technicians and associated personnel responsible for infrastructure construction and restoration, including contractors for construction and engineering of fiber optic cables.

Massachusetts State COVID-19 Order 13
https://www.mass.gov/doc/...

New Jersey

New Jersey Executive Order 107

On March 21, 2020, Governor Phil Murphy signed Executive Order No. 107, closing physical locations of all non-essential retail businesses from March 21 at 9 p.m. until further notice. Unlike stop work orders in many other states, including New York, businesses in New Jersey that are not retail may continue to operate but must accommodate telework or work-from-home arrangements wherever practicable. Notably, construction workers have specifically been identified in the Executive Order as employees who need to be present at their work site in order to perform their job duties. However, staff must be reduced to the minimal number necessary to ensure the continuation of critical operations.

New Jersey Executive Order 107
https://nj.gov/infobank/eo/...

New Jersey Executive Order 108

Implemented simultaneously with Executive Order No. 107 is Executive Order No. 108, which invalidates any restriction implemented by a county, municipality, agency or political subdivision that in any way will or might conflict with any of Governor Murphy’s executive orders, including Executive Order No. 107.

New Jersey Executive Order 108

New York

NYS EO 202.13

On March 30, 2020, Governor Cuomo issued Executive Order No. 202.13 amending prior Executive Order 202.6.  Executive Order No. 202.6 is now modified to provide that as of March 28, 2020 only “certain construction”, as determined by the Empire State Development Corporation, is considered exempt from the in-person restrictions. Additionally, under 202.6 all projects which are permitted to continue must utilize best practices to avoid transmission of COVID-19.  Before this modification, 202.6 designated “construction” as an essential business and authorized the Empire State Development Corporation to issue guidance as to which businesses are essential, but now only “certain construction” is considered essential.   Notably, the originally EO 202.6 required all non-essential businesses to achieve a 50% reduction in their in-person work force, and pursuant to subsequent Executive Orders the work force reduction has been further reduced to 100%.

NYS EO 202.13
NYS EO 202.13

Update: March 27, 2020

Update: March 27, 2020

On March 18, 2020, New York Governor Cuomo issued Executive Order 202.6 which required all non-essential businesses to maximize telecommuting and work-from-home programs and achieve a 50% reduction in their in-person work force. That order designated “construction” as an essential business and authorized the Empire State Development Corporation to issue guidance as to which businesses are determined to be essential by 5 pm on March 19, 2010. Executive Order 202.7 expanded the in-person work reduction to 75%. The Empire State Development Corporation then issued guidance identifying construction, including skilled trades such as electricians and plumbers and other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes, as an Essential Business.  Executive Orders 202.7 and 202.8 increased the In-person limitations first to 75% and then to 100%.

On March 27, 2020, the Empire State Development Corporation issued updated guidance. With respect to construction, the guidance states:

– All non-essential construction must shut down except emergency construction, (e.g. a project necessary to protect health and safety of the occupants, or to continue a project if it would be unsafe to allow to remain undone until it is safe to shut the site)

– Essential construction may continue and includes roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing, and homeless shelters. At every site, if essential or emergency non-essential construction, this includes maintaining social distance, including for purposes of elevators/meals/entry and exit. Sites that cannot maintain distance and safety best practices must close and enforcement will be provided by the state in coordination with the city/local governments. This will include fines of up to $10,000 per violation.

– For purposes of this section construction work does not include a single worker, who is the sole employee/worker on a job site.

ESD FAQs Regarding Whether a Business is Subject to a Workforce Reduction
Empire State Development Corporation Guidance on NYS EO 202.6
ESD FAQs Regarding Whether a Business is Subject to a Workforce Reduction

New York State Executive Order 202

New York has become the epicenter of the battle against coronavirus in the United States. As a result, Governor Andrew Cuomo has issued numerous executive orders in an attempt to contain the spread. Such orders include “New York State on PAUSE” (Executive Order 202.10), which Governor Cuomo’s office describes as a 10-point policy to assure uniform safety for everyone. The initial order, which went into effect at 8 p.m. on March 22, 2020, requires all non-essential businesses in the state to close in-office personnel functions.

Businesses that provide essential services or functions are not subject to the in-person restrictions, but are permitted to operate at the level necessary to provide such services or functions. However, such businesses must implement rules that help facilitate social distancing of at least six feet and comply with the Department of Health’s guidance and directives for maintaining a clean and safe work environment.

Governor Cuomo’s office has issued guidance to help businesses determine whether they provide essential services or perform essential functions. Such guidance identifies construction, including skilled trades such as electricians and plumbers and other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes, as an Essential Business.

NYS EO 202.10
https://www.governor.ny.gov/news/...

Ohio

Ohio State Director's Order to Limit and/or Prohibit Mass Gatherings

On March 22, 2020, the Ohio Department of Health issued an order prohibiting gatherings of any size and closing all nonessential businesses from March 23 until April 6 at 11:59 p.m. Individuals may leave their homes to provide services or perform work necessary to offer, provide, operate, maintain and repair Essential Infrastructure. Construction, including, but not limited to, construction required in response to this public health emergency, hospital construction, construction of long-term facilities, public works construction, school construction, essential business construction, and housing construction is considered part of Essential Infrastructure. Essential Infrastructure is construed broadly to avoid any impacts to essential infrastructure, broadly defined.

Ohio State Director's Order to Limit and/or Prohibit Mass Gatherings
https://governor.ohio.gov/wps/portal/gov/governor/...

Pennsylvania

Pennsylvania Stay at Home Order April 1, 2020

On April 1, 202, Governor Wolf issued an Executive Order “For Individuals to Stay at Home.”

Pursuant to the Order, all Pennsylvania residents are ordered to stay at home except as needed to access, support, or provide life-sustaining business, emergency, or government services.

Construction is not considered a life sustaining business except for emergency repairs and construction of health care facilities.

PA Stay at Home Order April 1, 2020
PA Stay at Home Order April 1, 2020
PA Department of Heath Stay at Home Order

Pennsylvania Executive Order and Dept. of Health Stay at Home Order

On March 19. 2020 Governor Tom Wolf ordered all non-life sustaining businesses to cease operations. In addition, on March 23, 2020 the Secretary of Health ordered all persons residing in certain counties to stay at home except as needed to access, support or provide life sustaining business, emergency or government services. The orders have since been modified to add additional counties. The counties currently under this order include: Allegheny, Beaver, Berks, Bucks, Butler, Centre, Chester, Delaware, Erie, Lackawanna, Lancaster, Lehigh, Luzerne, Monroe, Montgomery, Northampton County, Philadelphia County, Pike, Washington, Wayne, Westmoreland, and York. These orders are currently scheduled to be in place until April 6, 2020.

Construction is not considered a life sustaining business except for emergency repairs, construction of health care facilities and those operations necessary to ensure compliance with federal, state or local regulatory requirements. Businesses suspending physical operations must limit on-site personnel to those necessary to maintain critical functions, and follow social distancing and mitigation guidance provided by the Pennsylvania Department of Health and Centers for Disease Control and Prevention.

PA Dept. of Health Stay at Home Order
PA Dept. of Health Stay at Home Guidance
Pennsylvania Executive Order March 19, 2020
PA Dept. of Health Stay at Home Order
PA Dept. of Health Stay at Home Guidance

Texas

Texas Executive Order GA-14 Relating to Statewide Continuity of Essential Services

Our summary on Texas Executive Order GA-14 will be added shortly. Please visit our site frequently for updates.

Texas Executive Order GA-14 Relating to Statewide Continuity of Essential Services
Texas Executive Order GA-14 Essential Services Designation

Texas Executive Order GA 12 Relating to Louisiana Travel

On March 29, 2020, Texas Governor Greg Abbott issued Executive Order GA12, Relating to roadway screening and self-quarantine during the COVID-19 disaster (the “Order”) pursuant to Chapter 418 of the Texas Government Code.

Every person who enters Texas “through roadways from Louisiana” is subject to a mandatory self-quarantine for the shorter of: (1) 14 days from the time of entry; or (2) the duration of that person’s stay in Texas.

As determined by the Texas Division of Emergency Management (“TDEM”), certain people may be exempt if they are traveling in connection with the following:

– commercial activity;

– military service;

– emergency response;

– health response; or

– critical-infrastructure functions.

To claim the exemption, a person must submit an application to TDEM, which is found at https://tdem.texas.gov/ga-11-and-ga-12-travel-exemption-form/.  Although the Order itself is not explicit, TDEM’s website clarifies that an exemption is not automatic, and must be obtained by following the application procedure.  As the Order is less than 24 hours old, it is difficult to determine right now how quickly these forms will be processed, or what sort of credentials will be issued when an exemption is granted.

If a person is not exempt, then that person must, upon arrival from Louisiana, fill out a form promulgated by the Texas Department of Public Safety (found at https://www.dps.texas.gov/covidtravel/groundTravel.pdf), on which the person must designate a quarantine location (per the Order, e.g., a residence or hotel) and proceed directly to that location.[1]  Any person with symptoms of COVID-19 will be escorted to the location by DPS.   The person shall not be allowed to receive visitors (other than a health department employee, physician, or health care provider) or to leave the quarantine location, save for two reasons: to seek medical care, or to leave Texas.  The cost of the quarantine will be borne by each person quarantined.

DPS Special Agents will visit quarantine locations to determine compliance.  Violations of the Order may result in a fine of up to $1,000 and/or confinement in jail for up to 180 days.

[1] DPS has clarified that there will not be checkpoints at the Louisiana-Texas border.  https://www.dallasnews.com/news/public-health/2020/03/30/dps-no-checkpoints-at-lousiana-border-to-screen-road-travel-during-coronavirus/ (last accessed Mar. 30, 2020).

Texas Executive Order GA 12 Relating to Louisiana Travel
Texas Executive Order GA 12 Relating to Louisiana Travel

Texas Joint Worksite Safety Plan

See attached Texas Joint Worksite Safety Plan.

Texas Joint Worksite Safety Plan

State of Texas

While Governor Greg Abbott has issued executive orders implementing certain rules such as the minimization of social gatherings, the implementation of social distancing, the closure of schools and gyms and bars and restaurants for eat-in dining, he has stopped short of issuing any shelter in place orders. However, he has permitted municipalities to institute their own stricter regulations and a number of cities and counties have done so. In our Local section of the Public Action Matrix, we feature descriptions of some of those particular Stay at Home orders, but the user of this guide should look at the website of the particular municipality or county they are interested in to determine whether it has issued an order and the requirements of same.

Letter from Texas State Attorney General March 25 2020
Letter from Texas State Attorney General March 25 2020

Virginia

Virginia Executive Order 55 Dated March 30, 2020

On March 23, 2020, Governor Ralph Northam issued Executive Order No. 53 closing certain retail businesses from March 24 at 11:59 p.m. until April 23, 2020 at 11:59 p.m. Business operations offering professional services may remain open but are asked to utilize teleworking as much as possible. Where telework is not feasible, those businesses must adhere to social distancing recommendations and enhanced sanitizing practices and apply relevant workplace guidance from state and federal authorities.

On March 30, 2020 Governor Northam issued Executive Order No. 55 ordering all individuals in Virginia to remain at home except as permitted by the Order until June 10, 2020, unless amended or rescinded by further executive order. Businesses not closed pursuant to Order No. 53 are permitted to remain open  and people may leave their home and travel for work purposes.

Virginia Executive Order 55
Virginia Executive Order 55

Virginia State Executive Order 53

On March 12, 2020, the Governor of the Commonwealth of Virginia issued a state of emergency due to the COVID-19 outbreak. Va. Exec. Order (March 12, 2020). On March 23, 2020, the Governor issued Executive Order No. 53 and effective, March 24, 2020 through April 23, 2020, “all public and private in person gatherings of 10 or more individuals are prohibited.” Va. Exec. Order No. 53 (March 23, 2020). This ordered all recreational and entertainment businesses to close to the public. Id. This Order provided that essential retail businesses, including home improvement, hardware, building material, and building supply retailers to remain open. See id. Any brick and mortar retail businesses not expressly listed as a retail business that may remain open, may continue to operate if it is able to limit in-person shopping to no more than 10 people per establishment. Id.

Businesses offering professional services, as compared to retail businesses, may remain open and utilize teleworking as much as possible. Id. However, if such professional services business cannot utilize teleworking, “such business must adhere to social distancing recommendations, enhanced sanitizing practices on common surfaces, and apply the relevant workplace guidance from state and federal authorities.” Id. The Governor’s Order requiring certain businesses to close to the public applies to retail businesses except those deemed essential. However, construction contractors and subcontractors are not retailers, they provide professional services and may continue to operate in the Commonwealth of Virginia and must continue to follow CDC’s recommendations since inherently construction services cannot be performed remotely. Additionally, our clients should be able to receive construction supplies during this time as such businesses may remain open. Id. Additionally, our clients in Virginia may continue to travel interstate to perform their services or transport supplies. Frequently Asked Questions Regarding Executive Order Fifty-Three, link (last visited March 23, 2020).

Virginia State Executive Order 53
https://www.governor.virginia.gov/media/...

Austin, TX

Austin, TX Stay at Home Order

Effective as of 11:59 p.m. on March 24, 2020, and continuing until April 13, 2020, unless terminated or modified by a subsequent Order, all individuals living within the City of Austin are required to shelter in place at their home and all non-essential businesses are required to cease operations. Essential Businesses, which are, to the greatest extent feasible, to comply with Social Distancing Requirements, include:

Construction, including public works construction, and construction of affordable housing or housing for the individuals experiencing homelessness, social services construction, and other construction that supports essential uses, including essential businesses, government functions, or critical infrastructure, or otherwise as required in response to this public health emergency.

In addition, the City’s Order is not to be construed to hinder the ability of the industries identified in the U.S. Department of Homeland Security Cyber and Infrastructure Security Agency’s (CISA) Essential Critical Infrastructure Workforce Memorandum to continue their operation as modified to account for CDC workforce and consumer protection guidance.

Austin, TX Stay at Home Order
Austin, TX Supplemental Construction Guidance
Austin, TX Stay at Home Order
Austin, TX Supplemental Construction Guidance

Boca Raton, FL

Boca Raton, FL Stay Home, Stay Safe Order

On March 26, 2020, the City of Boca Raton issued a Stay Home, Stay Safe Order requiring all persons, with some exceptions, to remain in their homes. The exceptions are very similar to the ones outlined in our guidance with respect to Palm Beach County.

Boca Raton, FL Stay Home, Stay Safe Order
Boca Raton, FL Stay Home, Stay Safe Order

Boston, MA

City of Boston Temporary Guidance for Construction

On March 16, 2020, Boston Mayor Martin Walsh suspended all regular activity at construction sites permitted by the City of Boston and gave contractors and owners until March 23 to secure projects and install skeleton crews to keep sites safe for the remainder of the suspension. The only work permitted by that order is:

– emergency utility, road or building work, such as gas leaks, water leaks and sinkholes

– new utility connections to occupied buildings

– mandated building or utility work

– work at public health facilities, healthcare facilities, shelters, including temporary shelters and other facilities that support vulnerable populations

– work which ensures the reliability of the transportation network, and

– other work necessary to render occupied residential buildings fully habitable.

On March 24, 2020, the Mayor issued “Temporary Guidance for Construction in the City of Boston” which states that the City will still allow work which is essential to the safety and well-being of Boston’s residents, particularly that which is related to this public health crisis. Essential work is defined in the order as that which is set forth above, plus small residential construction projects in dwellings of 3 units or less (e.g. kitchen or bathroom remodeling).

The city will also review requests for exceptions to the moratorium, which will only be granted if the work supports increased public health and safety and precautions are taken to mitigate the risk of exposure to COVID-19 among workers.

The Mayor also stated that this policy will be reviewed regularly.

Temporary Guidance for Construction in the City of Boston - 3.24.2020
https://www.boston.gov/news/...

Cambridge, MA

City of Cambridge, MA

On March 18, 2020, the City of Cambridge instituted a Temporary Emergency Construction Moratorium on construction work, including building trades, regulated or permitted by the Commissioner of Inspectional Services or the Commissioner or Public Works. During the Moratorium, which is to remain in effect until further notice, construction activity will only be permitted with the explicit permission of the Commissioner of Inspectional Services or the Commissioner or Public Works, as applicable, and only for activity that is essential or in response to an emergency as set forth in the guidelines issued by the City.

As of close of business on March 21, 2020, all construction activity must have ceased, and construction sites may only be accessed thereafter to make the job site safe and secure. By close of business on March 26, 2020, all make-safe measures must be in place and job sites made safe and secure.

Construction on one, two and three family residential structures already permitted, including associated building trades, is exempted from the Moratorium. However, contractors at these job sites are asked to limit the number of workers on site to allow for safe social distancing practices as recommended by the Department of Public Health.

City of Cambridge, MA Temporary Emergency Construction Moratorium Order
https://www.cambridgema.gov/news/...

Dallas County, TX

Dallas County, TX

On March 24, 2020, Dallas County issued an order, effective as of 11:59 on March 24, 2020 and continuing until 11:59 p.m. on April 3, 2020, requiring all individuals living in Dallas County to stay home and businesses, other than Essential Businesses, to close. Essential Businesses were defined to include work necessary to the operations and maintenance of the critical infrastructure sectors as identified by the National Cybersecurity and Infrastructure Agency (CISA), Memorandum of Essential Critical Infrastructure, including public works construction and residential and commercial construction. Essential Businesses were also to implement screening precautions to protect employees and perform all activity in compliance with social distancing guidelines.

On March 29, 2020, Dallas County issued an Amended Shelter in Place Order, as well as Rules for the Construction Industry. With respect to construction, the Amended Order changed the definition of Essential Business to construction for public works, residential, commercial, and schools but prohibiting Elective Additions and maintenance. In addition, all construction activity employers must follow the COVID-19 Safety Recommendations issued by the Construction Industry Safety Coalition, including for social distancing and other health and safety measures.

Dallas County Stay Home Safe Order
https://www.dallascounty.org/...

Denton County, TX

Denton County, TX

See our section on Dallas County March 24, 2020 Order, above, except Denton County’s order continues until March 31, unless extended by the Denton County Commissioners Court or rescinded by the County Judge. In addition, Denton County’s reference to the CISA also mentions its Memorandum of Critical Infrastructure.

Denton County, TX Executive Order AE 20-03-24
https://dentoncounty.gov/...

Fort Worth, TX

Fort Worth, TX Stay at Home Order

See our section on Dallas County, above, except that the City of Fort Worth’s order expires April 7, 2020, subject to a resolution of continuation by the Fort Worth City Council.

Fort Worth, TX Stay at Home Order
https://dfw.cbslocal.com/...

Galveston County, TX

Galveston County, TX

See our section on Dallas County March 24, 2020 Order, above.

Galveston County, TX Stay at Home Order
http://www.galvestoncountytx.gov/...

Los Angeles Department of Building and Safety (LADBS)

Los Angeles Department of Building and Safety (LADBS)

On March 31, 2020, the Los Angeles Department of Building and Safety issued an Announcement No. 5 detailing a set of guidelines requiring construction industry employers to develop a comprehensive COVID-19 exposure control plan.  The control plan should include measures such as: (i) social distancing; (ii) symptom checking; (iii) hygiene; (iv) decontamination procedures; and (v) training.  Per the Announcement, compliance will be verified during regularly scheduled inspections, as well as during investigations resulting from complaints submitted to LADBS.  Failure to comply with the guidelines may result in withheld inspections or shutting down of the project site until corrected.

COVID-19 Safety Guidance for Construction Sites
LADBS Inspector Safety Mayor's Garcetti's COVID-19 Guidelines
COVID-19 Safety Guidance for Construction Sites
LADBS Inspector Safety Mayor's Garcetti's COVID-19 Guidelines

Miami-Dade County

Miami-Dade County Emergency Order 10-20

On March 24, 2020 Mayor Gimenez issued Emergency Order 10-20 which provides that essential commercial and retail establishments should continue to observe the Centers for Disease Control and Prevention’s social distancing guidelines of keeping six feet between persons and that failure to consistently observe same shall subject the establishment to closure. In addition, the Order urges individuals to remain home unless engaging in essential activities, including, travel to or from essential businesses and to attempt to observe social distancing guidelines.

Miami-Dade Emergency Order 10-20
https://www.miamidade.gov/information/...

Miami-Dade County Emergency Order 07-20

Carlos Gimenez, the County Mayor of Miami-Dade County instituted Emergency Order 7-20, effective as of 9:00 p.m. on March  19, 2020 until the expiration of the existing Miami-Dade County State Local Emergency, as potentially extended, closing all non-essential retail and commercial establishments. Considered essential are: i) contractors and other tradesmen… who provide service that are necessary to maintaining the safety, sanitation, and essential operation of residences and other structures; ii) open construction sites, irrespective of the type of building; and iii) architectural, engineering, or land surveying services. While the order does not generally limit the number of persons who may be physically present while performing essential business, employers and employees are urged, but not required, to practice social distancing, including keeping six feet between persons and limiting groups to less than ten people.

Miami-Dade County Emergency Order 07-20
https://www.miamidade.gov/information/...

Northern California Counties

Northern California Counties (Alameda, Contra Costa, Marin, Santa Clara, San Francisco, and San Mateo) Issue Orders Further Restricting Construction Activities

On March 31, 2020, six Counties in Northern California (Alameda, Contra Costa, Marin, Santa Clara, San Francisco, and San Mateo) issued Orders further restricting construction activities to the following:

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.

The term “Essential Infrastructure” as used in the Orders is defined as: “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).”  Per the Orders, the restrictions will be in effect until May 3, 2020 subject to extension by local public health officials.


Previously, on March 16, 2020, the governments of San Francisco, six other Bay Area counties – Alameda, Contra Costa, Marin, Santa Clara, San Francisco, San Mateo and Santa Cruz – and the City of Berkeley were the first in the United States to order their citizens to shelter in place as the result of Coronavirus. The orders began at 12:01 a.m. on March 17, 2020 and are currently scheduled to expire on April 7, 2020. Within days, the neighboring Bay Area counties – Sonoma, Mendocino, Napa and Lake – issued their own shelter in place orders.

With respect to construction, those orders allow individuals to leave their homes to:

provide any services or perform any work necessary to the operations and maintenance of “Essential Infrastructure,” including, but 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), provided that they carry out those services or that work in compliance with Social Distancing Requirements as defined in this Section, to the extent possible.

(Note, there may be some minor changes as between the individual orders).

City and County of San Francisco Shelter in Place Order C19-07b Issued March 31 2020
San Francisco Shut Down Order C-19-07
City and County of San Francisco Shelter in Place Order C19-07b Issued March 31 2020
Santa Clara County Shelter in Place Order Issued March 31, 2020
https://sfgsa.org/sites/default/...

Contra Costa County Guidance

See above “Northern California Counties” review.

Contra Costa County Guidance
https://www.contracosta.ca.gov/7777/...

Marin County Shelter in Place Order

See above “San Francisco and Area Counties” review.

Marin County Shelter in Place Order
https://coronavirus.marinhhs.org/sites/default/...

San Mateo County Shut Down Order

See above “San Francisco and Area Counties” review.

San Mateo County Shut Down Order
https://www.smcgov.org/sites/...

Santa Cruz Shelter in Place Order

See above “San Francisco and Area Counties” review.

Santa Cruz Shelter in Place Order
http://www.santacruzhealth.org/Portals/7/Pdfs/Coronavirus/...

Palm Beach County, FL

Palm Beach County, FL Executive Order No. 2

In addition to our guidance on Florida State Executive Order 20-83, we note that, effective as of 5:00 p.m. on March 26, 2020, until the expiration of the existing State of Local Emergency, Palm Beach County also issued an order closing all noncritical retail and commercial business locations except to the extent necessary to perform minimum basic operations. Critical operations, which are permitted to remain open, are defined to include, in pertinent part:

Open construction sites, irrespective of the type of building;

Businesses providing architectural, engineering or land surveying services, but only with regard to ongoing construction projects in which construction has already commenced and provided that such businesses operate in full compliance with all measures advised by the CDC and Florida Department of Health regarding social distancing;

Contractors and other tradesmen, building management and maintenance (including janitorial companies servicing commercial businesses), home security firms, fire and water damage restoration, public adjusters, appliance repair personnel, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences and other structures; and

Businesses providing services to any local, state, or federal government, pursuant to a contract or order with such government and provided such services relate directly to a governmental response to the COVID-19 crisis.

To the extent these existing businesses are permitted to remain open, they must ensure employees and all persons interacting with and within such businesses practice social distancing, and all other measures as advised by the CDC and the Florida Department of Health, with special care and attention being given to safeguarding persons aged 60 and over.

Palm Beach County Executive Order No. 2
Palm Beach County, FL Executive Order No. 2

Tarrant County, TX

Tarrant County, TX Stay at Home Order

See our section on Dallas County March 24, 2020 Order, above, except that the Tarrant County Order expires on April 7, 2020, unless terminated or modified by a subsequent Order.

Tarrant County, TX Stay at Home Order
http://www.tarrantcounty.com/...

Washington, DC

Washington, DC Mayor's Order 2020-054

On March 24, 2020, Mayor Muriel Bowser issued Mayor’s Order 2020-053, effective immediately and continuing until April 24, 2020, or until it is extended, rescinded, superseded or amended in writing by a subsequent Order, prohibiting large gatherings and requiring the temporary closure of the on-site operation of non-essential businesses.

Included in the list of Essential Businesses are Construction and Building Trades including:

Plumbers; pipefitters; steamfitters; electricians; boilermakers; exterminators; roofers; carpenters; bricklayers; welders; elevator mechanics; businesses that sell supplies and materials for maintenance of commercial and residential buildings and homes, including ‘big box’ supply stores, plumbing distributors, electrical distributors, and HVAC distributors; and other businesses that provide services that are necessary to maintaining the safety, sanitation, and operation of residences and Essential Businesses.

To the greatest extent feasible, Essential Businesses shall comply with Social Distancing Requirements, including by separating staff by off-setting shift hours or days and maintaining at least 6 feet of separation among and between employees and members of the public. In addition, Essential Businesses are to take all reasonable steps necessary for employees to work from home and to deliver services remotely.

On March 30, 2020, Mayor Bowser issued Mayor’s Order 2020-54 requiring all individuals in Washington DC to say in their homes except to engage in Essential Activities or Businesses or other permitted activity. The new Order specifically states the following with respect to construction

[Essential Activities include] Providing any services or performing any work necessary to the operations and maintenance of Essential Infrastructure.

For purposes of this Order, the term “Essential Infrastructure” includes critical or emergency public works or utilities construction, construction, solid waste collection and removal by private and public entities, telecommunications services; provides, that an individual shall provide these services and perform this work in compliance with the Social Distancing Requirements as defined in Section IV.8 of this Order, to the extent possible.

Other infrastructure and construction activity may be allowable as an Essential Business [as defined below].

“Essential Businesses” are those defined in Mayor’s Order 2020-053 and subsequent interpretive guidance.

At any time, Essential Businesses must provide, if requested by the Department of Consumer and Regulatory Affairs, its plans for complying with Social Distancing requirements.

Washington, DC Mayor's Order 2020-054
Washington, DC Mayor's Order 2020-053
Washington, DC Mayor's Order 2020-054
Washington, DC Mayor's Order 2020-053

Washington, DC Mayor’s Order 2020-048

The Office of the Mayor issued the Prohibition on Mass Gatherings During Public Health Emergency – Coronavirus (COVID-19) on March 16, 2020. D.C. Mayor’s Order 2020-048 (March 16, 2020). This order prohibits mass gatherings of more than 50 persons anywhere in the District of Columbia. A mass gathering is defined as:

any event or convening, subject to [certain] exceptions and clarifications… that brings together or is likely to bring together fifty (50) or more persons at the same time in a single room or other single confined or enclosed space, such as, by way of example and without limitation, an auditorium, theater, stadium (indoor or outdoor), area, or event center, meeting gall, conference center, large cafeteria, or any other confined indoor or confined outdoor space.

Id. However the following are excluded from the definition of mass gatherings: (1) people in multiple, separate enclosed spaces in a single building so long as 50 people are in not in a single room together; (2) enclosed spaces where 50 or more people may be present at different times of the day so long as 50 or more people are not in single room; and (3) gatherings on property owned by the federal government. Id. Knowing violation of this order may subject the business to civil, criminal and administrative penalties, and suspension of its business license, including a fine of not more than $1,000 for each violation. D.C. Code 7-2307; Id. On March 20, 2020, the Mayor extended this order regarding mass gatherings until April 25, 2020. While the order does not directly pertain to construction, as discussed herein, clients should ensure employees are maintaining social distancing.

On March 24, 2020, the Office of the Mayor issued a second major Order closing non-essential businesses and prohibiting large gatherings based on Guidance on the Essential Critical Infrastructure Workforce, dated March 19, 2020 (“CISA Guidance”). D.C. Mayor’s Order 2020-053 (March 24, 2020). The intent of DC Order 2020-053 is to, “[t]emporarily cease all non-essential business activities in the District of Columbia other than those conducted safely from home. Id. DC Order 2020-053 will be effective from March 25, 2020 at 10:00 pm through April 24, 2020.

The issue is whether construction is considered essential under DC Order 2020-053. Under Section IV.1.b. and Section IV.1.j., essential infrastructure work and construction and building trades are essential and may continue to operate in the District of Columbia.  However, even businesses deemed essential must take all reasonable steps necessary for employees to work remotely. Essential Infrastructure work, which is considered essential is defined as those:

including public works, such as roads, sidewalks, street lighting, traffic control devices, railways, government facilities; utilities, such as electricity, gas, telecommunications, water and wastewater, and drainage infrastructure, and solid waste collection and removal by private and public entities.

Id. Additionally, Construction and Building Trades are considered essential and is defined as:

including plumbers; pipefitters; steamfitters; electricians; boilermakers; exterminators; roofers; carpenters; bricklayers; wielders; elevator mechanics; businesses that sell supplies and materials for maintenance of commercial and residential buildings and homes, including big box supply stores, plumbing distributors, electrical distributors, and HVAC distributors, and other businesses that provide services that are necessary to maintaining the safety, sanitation, and operation of residences and Essential Businesses.

Id. Finally professional services are deemed essential, “but only when necessary to assist in compliance with legally mandated activities, Essential Businesses or Essential Governmental Functions.” Id.

Events that are likely to bring together a large gathering, defined as ten or more people” are prohibited. Id. However, this limitation on groups of people does not apply to essential businesses, gatherings of more than ten people in a building so long as those ten people are not in a single room or space at the same time, gatherings in federal buildings, and office space, hotels or residential buildings. Id.

Accordingly, general contractors provide a professional service that assists with construction, which is an essential business and therefore general contractors may continue to work. Subcontractors may continue to perform work in the District of Columbia – especially those performing a trade expressly listed in DC Order 2020-053. However, clients must be aware that unlike Maryland and Virginia, they are additional restrictions placed on essential businesses remaining open. While essential businesses are strongly encouraged to remain open, clients must comply with social distancing requirements to the extent feasible, as specifically provided in DC Order 2020-053, including off-setting shift hours and keeping six feet between employees. See Id. (emphasis added). Certainly, some physical work on the construction site, will require contractors and subcontractors to be closer than six feet apart. Clients should remind employees on the project to maintain social distancing when feasible and safe to do so. Clients should make sure those on the site are aware of the social distancing requirements provided in DC Order 2020-053. While this Order provides guidance consistent with CDC, clients should be reminded not to shake the hands of anyone and remind those working on the site not to shake hands. Id. Out of abundance of caution, clients should post the social distancing requirements in a conspicuous place where employees will see it on a project site.

[1] Given the fluid nature of the COVID-19 pandemic, this Memorandum will be consistently updated.

DC Mayor's Order 2020-053
https://coronavirus.dc.gov/sites/...