It was a crazy week last week as the number of coronavirus cases in the United States jumped to 32,783 cases as of Sunday, from 3,680 cases, just a week before. In an attempt to “flatten the curve” and help those impacted by the virus, numerous federal, state, and local orders were issued, including orders requiring that residents “shelter in place.”
For businesses impacted by the “shelter in place” orders, which, in California, means virtually every business in the state following Governor Newsom’s state-wide “shelter in place” order, there’s been confusion as to who can and can’t continue to work under the orders including among contractors and project owners. Although things have been changing, sometimes daily, here’s what you need to know about the “shelter in place” orders:
The Local “Shelter In Place” Orders
On Monday, March 16, 2020, six Bay Area counties, and the City of Berkeley, issued “shelter in place” orders requiring that residents in those counties and city shelter in place except for “Essential Activities,” if performing “Essential Governmental Functions,” or if operating “Essential Businesses.”
The six Bay Area counties that issued “shelter in place” orders were Alameda, Contra Costa, Marin, San Francisco, San Mateo, and Santa Clara. Copies of the orders can be found below:
The “shelter in place” orders are substantially similar and each exempt from the orders: (1) “public works construction“; and (2) “construction of housing (in particular affordable housing or housing for individuals experiencing homelessness).”
Several surrounding counties have since issued their own orders, including the counties of Monterey, San Benito, and Santa Cruz.
The State-Wide “Shelter In Place” Order
On Thursday, March 19, 2020, Governor Newsom issued Executive Order No. N-33-20, ordering that all individuals in California “shelter in place” unless they worked in one of 16 “federal critical infrastructure sectors.”
The Executive Order prompted confusion among businesses, including those in the construction industry, as to whether they were exempted under the order and, if so, to what extent.
On March 21, 2020, the Governor’s office issued released a document (which has since been updated) clarifying who can work and who can’t work under the Executive Order. The document clarifies that those who work in the construction industry are exempt from the state-wide “shelter in place” order, specifically identifying:
- “Construction Workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing construction)”
Other related workers exempt under the clarifications include:
- “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 (Note: “construction material suppliers” was added on March 22, 2020), traffic signal maintenance, emergency location services for buried utilities, maintenance of digital systems infrastructure supporting public works operations, and other emergent issues”
- “Workers such as plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences.”
- “Workers who maintain, ensure, or restore the generation, transmission, and distribution fo electrical power, including call centers, utility workers, reliability engineers and fleet maintenance technicians.”
- “Environmental remediation/monitoring technicians”
- “Workers to ensure continuity of building functions.”
- “Workers such as plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, construction material sources (Note: “Construction material sources” was added on March 22, 2020) 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).”
Of note, architects and engineers are not expressly identified in the document, but arguably, fall within the category of “other service providers who provide services that are necessary to maintaining the . . . essential operation of construction sites and construction projects.”
So, if the State-Wide “Shelter In Place” Order Exempts all Construction, but the Local “Shelter In Place” Orders Only Exempts Public Works Construction and Construction of Housing, Which Applies?
Both do, and while the situation is fluid, I think it’s prudent to think of them like OSHA regulations, where there are both OSHA and CalOSHA regulations, and where one is stricter than the other, the stricter requirement applies.
Thus, while under the state-wide “shelter in place” order, all construction is exempted, I think you also need to look at any local (e.g.. county, city, town) orders to see if they are more restrictive than the state-wide “shelter in place” order. If they are, you might be best complying with the more restrictive order. This is Wild, Wild West folks. We haven’t had time for anyone to legally challenge either the state or local orders, and until that happens (which likely won’t be soon), we are each left to our best, good faith judgments.
OSHA COVID-19 Guidelines
Speaking of OSHA, in other news, OSHA issued COVID-19 guidelines, which, to be frank, aren’t particularly helpful, and merely highlight certain OSHA regulations that “may” to workers exposed to the coronavirus. CalOSHA has, to date, not provided any guidance.
Be careful out there.