Jonathan M. Korn and Michael R. Darbee
On April 8, 2020, New Jersey Governor Phil Murphy signed Executive Order 122 (2020) (“EO 122”). EO 122 requires that the physical operation of all non-essential construction projects must cease by 8:00 p.m. on Friday, April 10, 2020. Only work on “essential construction projects” may continue to operate physically after that time.
EO 122 defines 14 categories of construction projects that are considered essential. Under EO 122, essential construction relates to the following areas:
- “[T]he delivery of health care services,” such as hospitals;
- “Transportation projects,” such as roads and bridges;
- “Utility projects,” such as projects necessary to produce and transmit electricity;
- “Residential projects” if they are exclusively designated as affordable housing;
- “Pre-K–12 schools”;
- “Projects already underway” on a single-family home or occupied apartment unit, but only if the construction crew has five or fewer individuals;
- “Projects already underway” on a residential unit, where the work must proceed in order for the unit to be occupied by the date set in a legally binding agreement;
- Projects involving facilities that manufacture, distribute, store, or service goods or products that are sold online or by essential retail businesses, as defined by Executive Order No. 107 (2020);
- “[D]ata centers or facilities that are critical to a business’ ability to function”;
- “[T]he delivery of essential social services,” such as homeless shelters;
- First responders, such as police and fire departments, related to their response to the coronavirus emergency;
- A contract with the federal, state, county, or municipal government;
- Securing or abating any hazards on a non-essential construction project site; and
- “[E]mergency repairs necessary to ensure the health and safety of residents.”
If a business is engaged in an essential construction project, it must adopt certain policies designed to mitigate the spread of the coronavirus COVID-19. Those policies are generally designed to encourage social distancing and other hygienic practices that reduce the spread of the virus. In addition, businesses engaged in essential construction projects must send home workers with symptoms of COVID-19, must notify its workers of any known exposure to COVID-19 at the worksite without violating their employees’ privacy rights, and must disinfect the worksite when a worker at the site has been diagnosed with the illness.
EO 122 will remain in effect until Governor Murphy revokes or modifies it. Unlike the Commonwealth of Pennsylvania, there does not appear to be a formal waiver process. The full text of EO 122 can be found on the State of New Jersey website here.
Blank Rome’s Princeton office and Coronavirus (“COVID-19”) Task Force are monitoring this ever-changing situation and are here to help. Please contact us if you have any questions about contract compliance during the COVID-19 crisis or any other related commercial issues.