Covid-19 & Construction in Tennessee: Are We Open for Business? Apparently, but . .

Employers across the entire spectrum of the economy are grappling with impacts to operations and ongoing business functions brought on by the Covid-19 pandemic.  With remote workforces, the construction industry faces some unique challenges, especially in the face of pressure to part with and donate PPE that workers use every day.

On March 30, Governor Lee issued Executive Order 22, imposing a state-wide Stay Home order, effective March 31 through April 14.  It appears the construction industry was given wide berth, albeit somewhat ill-defined, as an exempt “essential service” under the order.  It provides:

. . . construction-related services, including, but not limited to, construction required in response to this public health emergency, hospital construction, construction of long-term care facilities, public works construction, school construction, construction related to Essential Activity or Essential Services, and housing construction; building management and maintenance; landscape management; airport operations; operation and maintenance of utilities, including water, sewer, and gas; electrical services, including power generation, distribution, and production of raw materials; distribution centers; oil and biofuel refining; services related to roads, highways, railroads, ports, and public transportation;

The order can be found here.  At first blush, the order appears to exempt all construction operations, but on closer reading the intent appears focused on exempting construction that directly relates to the pandemic response or critical infrastructure, e.g., construction or maintenance of medical facilities, and maintenance of critical infrastructure.  On the one hand, all construction appears exempt (“. . construction-related services, including, but not limited to, . . ), yet under the described scope of work, one might argue the continued construction of an office building, serving no pandemic response or critical infrastructure purpose, would not be exempt.  

Even if continued construction work is elected, the order mandates that the CDC health guidelines be followed.  Thus, employers who carry on work under E.O. #22 must, for example, implement protocols for ensuring a 6ft distance between workers, and jobsite meetings should be limited to no more than ten people.  Lest you may think these guidelines will not be enforced, on March 26, the Nevada Occupational Safety & Health Administration issued a memorandum noting violations of the guidelines had been widely observed at construction sites, and that strict enforcement will occur.

Employers are encouraged to carefully review the OSHA publication – Guidance on Preparing Workplaces for COVID-19, OSHA 3990-03 2020, found here. 

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