New Bay Area Shelter-in-Place Orders Permit All Construction to Resume

On April 29, 2020, seven Bay Area public health officers began to issue substantially-similar updated Shelter-in-Place orders (“April 29 SIP Orders”) which become effective at 11:59 p.m. on May 3, 2020, and reclassify all “Construction,” as “Essential Businesses,” which may resume operation beginning on May 4, subject to incorporation of applicable safety and social-distancing protocols.

The April 29 SIP Orders extend the current shelter-in-place through May 31, 2020 in the counties of Alameda, Contra Costa, Marin, San Francisco, San Mateo, Santa Clara, and the City of Berkeley, but lift the significant restrictions on construction put in place by the previous Bay Area SIP Orders which limited construction to residential projects that included at least 10% income-restricted units on site. Since the original SIP orders were issued, state and local legislators, labor unions, the building industry, and local and regional economic groups all questioned the limit on certain construction projects and urged local Bay Area health officials to allow all construction in light of the industry’s ability to abide by safety and social-distancing protocols.

The applicable language regarding permitted construction from Alameda County’s April 29 SIP Order, as an example, provides:

a. For the purposes of this Order, individuals may leave their residence only to perform the following “Essential Activities.” . . . Essential Activities are: . . .

iv. To perform work for or access an Essential Business, Outdoor Business, or to otherwise carry out activities specifically permitted in this Order, including Minimum Basic Operations, as defined in this Section.

f. For the purposes of this Order, “Essential Businesses” are: . . .

v. Construction, but only as permitted under the [March 19] State Shelter Order and only pursuant to the Construction Safety Protocols listed in Appendix B and incorporated into this Order by this reference. Public works projects shall also be subject to Appendix B, except if other protocols are specified by the Health Officer . . .

No distinction is made between residential, commercial, or affordable housing construction in the April 29 SIP Orders, so all projects may resume on May 4 if they abide by the updated rules. Moreover, the referenced State Shelter Order does not place any specific restrictions on the resumption of construction in the state, and, in fact, the State Director of Public Health deemed “Construction Workers who support the construction, operation, inspection, and maintenance of construction sites and construction projects (including housing, commercial, and mixed-use construction)” as Essential Workforce during this crisis.

However, construction is only permitted to resume in the affected areas if the construction projects incorporate specific Construction Safety Protocols, as attached to the April 29 SIP Orders, with some distinctions based on project size. A copy of those Construction Safety Protocols, as provided in Alameda County’s order, can be found at this link.

Wendel Rosen LLP will update this post as further related orders are issued, and our attorneys are available to answer any questions you may have regarding these orders.