The Cybersecurity and Infrastructure Security Agency (“CISA”), which executes the Secretary of Homeland Security’s authorities to secure critical infrastructure, updated its guidance on “what is” and “what is not” essential critical infrastructure to include housing construction. The addition is significant because Governor Wolf ordered all non-life-sustaining businesses in Pennsylvania to close their physical locations, including housing construction job sites, to slow the spread of COVID-19 (“Governor’s Order”). Interestingly, the Commonwealth’s webpage that provides information on the Governor’s Order specifically references CISA. It states: “Business guidance has been updated after conversations with businesses, stakeholders, and individuals and has been aligned with the Cybersecurity and Infrastructure Security Agency advisory released.” While it is unclear when the website was last updated, the Commonwealth’s Q&A on the Governor’s Order and the list of industries exempted from the Governor’s Order were last updated a few days before CISA’s updated memorandum was issued on March 28, 2020 (“Memo”).
The Memo provides guidance for state, local and other government officials. It supports President Trump’s Coronavirus Guidance for America which was updated earlier this month to highlight the importance of the critical infrastructure. The Memo now includes in its list of essential critical infrastructure “Workers performing housing construction related activities to ensure additional units can be made available to combat the nation’s existing housing supply shortage.” Unfortunately, the Memo does not specifically include the commercial building sector. However, adding housing construction to CISA’s list at least provides additional support for the hundreds of home builders throughout Pennsylvania that have not been able to obtain a waiver from the Governor’s Order.
While the Memo is helpful, it is advisory and does not automatically provide an exemption in Pennsylvania to any covered industry operating in the Commonwealth. Although, the Memo does provide an automatic exemption in some other states. Moreover, Governor Wolf previously “aligned” his business guidance and, presumably, his list of exempted industries with CISA’s prior guidance. Accordingly, we are hopeful the Governor will soon add housing construction to the list of industries exempted from the Governor’s Order. In the meantime, we recommend using the Memo to support new and outstanding waiver requests.
Please do not hesitate to contact the McNees Strategic Solutions Group (MSSG), the McNees Construction Law Group, or the McNees Real Estate Group for assistance on applying for waivers and with questions about how the Order affects construction, real estate, and related matters.