Massachusetts Closes In-Person Non-Essential Businesses Effective March 24 - Construction Designated Essential

Effective March 24th at 12:00 noon, Massachusetts is closing all non-essential businesses "physical workplaces and facilities ("brick-and-mortar premises") through April 7, 2020. See COVID-19 Order No. 13.

As an update to my post from Friday on Non-Essential Businesses, Massachusetts did not adopt the CISA Guidelines, but appears to have followed the structure of them.

The essential services list for Massachusetts can be found HERE. Construction services is included as "essential" services as follows:

• Construction Workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing construction)

PUBLIC WORKS

• Workers who support the operation, inspection, and maintenance of essential dams, locks and levees
• Workers who support the operation, inspection, and maintenance of essential public works facilities and operations, including roads and bridges, water and sewer main breaks, fleet maintenance personnel, construction of critical or strategic infrastructure, traffic signal maintenance, emergency location services for buried utilities, maintenance of digital systems infrastructure supporting public works operations, and other emergent issues
• Workers – including contracted vendors – involved in the construction of critical or strategic infrastructure including public works construction, airport operations, water, sewer, gas, electrical, nuclear, oil refining and other critical energy services, roads and highways, public transportation, solid waste collection and removal, and internet, and telecommunications systems (including the provision of essential global, national, and local infrastructure for computing services)
• Workers such as plumbers, electricians, exterminators, inspectors and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, construction sites and projects, and need facilities
• Support, such as road and line clearing and utility relocation, to ensure the availability of needed facilities, transportation, energy and communications
• Engineers, technicians and associate personnel responsible for infrastructure construction and restoration, including contractors for construction and engineering of fiber optic cables

All indication is that MassDOT, MBTA, and MassPort projects are continuing (as noted by the above-referenced public works inclusion as an essential service. During a board meeting of MassDOT, the Commissioner stated that the work is continuing but each project will be reviewed on a case-by-case basis.

This may have an impact on some private construction projects, but currently "essential" services includes "Construction Workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing construction." Additional clarification will need to be provided, but this appears to be a pretty broad description of construction services.

As it relates to the City of Boston and City of Cambridge's construction bans, the Order explicitly 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 Governor's Order designating construction services as "essential services" conflicts with those Cities' construction bans. Further clarification and coordination between the Commonwealth and Municipalities regarding this point will be needed. The "travel" services were particularly emphasized in the Governor's order:

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. With respect to work and travel in particular, any order or rule issued by a municipality is hereby made inoperative to the extent: (1) such municipal order or rule will or might interfere with provisions of this Order ensuring the continues operation of COVID-19 Essential Services; or (2) such municipal order or rule will or might interfere with free travel anywhere within the Commonwealth of any person who is a member of any COVID-19 Essential Workforce where such travel is made in connection with the ongoing operation of COVID-19 Essential Services.

Be sure to send out your notices for your construction projects and keep the communication lines open with the Project team members to ensure that essential construction activities safely continue forward.