On Thursday, April 2, Governor Brian Kemp signed an executive order (the “Order”) requiring Georgians to shelter in place until April 13 at 11:59 p.m. The stay-at-home order, titled “Executive Order to Ensure a Safe & Healthy Georgia,” replaces all prior stay-at-home orders issued by local governmental bodies and prohibits localities from varying the Order’s requirements.  The Order is available here.

How does Georgia’s stay-at-home order affect your construction project? Unfortunately, the Order is unclear.  However, at least some private projects could be stopped by the Order. The Order divides all businesses, including contractors and subcontractors, into Critical and Non-Critical Infrastructure.  As a preliminary matter, the overarching rule is that no more than ten (10) people are allowed in single location that requires them to stand or sit within six (6) feet of any other person, whether Critical or Non-Critical Infrastructure.  The remainder of this article focuses on differences in the treatment of Critical and Non-Critical Infrastructure.

How the Georgia Stay-at-Home Order Affects Critical Infrastructure Projects

The Order defines Critical Infrastructure as businesses, establishments, corporations, non-profit corporations, and organizations as recognized by federal Department of Homeland Security guidance dated March 28, 2020, available here. The federal guidelines are vague, but include certain types of construction within the scope of Critical Infrastructure, including:

• Workers who support the operation, inspection, and maintenance of essential public works facilities and operations, including bridges, water and sewer main breaks, and construction of critical or strategic infrastructure
• Workers such as plumbers, electricians, exterminators, builders, contractors, HVAC Technicians, landscapers, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operations
• Contractors for construction and engineering of fiber optic cables, buried conduit, and other communications sector-related infrastructure
• Workers who support the supply chain of building materials from production through application/installation, including cabinetry, fixtures, doors, cement, hardware, plumbing, electrical, heating/cooling, refrigeration, appliances, paint/coatings, and employees who provide services that enable repair materials and equipment for essential functions
• Workers supporting the construction of housing
• Workers supporting the energy sector through renewable energy infrastructure, including those supporting construction
• Workers supporting new and existing energy-related construction projects, including, but not limited to, pipeline construction

This is not an exhaustive list, but is representative of Critical Infrastructure activities.

If a business falls into one of these categories, the Order requires business to adhere to a set of sixteen measures to mitigate the spread of COVID-19:

1. Screening and evaluating workers who exhibit signs of illness, such as a fever over 100.4 degrees Fahrenheit, cough, or shortness of breath;
2. Requiring workers who exhibit signs of illness to not report to work or to seek medical attention;
3. Enhancing sanitation of the workplace as appropriate;
4. Requiring hand washing or sanitation by workers at appropriate places within the business location;
5. Providing personal protective equipment as available and appropriate to the function and location of the worker within the business location;
6. Prohibiting gatherings of workers during working hours;
7. Permitting workers to take breaks and lunch outside, in their office or personal workspace, or in such other areas where proper social distancing is attainable;
8. Implementing teleworking for all possible workers;
9. Implementing staggered shifts for all possible workers;
10. Holding all meetings and conferences virtually, wherever possible;
11. Delivering intangible services remotely wherever possible;
12. Discouraging workers from using other workers’ phones, desks, offices, or other work tools and equipment;
13. Providing disinfectant and sanitation products for workers to clean their workspace, equipment, and tools;
14. Prohibiting handshaking and other unnecessary person-to-person contact in the workplace; and
15. Placing notices that encourage hand hygiene at the entrance to the workplace and in other workplace areas where they are likely to be seen; and
16. Suspending the use of Personal Identification Number (“PIN”) pads, PIN entry devices, electronic signature capture, and any other credit card receipt signature requirements to the extent such suspension is permitted by agreements with credit card companies and credit agencies.

For contractors and subcontractors that work on projects that fall within the definition of Critical Infrastructure, business continues largely as normal so long as the Critical Infrastructure contractor maintains the sixteen safety measures as required by the Order.  In addition to the Order, contractors must be aware of and institute appropriate measures from OSHA’s guidance on coronavirus protection, found here.

How the Georgia Stay-at-Home Order Affects Non-Critical Infrastructure Projects

All businesses that are deemed Non-Critical Infrastructure are required to engage in only Minimum Basic Operations as defined in the Order. Minimum Basic Operations are limited to:

• Minimum necessary activities to maintain the value of a business, establishment, corporation, non-profit corporation, or organization, provide services, manage inventory, ensure security, process payroll and employee benefits, or for related functions. Such minimum necessary activities include remaining open to the public subject to the Order’s restriction.
• Minimum necessary activities to facilitate employees or volunteers being able to work remotely from their residences or members or patrons being able to participate remotely from their residences
• Instances where employees are working outdoors without regular contact with other persons, such as delivery services, contractors, landscape businesses, and agricultural industry services.

All Non-Critical Infrastructure buildings are also required to meet a set of twenty requirements that are more extensive than those for critical infrastructure. Perhaps the most important additional measure is that workers’ worksites must be at least six feet apart from each other. The full list follows:

1. Screening and evaluating workers who exhibit signs of illness, such as fever over 100.4 degrees Fahrenheit, cough, or shortness of breath;
2. Requiring workers who exhibit signs of illness to not report to work or to seek medical attention;
3. Enhancing sanitation of the workplace as appropriate;
4. Requiring hand washing or sanitation by workers at appropriate places within the business location;
5. Providing personal protective equipment as available and appropriate to the function and location of the worker within the business location;
6. Prohibiting gatherings of workers during working hours;
7. Permitting workers to take breaks and meals outside, in their office or personal workspace, or in such other areas where proper social distancing is attainable;
8. Implementing teleworking for all possible workers;
9. Implementing staggered shifts for all possible workers;
10. Holding all meetings and conferences virtually, wherever possible;
11. Delivering intangible services remotely wherever possible;
12. Discouraging workers from using other workers’ phones, desks, offices, or other work tools and equipment;
13. Prohibiting handshaking and other unnecessary person-to-person contact in the workplace;
14. Placing notices that encourage hand hygiene at the entrance to the workplace and in other workplace areas where they are likely to be seen;
15. Suspending the use of Personal Identification Number (“PIN”) pads, PIN entry devices, electronic signature capture, and any other credit card receipt signature requirements to the extent such suspension is permitted by agreements with credit card companies and credit agencies;
16. Enforcing social distancing of non-cohabitating persons while present on such entity’s leased or owned property;
17. For retailers and service providers, providing for alternative points of sale outside of buildings, including curbside pick-up or delivery of products and/or services if an alternative point of sale is permitted under Georgia law;
18. Increasing physical space between workers and customers;
19. Providing disinfectant and sanitation products for workers to clean their workspace, equipment, and tools;
20. Increasing physical space between workers’ worksites to at least six (6) feet.

For contractors and subcontractors on non-critical infrastructure projects, work will likely be substantially affected. The most important change will be the six-feet space requirement. Workers on a jobsite will need to stay more than six feet from each other, and this could make certain trade work difficult to impossible. The outdoors work requirement also may pose challenges to contractors, and it is not yet clear from the Order what types of work, if any, can continue inside buildings on projects not considered Critical Infrastructure.

If you have questions about the effect of the stay-at-home order on you, contact the attorneys at Smith, Gambrell & Russell, LLP. Our Construction Law practice group has the expertise to guide your business through these trying times.