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The Gray Area: When Is Work Essential and When Is It Not?

Day to day and hour to hour, the rules keep changing—what was deemed essential, and therefore exempt from work-at-home requirements under Executive Order 202.6 yesterday may not be considered essential today.  As of yesterday, State guidance permitted all construction work to proceed under the Executive Order. This morning, New York Governor Andrew Cuomo declared that all construction work that is not “truly” essential must shut down or risk fines of up to $10,000 per violation, and the guidance was updated to reflect this change.  This most recent declaration, like many of the others issued over the past two weeks, has left many questioning what it means for their work and their projects.

What started as a blanket exemption for construction has now narrowed to those projects deemed “essential,” which the State says includes “roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing, and homeless shelters.”  Also permitted to continue is work on non-essential projects that is necessary to protect health and safety of occupants, as well as work that would be unsafe if it remained incomplete (although that work may continue only to the point where it is deemed safe to shut down).  That, for now, is the extent of the guidance from the State.  Questions remain concerning non-essential work that skirts the borderline between work that is necessary to protect health and safety of building occupants, or that which would be unsafe if allowed to remain incomplete, and that which is not.  Questions also remain concerning work that is not the subject of its own exemption, but may fall under the penumbra of one or more other exemptions.  Whether that work may continue will depend entirely on how liberally the exemptions will be interpreted.

Environmental remediation work is one example.  Until this morning, a large percentage of that work may have qualified as services that support construction, but these services are, for the most part, no longer covered by the exemption.  Some remediation work may fairly be described as necessary to protect health and safety of building occupants, or to avoid otherwise unsafe conditions if the work were allowed to remain incomplete.  There are scores of sites, however, where contamination has existed for decades; while the remediation of those sites would undoubtedly benefit public health and safety, is that benefit so essential that it should not be delayed?  For work where there is a logical argument to extend the exemption, an assessment is going to have to be made as to whether the risk of penalties outweighs the costs of delay.  Whether or not work is covered by the exemption may well become a point of dispute between developers and contractors unwilling to take such a risk, or whose workers object to reporting to a site.

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