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To Build or Not to Build?: That is the Question

Written by: Andrew P. Botti

Updated 4/6/20

Construction “Essential Services” List Changes Significantly

The description of essential construction services issued by Governor Baker last week has been changed. The earlier description of allowable construction was unqualified. The new list is limited to certain specified construction and construction-related activities.

For example, those who support “public work facilities and operations” and construction of “critical or strategic infrastructure” may work. Workers who perform housing construction relate activities may also work.

The new list also specifies that plumbers, electricians, exterminators and contractors may work if such work provides “services that are necessary to maintain the safety, sanitation, and essential operations” of residences, businesses and hospital/health care facilities, among others.

Those in the construction industry should review the new list carefully as it is very specific to certain areas of the construction industry.

To view the list of Essential Services in Massachusetts, click here.

 

3/26/2020

Recent orders issued by the Governor’s Office and the office of the Mayor of Boston appear to create a conflict over what construction may proceed in the City of Boston during the COVID-19 pandemic.

On March 16, 2020, the Mayor’s Office announced a temporary halt of all non-essential construction in the City of Boston.  The mandate stated: “The City will still allow work that is essential to the safety and well-being of our residents at this time – particularly work related to the public health crisis.”  The definition of “essential work” included: emergency utility and road building work, work at public health facilities and shelters, and work on the transportation network to ensure reliability.

On March 23 Governor Baker’s office released a list of essential businesses which may remain open despite the state-wide shut down.  Among the “COVID-19 Essential Services” allowed to remain operational unconditionally was construction work. Specifically, Exhibit A of the Order of the Governor allows for continued operations of: “Construction Workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing construction).”

The Governor’s Executive Order contains what amounts to a “supremacy clause” by stating: “This Order supersedes and makes inoperative any order or rule issued by a municipality that will or might in any way impede or interfere with the achievement of the Objectives of this Order.”  The Order also appears to invalidate any municipal mandate that “will or might interfere with provisions of this Order ensuring the continued operation of COVID-19 Essential Services,” that is, construction work among others.

On Wednesday, March 25, the Mayor’s Office issued a press release stating: “Due to the public health emergency caused by the spread of COVID-19 (coronavirus) Mayor Martin J. Walsh today announced he is affirmatively extending the City of Boston’s order to pause non-essential construction for City of Boston permitted sites.”[1] The Mayor’s Office has stated that “the City will, on a case-by-case basis, review requests for exemptions to the temporary construction moratorium. These may be granted by the Commissioner of Inspectional Services.”  Any such requests, however, must “support increased public health and safety,” and “mitigate the risk of exposure to COVID-19 among workers.”

In sum, the Mayor’s mandate appears to allow limited construction work, i.e., much less than would be permitted under the Governor’s mandate. Thus, the mandates are at odds with one another.  There are presently dozens of construction projects within Suffolk County – employing hundreds of workers – which do not meet the limited definition of “essential work” as defined by the Mayor’s office, but which would certainly fall under the broad construction mandate promulgated by the Governor.

This appears to be an on-going conflict which has not yet been resolved. We will provide updates as they become available.

 

[1] The Mayor’s “Temporary Guidance for Construction in the City of Boston” did add as allowable work, on March 24, “Small residential construction projects in dwellings of 3 units or less (e.g. kitchen or bathroom remodeling).”

 

Click here to download a copy of the Temporary Guidance for Construction in the City of Boston.

Click here to download a copy of the letter from Governor Baker containing guidance on construction in the Commonwealth.

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