Jackson Kelly PLLC

Construction Bulletin

An Update on COVID-19: Executive Order 9-20 and the Construction Industry

March 24, 2020

By: Chelsea A. Creta and Danielle M. Waltz

On March 23, 2020, Governor Jim Justice issued Executive Order No. 9-20. Under the Order, all individuals within the State of West Virginia “are under a general stay-at-home order and are directed to stay at home or their place of residence unless performing an essential activity,” with “essential activity” defined by the Order. The intent of the Order is to “ensure that the maximum number of people self-isolate in their places of residence to the maximum extent feasible, while enabling essential services to continue, to slow the spread of COVID-19 to the greatest extent possible.” The Order will go into effect at 8:00 PM EST on March 24, 2020 and will remain in effect “until terminated by subsequent executive order.”

In accordance with the Order, all businesses/operations in West Virginia, except Essential Businesses and Operations, are required to cease all activities within the state at 8:00 PM on March 24, 2020, “except for such minimum basic operations as are necessary to maintain the value of the business’s inventory, preserve the condition of the business’s physical plant and equipment, ensure security, process payroll and employee benefits, or related functions, and the minimum necessary activities to facilitate employees of the business being able to continue to work remotely from their residences. Businesses such as home-based businesses may continue to operate, so long as any employees or contractors of such businesses perform activities from their own residences.” Small businesses that do not invite in the general public and which have five (5) employees or less in the office may continue to operate.

Essential Businesses and Operations shall continue to operate and remain open under the Order. The Order expressly and broadly states that “construction” businesses and entities, or workers engaged in construction businesses and entities, are included within the definition of Essential Businesses and Operations pursuant to the “Essential Infrastructure” section of the Order. Specifically, the language provides:

[T]he following industries, businesses, and/or workers employed in such industries and businesses are specifically included as Essential Businesses and Operations under this Order:

f. Essential Infrastructure. Business entities, or workers engaged in food production, distribution, fulfillment centers, storage facilities, preparation, and sale, construction (including without limitation construction required in response to this public health emergency, hospital construction, construction of long-term care facilities, public works construction, school construction, essential business construction, and housing construction). . . .

The definition of “Essential Businesses and Operations” also includes (1) manufacturing companies, distributors, and supply chain companies producing and supplying essential products and services in and for the construction industry, (2) travel related businesses facilitating access to or provision of essential activities or any Essential Businesses and Operations, including without limitation construction equipment, (3) hardware and supply stores and businesses that sell construction, electrical, plumbing, and heating materials, (4) businesses that sell, manufacture, or supply other Essential Businesses and Operations with the support of materials necessary to operate, including hardware, paint, flat glass, electrical, plumbing, and heating material, and (5) “building and construction tradesmen and tradeswoman, and other trades including without limitation plumbers, electricians, exterminators, filtration technicians, cleaning and janitorial staff for commercial and governmental properties, security staff, operating engineers, HVAC engineers, painting, moving, and relocation services, and other service providers who provide services that are necessary to maintain the safety, sanitation, and essential operation of residences, essential activities, and Essential Businesses and Operations.”

Construction entities should note that under the Order, “businesses that are to remain open will need to reduce their operations to continue with minimum contact with members of the public and only essential employees, and must require proper social distancing at all times.” “Social distancing” means staying home whenever possible and otherwise maintaining a six (6) feet distance from other individuals. In addition, construction entities should note that the substance of this Order may change at any time with the Governor’s issuance of another executive order.

If you operate a construction business and have questions regarding the Governor’s Order and how it applies to your business operations, Jackson Kelly PLLC is here to assist you. Please contact one of our attorneys if you have any questions.

 

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