Massachusetts COVID-19 Essential Services as they Relate to the Construction Industry

April 2, 2020 Alerts and Newsletters

On March 23, 2020, Governor Baker issued “an emergency order requiring all businesses and organizations that do not provide ‘COVID-19 Essential Services’ to close their physical workplaces and facilities to workers, customers and the public as of Tuesday, March 24, 2020. These businesses are encouraged to continue operations remotely.” On March 31, 2020 the Governor extended and modified the order. The following is a summary regarding the Massachusetts COVID-19 Emergency Order, as modified, as it specifically relates to construction and engineering.

The Governor’s COVID-19 Order broadly mandates that businesses, except for “Essential Businesses,” close their physical workplaces and facilities to workers, customers, and the public and not reopen until May 4, 2020. Exhibit A to the Order deems certain construction and engineering categories of operations and workers “Essential Businesses,” exempt from the mandated closure ordered by the Governor. Construction work permitted under the order includes work relating to:

sanitation, essential operation of residences, hospitals, health care facilities, senior living facilities, temporary construction required to support COVID-19 response, roads and bridges, water and sewer, laboratories, fleet maintenance personnel, construction of critical or strategic infrastructure, traffic signal maintenance, emergency location services for buried utilities, and maintenance of digital systems infrastructure supporting public works operations, construction of public schools, colleges and universities and construction of state facilities, including leased space, managed by the Division of Capital Asset Management; airport operations; water and sewer; gas, electrical, nuclear, oil refining and other critical energy services; roads and highways; public transportation; steam; solid waste and recycling collection and removal; and internet and telecommunications systems (including the provision of essential global, national, and local infrastructure for computing services), road and line clearing and utility relocation, to ensure the availability of and access to needed facilities, transportation, energy and communications, workers performing housing construction related activities, including construction of mixed-use projects that include housing.

Parties are encouraged to review the Commonwealth’s webpage that provides the full listing of Essential Services as well as the “frequently asked questions” page.

The Order includes a provision stating that it supersedes any order or rule that will or might interfere with the achievement of the objectives of the Order. It remains unclear how this Order will affect orders issued by the City of Boston, City of Cambridge, City of Somerville and island of Nantucket (and potentially others) that limit construction far more restrictively. As of the date of this writing, these communities still include significantly more restrictive limitations of construction on their websites and it appears that the Commonwealth, for now, is not seeking to override the more restrictive rules of these communities. We will update as more information becomes available.

Public jobsites that remain open, based on the exemptions above, are subject to further COVID-19 Guidelines. The Commonwealth has issued “Commonwealth Of Massachusetts COVID-19 Guidelines and Procedures For All Construction Sites and Workers at All Public Work.” This information may be downloaded online here.

The guidelines have detailed requirements that include sending sick workers home, temperature screening of workers who work inside of building envelopes and confined spaces and many other requirements geared at stemming the spread of this virus on jobsites. These guidelines must be followed at all Commonwealth public works projects. The Commonwealth has urged that these guidelines are followed at private projects and has encouraged cities and towns to issue similar directions for private projects. We expect that communities will follow this recommendation, and would advise construction companies that are allowed to continue to work, implement these guidelines both as a preventative safety measure and because of the likelihood that they will apply soon to all projects.

Some employees may be required perform certain work activities at a jobsite out of necessity, but at the same time those same employees may able to perform other work activities remotely. All of the exemptions should be interpreted in accordance with the overall mandate of the Governor’s Order and should not be applied to non-essential functions, which can be reasonably accommodated through remote/telework. To that end, documenting in a simple manner the decision making process with respect to which work tasks were determined to be necessarily performed on a jobsite and which work tasks could be performed remotely is recommended.

Operations that are exempt from the Order are still subject to the guidance and directives of the Department of Public Health and the Commissioner of Public Health. All entities still operating as “Essential Services” should continue to stay informed on current health and safety information, as this situation is rapidly changing.