New York State issues new guidance as to determining what construction projects are considered an “essential service” in connection with Governor Cuomo’s Executive Order requiring all non-essential entities to reduce in-person workforces by 100%

March 28, 2020

Real Estate Law Alert

Author(s): Erica F. Buckley, Allen A. Lynch, II, A. Darren Miller, Joseph J. Lynch, Denise A. Pursley

Essential Construction or Non-Essential Construction: That is the question as the hammer comes down and NY halts non-essential construction.

On March 22, 2020, Governor Cuomo placed New York State on “PAUSE” via Executive Order and subsequently required all non-essential businesses and not-for-profit entities to reduce their in-person workforces by 100% and close. Originally construction projects were considered essential services. On March 27, 2020, the New York State Department of Economic Development d/b/a Empire State Development updated its existing guidance to deem most construction as non-essential. There are some carve-outs for certain construction that continues to be deemed “essential”:

  • emergency construction (e.g., a project necessary to protect the health and safety of the occupants, or to continue a project if it would be unsafe to allow it to remain undone until it is safe to shut the site); and
  • construction of roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing, and homeless shelters.

In order to continue, essential construction must comply with social distancing and other safety protocols in place, including for elevator use, meals, and entry and exit routes. Sites that cannot maintain distance and safety best practices must close. The state, in coordination with city/local governments, will enforce these new requirements and have the authority to issue fines of up to $10,000 per violation.

The new restrictions do not apply to a single worker, who is the sole employee/worker on a job site.

Nixon Peabody will continue monitoring Governor Cuomo’s actions and orders in response to COVID-19, in addition to monitoring developments on a nationwide basis.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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