By Lane F. Kelman and Jackson S. Nichols

On March 12, 2020, Virginia joined Maryland and the District of Columbia in declaring a state of emergency in connection with the rising number of confirmed coronavirus diagnoses in the DC Metro area. Since then, both state governments and the District have issued increasingly restrictive orders outlining limits on personal and business activities. In Cohen Seglias’ recent construction update, we summarized the status of various executive orders and directives in place across the Mid-Atlantic region and assessed how they impacted the construction industry. Given the fluidity of this international pandemic, guidance continues to change by the minute, and Washington, DC, Maryland, and Virginia are no exception.

Washington, DC
On Tuesday, March 24, 2020, Mayor Muriel Bowser issued an order temporarily directing the closure of all non-essential businesses and prohibiting gatherings of 10 or more people, effective from March 25 at 10:00 PM through April 24, 2020. Non-essential businesses include tour guides and touring services; gyms, health clubs, spas, and massage establishments; theaters, auditoriums, and other places of large gatherings; nightclubs; hair, nail, and tanning salons and barbershops; tattoo parlors; sales not involved in essential services; retail clothing stores; and professional services not devoted to assisting essential business operations.

Rather than categorically exempt the construction industry as essential business, the order provides a list of specific building trades that is comprehensive enough that it appears intended to exempt all commercial and residential construction from the closure order. While many supplier trades are not specifically listed, their crucial role in the function of the other exempted trades likely means that they are meant to be part of the exemption as well and can continue to operate. Importantly, even essential businesses are not permitted to staff any aspect of their operations with workers who are sick, defined as “an individual who is suspected or confirmed to be infected with COVID-19 or any other transmissible infectious disease or who has symptoms of a cold or influenza.” Essential businesses are also expected to take all reasonable steps necessary to allow employees to work remotely.

On Monday, March 23, Governor Hogan issued an executive order that mandates the closure of all non-essential businesses, establishments, and facilities in Maryland, effective at 5:00 PM on March 23.  The Governor also suggested that all residents stay at home and that employers should promote work-from-home arrangements to the greatest extent possible. The Maryland Office of Legal Counsel issued interpretive guidance that provides a non-exhaustive list of businesses that are deemed essential. Under that guidance, Maryland has exempted many businesses in critical infrastructure sectors, including all commercial and residential construction companies, plumbers, electricians, mechanical service contractors, roofers, and landscapers. Consequently, construction projects in Maryland may maintain course and continue field operations. A spokesman for the governor’s office, Michael Ricci, stated: “We classified construction as essential in alignment with federal guidelines.”

On March 30, Governor Hogan issued an additional order mandating that, as of 8:00 PM that day, all individuals in the state stay at home unless they are engaged in “Essential Activities” (as defined in the order) and ordering the closure of “Non-Essential Businesses” save for critical infrastructure sectors. While construction was not specifically listed as exempt from the Non-Essential Business designation, based on the previous order designating construction as a critical infrastructure sector and earlier guidance from the governor’s office, it appears that Maryland is permitting construction activities to continue for now.

On March 23, 2020, Governor Ralph Northam of Virginia issued an executive order limiting public gatherings and events to 10 or fewer people and encouraging social distancing. The order went into effect at 11:59 PM on March 24 and currently remains in place until April 23, 2020. Under the order, recreational and entertainment businesses must close, and restaurants and other restaurants providing food and beverage services may only offer take-out and delivery. Other businesses that remain open must utilize telework as much as possible and otherwise adhere to social distancing recommendations, enhanced sanitizing procedures, and apply relevant workplace guidance from state and federal authorities, including CDC, OSHA, and the Virginia Department of Labor and Industry. As such, construction continues and contractors may continue their operations both in the field and at the office as long as they follow those guidelines.

On March 30, Governor Northam issued a temporary stay-at-home order that required all individuals in Virginia to remain at home unless engaged in permissible activity such as seeking food, medical attention, or permissible travel subject to social distancing requirements. Permissible travel includes traveling to and from one’s place of work. The March 30 order also extended the duration of the above restrictions to June 10, 2020. The new order did not articulate any changes to the business closures outlined in the March 23 order, and it appears that, like Maryland, Virginia is permitting construction activities to continue for now.

On March 30, Mayor Bowser issued a stay-at-home order for the District putting in place further restrictions and requiring individuals to stay at home if they are not engaged in “Allowable Recreational Activities” or Essential Activities” (as defined in the order). The definition of Essential Activities includes traveling to work for and engaging in activity for Essential Businesses. The March 30 order did not disturb the March 24 order’s listing of numerous construction trades as Essential Businesses. As such, the District is permitting construction activities to continue for now.

As you navigate these uncertain waters, be proactive, not reactive. Seek legal counsel now rather than later to best protect yourself, your employees, and your business from the unwanted effects of coronavirus.