New Jersey Shuts Down “Non-Essential” Construction Projects To Mitigate Covid-19 – “Essential” Projects Can Continue Under Certain Conditions

In continuing efforts to flatten the coronavirus infection curve, New Jersey Governor Phil Murphy has ordered all “non-essential” construction projects in the State to shut down. The Governor’s Executive Order 122 made the shut-down effective as of Friday, April 10, 2020 at 8 PM until further notice.

Observing that “construction sites are inherently difficult environments for social distancing to occur,” but that “some construction is needed to expand our health care system’s capacity, address immediate infrastructure deficiencies, and prevent future disruptions in various areas such as education, housing and transportation, which are themselves related to the public health and safety,” the Governor determined that “other” (i.e., non-essential) construction projects “do not need to proceed immediately and should be postponed in light of public health considerations” raised by COVID-19.

Executive Order 122 invokes and draws largely on Executive Order 107, which required closure of “non-essential” business operations in New Jersey but allowed businesses deemed “essential” to operate while adhering to specific social distancing and hygiene guidelines as the emergency continues. Similarly, Executive Order 122 now allows certain construction projects deemed “essential” to continue, but also in accordance with requirements. The construction projects defined as “essential” under the Order, and thus allowed to continue, are:

• 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 airports or seaports;

• Utility projects, including any decommissioning of utility facilities;

• Residential projects that are exclusively designated as affordable housing;

• Projects involving pre-K-12 schools and higher education facilities;

• Projects already underway involving individual single-family homes, or an individual apartment unit where an individual already resides, with a crew of five or fewer individuals;

• Residential projects already underway for which a tenant or buyer has already entered into a legally binding agreement to occupy the unit by a certain date, and the construction is necessary to ensure the unit’s availability by that date;

• Projects involving facilities that manufacture, distribute, store, or service goods or products that are sold by online retail businesses or essential retail businesses, as defined by Executive Order No. 107 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, abate any hazards, remediate a site, or otherwise ensure that the site and any buildings on it are protected and safe during the suspension of the project; and

• Any emergency repairs necessary to ensure the health and safety of residents.

Of course, “essential” construction projects that are allowed to continue work must do so under specific requirements. The Order requires that “essential” project owners and managers must:

• Prohibit non-essential visitors;

• Limit worksite meetings, inductions, and workgroups to fewer than ten people;

• Require individuals to maintain at least six feet of distance between them wherever possible;

• Stagger work start and stop times;

• Stagger lunch breaks and work times;

• Restrict the number of individuals in restrooms and breakrooms;

• Require workers and visitors to wear masks or cloth face coverings, in accordance with CDC recommendations;

• Require infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal;

• Limit sharing of tools, equipment, and machinery;

• Provide sanitization materials, such as hand sanitizer and sanitizing wipes, to workers and visitors; and

• Require frequent sanitization of high-touch areas like restrooms, breakrooms, equipment, and machinery.

In addition, any construction company continuing an “essential” project must adopt the following workplace policies:

• Immediately separate and send home workers who appear to have symptoms consistent with COVID-19;

• Promptly notify workers of any known exposure to COVID-19 at the worksite, consistent with the confidentiality laws;

• Clean and disinfect the worksite in accordance with CDC guidelines when a worker at the site has been diagnosed with COVID-19; and

• Continue to follow guidelines and directives issued by the New Jersey Department of Health, the CDC and the Occupational Health and Safety Administration to maintain a clean, safe, and healthy work environment.

Although the categories of “essential” projects may seem rigid, your project may have some connection to public health, infrastructure, education, or housing that qualifies it for such a designation by the State Director of Emergency Management. If your project is allowed to continue, workers must be protected and managed as much as practicable to prevent infection. Ansa Assuncao continues to actively monitor Governor Murphy’s Executive Orders along with legislative developments at the federal, state, and local levels to help address your specific circumstances and navigate these challenging times. Our Construction Practice Group is available to help you with any legal issues you may have, ranging from difficulties the shut-down has created for your project, to applying for “essential” project status, to preventative measures you would need to implement on site. Contact James Coons, [email protected], or David Gonzalez, [email protected], or call (732) 993 -9850.