Are Construction Sites Open? Jurisdictional Impacts in PA, NY, and NJ

Importantly, this alert is not meant to advise businesses regarding their workplace safety obligations, which are discussed here. In addition, it is urged that all businesses comply with the lawful orders of each jurisdiction and take extra precautions to assist in the protection of life and health. Finally, please be aware that specific local jurisdictions may have their own emergency orders in addition to those discussed below.

• Pennsylvania

Consistent with the Emergency Management Code, Governor Wolf has declared a state of emergency. Effective March 16, 2020, Governor Wolf has asked that “non-essential” businesses state-wide close. Governor Wolf’s Order is not mandatory. Further, construction has been deemed “essential” allowing projects to continue/proceed.

• Philadelphia

Mayor James Kenney had declared a state of emergency. Effective March 16, 2020, Mayor Kenney has ordered that “non-essential” businesses close, outlining those businesses generally deemed “essential.” However, construction projects may continue/proceed.

• New York State

Governor Andrew Cuomo has declared a state of emergency. Effective March 16, 2020, Governor Cuomo has closed casinos, gyms, and theatres and limited the business of bars and restaurants. “Non-essential” businesses are urged to close or severely limit their hours. Construction projects are continuing.

• New York City

Mayor Bill De Blasio has declared a state of emergency. Effective March 17, 2020, some businesses such as restaurants, bars, and cafes have been ordered to offer only take-out or delivery. Other businesses, e.g., concert venues and nightclubs, were ordered to close. Facilities have been asked to lower their occupancy by 50%. Construction activities may continue/proceed.

• New Jersey

Governor Phil Murphy has declared a state of emergency. Effective March 16, 2020, Governor Murphy has ordered the closure of all casinos, concert venues, nightclubs, racetracks, gyms, fitness centers, movie theatres, and performing art centers and limited bars and restaurants, with or without a liquor license, to offering delivery and/or take-out services only. The order also mandates that all non-essential retail, recreational, and entertainment businesses must cease daily operations from 8:00 p.m. to 5:00 a.m. Construction projects are continuing.

Notwithstanding permitted ongoing construction activities, projects are still being impacted by COVID-19. It is important that businesses consider how they are impacted both presently and going forward, and understand the requirements of force majeure and other applicable principles [learn more about force majeure here].

Please note, on April 5, 2020, the Pennsylvania Secretary of Health issued an Order mandating enhanced cleaning and disinfecting requirements for owners of large buildings. The Cleaning Order applies to owners of buildings of at least 50,000 square feet used for commercial, industrial or other enterprises, including but not limited to facilities for warehouses, manufacturing, commercial offices, airports, grocery stores, universities, colleges, government, hotels, and residential buildings with at least 50 units.

The Coronavirus Task Force at Klehr Harrison stands ready to assist you in your business and legal needs. We will continue to provide additional information and guidance as the COVID-19 situation develops.

Author Gaetano Piccirilli is a partner in the Litigation Department at Klehr Harrison.