On March 30, 2020, Gov. Andrew M. Cuomo issued Executive Order 202.13 which, among other things, modified Executive Order 202.6 to clarify that only certain construction activities will be considered exempt from in-person restrictions as of March 28, 2020 and authorizing Empire State Development Corporation to determine which construction projects are “essential” and exempt from the in-person workforce prohibition.
Empire State Development’s guidance1 provides that:
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 guidance appears to put the burden of enforcement on municipalities, which themselves are operating at reduced capacity, and leaves several questions unanswered:
Will the State or municipalities be primarily responsible for identifying non-compliant sites?
Who is responsible for shutting the site?
May deliveries to the site continue?
Who will be fined: The property owner? The developer? The general or sub contactors?
How are violations measured?
To the extent that construction is permitted as “emergency construction,” this will require a fact-specific analysis about whether the project is necessary to protect the health safety and welfare of the occupants or if it would be unsafe to allow a project to remain undone. What is unclear is who performs that fact-specific analysis: is it in the discretion of the general or sub-contractor performing the work or is it up to Empire State Development or the municipality to make that determination?
To date, there is no deadline to stabilize sites permitted as emergency construction or indication about how long non-essential construction activities will be prohibited. Requests for designation as an essential function for those projects not covered by Executive Order 202.6 may be made directly to Empire State Development.
The Zoghlin Group PLLC has experience representing municipalities, developers, contractors and property owners. For help understanding your obligations under Executive Order 202.6 and 202.13 as it relates to construction and enforcement, please contact Bridget O’Toole, Esq. at The Zoghlin Group PLLC.
Last updated March 27, 2020 at 11:00 AM
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