On April 2, 2020, Governor Kemp issued Executive Order 4.02.20.01 (the Georgia Order) requiring that all residents of and visitors to the State of Georgia shelter in place, subject to certain limited exceptions. This update examines the effect of the Georgia Order, specifically on ongoing construction projects.
As it pertains to ongoing Georgia construction projects, the Georgia Order permits engaging in work that is “Critical Infrastructure” and performing travel necessary to accomplish the foregoing. Therefore, ongoing construction projects may operate in some capacity to the extent the project constitutes Critical Infrastructure.
What Is Critical Infrastructure?
The Georgia Order references the U.S. Dept. of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) guidance dated March 19, 2020, and revised on March 28, 2020, (available here and hereinafter referred to as the CISA Guidance Document) to define “Critical Infrastructure.” Per the CISA Guidance Document, “Critical Infrastructure” is defined as “essential critical infrastructure workforce,” which is broken down into 16 separate industry categories including defense, energy, healthcare, services in support of those sheltering in place, certain commercial facilities, government and law enforcement, public works, and others.
Is My Construction Project “Critical Infrastructure” Work?
As discussed above, the CISA Guidance Document defines essential Critical Infrastructure by identifying 16 industry categories whose continued operation is deemed to be critical to maintaining the country’s public welfare, health, and safety. To determine if an existing construction project falls within one of the enumerated categories, carefully analyze the nature of the project to determine if it directly relates to or falls within the enumerated activities within each identified industry category.
There is no specific category for or treatment of ongoing construction projects in the CISA Guidance Document. In addition, only a few of the 16 categories even mention construction activities and/or ongoing new construction work.
The following language within the CISA Guidance Document provides or implies that certain construction activities may continue within the particularly identified industry categories:
1. Public Works and Infrastructure Support Services (Note that this category addresses healthcare facilities)
- Bullet two in this list identifies the following as Critical Infrastructure:
- “Workers such as plumbers, electricians, exterminators, builders, contractors, HVAC Technicians, landscapers, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, businesses and buildings such as hospitals, senior living facilities, any temporary construction required to support COVID-19 response.”
- Therefore, ongoing construction work relating to “maintaining the safety, sanitation, and essential operation” of existing, as opposed to new, “residences, businesses and buildings such as hospitals, senior living facilities, [or] any temporary construction required to support COVID-19 response,” may continue. For example, any construction necessary to repair a damaged hospital or convert buildings to a COVID-19 shelter or treatment facility constitutes Critical Infrastructure and may proceed. However, new construction projects do not appear to fit into this exemption.
2. Other Community- or Government-Based Operations and Essential Functions
- Bullet one identifies the following as Critical Infrastructure:
- “Workers to ensure continuity of building functions, including but not limited to security and environmental controls (e.g., HVAC), the manufacturing and distribution of the products required for these functions, and the permits and inspections for construction supporting essential infrastructure.”
- Bullet sixteen identifies the following as Critical Infrastructure:
- “Workers supporting essential maintenance, manufacturing, design, operation, inspection, security, and construction for essential products, services, and supply chain and COVID 19 relief efforts.”
- These provisions indicate that ongoing construction activities that allow existing buildings to continue to function, including the permitting and inspection of such work, and/or which affect, support, or enhance the ability for products to enter the supply chain qualify as Critical Infrastructure. For instance, construction of a warehouse that is critical for the supply and/or storage of products essential to COVID-19 relief and support efforts would be allowed to continue.
3. Commercial Facilities
- Bullet one identifies the following as Critical Infrastructure:
- “Workers who support the supply chain of building materials from production through application/installation, including cabinetry, fixtures, doors, cement, hardware, plumbing, electrical, heating/cooling, refrigeration, appliances, paint/coatings, and employees who provide services that enable repair materials and equipment for essential functions.”
- Bullet four identifies the following as Critical Infrastructure:
- “Workers distributing, servicing, repairing, installing residential and commercial HVAC systems, boilers, furnaces and other heating, cooling, refrigeration, and ventilation equipment.”
- These activities form a large part of ongoing construction projects. The language also allows not only the production of construction materials but their installation in ongoing projects as Critical Infrastructure.
4. Residential/Shelter Facilities and Services
- Bullet six identifies the following as Critical Infrastructure:
- “Workers performing housing construction related activities to ensure additional units can be made available to combat the nation’s existing housing supply shortage.”
- Bullet eight identifies the following as Critical Infrastructure:
- “Workers supporting the construction of housing, including those supporting government functions related to the building and development process, such as inspections, permitting and plan review services that can be modified to protect the public health, but fundamentally should continue and serve the construction of housing (e.g., allow qualified private third-party inspections in case of government shutdown).”
- These two bullet points exempt all ongoing residential and multifamily construction from the stay at home requirements of the Georgia Order. The last bullet point specifically allows for the inspection and permitting of all residential and multifamily projects.
What Other Options Do I have?
Since many ongoing construction projects within various industry sectors like hospitality, office, and mixed-use are not specifically mentioned by the CISA guidance document as Critical Infrastructure, these projects would be subject to suspending work activities under the Georgia Order. Continuing to operate construction projects not expressly listed in the CISA Guidance Document could expose contractors and projects to shut down orders from applicable regulatory agencies.
However, the Georgia Order gives the Georgia Department of Economic Development (GDEcD) the authority to issue guidance to any business regarding its status as Critical Infrastructure, and such determination would be considered a final agency action. Owners of affected construction projects that are not included within the above categories of Critical Infrastructure should consider petitioning the GDEcD for specific guidance regarding continued operation of ongoing construction projects. A form for requesting such a determination is available on the GDEcD website.
What if I Have Other Questions?
The Construction Team and the COVID-19 Task Force at Morris, Manning & Martin, LLP, are fully versed in assessing COVID-19-related issues pertaining to new and ongoing construction and real estate development projects. Please do not hesitate to reach out if you have any questions or concerns regarding COVID-19’s impact upon your project.