By Ronald Williams
Pennsylvania Gov. Tom Wolf has updated the list of businesses that are considered life-sustaining to permit the construction of health care facilities and emergency repairs for construction.
The governor’s initial order to close the physical locations of all non-life-sustaining businesses in the state to help contain the COVID-19 outbreak required all construction sites to shut down. Construction and associated activities, other than the two types mentioned above, are still not categorized as non-life sustaining businesses under the governor’s order.
Relief for those involved in construction projects may be available under certain “extenuating circumstances.” Waivers and exemptions to the closure order may be sought by filling out this online form on the Pennsylvania Department of Community and Economic Development’s website. General questions can be directed to RA‑DCedcs@pa.gov. The department has also posted this list of answers to frequently asked questions.
Key to maximizing the probability of success in the request for relief is ensuring the language is carefully crafted in the application. For example, many contractors are currently undertaking work for hospitals and other businesses impacted by the shutdown. If these construction activities are permitted to continue, the impacted parties can potentially be better protected from a health and safety standpoint.
Many individuals and entities have applied for and received exemptions. Among the lessons learned are:
- If the applicant makes a compelling case, an exemption is likely to be granted
- Everyone involved in a project where an exemption is granted needs to examine the documents that have been issued relating to the exemption to see, what, if any, restrictions have been placed upon the construction activities
- Individuals and entities involved in existing construction projects should not simply trust the word of others that an exemption has been granted and should insist upon seeing the specific documents to ensure compliance at all times
In addition to the application process, consider developing a plan to:
- Examine all contracts relating to projects that may specifically impact your rights and responsibilities
- Develop a plan to document and memorialize costs associated with the interruption, delay and potential future acceleration
- Substantiate the costs of demobilization and remobilization
- Examine insurance policies for coverage of current and future losses
If your business involves a federal contract, including but not limited to construction, consider examining the validity of the governor’s order if informed that the project or contract has been shut down.
Best practices for ensuring the safety of all project participants requires due diligence in this process. If we can be of any help, please do not hesitate to contact us.
Ronald Williams is a Co-Chair of Fox Rothschild’s Construction Practice and is based in the firm’s Exton office. He can be reached at 610-458-4994 or email@example.com.