As you are well aware the governor has suspended the operation of any place of business that is not a “life sustaining business”. While the Governor did not define what a life sustaining business was, his office did publish a list of business entities that may continue physical operations, which are presumed to be life-sustaining business operations. The Order and business listing have been updated since their initial issuance, and may be further updated.

Recent updates to the Order/business industry listing demonstrate that the Governor and his staff has loosened their restrictive view of what they consider to be a life-sustaining business. For example, recent publications of the business industry listing include the following two categories or exceptions where construction work is now expressly permitted to continue: (1) emergency repairs; and (2) health care facilities.

Unfortunately, even the amended Order and business listing still are far from clear, leaving construction entities with more questions than answers with respect to whether they can continue their operations. Obviously, if you are building a residential sub-division you will need to sit this one out. It is equally obvious that a contractor who is constructing a hospital, medical lab or out-patient treatment facility can continue with its work under the express terms of the order. However, what about a contractor who is constructing a commercial building that may house or include physician or dental offices among its tenants? Our office believes that if your plans or drawing indicate that the construction is intended to serve a medical purpose or if the building has a signed lease or leases with healthcare providers that a contractor would be safe in continuing with physical operations and construction on that site.

Similar questions remain with respect to whether other construction entities may continue their operations in the performance of repair work or work that is of an emergency nature. Emergency repairs are not defined anywhere in the Order or its corresponding lists of “approved” businesses/industries. However, some guidance can be obtained from other readily available sources. For example, Merriam-Webster’s website defines emergency as, “an unforeseen combination of circumstances or the resulting state that calls for immediate action”. Under this definition, repairs that are necessary to protect property or person from harm or damage could be considered emergencies. One might also consider the completion of existing projects, which if not completed, would lead to harm or damage to the property to be an emergency. Such work may not be the entire project, but the completion of at least that portion of the work is necessary to avert immediate harm. An example is the enclosure of a facility’s roof and other openings to create a weather tight condition to avoid potential immediate damage to the interior and interior finishes. Such work would also include work necessary to maintain life safety or for the utilization of utilities to the remainder of the facility. On the other hand, the application of the final coat of paint on the exterior likely will not be sufficient to fall within this repair exception as the potential for harm, although real, is not sufficiently immediate to constitute an emergency.

In light of some of the exemptions granted by Department of Community & Economic Development (“DCED”) , it is our opinion that if your company provides materials and services to an entity that is allowed to continue physical operations (i.e., a “life-sustaining business) and the materials and services provided are essential to their operation, then your business would be entitled to continue operations as an extension of maintaining the operations of that life-sustaining business. A review of the Governor’s office listing of entities that are considered life-sustaining business will allow you determine the potential for continuing construction projects and application of your good judgment should allow you to determining whether such work is necessary to maintain that entities essential operations .

In addition to the Governor’s list, the Cybersecurity and Infrastructure Security Agency (CIAS), which has been tasked by the Homeland Security Act of 2002 to provide strategic guidance to ensure the security and resilience of the Nation’s critical infrastructure, has also identified essential critical infrastructure industries essential for ensuring community and resilience during the COVID-19 pandemic. We believe that if your company’s work falls within one of the designated categories or supports these entities, then your company should be able to continue operations as its work would be necessary to support what is considered to be life sustaining business by the federal government.

A company also has the opportunity to request a determination by the state If: (1) you are unsure if you work falls within one of the categories discussed above and/or do not wish to risk a state fine, license suspensions or other sanctions; or (2) if your business does not fit within one of the approved industries, but you believe that your company’s work should be considered a “life-sustaining business.” There are two potential ways to obtain a determination from the state. The first way to obtain such an approval by Pennsylvania would be to file for an exemption with the DCED, which is administering the exemption process. A second way would be to request a clarification from DCED by e-mailing such a request for clarification.

In conclusion, our office recommends that you proceed with extreme caution and fully consider all potential consequences before making a decision regarding the continuation of your company’s physical operation or seeking an exemption. Understand as you do so that this is an unprecedented situation that is fluid and ever-changing. Decisions regarding the continuation of work or to seek an exemption can be fraught with potential pit-falls. If necessary, Maiello, Brungo & Maiello can guide you through the process and assist with other business issues brought on by the implications of the COVID-19 pandemic.

Steven P. Engel

As a trial lawyer and litigator for 30 years, Steven Engel has prosecuted and defended hundreds of lawsuits. His area of specialization is in Construction Law and works with contractors, subcontractors, design professionals, and owners in construction-related matters. Engel is the Director of MBM’s Litigation Department.