Although Governor Cuomo put “New York State on PAUSE” a week ago, at that time, “construction” was not specifically exempted from his Executive Order and the Empire State Development’s (ESD) guidance on what businesses were subject to the 100% workforce reduction. Yet, pursuant to a further directive from the Governor, on Friday, March 27, 2020, the ESD updated its guidance to explicitly state that “[a]ll non-essential construction must shut down except emergency construction, (e.g. a project necessary to protect health and safety of the occupants, or to continue a project if it would be unsafe to allow to remain undone until it is safe to shut the site).” (Emphasis added.) See: https://esd.ny.gov/guidance-executive-order-2026.

The ESC provides several examples of “[e]ssential construction,” and advises that for project sites falling within that category, or for sites qualifying as “emergency non-essential construction,” the Executive Order’s 10-point policy requires, as explained in the ESC guidance, “maintaining social distance, including for purposes of elevators/meals/entry and exit.” See also 10 Point Plan. The ESC warns that “[s]ites that cannot maintain distance and safety best practices must close and enforcement will be provided by the state in coordination with the city/local governments. This will include fines of up to $10,000 per violation.”

The ESC guidance excludes from the definition of “construction work” “a single worker, who is the sole employee/worker on a job site.”