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“Essential” and “Safe” Construction Services During COVID-19 Outbreak

Effective today (March 27, 2020) at midnight, New Hampshire joins various other states in closing non-essential businesses and ordering citizens to stay at home.  Governor Sununu issued Executive Order #17 on March 26, 2020.

All businesses that do not provide “Essential Services,” which are listed in Exhibit A to the order, must close their physical workplaces and facilities and stop all in-person operations.  The order also requires businesses providing Essential Services to develop procedures for social distancing consistent with guidance from the CDC and Department of Public Health.  Employees of essential businesses may continue to cross state borders for work-related travel, including travel to and from work, and to transport products to distribution facilities, etc.  All businesses, essential or not, are permitted—and encouraged—to continue their operations through remote means.

Construction services are listed as an “essential service” under the Order.  The Exhibit A closely tracks the listing of essential services issued by the Massachusetts Governor earlier this week.  As the Massachusetts list, the New Hampshire list broadly includes

Construction Workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing construction)

MassDOT, MBTA, and other public construction owners are implementing the guidance on safety standards for essential construction work in Massachusetts.  There is a public recognition that the construction companies can and will perform their work in a safe manner consistent with the regulations.  With the passage of the $2 trillion CARE Act today, there will likely be necessary construction projects that be hyper-tracked to meet the health needs.  We need to have our skilled construction workers and managers employed and engaged to tackle these projects.

Other states have taken a different, more narrow approach to construction services.  For example, New York State announced that it is shutting down all “non-essential construction” projects effective immediately through April 27, 2020.  The New York order defines essential construction as follows:

“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.

Essential construction may continue and includes roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing, and homeless shelters. At every site, if essential or emergency non-essential construction, this includes maintaining social distance, including for purposes of elevators/meals/entry and exit. 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. This will include fines of up to $10,000 per violation.

Our public officials will make these hard decisions in the days/weeks to come.  While many of the orders will differ and change over time, one thing is common across nearly every jurisdiction — some aspect of construction work is clearly essential services needed during the time of the present global health crisis.  Keeping the workers healthy and focused on that essential construction work will advance the public need to come

©2020 Pierce Atwood LLP. All rights reserved.National Law Review, Volume X, Number 87

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About this Author

Thomas Dunn Construction Attorney Pierce Atwood
Partner

Tom Dunn concentrates his practice in construction law and complex business dispute resolution representing clients in various sectors of the construction industry, including power generation, utility and road work, painting, and plumbing and mechanical work. Tom has served as trial counsel representing owners, general contractors, subcontractors, and design professionals in multiparty, complex commercial litigation in state and federal courts.  Tom splits his time between the Providence and Boston offices. 

In addition to litigation, arbitration, and mediation, Tom counsels clients...

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