New Guidance Indicates Construction Not Likely To Be Shut Down In New York

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New York officials have issued additional guidance about construction’s essential status that seems to indicate that even in the areas hardest hit by the coronavirus outbreak, construction will most likely remain essential. Based on the latest clarification, the Associated General Contractors of New York State told its members in an emailed update yesterday that it believes the following applies:

If a region becomes a “Red Zone,” the guidance at this link on essential business applies. This guidance deems construction broadly essential, saying that projects may continue, but any work that can be done remotely such as office-based work must proceed remotely to the extent practicable. Employees who are not directly involved in in-person work at the business location/construction site are prohibited.

If the state moves to a full shutdown such as happened with this spring’s “NY on Pause,” then the more restrictive definition of essential construction would apply, halting projects across the state but allowing for the continuation of school, infrastructure and healthcare construction among other types of projects.

AGC NYS CEO Mike Elmendorf said the changing guidance is not surprising, because the industry and government officials are navigating the effects of a surging pandemic while balancing safety and jobs.

“The governor and his team are making adjustments and changes as the facts and data warrant, and at times that means things get confusing. It is to a significant degree unavoidable. We are in uncharted waters here,” he said.

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“We certainly understand that and have been communicating regularly with the administration on these matters since the start — and we appreciate the clarity that has been brought to this from the start,” he added. “We have come a long way on clarity since the spring.”

The construction industry has been broadly deemed essential from the beginning of the pandemic, Elmendorf noted.

“We have kept working and the data shows we have done it safely,” he said. “In doing so, we have kept a critical component of our economy and critical supply chains online. We are prepared to continue doing that — safely.”

Dive Brief:

Much like during the early days of the pandemic, new COVID-19 guidance from New York State puts renewed focus on whether businesses, including construction, are essential.

This weekend, the state updated its guidance for its COVID Cluster Action Initiative indicating that all but essential businesses will be shut down if a region reaches Red Zone status. The initiative divides clusters and the areas around them into three categories with successively higher restrictions: Yellow Zones, Orange Zones and Red Zones.

For contractors, the new guidance relies on a more restrictive definition of essential construction (item 9 here) in Red Zone areas, eliminating previous language that appeared to broadly deem construction as essential, according to a letter from the Associated General Contractors of New York State to its members.

Dive Insight:

The zones are designed to help control COVID-19 spread and protect hospital capacity in New York, which has seen rising caseloads since the fall. According to an online tracker, no areas are deemed Red Zones but there are several Orange and Yellow areas. The metrics used for each are:

Red Zone: A Red Zone will be implemented when a region, after the cancellation of elective procedures and a 50% increase in hospital capacity, is 21 days away from reaching 90% hospital capacity on the current seven-day growth rate.

Orange Zone: A geographic area will be eligible to an Orange Zone if it has a 4% positivity rate (seven-day average) over the last 10 days and it is located in a region that has reached 85% hospital capacity. Alternatively, an area may also become an Orange Zone if the New York State Department of Health determines the region’s rate of hospital admissions is unacceptably high and a zone designation is appropriate to control the rate of growth.

Yellow Zone: A geographic area will be eligible to enter a Yellow Zone if it has a 3% positivity rate (seven-day average) over the past 10 days and is in the top 10% in the state for hospital admissions per capita over the past week and is experiencing week-over-week growth in daily admissions.

As national virus case counts spike, and daily death tolls reach their highest levels since the spring, contractors around the country are worried about the potential for more stop-work orders to prevent the continued spread of COVID-19, similar to initial shutdowns that were put in place in the first weeks of the pandemic, prior to construction being deemed essential in most regions.

The AGC NYS last week led a statewide coalition of industry groups calling on Gov. Andrew Cuomo to continue to deem construction essential in all zones.

“As COVID-19 cases continue to spike throughout New York State and the nation, the construction industry has worked in a safe and essential manner,” read a letter signed by the leaders of 21 construction-focused groups and trade unions. “We strongly urge you to keep construction as an essential business so that we can keep this critical sector of the economy working.”

In a briefing last week, Cuomo provided data that showed construction as the source of exposure in only .66% of COVID-19 cases from September to November, according to contact tracing data.

AGC NYS CEO Mike Elmendorf noted, in the letter to members, that the situation is evolving and said that he anticipates the industry is re-entering a period of frequent changes to rules and guidance.

John Caravella Esq., is a construction attorney and formerly practicing project architect at The Law Office of John Caravella, P.C., representing architects, engineers, contractors, subcontractors, and owners in all phases of contract preparation, litigation, and arbitration across New York and Florida. He also serves as an arbitrator to the American Arbitration Association Construction Industry Panel. Mr. Caravella can be reached by email: [email protected] or (631) 608-1346.

This is a general information article and should not be construed as legal advice or a legal opinion. The content above has been edited for conciseness and additional relevant points are omitted for space constraints. Readers are encouraged to seek counsel from a construction lawyer who has experience with Long Island construction law for advice on a particular circumstance.