On March 16, 2020 Governor Murphy set forth in Executive Order 104 a number of measures instituted to combat the Coronavirus (COVID-19). Subsequently, Executive Order 107 noted that construction workers were among those essential workers who need to be physically present for their work and were excluded from the ban on gatherings of 50 or more people. On April 8, 2020 in Executive Order 122, Governor Murphy qualified his prior Order to “essential construction,” and required further minimum mitigation efforts and guidelines on all projects.
In Order 122, Murphy recognized: “Construction sites are inherently difficult environments for social distancing to occur, as they frequently require large numbers of individuals to touch the same surfaces, gather closely together in areas such as service elevators and use common facilities such as portable restrooms.” This difficult environment, juxtaposed against the need to expand and build infrastructure, hospitals, schools, and housing, and to prevent disruption of education and services, prompted the execution of the Order.
The Order requires that by April 10, 2020 at 8:00 p.m. all “non-essential” construction projects must cease, indefinitely. The term “essential construction” applies to the following projects:
- Projects necessary for the delivery of healthcare services (hospitals, pharmaceutical manufacturing facilities, and other healthcare facilities);
- Transportation infrastructure or facilities (roads, bridges, mass transit, seaports, and airports);
- Utilities (energy and electricity production, transmission and decommissioning);
- Affordable Housing residential projects;
- Schools (K-12 and Higher Education);
- On-going residential construction (and individual apartment units) where an individual already resides. Construction crews of five or less. Can include installation of solar panels;
- On-going construction projects for residential units for which a tenant or buyer has already entered into a legally binding contract to occupy the unit by a certain date, and construction that is necessary to ensure availability for that date;
- Other life sustaining facilities (projects regarding manufacturing distribution, storage or servicing of goods or products that are sold by online retailers or essential retailers);
- Data center facilities (must be critical to a business’ ability to function);
- Essential social services (homeless shelters, and those projects necessary for delivery of social services);
- Law enforcement agencies/first responder units (Those projects that are necessary to support the agencies in their response to the COVID-19 emergency);
- All Federal, governmental or municipal projects including those which must be completed to meet a federal deadline;
- Non-Essential Projects to the extent that it is required to physically secure the site, ensure the structural integrity, reduce or eliminate hazards if left in its current condition, remediate a site, or otherwise ensure that the site and any buildings are appropriately protected and made safe during the suspension of the project;
- Emergency repairs necessary to ensure health and safety.
If your Project is within the “essential” construction categories set forth above, it is also now required, at minimum, to comply with certain health standards, which include, but are not limited to: Prohibition of non-essential visitors; staggering work schedules and breaks; all personnel must wear CDC recommended face masks and gloves (unless health is affected); institute infection control measures and frequent sanitation; limit sharing of tools; and provide sanitation materials. These additional measures are the contractor’s responsibility, and shall be adhered to at the contractor’s expense.
Minimum policies are also required to be adopted and employed by the essential construction projects: Immediately separate and send home workers who appear to have symptoms consistent with COVID-19; notify workers of potential exposure to the virus (but such notice must be in accordance with the law and privacy acts); follow all CDC, OSHA, Department of Health guidelines and directives for on-site health and safety.
Failure to comply with the Order (like all recent Executive Orders) may subject you to penalties, inclusive of possible fines. Click here for full text of order.
We will continue to monitor the Orders and other legislation being considered, and we will send updates as soon as they are available. Our firm will remain open and is committed to providing you with the same uninterrupted level of attention and assistance for your legal needs during this difficult and uncertain time. Thank you.