On April 20, Pennsylvania Gov. Tom Wolf amended his March 19, 2020 Order Regarding the Closure of All Businesses That Are Not Life Sustaining. Under the previous order, construction was permitted to continue only if the business qualified as “life-sustaining” and was performing emergency repairs or if the business obtained a waiver.
The amended order paves the way for construction projects to start again throughout the Commonwealth. On April 23, Gov. Wolf announced that statewide construction can commence on May 1, 2020 and provided additional information related to the amended order in an accompanying document titled “Guidance for Businesses in the Construction Industry Permitted to Operate During the COVID-19 Disaster Emergency.” Gov. Wolf specified that the amended order applies to “all businesses in the construction industry in the Commonwealth, including those in new construction, renovation, and repair[.]” Prior to May 1, all construction industry businesses must continue to follow existing guidelines. A full list of businesses that may maintain in-person operations before May 1 can be found here.
The Guidance also provides specific information as to residential construction and nonresidential or commercial construction. As to residential projects, no more than four persons may be on the job site at any time, with some exceptions. As to nonresidential and commercial projects, no more than four persons may be on enclosed job sites of 2,000 square feet or less. One additional person is permitted on the job site for each additional 500 square feet of enclosed area over 2,000 square feet, with some exceptions.
Businesses that reinitiate activities also must abide by numerous social distancing and other mitigation and cleaning protocols, including those issued by the Centers for Disease Control and Prevention and the Pennsylvania Department of Health. One such protocol specifically referenced by Gov. Wolf’s order is the Order of the Secretary of the Pennsylvania Department of Health Directing Public Health Safety Measures for Businesses Permitted to Maintain In-Person Operations, which was issued by Health Secretary Rachel Levine, MD, on April 15, 2020.
Dr. Levine’s order applies to all businesses that are authorized to maintain in-person operations, other than health care providers. For now, this includes those in the construction industry that either qualify as “life-sustaining” or that applied for and received a waiver through the Pennsylvania Department of Community and Economic Development. As of May 1, 2020, however, this will apply broadly to all construction activities maintaining in-person operations throughout the Commonwealth.
The order sets forth a number of social distancing, mitigation and cleaning protocols above and beyond those that have already been put in place. Some of these procedures have particular applicability to construction projects, including:
- closing off areas that have been occupied by an individual who has a probable or confirmed case of COVID-19
- waiting a minimum of 24 hours, or as long as practical, before beginning cleaning and disinfection activities
- identifying other employees, or in the case of contractors, other trade subcontractors, who were in close contact with a person with a probable or confirmed case of COVID-19
- implementing temperature screening before an employee begins his or her shift
- providing a sufficient amount of space for employees to have breaks while maintaining a social distance of six feet
- limiting in-person meetings to the fewest number of employees possible, not to exceed 10 employees at one time, and maintaining a social distance of six feet
- providing masks for employees to wear during their time at the business, and making it a mandatory requirement to wear masks while on the worksite
- prohibiting nonessential visitors from entering the premises of the business.
Contractors will want to carefully review the order to ensure full compliance. Failure to comply with the requirements set forth in the order may result in citations, fines or license suspensions.
Contractors should also review and revise their own policies, where necessary, to ensure compliance with all of the social distancing, mitigation and cleaning protocols referenced by Gov. Wolf’s April 20 order and the additional guidance issued on April 23. Additionally, contractors may encounter productivity issues due to fewer workers being allowed on the job site at any one time, or may need to expend additional costs to comply, like purchasing masks for all employees or leasing larger spaces to hold meetings to ensure social distancing of at least six feet. Additional information about potentially relevant contractual provisions that may entitle contractors to recover these additional expenses can be found here.
The information above is for informational purposes only and is not intended to serve as providing legal advice. If you have further questions or seek advice based on your specific fact situation and contractual provisions, please reach out to any members of the Pepper Hamilton and Troutman Sanders Construction groups. In addition, Pepper Hamilton and Troutman Sanders maintain a COVID-19 Dedicated Resource Center to help guide clients through the challenges presented by COVID-19.