COVID-19 Update: PA Offers Further Clarification Regarding Certain Construction Projects

By: Lane F. Kelman and Zachary D. Sanders

Following the issuance of Governor Wolf’s March 19, 2020 executive order, which prohibited the in-person operations of all “non-life-sustaining” businesses, construction industry stakeholders across the state have been faced with determining what comes next. In Cohen Seglias’ recent construction update, we summarized the status of various executive orders and directives in place across the Mid-Atlantic region. Given the fluidity of this international pandemic, guidance continues to change by the minute, and Pennsylvania is no exception.

On March 26, Pennsylvania’s Department of Community and Economic Development (DCED), issued the following amendment/clarification pertaining to the completion of residential construction:

Residential construction projects that are substantially complete may continue to completion. For all other residential construction projects limited activities may continue to the extent necessary to stabilize the site, temporarily prevent weather damage, or make emergency repairs only. Projects that are “substantially completed” are those projects that have been issued a final occupancy permit.

Additionally, on March 27, the Pennsylvania School Boards Association passed on a statement from the Governor’s office, advising that:

School construction is not subject to the business guidance. At the local level, [school districts] have the ability to determine whether or not a school construction project constitutes critical construction[, a]nd a waiver is not required.

The Pennsylvania Department of Education clarified thereafter:

School districts should use best judgment in exercising their authority to continue critical construction projects, and should not seek a formal exemption through DCED. All school district construction decisions should appropriately balance public health and safety while ensuring the continued safety of critical infrastructure…

While the Commonwealth has issued a number of clarifications and exceptions with respect to certain construction activities, including healthcare construction, emergency repairs, and school construction, the broad rule in Pennsylvania remains that construction is not considered “life-sustaining.” Therefore, most Pennsylvania construction projects remain shut down, absent a waiver or express exemption from the Governor’s executive order. As such, it remains a best practice for members in the construction industry to seek legal counsel before proceeding with any further work in Pennsylvania.