Firm News

Construction as “Essential”: Reconciling Governor Abbott’s Executive Order with the Dallas County Amended Order

By Chris Anaya
McGuire, Craddock & Strother
April 3, 2020

Last month many local jurisdictions enacted shelter in place orders. These orders differed in their definitions of essential businesses and services, which created confusion for businesses that operated in more than one jurisdiction. On March 31, 2020, Governor Greg Abbott issued Executive Order GA 14 (the “Order”) relating to statewide continuity of essential services and activities during the COVID-19 disaster. The Order clarifies the meaning of “Essential Services” state wide by adopting the U.S. Department of Homeland Security Guidance on the Essential Critical Infrastructure Workforce, Version 2.0 (the “DHS Guidance”).

Governor Abbott’s Order expands the DHS Guidance to include religious services conducted in churches, congregations, and houses of worship. The Order also provides that other essential services may be added to the DHS Guidance with the approval of the Texas Division of Emergency Management (“TDEM”).

The full text of the Order and the DHS Guidance can be found at the following links:

The DHS Guidance incorporates the guidance published by the Cybersecurity and Infrastructure Security Agency (“CISA”), which identifies the essential critical infrastructure workers during the COVID-19 response, but states that the list is advisory in nature.  The memorandum from the Director of CISA includes a cover page also stating that “[i]ndividual jurisdictions should add or subtract essential workforce categories based on their own requirements and discretion.”  This language allows local jurisdictions to expand the definition of essential beyond the critical infrastructure sectors set forth in the DHS Guidance.

The DHS Guidance lists 17 Essential Critical Infrastructure Sectors. Of those 17, 6 sectors mention construction-related activities. Below is a list of how construction-related activities fall within each of those 6 sectors.

Energy

  • Workers supporting the energy sector through renewable energy infrastructure (including, but not limited to wind, solar, biomass, hydrogen, ocean, geothermal, and/or hydroelectric), including those supporting construction, manufacturing, transportation, permitting, operation/maintenance, monitoring, and logistics.
  • Providing services related to energy sector fuels (including, but not limited, petroleum (crude oil), natural gas, propane, natural gas liquids, other liquid fuels, nuclear, and coal), supporting the mining, processing, manufacturing, construction, logistics, transportation, permitting, operation/maintenance, security, waste disposal and storage, and monitoring of support for resources.
  • Workers for onshore and offshore petroleum drilling operations; platform and drilling construction and maintenance; transportation (including helicopter operations), maritime transportation, supply, and dredging operations; maritime navigation; well stimulation, intervention, monitoring, automation and control, extraction, production; processing; waste disposal, and maintenance, construction, and operations.
  • Supporting new and existing construction projects, including, but not limited to, pipeline construction.
  • Natural gas, propane, natural gas liquids, and other liquid fuel processing plants, including construction, maintenance, and support operations.
  • Supporting new and existing construction projects, including, but not limited to, pipeline construction. Ethanol and biofuel production, refining, and distribution.

Public Works and Infrastructure Support Services

  • Workers who support the operation, inspection, and maintenance of essential public works facilities and operations, including 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 such as plumbers, electricians, exterminators, builders, contractors, HVAC Technicians, landscapers, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, businesses and buildings such as hospitals, senior living facilities, any temporary construction required to support COVID-19 response.

Communications and Information Technology

  • Engineers, technicians and associated personnel responsible for infrastructure construction and restoration, including contractors for construction and engineering of fiber optic cables, buried conduit, small cells, other wireless facilities, and other communications sector-related infrastructure. This includes construction of new facilities and deployment of new technology as these are required to address congestion or customer usage due to unprecedented use of remote services.
  • Suppliers, designers, transporters and other workers supporting the manufacture, distribution and provision and construction of essential global, national and local infrastructure for computing services (including cloud computing services and telework capabilities), business infrastructure, financial transactions/services, web-based services, and critical manufacturing.

Other Community or Governmental based Operations and Essential Functions.

  • Workers to ensure continuity of building functions, including but not limited to security and environmental controls (e.g., HVAC), the manufacturing and distribution of the products required for these functions, and the permits and inspections for construction supporting essential infrastructure.
  • Workers supporting essential maintenance, manufacturing, design, operation, inspection, security, and construction for essential products, services, and supply chain and COVID 19 relief efforts.

Commercial Facilities

  • Workers who support the supply chain of building materials from production through application/installation, including cabinetry, fixtures, doors, cement, hardware, plumbing, electrical, heating/cooling, refrigeration, appliances, paint/coatings, and employees who provide services that enable repair materials and equipment for essential functions.
  • Workers supporting ecommerce through distribution, warehouse, call center facilities, and other essential operational support functions.
  • Workers in hardware and building materials stores, consumer electronics, technology and appliances retail, and related merchant wholesalers and distributors – with reduced staff to ensure continued operations.
  • Workers distributing, servicing, repairing, installing residential and commercial HVAC systems, boilers, furnaces and other heating, cooling, refrigeration, and ventilation equipment.

Residential/Shelter Facilities and Services

  • Workers performing housing construction related activities to ensure additional units can be made available to combat the nation’s existing housing supply shortage.
  • Workers supporting the construction of housing, including those supporting government functions related to the building and development process, such as inspections, permitting and plan review services that can be modified to protect the public health, but fundamentally should continue and serve the construction of housing (e.g., allow qualified private third-party inspections in case of government shutdown).

To ensure essential services are treated the same across Texas, Governor Abbott’s Executive Order supersedes any conflicting order issued by local officials in response to the COVID-19 pandemic, “but only to the extent that such a local order restricts essential services allowed by this executive order or allows gatherings prohibited by this executive order.” Based on this language and the language in the CISA memorandum allowing individual jurisdictions to add or subtract essential workforce categories, as long as a local jurisdiction is not restricting any essential service provided for in the Executive Order, it appears a local jurisdiction can expand and clarify essential services.

This appears to be the case in Dallas County. Dallas County recently clarified its Amended Shelter in Place Order and its impact on the construction industry to include a broad definition of construction as an essential business. Section 2(b) provides that construction is considered an Essential Business, stating:

Construction for public works, residential, commercial, and schools. Elective additions and maintenance are prohibited. Protecting construction worker from the spread of COVID19 is extremely important for their safety and for public health, all construction sites must follow the COVID-19 Safety Recommendations issued by the Construction Industry Safety Coalition, including, but not limited to, the Rules for Construction Industry set out in Exhibit B. Failure to strictly comply with this Order can result in penalties described below. Additionally, the general contractor and non-compliant subcontractor can be removed from the essential business list.

The full text of the Amended Order is available at the following link: https://www.dallascounty.org/Assets/uploads/docs/covid-19/orders-media/033120-DallasCountyOrder.pdf.

Dallas County has also adopted Rules for the Construction Industry, which can be found at the following link: https://www.dallascounty.org/Assets/uploads/docs/covid-19/orders-media/032920-Order-RulesfortheConstructionIndustry.pdf.

While there will likely be more clarification in the coming days regarding this Executive Order, it appears that current construction projects can continue in Dallas County pursuant to the restrictions in the Dallas County Shelter in Place Order as long as the above rules are being followed. We will continue to monitor all orders affecting Dallas County and provide updates as more details become available.

For more information or for advice on whether specific construction projects may proceed, please contact Chris Anaya at [email protected].

This correspondence should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult a lawyer concerning your own situation and legal questions.