Construction Law

Is Construction an Essential Business?

As COVID-19 continues to spread throughout the country, many of the largest cities in the United States are instituting emergency measures in an effort to reduce the effects of the global pandemic. For example, the city of Boston temporarily suspended all construction activities on March 17, 2020. Similarly, Atlanta and Charlotte issued stay-at-home orders on March 23, 2020. Recently, Nashville Mayor John Cooper declared a state of emergency for Metro Nashville and Davidson County.

Although the vast majority of businesses throughout each of these cities will shut down or move to telework, it doesn’t necessarily mean that your construction business will have to. In this article, a Nashville contractor attorney will discuss whether or not your construction business is considered an “essential business” during a government shutdown.

Construction Work and Shelter-in-Place Exceptions

In each of the above listed cities, the local government ordered a shelter-in-place program. This program does provide an exception for “essential businesses.” For example, in Atlanta’s executive order, it states that a business can remain active if they “provide… certain essential services or engage in certain essential activities and work for essential business and government services.” Similarly, the Boston order provided an itemized list of the type of public construction projects that could remain open. Furthermore, the Boston Inspectional Services Department (ISD) will determine “essential work” exceptions on a case-by-base basis with the deciding factor being whether or not the work will “increase public health and safety.”

The language utilized by most of these city orders is vague. Naturally, this leaves many contractors and construction businesses left wondering if they can remain active as an essential business.

Essential Critical Infrastructure Workers

The U.S. Department of Homeland Security (DHS) provided a little more insight on the federal level in their guidelines on state-and-city-wide shut downs. The DHS stated that “essential critical infrastructure workers” can continue their operations in the event of shelter-in-place orders from their city. This not only includes the vast majority of construction firms working on public projects, but it can also include residential and commercial construction businesses in specific cases.

As further outlined in the DHS memorandum, essential business covers many areas of residential and commercial construction, including, “[w]orkers such as plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences.” As Trent Cotney, CEO of Cotney Attorneys & Consultants, highlights in his article, Is Roofing an Essential Service for Shelter in Place Orders, the term other service providers must apply to essential areas of service, including “construction-based services that also are necessary to promote safe and sanitary home-living for long periods of time.” So by the DHS definition, it seems that most construction businesses, including roofers, would apply, as they provide safety, sanitation, and essential operations to projects.

What Construction Firms Should Consider

Although the current federal, state, and local guidelines are vague, most construction projects are currently considered essential businesses; however, there are some exceptions to this rule that largely depend on the nature of the project and the restrictions issued by the local government in your location. For example, in Pennsylvania, Governor Tom Wolf issued a mandate that all “non-life sustaining businesses” must stop, including construction work. So the majority of Pennsylvania-based contractors may not be considered essential.

As the regulations are quickly changing across the country, we encourage all construction businesses dealing with shutdowns to closely review their order from the state, city, or county they are working in. You also need to comply with any guidelines that apply to your project in your location. As the news on the spread of COVID-19 and the government’s actions is changing hour by hour, it’s critical that construction companies closely monitor the most recent updates in their location and consult a Nashville construction law firm before taking action.

If You Are Essential

If you believe that your business is classified as essential, contact our Nashville contractor attorneys. We can assess your location’s order. We can also review your operations to make certain you are considered essential to local government regulations. If you qualify, we can provide you and your crew with an essential business notice to verify that you are actively engaged in construction work and are lawfully classified as essential to your location.

At Cotney Attorneys & Consultants we know that this is a trying time for construction businesses across the nation. We encourage construction businesses that are concerned with whether or not they are considered an essential business to take action and contact our attorneys. For accurate business and legal advice that covers your needs, learn more about our affordable, monthly subscription plan services. Now, more than ever, you need a subscription plan to ensure that every aspect of your business is equipped to deal with the ramifications of COVID-19.

If you would like to speak with our Nashville construction law firm, please contact us today.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.