Effective March 25th at 8:00 a.m., Wisconsin imposed its Safer at Home Order (the “Order”). The purpose of the Order is to slow the spread of the novel Coronavirus (also known as COVID-19) by requiring Wisconsin residents to stay at their place of residence, unless they meet one of the defined exemptions. To the extent possible, residents are encouraged to work from home, and when leaving the house for a permitted purpose, individuals shall maintain six feet of distance from one another.
For those of us who work in the real estate and construction industries, the key question is: are construction sites open, and are contractors or suppliers allowed to go to work? The short answer is yes. The Order provides that individuals may leave their place of residence “to provide any services or perform any work necessary to offer, provide, operate, maintain, and repair Essential Infrastructure.” Essential Infrastructure is defined in the Order to include:
construction (including, but not limited to, construction required in response to this public health emergency, hospital construction, construction of long-term care and assisted living facilities, public works construction, school construction, Essential Business and Operations construction, construction necessary for Essential Governmental Functions, and housing construction, except that optional or aesthetic construction should be avoided).
Based on the foregoing language, construction is considered Essential Infrastructure. The Order further specifically identifies the following categories of construction projects that may proceed, but construction is not limited to these categories alone:
- Essential Businesses and Operations (EBO) facilities;
- Essential Government Function facilities; and
This Alert will explore the above categories and what they include under the Order.
Essential Business and Operations (EBO)
Under the Order, construction for use by an EBO is exempt and can continue. In Section 13 of the Order, there are 26 categories of EBOs listed from A – Z. This list includes a majority of the construction projects that are already underway such as:
- Grocery stores, bakeries, pharmacies, farms, supermarkets, convenience stores;
- Facilities for food and beverage manufacturing, production, processing, transportation, and cultivation;
- Facilities for farming, livestock, fishing, baking, and other production agriculture;
- Businesses that provide food, shelter, and other necessities of life for animals
- Facilities that make or sell farm and agriculture equipment, supplies, and repair services;
- Breweries, brewpubs, wineries, distilleries, and alcohol beverage retailers;
- Child care facilities;
- Businesses and religious and secular nonprofit organizations, including prevocational group supportive employment, food banks and food pantries
- Facilities for religious entities, groups, and gatherings;
- Facilities for weddings;
- Funeral establishments;
- Facilities for newspapers, television, radio, and other media services;
- Gas stations; facilities for auto and motorcycle supply, repair, and sales; facilities for boat supply, repair, and sales; and facilities for bicycle supply, repair, and sales;
- Banks, credit unions, and other depository or lending institutions; facilities for licensed financial service providers; facilities for insurance services;
- Hardware stores and businesses that sell electrical, plumbing, heating, and construction material;
- Facilities for building and construction tradesmen and tradeswomen, and other trades;
- Post offices and other businesses that provide shipping and delivery services, and businesses that ship or deliver groceries, food, beverages, goods or services to end users or through commercial channels;
- Laundromats, dry cleaners, industrial laundry services, and laundry service providers;
- Businesses that sell, manufacture, or supply products needed for people to work from home;
- Businesses that sell, manufacture, or supply other Essential Businesses and Operations and Essential Governmental Functions with the support or supplies necessary to operate;
- Facilities for airlines, taxis, transportation network providers (such as Uber and Lyft), vehicle rental services, paratransit, and other private, public, and commercial transportation and logistics providers necessary for Essential Activities and other purposes expressly authorized in this Order;
- Facilities for home-based care for seniors, adults, children, and/ or people with disabilities, substance use disorders, and/ or mental illness;
- Facilities for professional services, such as legal or accounting services, insurance services, real estate services (including appraisal, home inspection, and title services);
- Facilities for manufacturing companies, distributors, and supply chain companies producing and supplying essential products and services in and for industries;
- Facilities for labor union essential activities, including the administration of health and welfare funds and personnel checking on the well-being and safety of members providing services in Essential Business and Operations;
- Hotels and motels;
- Higher educational institutions, if such facility will be used for purposes of facilitating distance learning, performing critical research, or performing essential functions as determined by the institution; and
- WEDC-designated businesses.
Construction of facilities for the above EBOs is explicitly allowed to proceed under the language of the Order.
Essential Government Functions
Construction that furthers Essential Government Functions is also exempt. Essential Government Functions are defined as:
[A]ll services provided by the State, tribal, or local governments needed to ensure the continuing operation of the government body and provide and support the health, safety, and welfare of the public.
Each government body can define what constitutes an “essential” service sufficient to justify the commencement or continuing of construction. Obviously, municipal police stations, fire stations, and public works construction projects would be essential and, therefore, exempt.
Construction of housing is exempt from the Order. This would include construction of apartments, condominiums, and new homes. Remodeling projects are questionable. The Order states that housing construction may continue, “except that optional or aesthetic construction should be avoided.” While there may be instances of non-optional remodeling, most remodeling projects are optional (i.e., not critical to the health or safety of the occupants) or for aesthetic purposes. Remodeling Contractors should contact their attorney for further assistance in evaluating whether their projects can proceed.
Travel is restricted, and violations are subject to thirty (30) days imprisonment or a fine of $250.00. “Essential Travel” is permitted, which includes traveling to perform work or supply materials to exempted construction projects. Therefore, any contractor, subcontractor, laborer, or supplier who must travel to a jobsite in order to perform work or supply materials is allowed to do so.
We have been contacted by some Contractor clients who are concerned about their employees, laborers, subcontractors, or suppliers being stopped by police while traveling to work on a project. We are assisting Contractors by drafting “Essential Infrastructure Workforce Letters” for them to put on their letterhead and provide to their employees, laborers, subcontractors, and suppliers in the event that they are pulled over and asked to prove their role as a member of the essential workforce.
The Bottom Line
Construction projects will be allowed to continue under the Order. In fact, the Order states, “Essential Infrastructure shall be construed broadly to avoid any impacts to essential infrastructure, broadly defined.”
Even though your project is allowed to proceed under the terms of the Order, all Contractors are required to follow and enforce social distancing guidelines. Any ill workers should not come to work, and if Contractors identify any ill workers on their sites, those individuals should immediately be sent home. Any spaces in which ill workers were present should be immediately vacated and sanitized.
As the coronavirus (COVID-19) continues to disrupt daily life, it’s clear this outbreak will impact all of us across borders and industries. During this global health crisis, Michael Best has formed a COVID-19 Task Force to advise our clients on business and legal implications related to the coronavirus.
Click here to access our COVID-19 Resource Center and Task Force's contact information.