I previously wrote about New York Governor Andrew Cuomo’s Executive
Order 202.6 which ordered the shutdown of all “non-essential” construction and
demolition projects in New York State until April 17, 2020, now extended until May 15,
2020 by Executive Order 202.17. Despite some guidance from New York State Empire
Development Corporation (“ESD”) and the New York City Department of Buildings (“DOB”),
questions remain regarding various protocols and requirements for active and suspended
construction sites, the process for designation of a project as “essential,” and the
status of current permits, licenses, and insurance, to name a few. This article is
intended to summarize only some of the Agencies’ guidelines in those respects:
• Expansion of “Essential Construction": On April 7, 2020, ESD expanded its
guidelines for essential construction projects. Most notably, in addition to the
previously permitted projects, the updated guidelines now permit the ongoing
construction of (i) public or private schools, (ii) affordable housing projects,
lowering the threshold requirement of affordable housing units per project from 30% to
20%; and (iii) existing projects, currently underway for an essential business. The ESD
also clarified questions regarding ongoing construction of projects in the energy
industry in accordance with Question No. 14 in the Frequently Asked Questions section of
ESD’s updated guidelines. See link here. In line with ESD, the DOB has updated its
guidelines to permit any project with a permit issued on or before April 15, 2020 to
submit an alteration application for an essential business as identified in the ESD
guidelines. However, in New York City, it is unclear whether this would apply only to
existing buildings or also to new, ground up construction as the ESD guidelines fail to
make that distinction. See link to DOB updated guidelines here.
• Essential Construction Certification and General Questions: On April 3, 2020, the
DOB published a digital map of “essential construction” projects, including affordable
housing, approved work and homeless shelters, as well as other related projects. For
projects and sites not listed in the Essential Active Construction Sites map, and which
would otherwise fall within the “essential construction” category, the DOB requires an
“Essential Construction Request” to be made and approved before continuing work via
DOBNOW. The DOB will then issue a Certification of Authorization that must be posted at
the work site. If an address is categorized as Approved Work, then the work is only
approved for that specific approved Job Number. Any other job number at that BIN
requires the applicant to submit a new request. Currently, the certificates have been
updated through May 15, 2020, and will be automatically extended if the state of
emergency is likewise extended. For additional information regarding what particular
types of projects or jobs are permitted to continue, including in the case of
emergencies, local law compliance, previously ordered DOB corrective work, the
assessment of violations and penalties for non-compliance, securing and maintaining
sites for essential construction and suspended sites, single worker requirements,
permitting, and permit hours changes, among other questions, the DOB has set up a
COVID-19 response page, and has also published a fact sheet titled: “FAQs: Essential and
Non-Essential Construction in New York City During the COVID-19 New York State of
Emergency bulletin.” See link here.
• Permits, Insurance & Licenses: Whether or not the site is considered an “essential
construction site” as stated in the DOB Bulletin-2020-006, permits already in effect,
including DOB, DOT, and FDNY permits, remain in effect until expiration. Permits that
have expired, or will expire during the state of emergency, are automatically extended
until the end of the emergency pursuant to Executive Order 107. Despite the foregoing,
extended permits require valid insurance for the construction project to resume;
therefore, the DOB recommends applicants to continue to renew their permits in a timely
manner, but has not waived application fees. With respect to permits required in
response to the interruption of essential services or corrective action, new permits
must be entered into the essential construction request portal in DOBNOW and the
essential construction questionnaire must be completed to perform emergency or solitary
work. If the permit was submitted prior to April 3, 2020 and work needs to continue, an
Essential Construction Request must be submitted. As with permits, all licenses and
registrations expiring during the state of emergency are also extended. However, as
noted above, the licensees and registrations must ensure that the respective required
insurance is active during the extension period. See link here.
• Safety and Health Requirements for Active Construction Sites: DOB and the New York
City Department of Health (“DOH”) have issued “Industry Best Practices for Physical
Distancing for Construction Sites” during the COVID-19 emergency. The guidelines are
largely aligned with Occupational Safety and Health Administration (“OSHA”) and the
Center for Disease Control (“CDC”) general guidelines. In summary, the permit holder
must implement protocols that incorporate physical distancing and other health measures
at construction sites. These include, for instance: (i) marking out spacing, avoiding
congregations during pre-shift meetings, or other gatherings, staggering schedules or
job functions, and delivery of materials; (ii) replacing a worker with mechanical means
for operations whenever possible, or erecting temporary separation barriers such as
plastic sheeting or Plexiglas; and (iii) taking employee temperatures, hand-washing,
wearing proper protective equipment including masks or face coverings, and regularly
clearing and disinfecting shared tools and equipment. Lastly, if documented, a sick
worker must be quarantined and not return to work until (i) it has been at least 7-days
since symptoms started, (ii) no fever has been documented for 3 days without use of a
fever-reducing drug, or (iii) the overall illness has improved. The guidelines also call
for the shutdown of the work site if physical distancing cannot be maintained. See link
here.
• Design and Consultant Work on Public Projects: As per an updated communication from
the New York City Department of Design and Construction (“DDC”) dated April 15, 2020,
many of the regular activities managed by DDC, including design and construction of a
variety of public projects, including senior and community centers, homeless shelters,
police stations, and others, are suspended, including public projects that fall within
the purview of the EDC “essential construction” definition. However, the communication
is somewhat vague since it also states that the “majority of infrastructure projects
managed by DDC have been deemed essential at this time and will continue.” Despite the
above, DDC has also suspended design and support services and procurement activities due
to fiscal concerns. This severely hampers the work of architectural, engineering and
other consultant firms to move forward despite no clear prohibition in the Executive
Order prohibiting such design work and other off-site pre-construction activities. See
link to the DDC communication here.
These are unprecedented times, but signs of improvement continue to appear. RICHTER
RESTREPO PLLC will continue monitoring the situation and providing updates. We wish
everyone good health and safety during this difficult time.
-“The city seen from the Queensboro Bridge is always the city seen for the first time,
in its first wild promise of all the mystery and the beauty in the world"
- F. Scott Fizgerald, The Great Gatsby
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The content of this newsletter is designed for general information purposes, and it
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relationship. Prior results do not guarantee future outcomes.
Published: 05/04/2020