By: Shawn R. Farrell and Richard J. Fusco
On March 30, 2020, Governor Cuomo signed Executive Order 202.13 that modifies previous Executive Order 202.6 and narrows the types of construction sites that are authorized to continue in New York State. The new order authorizes only “essential” construction to continue, as determined by the Empire State Development Corporation. Under this order, the State has determined that “essential construction… includes roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing, and homeless shelters.” Additional time is also allow for “non-essential, non-emergency projects to continue to a point where they can be safely stabilized to protect the health and safety of occupants.” The Executive Order mandates that all other construction projects cease operations.
The NYC Department of Buildings (DOB) has provided further guidance on the scope of this order for work falling under its purview. Specifically, “Emergency Construction,” which will be allowed to continue, refers to projects necessary to protect the health and safety of the occupants, including:
- Any emergency work ordered by the DOB
- Restoration of essential services – heat, hot water, cold water, gas, electricity, or other utility services
- Any work necessary to address any condition requiring immediate corrective action that severely affects life, health, safety, property, or a significant number of persons
Additionally, temporary work may be done on projects that would be unsafe if work remained undone. Such projects may continue only until it is safe to shut the site.
The DOB has also expanded upon the term “Essential Construction” to include work on any essential construction as approved by the Department, such as utilities, hospitals and health care facilities, transitional and/or homeless shelters, and affordable housing projects.
The following Affordable Housing Projects will be considered essential:
- Construction work on public housing, or a private or multiple dwelling or real property that is a new building or that is 100% vacant; or is work on unoccupied public housing units for the designation as housing for specific populations (e.g. shelter set aside, domestic violence referrals), or work on the exterior to address emergency conditions requiring immediate corrective action, set forth in Section 1(a)(iii) or within public housing, correction of critical systems for seasonal preparedness for the 2020-2021 heating season of an existing public housing building
- Construction work on a private or multiple dwelling or real property that is a new building or that is 100% vacant that is now used or will be converted to such use:
- (i) For the provision of affordable inclusionary housing or mandatory inclusionary housing pursuant to the New York City zoning resolution
- (ii) Where no less than 30% of the residential units are subject to a regulatory agreement, restrictive declaration, or similar instrument with a local, state, or federal governmental entity or a local housing authority in a city with a population of one million or more.
Finally, projects limited to a single worker who is the sole employee on site are also allowed to continue.
Sites that do remain open must continue to maintain social distancing and adhere to best practices ordered by the state to prevent the transmission of COVID-19. Pursuant to Governor Cuomo’s Order, any construction sites found operating in violation of the social distancing mandate will be forced to close and fined up to $10,000 per violation. Executive Order 202.13 also extends the effective period of Executive Order 202 through April 28, 2020.
If you have any concerns about the impact of the coronavirus pandemic on your business, please contact the Cohen Seglias attorney with whom you work.