Executive Orders to Address Rising COVID-19 Cases in the Construction Industry
Shortly after the onset of the COVID-19 pandemic in the US, many states, counties, and cities issued stay-at-home or shelter-in-place (collectively, SIP) orders to combat the spread of the virus. Please click here to review the early impacts of these sweeping orders.
In recent weeks, many authorities have issued executive orders to address rising COVID-19 cases as state and local businesses begin to reopen. This update focuses on these most recent orders and any impacts the orders could have on new and ongoing construction projects in Alabama, Florida, Georgia, Louisiana, Mississippi, and Texas.
As with all the effects of COVID-19, the issuance, interpretation, and enforcement of these orders are fast-breaking and in constant flux.
On July 15, 2020, the governor and the Alabama Department of Public Health issued an executive order requiring any person to wear a mask or other facial covering that covers his or her nostrils and mouth at all times when within six feet of someone from a different household. The new facial-covering requirement, which expires on July 31, applies to the construction workplace. The requirement, however, is limited to people interacting with others within six feet when located in “an indoor space open to the general public, a vehicle operated by a transportation service, or an outdoor public space where 10 or more people are gathered,” subject to certain exceptions, for example:
Any person performing a job function if wearing a face covering is inconsistent with industry safety standards or a business’ established safety protocols;
Any person who is seeking to communicate with another person where the ability to see the person’s mouth is essential for communication (such as when the other person has a hearing impairment); or
Any person who is required to remove the facial covering to confirm his or her identity, such as for security or screening purposes.
Employers are also strongly encouraged to read and implement the Alabama Department of Public Health’s Guidelines for Safeguarding All Businesses.
On June 5, 2020, Florida entered Phase 2, but this does not apply to all counties. Sixty-four of Florida’s 67 counties will move on to Phase 2. The exceptions are Miami-Dade, Broward, and Palm Beach counties. Regardless, under both Phase 1 and Phase 2 orders, the restrictions, such as curfew and occupancy limits, do not apply to contractors and open construction sites, irrespective of the type of building, because construction is considered an essential business.
On July 10, 2020, Atlanta’s Mayor Bottoms issued an executive order/guidance tightening restrictions for businesses in the city of Atlanta. Governor Kemp has since sued Mayor Bottoms to firmly establish that the city’s new order has no legal force because it is more restrictive than, and therefore contradicts, the governor’s orders (even if Mayor Bottoms’ order has any legal effect, construction would not face any new restrictions). Governor Kemp’s actions make it abundantly clear that construction will be able to continue throughout the state of Georgia, and he will take legal action, if necessary, to ensure the primacy of his executive orders.
On June 4, 2020, Louisiana entered Phase 2, allowing more businesses to open at greater capacity but keeping in place occupancy limits and other restrictions, such as mask mandates. On June 11, 2020, the governor announced that Louisiana will stay in Phase 2 of reopening, extending the Phase 2 order until July 24, 2020. The restrictions set forth in the Phase 2 order do not apply to construction activities, which the Cybersecurity and Infrastructure Security Agency (CISA) has listed as critical infrastructure.
Notably, CISA recommends that critical infrastructure, such as the construction industry, follow the Centers for Disease Control and Prevention guidelines and that “contractors implement a comprehensive safety program for their employees as well as for all parties that come onto the jobsite. This should include what has recently become standard protocol or social distancing, not hosting large group meetings and conducting meetings online or via conference call, maintaining a six-foot distance between people, discouraging hand-shaking or other contact, not sharing tools, and sanitizing reusable PPE.” CISA also recommends that contractors place safety posters about “How to Protect Yourself” where they can be readily seen; and encourage staying home when sick, cough and sneeze etiquette, hand hygiene at the entrance of a jobsite, and heightened site security including interviewing anyone coming to the jobsite. Finally, CISA recommends contractors “adjust on-site scheduling to avoid stacking trades, to manage their sites in a way that limits the number of people on a jobsite, and to allow non-essential personnel to work remotely.”
On May 28, 2020, Governor Reeves signed an executive order establishing statewide Safe Return measures for Mississippi to continue protecting public health while beginning the process of safely reopening the state’s economy. Pursuant to that order, recently extended to August 3, 2020, all businesses operating within the state were entitled to remain open/reopen subject to limited person-to-person interactions and capacity, social distancing, and other requirements. The city of Jackson also issued a Seconded Amended Stay Safe executive order on July 2, 2020, to specifically address businesses’ failure to comply with face covering rules and other limitations prescribed by Governor Reeves’ Safe Return order. Similar to initial SIP orders, construction is permitted to continue under Governor Reeves’ and the city of Jackson’s orders as an essential business, subject to any new public health guidelines for face covering, social distancing, and other restrictions.
In recent weeks, Governor Greg Abbott issued several executive orders to address rising COVID-19 cases in Texas. Beginning July 3, 2020, Executive Order GA-29 requires every person to wear a face covering when inside commercial buildings and in outdoor areas, wherever it is not feasible to maintain social distancing. And beginning June 26, 2020, Executive Order GA-28 temporarily halts Texas’ reopening plans, requiring bars to close, limiting restaurant capacity to 50%, and limiting outdoor gatherings of 100 people or more.
The governor’s orders do not amend the exception for essential services and covered services in previous orders, which allow construction to continue in accordance with the CISA Revised Guidelines. However, his orders may impact the public health guidelines that must be monitored on-site, such as face covering, social distancing, and other requirements.