Maryland State Governor Larry Hogan issued a revised order yesterday (Order no. 20-03-30-01) whereby “[a]ll persons living in the State of Maryland are hereby ordered, effective as of 8:00 p.m. on March 30, 2020, to stay in their homes or places of residences (“Homes”) except … to conduct Essential Activities.” Article IV of the Order similarly requires the closure of “Non-Essential Businesses” that “are not part of the critical infrastructure sectors identified by the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency.
The Cybersecurity and Infrastructure Agency (“CISA”) advisory list “identifies workers who conduct a range of operations and services that are typically essential to continued critical infrastructure viability, including staffing operations centers, maintaining and repairing critical infrastructure, operating call centers, working construction, and performing operational functions, among others.” Commercial construction is not specifically itemized as one of the critical infrastructure businesses that may remain open. By contrast, residential construction is specifically identified as an essential business.
However, under the CISA heading of Public Works and Infrastructure Service Providers, “construction of critical or strategic infrastructure” is deemed essential. Nowhere does the federal guidance specifically define the meaning of critical or strategic infrastructure to include commercial construction projects. According to prior guidance from the Maryland State Office Legal Counsel, commercial construction was considered essential, and closure of project sites was not required. However, the current order references the “guidance” on critical infrastructure from CISA’s website. Without further clarification or guidance from the Governor’s Office, it is unclear whether this current order is intended to require shut down of all commercial construction sites in Maryland, when the order takes effect.
We are endeavoring to obtain further guidance from the Governor’s Office and will update this post as soon as possible.
