On April 8, Governor Phil Murphy signed Executive Order 122, modifying prior orders aimed at protecting businesses, employees and citizens during the COVID-19 pandemic. In furtherance of these efforts, Executive Order 122 requires, among other things, all “non-essential” construction projects in New Jersey to cease operations by Friday, April 10, 2020 at 8:00 PM.
The Executive Order permits certain “essential construction projects” to continue and provides a list of these projects, including those involving hospitals, schools, data centers, transportation and infrastructure, and utility work. Other essential projects are those necessary to deliver essential social services (i.e., homeless shelters) or to support law enforcement agencies or first responder units. Another “essential construction project” identified by the Executive Order is any project proceeding under a federal, state, county, or municipal government order or contract. The enumerated exceptions are consistent with the State’s stated, immediate need to expand the health care system’s capacity and address infrastructure and other construction projects tied to the public health and safety concerns.
Beyond these categories of essential construction work, the Executive Order also exempts certain categories of residential projects. Such projects include residential construction of units designated exclusively for affordable housing, as well as projects within a single-family residence or individual apartment unit already underway that require a crew of five or less or are conditioned on an existing contract for purchase and sale or lease agreement.
Non-essential projects can continue for a limited period and for a limited purpose. Such projects can perform any work “required to physically secure the site of the project, ensure the structural integrity of any buildings on the site, abate any hazards that would exist on the site if the construction were to remain in its current condition, remediate a site, or otherwise ensure that the site and any buildings therein are appropriately protected and safe during the suspension of the project.” In effect, non-essential construction can only continue to the extent required to make the site safe enough to cease operations indefinitely. The suspension will likely continue until Governor Murphy lifts the restrictions under the Executive Order.
Construction crews can also perform emergency repairs as necessary to ensure the health and safety of residents. This emergency repair category likely applies to all manner of projects or properties.
In proceeding with “essential construction projects,” all businesses engaged with or otherwise performing essential construction work are required under the Order to adopt certain workplace safety standards consistent with the CDC’s guidelines for social distancing.
These requirements include, but are not limited to, the following:
- Prohibit non-essential visitors from visiting the project site.
- Limit worksite meetings, inductions, and workgroups to 10 or less individuals at a time.
- Require all individuals on site to maintain a distance of six feet or more whenever possible.
- Stagger start and stop times for persons in a crew as practicable (limiting groups of individuals entering and leaving the worksite together).
- Stagger breaks and shifts as practicable to continue operations safely while having the fewest people working on site at any time.
- Restrict how many persons can access common areas (i.e, trailers, restrooms, breakrooms) at a time.
- Require workers and any essential visitors to wear masks or cloth face coverings and gloves while onsite unless doing so would inhibit the individual’s health, and require workers to wear gloves while on the premises (per the CDC’s recent recommendation). Employers on essential construction projects must provide these items to their employees at the employers’ expense. Businesses should deny entry to any visitor declining to follow this guideline. Workers or visitors may wear a surgical-grade mask or other more protective face covering if the individual is already in possession of such equipment, or if the business is otherwise required to provide such worker with more protective equipment due to the nature of the work involved. If an employee or other individual declines to wear a face covering on the premises due to a medical condition that inhibits such usage, the business (and its staff) cannot require medical documentation to verify the stated condition.
- Implement mandatory infection control practices, including regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal.
- Avoid sharing of tools, equipment and machinery to the extent practicable and sanitize tools or equipment with Clorox or other disinfectant wipes between uses by different persons.
- Provide sanitization materials to workers and visitors.
- Require frequent sanitization of high-touch areas like restrooms, breakrooms, equipment, machinery, doorknobs or keypads.
- Immediately separate and send home workers presenting or appearing to present with COVID-19 symptoms (either at arrival or sometime during the work day).
- Promptly notify workers of any known COVID-19 exposure at the project site in accordance with the confidentiality requirements of the Americans with Disabilities Act and other applicable laws.
- Clean and disinfect all project sites per CDC guidelines when a worker at the site has been diagnosed with COVID-19 illness.
- Comply with all applicable guidelines and directives issued by the New Jersey Department of Health, the CDC and OSHA, for maintaining a clean, safe and healthy work environment.
Given the new restrictions under Executive Order 122, employers should provide workers on essential construction projects that continue after Friday, April 10 with travel letters reflecting that the project qualifies as “essential” under the Order and the worker is permitted to travel to and from the site and as needed to perform the construction.
Finally, the Executive Order permits the State to issue penalties under N.J.S.A. App. A:9-49 and -50, which includes fines not to exceed $1,000, a term of imprisonment up to six months, or both.
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Molly Kellett is an experienced litigator focusing on commercial litigation, construction matters and employment law. She counsels a wide array of clients and handles all stages of complex commercial matters, from contract ...
Michael Affrunti concentrates his practice on regulatory affairs and commercial litigation in a variety of industries that routinely intersect with state, county and local government authorities. His experience includes a ...