As the number of COVID-19 cases continues to rise, state and local officials in California are taking increasingly aggressive action to stop the virus’ spread through Shelter-in-Place (“SIP”) orders.  In addition to Governor Newsom’s statewide SIP order, six Bay Area counties  – San Francisco, Santa Clara, San Mateo, Marin, Contra Costa, and Alameda – have issued more restrictive local SIP orders.  New versions of these local orders, published on March 31^st and substantially identical, clarify uncertainties in prior orders and dramatically narrow the scope of allowable construction projects.  These new orders are in effect from April 1^st  through May 3^rd, but are subject to further extension.

Here is what you need to know about whether your construction project may continue under the state and local orders.

The statewide SIP order issued by Governor Newsom and the State Public Health Officer broadly instructs Californians to stay at home “except as needed to maintain continuity of the federal critical infrastructure sectors.”  An accompanying list of exempted essential critical infrastructure workers includes those involved in construction, operation, inspection, and maintenance of construction sites, including housing sites.  More information on the statewide SIP can be found here.

The March 31^st Bay Area SIP orders, however, are far more restrictive, allowing only eight specific types of construction activity to continue.  Unlike the previous local orders, which generally allowed residential construction to continue, the new orders halt construction of all but affordable housing projects.  Anticipating this will shut down many projects, and clarifying an issue left open in the previous orders, the new orders specifically authorize the additional work necessary to leave construction sites in a safe and secure condition during the shutdown.  The eight categories of permitted construction include:

• Projects immediately necessary to the maintenance, operation, or repair of “Essential Infrastructure.”[1]

• Projects associated with “Healthcare Operations,”[2] including creating or expanding Healthcare Operations, provided that such construction is directly related to the COVID-19 response.

• Affordable housing that is or will be income-restricted, including multi-unit or mixed-use developments containing at least 10% income-restricted units.

• Public works projects if specifically designated as an “Essential Governmental Function” by the City Administrator in consultation with the Health Officer.

• Shelters and temporary housing, excluding hotels or motels.

• Projects immediately necessary to provide critical noncommercial services to individuals experiencing homelessness, elderly persons, persons who are economically disadvantaged, and persons with special needs.

• Construction necessary to ensure that existing construction sites that must be shut down under these order are left in a safe and secure manner, but only to the extent necessary to do so.

• Construction or repair necessary to ensure that residences and buildings containing “Essential Businesses”[3] are safe, sanitary, or habitable to the extent such construction or repair cannot reasonably be delayed.

While these types of projects are currently exempt from the Bay Area counties’ SIP orders, this is subject to change dependent upon the status of the pandemic.  Additionally, project sponsors should consider whether they are able to continue work while maintaining workplace safety on a project-by-project basis.

As you are aware, things are changing quickly and there is no clear-cut authority or bright line rules. This is not an unequivocal statement of the law; instead, it represents our best interpretation of where things currently stand.  This article does not address the potential impacts of the numerous other local, state, and federal orders that have been issued in response to the COVID-19 pandemic.

FOOTNOTES

[1]  Essential Infrastructure generally includes airports, utilities, oil refining, roads and highways, public transportation, solid waste facilities, cemeteries, mortuaries, crematoriums, and telecommunications systems.
[2] Healthcare Operations include hospitals, clinics, COVID-19 testing locations, dentists, pharmacies, and other healthcare facilities, suppliers, home healthcare services suppliers, and mental health providers.
[3] Essential Businesses include the specific categories of businesses enumerated in the new local orders.