This LEGALcurrents® updates our prior publication about the recent New York State Executive Order No. 202.8 (the “Order”) and its implications for the construction and design industry. The Order directed a 100% reduction of in-person workforce by businesses and non-profits who are not engaged in “essential” business operations cease using in-person workforce as of March 22, 2020. The Order’s restrictions have been extended through April 15, 2020.
Empire State Development (“ESD”) has released updated Guidance interpreting the Order. In the original guidance, the ESD set forth certain businesses deemed “essential,” including healthcare, critical infrastructure (e.g., utilities, telecommunications, transportation, water and wastewater), certain manufacturing and retail (e.g., food and medical supplies), etc. The prior interpretation had included “construction” as an essential business, although it did delineate which projects may be deemed essential for purposes of the Order.
The new ESD Guidance clarifies that “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).” The Guidance provides that essential construction may continue, including “roads, bridges, transit facilities, utilities, hospitals or healthcare facilities, affordable housing, and homeless shelters,” which per the Order are considered essential businesses exempt from the in-person worker restrictions. Also exempt are projects on which a single worker is the sole party present on a jobsite.
As to those construction projects exempt from the Order, proper precautions must be taken to maintain social distance at the site, “including for purposes of elevators/meals/entry and exit.” Furthermore, any 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.” Failure to use such precautions may result in finds of up to $10,000 per violation.
Because the Order applies only to for-profit and non-profit businesses, local government entities, including school districts and other public agencies and authorities, are exempt from the Order’s essential business restrictions. However, the ESD urges that such entities postpone all non-essential projects (i.e., those that do not have a nexus to health and safety of the building occupants or in support of the broader essential services required for emergency response or to fulfill critical government operations). All essential projects must proceed using proper safety and healthy precautions (i.e., social distancing and cleaning/disinfecting protocols).
We expect that governmental entities and agencies will advise their construction and design teams which construction projects are essential and whether any will be exempt, keeping in mind that determinations may be updated based on changing circumstances. We also recommend you consult the terms of your existing contracts and become familiar with any provisions for force majeure events, time delays, and suspension or termination of projects to ensure that you provide timely and proper notice if required by your particular contract and circumstances.
Should you have any questions regarding these matters, please contact any member of our Construction and Design Team at 585-232-6500 or 716-853-1616.