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REMINDER: EXECUTIVE ORDER 122 SUSPENDS “NON-ESSENTIAL” CONSTRUCTION IN NEW JERSEY AS OF APRIL 10, 2020 AT 8:00 P.M.

In the latest effort to stem the spread of COVID-19, on April 8, 2020, Governor Phil Murphy issued Executive Order 122 which suspends all “non-essential” construction in New Jersey effective as of Friday, April 10, 2020 at 8:00 p.m.  The order recognizes that construction sites  “frequently require large numbers of individuals to touch the same surfaces [and] gather closely together…”  This order follows the path started by New York which shut down non-essential construction on March 29, 2020 pursuant to Executive Order 202.13.

Pursuant to Executive Order 122, “essential” construction in New Jersey includes:

  1. Projects necessary for the delivery of health care services, including but not limited to hospitals, other health care facilities and pharmaceutical manufacturing facilities;
  2. Transportation projects, including roads, bridges and mass transit facilities or physical infrastructure, including work done at airports and seaports;
  3. Utility projects, including those necessary for energy and electricity production and transmission, and any decommissioning of facilities used for electricity generation;
  4. Residential projects that are exclusively designated as affordable housing;
  5. Projects involving pre-K-12 schools, including but not limited to projects in Schools Development Authority districts, and projects involving higher education facilities;
  6. Projects already underway involving individual single-family homes, or an individual apartment unit where an individual already resides, with a construction crew of 5 or fewer individuals. This includes additions to single-family homes such as solar panels;
  7. Projects already underway involving a residential unit for which a tenant or buyer has already entered into a legally binding agreement to occupy the unit by a certain date, and construction is necessary to ensure the unit’s availability by that date;
  8. Projects involving facilities at which any one or more of the following takes place: the manufacture, distribution, storage, or servicing of goods or products that are sold by online retail businesses or essential retail businesses, as defined by Executive Order No. 107 (2020) and subsequent Administrative Orders adopted pursuant to that Order;
  9. Projects involving data centers or facilities that are critical to a business’s ability to function;
  10. Projects necessary for the delivery of essential social services, including homeless shelters;
  11. Any project necessary to support law enforcement agencies or first responder units in their response to the COVID-19 emergency;
  12. Any project that is ordered or contracted for by Federal, State, county, or municipal government, or any project that must be completed to meet a deadline established by the Federal government;
  13. Any work on a non-essential construction project that is required to physically secure the site of the project, ensure the structural integrity of any buildings on the site, abate any hazards that would exist on the site if the construction were to remain in its current condition, remediate a site, or otherwise ensure that the site and any buildings therein are appropriately protected and safe during the suspension of the project; and
  14. Any emergency repairs necessary to ensure the health and safety of residents.

Even if deemed essential, the order requires certain specific measures aimed at protecting the health and safety of essential workers and the public at large.  These requirements include:

  • Prohibition on non-essential visitors from entering worksites;
  • Limits of ten individuals at worksite meetings, inductions, and workgroups;
  • Mandatory social distance enforcement wherever possible;
  • Staggering of work start and stop times as well as lunch breaks to limit the number of individual groupings;
  • Restrictions on the number of individuals who can access common areas including restrooms and breakrooms concurrently;
  • Requirements that workers and visitors  wear cloth face coverings with limited exceptions and implement infection control practices, including proper hand washing and coughing and sneezing etiquette;
  • Limits on sharing of equipment, machinery and/or tools;
  • Increased sanitation protocols.

Executive Order 122 will undoubtedly have a large impact on the property development and construction industries in the State of New Jersey.  If you would like guidance on how to approach jobsite suspension or to review governing contracts to ensure compliance including with various notice provisions, please contact either Christian Jensen () or Kurt Olender ().