3-27-20 Client Alert - New York Designates Many Construction Projects Non-Essential

The State of New York has issued new guidance with respect to Governor Cuomo’s Executive Order requiring all of the workforce in non-essential businesses or entities to work from home. The updated guidance, found at https://esd.ny.gov/guidance-executive-order-2026 contains significant new restrictions for the construction industry.

The guidance with respect to construction now states 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.
For purposes of this section construction work does not include a single worker, who is the sole employee/worker on a job site.

This represents a significant change from the broader construction industry exemption which the initial guidance provided. For projects not falling within the categories deemed to be essential construction, all work should cease unless it can be considered emergency construction necessary to protect the health and safety of occupants or where work must be done to make the site safe before it can be shut down.

The State’s guidance has also amended other categories of essential business in less significant ways and we recommend that those employers outside of the construction industry review the guidance to determine whether any change affects your industry. We are available to answer your questions regarding these issues. Businesses and entities not specifically covered by the guidance may continue to request designation as an essential business by submitting a request to the Empire State Development Corporation. Applications may be submitted by email to covid19designations@esd.ny.gov.

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