Discussion Recap: Defining “Essential Services” in the Time of COVID-19

Posted by Kelly Pappas, JD, CPCU, AIC|Risk Advisor, Foster Sullivan Insurance Group, LLC, Secretary of the EM NARI Executive Board 

This overview is provided as a recap of the EM NARI Remodelers Conversation Zoom Meeting held on April 9th, 2020.

I’m going to offer you my opinion on the Governor’s position on construction as an essential business, and feedback from others I’ve spoken with. I am not here to tell you that one opinion is correct and the others aren’t.

The Governor’s list includes several bullet points. The first and 4th bullet points relate to residential contractors. (See the list: https://www.mass.gov/info-details/covid-19-essential-services – refer to the section on “Other Community-, Education-, Or Government-Based Operations And Essential Functions”)

Bullet 1: Subcontractors, Builders and Contractors who provide safety, sanitation, and work related to the “essential operation of residences” are considered “essential”.

Bullet 4: Workers performing housing construction-related activities, including the construction of mixed-use projects that include housing, to ensure additional units can be made available to combat the Commonwealth’s existing housing supply shortage.

Robert Ross, the Governor’s Chief Legal Counsel, provided Guidance to the interpretation and the interplay of the Governor’s Order and that of local municipalities on March 25th. He made it clear that under Section 8A of the Mass Civil Defense Act, under which the Governor issued his order, any rule implemented by a Municipality which is inconsistent with the Governor’s Order “shall be inoperative”.

He went on further to provide COVID-19 Guidelines and Procedures for ALL construction sites and workers at all public works. Every construction site that has ongoing work must implement the zero-tolerance Guidelines.

With respect to the interpretation of the Bullet Points previously discussed, Ross provided further guidance by indicating that Construction workers who support the construction, operation, inspection and maintenance of construction sites and construction projects – including housing construction – are “essential”. According to Ross – “all construction projects are to ‘continue operations during the state of emergency, but to do so with allowance for social distancing protocols consistent with the guidance provided by the Dept of Public Health”.

In my opinion – the guidance provided is still unclear as it pertains to the phrase “housing construction”.

Some have interpreted “housing construction” to refer only to new construction

Others have interpreted “housing construction” to refer to any type of residential construction, including remodeling.

As further evidence of the Governor’s intent to keep construction ongoing, he issued Supplemental Guidelines on April 2, 2020 – the General On-the-Job Guidance to Prevent Exposure & Limit the Transmission of the Virus of the COVID-19 Employee Health, protection, guidance and prevention guide.

My interpretation:

Bullet 4 – The intent of Bullet #4 is to address the ongoing housing shortage. In my opinion, “housing construction activities”, applies to new construction or conversion of building to condos, apartments, or townhouses.

Bullet 1 – it’s clear that subcontractors such as plumbers, electricians, and roofers (if there’s a leak let’s say) can continue to work in order to maintain the safety and sanitation of a home. What’s less clear is the interpretation of ‘essential operations of residences’. I believe that certain remodeling jobs may be considered “essential”, while others may not be.

Is a kitchen that’s not functioning because it’s being remodeled an “essential operation of a residence”?

Is a bathroom remodel an “essential operation”

What if there are 3 bathrooms in a home?

Is an addition to a home “essential”

What if the family is living in a motel while construction at their home is being performed?

Given the ambiguities, it’s left in the hands of individual contractors to determine whether or not their work is “essential”. Since municipalities can’t override the governor’s order, many have asked that contractors working within residences where there are vulnerable people to voluntarily shut down their operations. They can’t legally require it though.

Click Here for the EM NARI COVID-19 Business Resource Page.

 

Kelly Pappas, JD, CPCU, AIC | Risk Advisor

Foster Sullivan Insurance Group, LLC

163 Main Street, North Andover MA 01845

Cell: (617) 620-7777

Office: (978) 686-2266 X317

Fax: (978) 686-6410

 

Leave a Reply

Your email address will not be published.