Construction Industry: Governor Mill’s March 24, 2020 Order Regarding Essential Businesses and Operations

Governor Mill’s March 24th Executive Order requires all non-essential businesses to cease public facing operations. The Order expressly defines essential businesses to include “construction and maintenance of essential infrastructure” as well as “essential home repair,” which has created some confusion as to whether the construction services must relate to specific infrastructure or essential repair work only. However, the Order goes on to designate the Maine Department of Economic & Community Development (“DECD”) as the “lead agency” for addressing questions about the interpretation of the Order.

In this role, DECD is responsible of processing requests from businesses seeking a determination as an essential business. The instructions for that process state that companies that provide essential business services include, but are not limited to “construction” without additional qualifiers. It goes on to state that requests for designation as an essential business “should only be made if they are NOT covered by the guidance” referenced in the previous sentence.

Based on the DECD’s statement, and similar language on the Governor’s website summarizing the Order, the most reasonable interpretation of the Order is that construction of all types is an essential business and may continue operations providing it follows appropriate safety measures to protect the public and its workers.

The Governor’s March 24 Order, Part C, also allows non-essential businesses to operate if they are not “public facing” to allow customer, vendor or visitor in-person contact; do not allow more than 10 workers in a space without social distancing; and allow remote working to the maximum extent possible. Therefore, to the extent construction projects are not specifically allowed to continue as “essential businesses,” it is reasonable to interpret Part C to allow many phases of construction to proceed with familiar social distancing and strict hygiene precautions in place.

Contractors should also check for local orders regarding the Coronavirus. Portland, Brunswick, Cape Elizabeth, and Augusta have issued local orders, but each city includes construction as an essential business. However, the Portland and Augusta order only applies to existing projects. Other municipalities may not include construction as an essential activity.

If you have questions on specific projects, please contact Michael Hodgins or David Pierson. Our office is trying as best we can to work remotely, while continuing to timely and effectively respond to, and anticipate, client concerns.