Over the past five days many states, counties, and cities issued “stay-at-home” or “shelter-in-place” (collectively, SIP) orders to combat the spread of COVID-19. Here, we focus on the impact these sweeping orders could have on new and ongoing construction projects in Alabama, Florida, Georgia, Louisiana, Mississippi, and Texas. As with all the effects of COVID-19, the issuance, interpretation, and enforcement of these orders are fast-breaking and in constant flux.
DHS Cybersecurity and Infrastructure Security Agency Guidelines
A threshold question to evaluate the impact of a SIP order on a construction project is whether your operations and workforce impact “essential” or “critical” infrastructure. Many states and localities are incorporating the Guidelines published by the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) to help identify “essential critical infrastructure workers” for exemption from SIP restrictions. These Guidelines are general and do not specifically address the construction industry. Nevertheless, the construction industry significantly impacts each of the sectors and industries specified in the Guidelines, and thus, a number of projects may likely fall within CISA’s definition of “critical infrastructure.”
On Thursday, March 19, 2020, the governor and the Alabama Department of Public Health issued a statewide public health order limiting meetings of 25 people or more and prohibiting specific business operations. Importantly, Alabama’s current statewide order does not apply to the construction industry.
In addition to the statewide order, Birmingham’s mayor also approved a shelter-in-place (SIP) order, which similarly does not apply to construction activities.
Although arguably more stringent, the Birmingham order includes a specific carve-out for construction activities for essential infrastructure. The order also specifically lists the following as work excluded from the order: construction of commercial, office and institutional buildings; residential building and housing construction; airport construction; port operation and construction; and road and highway construction.
Florida has not yet issued a statewide SIP order. Instead, the governor is encouraging local officials to issue such orders as they deem necessary for the public safety of communities within their jurisdiction. The orders covering Miami-Dade, Broward, and Alachua counties are addressed below. This is not an exhaustive list of the counties and cities under similar SIP orders in Florida.
- “Open construction sites” are considered essential businesses and may remain open under both the County and City of Miami orders. In addition, architectural and engineering businesses are also essential. Miami-Dade has been issuing frequent amendments adjusting its order. Keep track at this Miami-Dade webpage.
Broward County (effective March 23, 2020)
- As with the Miami-Dade order, open construction sites are allowed to remain open, and architectural and engineering businesses are considered essential. The Broward order includes a limitation, however, that the architectural/engineering business may only operate for ongoing construction projects.
Alachua County (effective March 23, 2020)
- This order provides that “Residential and Commercial related construction, including repairs to existing structures and construction projects which are in progress[,] are allowed to continue to completion. … Commencement of new construction is not permitted.” It allows construction under “Essential Infrastructure” as follows: “construction required in response to this public health emergency, hospital construction, and construction of medical facilities and public works construction.” The order also deems businesses providing architectural or engineering services are essential, but again only with regard to ongoing construction projects.
On Monday afternoon, March 23, 2020, the governor issued a statewide order limiting movement of individuals and certain business activities. Notably, there is no provision limiting construction activities — aside from the general limits placed on gatherings of more than 10 people, unless those people are able to stay at least six feet apart. The statewide order is in effect now until noon on Monday, April 6, 2020.
Further, on Monday evening, March 23, 2020, Atlanta Mayor Bottoms issued an order for the city of Atlanta, separate from the statewide order. Just as with the statewide order, there is no provision limiting construction activities (again, aside from needing to stay at least six feet apart). Please note that the original text of Atlanta’s order created confusion because of an omitted comma, which has since been corrected. (The original order exempted only “public works construction…,” but has since been changed to exempt “public works, construction…”). The Atlanta order is in effect from midnight on March 24 until midnight April 7.
The governor issued a statewide SIP order that went into effect at 5 p.m. on March 23, 2020. The order directs all Louisiana residents and businesses to limit movements and operations beyond “essential needs” and “Essential Worker Functions.”
Based on our firm’s research and communications with both state and local officials, as of yesterday:
- The governor has confirmed that commercial and industrial construction operations may continue.
- Any additional enforcement actions by Orleans or Jefferson Parish to shut down or limit construction activities will be in reaction to complaints — and not proactive enforcement by authorities.
- No other local parish or city official in Louisiana that we are aware of has indicated that any specific ongoing construction operations will be limited or suspended.
Importantly, the implications of the governor’s recent order continue to rapidly evolve, and thus, clients should consult with local officials, trade associations, counsel, and other resources before making any decision with respect to their new and ongoing construction operations.
On Tuesday, March 24, 2020, the governor issued an executive order instructing Mississippi citizens to avoid social and nonessential gatherings of 10 or more people. The order expressly allows construction and related operations to continue as an “Essential Business or Operation”:
Construction and construction-related services including building and construction, lumber, building materials and hardware, electricians, plumbers, exterminators, cleaning and janitorial, HVACR and water heating industry, painting, moving and relocating services, other skilled trades, and other related construction firms and professionals for maintaining essential infrastructure.
Numerous municipalities in Mississippi have issued orders related to COVID-19. Some of those orders make exceptions for construction activities, and others do not.
- Oxford, Mississippi (effective for 15 days from March 22): “[A]ll nonessential businesses and business functions … shall be closed to the public.” The only construction-related exception to this closure is for services necessary for “essential operation of residents (plumbers, electricians, landscapers, HVAC services, and the like).”
- Tupelo, Mississippi (effective March 21 through March 28): A “shelter-in-place” order prohibits all travel, other than to “essential businesses.” Construction services, however, are considered essential.
- Natchez, Mississippi (effective for 15 days from March 25): A resolution, very similar to Oxford’s, closes all businesses not deemed essential and makes the same limited exception for services necessary for “essential operation of residents (plumbers, electricians, landscapers, HVAC services, and the like).”
Texas has not issued a statewide stay-at-home order. Instead, the governor is allowing localities to issue such orders as they deem necessary for individuals living within their jurisdiction. The orders covering Dallas, Austin, San Antonio, and Houston are addressed below. This is not an exhaustive list of the counties and cities under similar stay-at-home orders, but the below is representative of the different language in such orders pertaining to the construction industry in Texas.
Dallas County (Dallas) (effective March 23 through April 3, 2020)
- Construction falls under Essential Businesses for “public works construction, residential and commercial construction,” but this is under the rubric of the CISA critical infrastructure sectors. The Dallas order was the first to be issued in Texas. Later orders, including for Bexar County and Harris County, have not tied the construction industry solely to critical infrastructure.
Travis County (Austin) (effective March 24 through April 13)
- The language of the Austin city order is more limited than Dallas County’s. The exemption is limited to construction focusing on public works, affordable housing, and social services, and construction supporting essential uses, essential businesses, government functions, or other critical infrastructure. Indeed, according to news reports, city officials stated that “there will be no commercial construction, except in limited exceptions where it’s constructing essential and critical assets. Construction will be allowed for public works and residential purposes if it meets the other criteria, like affordable housing, etc. Several City of Austin capital improvement projects are categorized as critical infrastructure under the public works clause and will continue construction.” If you are constructing in Austin, watch for this to develop as numerous industry groups petition city hall.
- Both the City of San Antonio and Bexar County orders include “construction” among the list of Exempted Businesses, specifically, allowing “[b]usinesses related to public works construction, construction of housing, and commercial construction” as well as transportation construction to continue to operate.
Harris County (Houston) (effective March 24 through April 3)
- Harris County mirrors the Bexar County order providing “construction” among the list of Exempted Businesses, and allowing “public works construction, construction of housing or other types of construction including commercial” as well as transportation construction to continue to operate.