Construction During COVID-19: Is It Essential?

But what impact do these orders have on the construction industry?

Unfortunately, the guidance issued by the federal government, the 50 states, the District of Columbia, and some cities and counties varies widely; there is no “one-size-fits-all” approach to how governments are handling construction.

Federal Response
The federal government has not issued any specific order or mandate impacting the construction industry, although it has issued guidance. The U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) issued an Advisory Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response, which provides an advisory list of “Essential Critical Infrastructure Workforce.”

The CISA Guidance, originally issued on March 19 but updated on March 28, is advisory in nature and should not be considered a federal directive or standard since “State, local, tribal, and territorial governments are responsible for implementing and executing response activities.”

The cover memorandum states that, “The advisory list identifies workers who conduct a range of operations and services that are typically essential to continued critical infrastructure viability, including ... working construction.” The actual advisory list identifies essential workers across 17 sectors. Each sector includes examples of applicable workers. Some construction-related examples in the CISA Guidance include:

• Workers supporting the energy sector through renewable energy infrastructure, including those supporting construction;
• Providing services related to energy sector fuels supporting the mining, processing, manufacturing, construction;
• Supporting new and existing construction projects, including, but not limited to, pipeline construction;
• Workers who support construction of critical or strategic infrastructure;
• Contractors for construction and engineering of fiber optic cables;
• Workers supporting construction for essential products, services, and supply chain and COVID 19 relief efforts; and
• Workers performing housing construction-related activities to ensure additional units can be made available to combat the nation’s existing housing supply shortage.

This is not an exhaustive list of workers performing construction-related activities that may be considered an “Essential Critical Infrastructure Worker.” Moreover, various states have adopted modified versions of the CISA Guidance or added their own construction-related activities deemed essential.

States and DC Orders
States have instituted a range of orders, directives and proclamations closing businesses and mandating that most residents stay home. Generally speaking, essential businesses and services are excepted from these orders. At the statewide level, construction projects are allowed to continue in all 50 states and the District of Columbia, although states like New York and New Jersey have greatly restricted the types of construction allowed to continue. Pillsbury has complied a comprehensive list of orders in all 50 states and DC, and the impact of those orders on construction. (Note this list has been updated as of July 27, 2020.)

City, County and Local Orders
In addition to Federal guidance, and state orders or mandates, it is important to consider whether cities or counties have issued any orders that may impact your construction project. For example, in California, the orders issued by six San Francisco Bay Area counties are more stringent as they relate to construction than the statewide order. Similarly, in Massachusetts, despite the statewide order allowing construction to continue, Boston shut down all construction except emergency work approved by Boston’s Inspectional Services Department.

To determine how your construction project is impacted, it is important to be aware of the various government orders pertinent to the location of your project. It is also important to have up-to-date information, as the landscape is changing daily. Pillsbury’s construction and real estate team will continue to monitor developments as they impact the construction industry.

For more information, please reach out to your regular Pillsbury contact or the authors of this alert.

Pillsbury’s experienced, multidisciplinary COVID-19 Task Force is closely monitoring the global threat of COVID-19 and providing real-time advice across industry sectors, drawing on the firm’s capabilities in crisis management, employment law, insurance recovery, real estate, supply chain management, cybersecurity, corporate and contracts law and other areas to provide critical guidance to clients in an urgent and quickly evolving situation. For more thought leadership on this rapidly developing topic, please visit our COVID-19 (Coronavirus) Resource Center.