Is Construction Essential Business

is Construction essential business During the Coronavirus pandemic, governments local and federal have asked nonessential businesses to close or suspend operation. Some people wonder is construction essential business? Well, many states are considering construction as essential - and the industry hopes to take that to the federal level.
Here, in this article, we have collected the orders issued within the state of California to determine whether construction is considered an essential business in California more detailed.

Guidelines For Essential Businesses

On March 28th, the Cybersecurity and Infrastructure Security Agency (CISA) issued an advisory memorandum on what constitutes “essential critical infrastructure workers” during the COVID-19 pandemic. This list was intended to be a guide for state and local officials to protect their communities while ensuring the continuity of functions critical to public health and safety, as well as economic and national security.
However, states differ in their interpretation of “essential.” Some have adopted a broader definition, including construction in the list of essential businesses.

The list identifies 16 different sectors that are considered essential. These include:

  • Chemical Sector

  • Commercial Facilities Sector

  • Communications Sector

  • Critical Manufacturing Sector

  • Dams Sector

  • Defense Industrial Base Sector

  • Emergency Services Sector

  • Energy Sector

  • Financial Services Sector

  • Food and Agriculture Sector

  • Government Facilities Sector

  • Healthcare and Public Health Sector

  • Information Technology Sector

  • Nuclear Reactors, Materials, and Waste Sector

  • Transportation Systems Sector

  • Water and Wastewater Systems Sector

The Construction Industry

The construction industry didn’t specifically make the list of Cybersecurity and Infrastructures Security Agency. However, when you dig a little deeper, it’s clear that construction is an essential part of each one. The transportation sector is made up of highways, rail systems, and mass transit infrastructure. The water systems sector includes pipelines, plumbing, and wastewater treatment plants. The healthcare sector needs hospitals. And so on.

Every single critical sector needs contractors and suppliers to provide materials and build facilities that they use to deliver essential, life-sustaining services.

Construction industry leaders have called for government leaders to add construction to the list of essential businesses. According to a joint statement from the CEO of the Associated General Contractors of America (AGC) and the President of North America’s Building Trades Unions, “Government officials at all levels should treat the construction industry and the work it performs as vital and essential to the critical industries that must remain in operation.”

In another joint letter, the leaders of three large equipment manufacturing & distributor trade groups asked the Governor of Alabama to expand the state’s definition of “essential:”

Construction In Critical Sectors

According to the guide in March 2020 published by CISA, a number of essential critical infrastructure workers are identified during COVID-19. The guide dives into much deeper detail on each critical sector, listing specific positions considered essential during the COVID-19 outbreak, including staffing operations centers, maintaining and repairing critical infrastructure, operating call centers, working construction, and performing management functions, among others.

In the guide, they provide a list of workers they consider critical, however, the descriptions are frustratingly vague. Construction work that supports these critical sectors often appears to be an afterthought.

Below are selections from the DHS list of critical jobs that could be considered the work of contractors and suppliers in the construction industry. More often than not, the descriptions simply list workers who “support” activities or infrastructure. An argument could clearly be made that construction projects are an important part of support work. But we really should not have to work so hard to demonstrate that construction businesses are critical to the safety and security of these industries.

California Considers Construction Essential

On March 22, 2020, Governor Newsom issued California Executive Order N-33-20, which lists what the State of California considers an “essential business.” According to the governor’s order, California does consider construction an essential business.

Under “Essential Workforce,” the governor’s order lists:

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

  • Workers such as plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintain the safety, sanitation, construction material sources, and essential operation of construction sites and construction projects, and as well as support projects to ensure the availability of needed facilities, transportation, energy and communications; and support to ensure the effective removal, storage, and disposal of solid waste and hazardous waste.

Yet, this order does not mean that construction is allowed to continue everywhere in California. County and city governments are allowed to set their own definition of “essential business,” which can be more strict than the state order.

Construction in California Counties

The construction in California counties are radically limited - What construction work may continue under State and County Shelter-In-Place Orders.

The health officials of the original seven northern California counties of Alameda, Contra Costa, Marin, Santa Clara, San Francisco, San Mateo, and Santa Cruz signed onto new, similarly-worded “shelter-in-place” Orders. The name of each county referenced above is a live link to that county’s Order. These new Orders went into effect at 11:59 p.m. on March 31, 2020, and will continue to be in effect until 11:59 p.m. on May 3, 2020, or until it is extended, rescinded, superseded, or amended in writing by the Health Officer. There are subtle differences between the Orders, and persons working in any county should reference that county’s Order.
Most construction in these counties will have to be shuttered. New construction starts will not be allowed. Construction employers should immediately consult their human resources and other consultants about the best handling of their staff and workforces. Before making any employment decisions, employers should consider carefully federal and state programs designed to help employers retain employees and meet payroll, rent, mortgages, and other business expenses.

Specific Types of Projects

AS we already know, there are some California counties that allow specific construction projects These counties and cities (most of which are in the San Francisco Bay Area) only permit certain construction projects, for example, Alameda County, Contra Costa County, Marin County, San Francisco County, San Mateo County, Santa Clara County, City of Berkeley

They consider 8 specific types of projects to be “essential business”:

  • Projects immediately necessary to the maintenance, operation, or repair of Essential Infrastructure

  • Projects associated with Healthcare Operations, including creating or expanding Healthcare Operations, provided that such construction is directly related to the COVID-19 response

  • Affordable housing that is or will be income-restricted, including multi-unit or mixed-use developments containing at least 10% income-restricted units

  • Public works projects if specifically designated as an Essential Governmental Function by the City Administrator in consultation with the Health Officer

  • Shelters & temporary housing, but not including hotels or motels

  • Projects immediately necessary to provide critical non-commercial services to individuals experiencing homelessness, elderly persons, persons who are economically disadvantaged, and persons with special needs

  • Construction necessary to ensure that existing construction sites that must be shut down under the Order are left in a safe and secure manner, but only to the extent necessary to do so

  • Construction or repair necessary to ensure that residences and buildings containing Essential Businesses are safe, sanitary, or habitable to the extent such construction or repair cannot be reasonably be delayed.