Since first issuing declarations of emergency in early March, the Governors of New York, New Jersey and Connecticut have been coordinating their COVID-19 response measures fairly closely, in recognition of the physical proximity and economic dependency of their States.
Each State is among each other’s top trade partners, and hundreds of thousands of people cross state lines for work every day (including over 400,000 residents of New Jersey and Connecticut who commute into New York City). These connections have taken on a whole new significance with the arrival of the novel coronavirus — the single most significant measure being implemented to fight the spread of the virus is social distancing.
Since early March, as COVID-19 began to take hold in New York, Governor Cuomo has emphasized the challenges created by regional inconsistency in the imposition of social restrictions. The Governors of New Jersey and Connecticut, along with four other states, acknowledged the risk in disparate approaches at various points, most recently announcing their intention to coordinate the gradual reopening of businesses over the coming months.
However, while the Governors have been aligned on many social distancing measures, their treatment of the construction industry has fallen increasingly out of sync since the initial implementation of workplace restrictions.
When the initial social distancing restrictions were put in place, New York, New Jersey and Connecticut were consistent in treating construction work as essential, enabling work to continue largely unfettered. That changed for New York on March 27, 2020 when Governor Cuomo imposed significant restrictions on the scope of permissible construction work, but Connecticut and New Jersey remained the same. The discrepancy between New York and New Jersey was the subject of an earlier post.
Two weeks later, New Jersey followed New York’s approach of narrowing the extent of permitted construction. Again, no change was made by Connecticut. In addition, even though both New York and New Jersey were on the same page about restricting non-essential construction, they were not aligned as to what constituted “essential” construction. Plus, even if New Jersey had adopted New York’s criteria, the consensus would not have lasted long. New York ended up making substantial changes to its essential business criteria just two days later.
So, as of now, the construction industry looks different in each of New York, New Jersey and Connecticut. For reference, each State’s description of permissible construction is listed below. But don’t get too comfortable. The criteria is expected to change in mid-May, as New York and New Jersey are expected to begin the transition to reopening businesses.
New York’s social distancing framework is currently scheduled to expire May 15, 2020, per Executive Order 202.18. Governor Cuomo has begun laying out New York’s plan for reopening in a staged manner, both based on geography (areas with low infection rates first) and business type (safer businesses like construction and manufacturing).
Governor Murphy has not specified a date for terminating his “stay-at-home” order, but has confirmed his intention to coordinate with other states, which he believed would be a matter of weeks, not months. What that coordination will look like is unclear. Governor Murphy was asked about his plan earlier this week, when he announced the State’s “road map” of 6 principles to evaluate in determining whether the State is ready for business. He said that New Jersey may consider opening the entire State at once, rather than by geographic area, and is also considering staging the opening of businesses based on significance to the economy and virus transmission risk level, giving manufacturing as an example of a less risky business sector. It is not clear whether construction restrictions will be lifted early.
Connecticut’s Governor Lamont extended his State’s social distancing measures until May 20, 2020, but, as the Governor pointed out in an interview this week, it will not have any impact on the construction industry, which has never been subject to restrictions.
NEW YORK PERMITTED CONSTRUCTION:
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 it to remain undone, but only to the point that it is safe to suspend work).
- construction for, or your business provides necessary support for construction projects involving, roads, bridges, transit facilities, utilities, hospitals, or healthcare facilities, homeless shelters, or public or private schools;
- construction for affordable housing, as defined as construction work where either (i) a minimum of 20% of the residential units are or will be deemed affordable and are or will be subject to a regulatory agreement and/or a declaration from a local, state, or federal government agency or (ii) where the project is being undertaken by, or on behalf of, a public housing authority;
- construction necessary to protect the health and safety of occupants of a structure;
- construction necessary to continue a project if allowing the project to remain undone would be unsafe, provided that the construction must be shut down when it is safe to do so;
- construction for projects in the energy industry in accordance with Question No. 14 in the FAQ at: https://esd.ny.gov/sites/default/files/ESD_EssentialEmployerFAQ_033120.pdf;
- construction for existing (i.e. currently underway) projects of an essential business; or
- construction work that is being completed by a single worker who is the sole employee/worker on the job site.
NEW JERSEY PERMITTED CONSTRUCTION:
Essential construction projects:
- Projects necessary for the delivery of health care services, including but not limited to hospitals, other health care facilities, and pharmaceutical manufacturing facilities;
- Transportation projects, including roads, bridges, and mass transit facilities or physical infrastructure, including work done at airports or seaports;
- Utility projects, including those necessary for energy and electricity production and transmission, and any decommissioning of facilities used for electricity generation;
- Residential projects that are exclusively designated as affordable housing;
- Projects involving pre-K-12 schools, including but not limited to projects in Schools Development Authority districts, and projects involving higher education facilities;
- Projects already underway involving individual single-family homes, or an individual apartment unit where an individual already resides, with a construction crew of 5 or fewer individuals. This includes additions to single-family homes such as solar panels;
- Projects already underway involving a residential unit for which a tenant or buyer has already entered into a legally binding agreement to occupy the unit by a certain date, and construction is necessary to ensure the unit’s availability by that date;
- Projects involving facilities at which any one or more of the following takes place: the manufacture, distribution, storage, or servicing of goods or products that are sold by online retail businesses or essential retail businesses, as defined by Executive Order No. 107 (2020) and subsequent Administrative Orders adopted pursuant to that Order;
- Projects involving data centers or facilities that are critical to a business’s ability to function;
- Projects necessary for the delivery of essential social services, including homeless shelters;
- Any project necessary to support law enforcement agencies or first responder units in their response to the COVID-19 emergency;
- Any project that is ordered or contracted for by Federal, State, county, or municipal government, or any project that must be completed to meet a deadline established by the Federal government;
- Any work on a non-essential construction project that is required to physically secure the site of the project, ensure the structural integrity of any buildings on the site, abate any hazards that would exist on the site if the construction were to remain in its current condition, remediate a site, or otherwise ensure that the site and any buildings therein are appropriately protected and safe during the suspension of the project; and
- Any emergency repairs necessary to ensure the health and safety of residents.
CONNECTICUT PERMITTED CONSTRUCTION:
The State’s original workplace distancing restrictions issued on March 20, 2020 by Executive Order 7H incorporated the Federal guidance on essential businesses, which included construction within its 16 “critical infrastructure sectors.” Similar to Governor Cuomo’s approach, Governor Lamont directed Connecticut’s Department of Economic and Community Development (DECD) to issue specific guidance on what businesses were deemed essential. Construction work is within the scope of several essential business categories on the DECD list, and comprises its own category as well, described as:
• all skilled trades such as electricians, HVAC, and plumbers
• general construction, both commercial and residential
• other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes
• planning, engineering, design, bridge inspection, and other construction support activities
The full DECD list of essential business can be found here.
As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.