Good afternoon Builders Exchange Members:
I hope you are having a good weekend! We have spent the last few days pestering the Governor’s office and Empire State Development for clarifying guidance. I have heard from many members about the inconsistencies they are hearing as well as threats from some municipalities to begin fines immediately. This situation has created chaos in our industry and could have been handled with much less confusion with just a few pieces of guidance when it was announced.
We have not received answers to all of the questions that we have asked, however we do have more clarification.
When does the order start: It was effective upon announcement.
When does the order end: We do not know. There are incorrect reports out, mostly spurred by press releases from NYC based associations, that say the order goes until April 21 or 22. There is no confirmation from the Governor’s office or ESD on this matter.
Work for private owners who are in essential industries: There is no new guidance. The safest course is to shut those projects down safely and seek clarification from ESD. Keep in mind that you can have one worker on site.
Work for private owners are not in essential industries: This work is shut down. There is no new guidance, although you can continue to have a single person working.
Public Owners: Public owners and state agencies are exempt from the order. You can work these projects, so long as the public owner deems them essential. Correspondence from ESD is below that verifies that. ESD has not yet shared the actual order, although we have asked for it.
State Agencies: State Agencies are exempt from the order. Correspondence from ESD is below that verifies this. ESD has not yet shared the actual order, although we have asked for it.
Residential Work (not affordable housing): No new guidance. It is shut down. Keep in mind that you can have one worker on site.
Federal Projects: There was no clear guidance provided, however one could read “government entities” broadly. It does seem logical that a directive to proceed from a federal agency would supersede a state directive.
Safety: We believe that you can work on non-essential sites to secure the site and deal with health and safety issues. Once those are dealt with, the site should be shut down, although one worker can continue to work. There is no specific guidance on this, however common-sense dictates that unsafe conditions should not be left exposed.
Office staff: We have been asked if office staff is allowed to work. To the extent that office employees are supporting essential projects, they can continue to work. The same would be true for shop workers and delivery personnel.
Suppliers and service providers: Those supporting essential projects can continue to work.
Public Bidding: No new guidance has been provided. However, since public owners appear to be largely exempt from this order, we should expect that bidding will continue unless we are notified otherwise. It is then logical assume that staff that needs to be in the office to complete these functions could do so.
Confirm the Essential Nature of the Project: We suggest that you get a letter or other correspondence from the owner that verifies the site is an essential project.
Delay Claims: Read your contracts and follow the notice requirements. Prepare documentation of the related costs and issues.
Social Distancing: For all projects, you are required to follow the social distancing guidelines.
Letters for Employees: A number of firms have asked if they should have their employees carry a letter other documentation about working on an essential site. There is no requirement to do that, however if you think it would be useful or put people at ease then by all means do so.
Guidance from Empire State Development
Correction from the Gov’s Counsel…
Local governments, including municipalities and school districts, are allowed to continue construction projects at this time as government entities are exempt from the essential business restrictions. However, to the greatest extent possible, local governments should postpone any non-essential projects and only proceed with essential projects when they can implement appropriate social distancing and cleaning/disinfecting protocols. Essential projects are those that have a nexus to health and safety of the building occupants or to support the broader essential services that are required to fulfill the critical operations of government or the emergency response to the COVID-19 public health crisis.
Clarification for State Agencies:
Same for state agencies. Governments have separate orders from the Gov about essential employees and the 100% workforce reduction order doesn’t apply to them.
Please send questions to firstname.lastname@example.org. We will make every effort to get answers by ESD.