Essential Services Exempt From Covid-19 Workplace “Pause”

Governor Cuomo’s “New York on Pause” Executive Order No. 202.8 (requiring all workplaces to maintain a 0% in-person workforce) exempts “Essential Services.”  At the direction of the Governor, Empire State Development (ESD) has published Guidance on which services constitute Essential Services.  ESD has also created a process through which businesses may request designation as an essential business exempt from the Order.

One category of Essential Services is Construction.  The ESD guidance contains virtually no guidance as to the definition of this category.  This has resulted in confusion in the construction industry regarding which businesses can continue to operate an in-person workforce.  The category specifically “includes” skilled trades such as electricians and plumbers, but what about other construction personnel?  Does the category include surveyors, consultants, engineers or architects, for example?  What about consultants conducting environmental studies?  Does “Construction” incorporate remediation of property in preparation for development?

The ESD guidance also specifically includes “other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes.”  Essential Infrastructure “includes” utilities and power generators, telecommunications, transportation and lodging.  Does that contemplate new projects in these areas or only construction on existing projects?

One can draw some inference from the fact that the guidance describes the category as “Construction including…”  The specific illustrative examples in the guidance, therefore, should not be read as an exhaustive list.  Supporting this interpretation, the New York Building Congress has published letters from several New York State agencies indicating their intention to continue their ongoing construction programs.  And Associated General Contractors of New York State (ACGNYS) reports that it has obtained elucidation from ESD that “Construction” does, in fact, mean “all construction.”  It is hard to be broader than that.  Take note, though, that, while “Construction” should be interpreted broadly under the ESD guidance, only the employees who are essential to providing services on-site are permitted to work at the business location.  Personnel who can fulfill their function working from home (which may include architects, for example) must do so.