On March 28, the U.S. Department of Homeland Security's Cybersecurity and Infrastructure Security Agency (CISA) issued new guidance that identifies specific areas where construction workers will typically be considered "essential" and therefore, can work during the COVID-19 pandemic. CISA initially released guidelines on March 19 in response to shelter-in-place orders issued by the governors of California, New York, and Illinois. The most recent guidance was issued in response to shelter-in-place orders issued in all but a handful of states.
The orders issued by states and localities vary locale to locale. While most states find construction to be an essential service, some do not, and other states allow only certain types of construction activities. Even states without an express statewide ban on construction may have a shelter-in-place order that is unclear or provides additional restrictions at the city or county level. As a result, whether your particular construction services are deemed essential or exempt needs a careful review. An updated list of states with shelter-in-place orders that may impact construction can be found here.
Though not binding on states, CISA's updated guidelines are intended to help state and local officials protect their communities while also ensuring continuity of functions critical to public health and safety, as well as economic and national security. CISA collaborated with other federal agencies, state and local governments, and the private sector when drafting the guidelines, so the guidelines could be persuasive evidence in evaluating whether work is considered "essential" under a particular state's shelter-in-place order. The guidelines may also provide grounds for seeking an exemption from a shelter-in-place order that would otherwise prohibit construction.
Under CISA's original guidelines, construction was only specifically mentioned with respect to public works and communications projects. The updated guidelines, however, add new permissible activities or clarify activities that are exempt. Under these new guidelines, the following is a non-exhaustive list of sectors where construction workers will "typically" provide services essential to continued critical infrastructure viability:
State and local orders follow CISA's updated guidelines with varying interpretations. Moreover, since the COVID-19 pandemic continues to be a fluid situation, guidelines and orders are subject to change at any moment. Thus, be sure to check the laws and guidance applicable to your particular project site and scope of work.