In recent days, many states across the country have implemented travel restrictions in response to the novel coronavirus (COVID-19) pandemic. Businesses allowed to operate because they are “essential” must consider: what happens if workers or materials must travel interstate — i.e., they live in Delaware and they work in New Jersey, or their office is in Indiana but their construction site is in Illinois, or the project requires trucking of materials fabricated in Oregon for a job in Washington — and the states have different requirements?
While legal scholars will debate whether these competing requirements violate the commerce clause of the U.S. Constitution, that is not the purpose of this Alert. This is to provide some basic guideposts to help businesses navigate the day-to-day problems posed by conflicting requirements among states.
Construction Company is building a new office building in New Jersey. Under N.J. Governor Phil Murphy’s Executive Order No. 107, the construction project is allowed to continue. However, your project’s superintendent lives in Bucks County, Pa. Under Pa. Governor Tom Wolf’s stay-at-home order, the superintendent is only allowed to travel from her home to engage in a “life sustaining” business. Under Pennsylvania’s guidance on business closures, the construction of a new office building is not considered a life sustaining business. As such, the superintendent would not be permitted to travel to a new office construction project that is in Pennsylvania. But, what about a project that is deemed essential and allowed to operate in New Jersey?
Right now, no one can say for certain whether the superintendent is allowed to travel from her home in Bucks County, Pa., to work on a project that Pennsylvania does not consider life sustaining. Under a strict reading of Pennsylvania’s stay-at-home order and the related guidance, if the superintendent left her home to work on this project in New Jersey, she may be in violation of the stay-at-home order and thus would be potentially subject to criminal penalties including fines and possible imprisonment. Even if she is not actually in violation of the order, police in Pennsylvania attempting to enforce the governor’s order may choose to issue a citation or make an arrest instead of trying to interpret vague or contradictory orders in different states.
What can construction companies do?
Knowledge is power. The best thing construction companies can do right now is stay up-to-date on the various stay-at-home and business restriction orders coming out on a sometimes daily basis. Businesses need to know not just what the orders are in the states they are doing business, but also potentially where their employees reside or where they must pick up supplies and equipment.
Understand and adhere to self-quarantining requirements. Some states are allowing travel but are requiring individuals entering their states to self-quarantine for 14 days upon arrival. These requirements for travelers to self-quarantine make commuting into these states for work or to pick up materials or equipment impractical. However, even in states with self-quarantining requirements, there are exceptions that may allow continued interstate travel. Businesses need to carefully review and understand the restrictions in these states before requiring employees to travel into or through these states for work.
Seek exemptions from the more restrictive jurisdictions. The states that have issued the most restrictive orders closing businesses have provided ways to seek exemptions from the orders. Applying for the exemption may result in a written instruction from the state allowing the employee to travel. The employee can print out that instruction and provide it to law enforcement in the event of a traffic stop.
Confer with applicable local law enforcement. These orders are being enforced by local and state police departments that are also trying to interpret these various orders and understand their roles. Highway patrols in some states have issued press releases or guidance on how officers are approaching enforcement. You can also call local law enforcement’s non-emergency number and seek clarity for whether the employee can travel and what the employee can do to prevent unnecessary citations. If you get verbal instructions, document it for the employee.
Issue a letter for the employee. Some employers have been preparing letters for their employees to have on them while traveling, explaining that they are traveling for what is considered an essential business or essential activity under certain states’ orders and guidance. While this is certainly not a get-out-of-jail-free card, it may help law enforcement understand why the employee is traveling instead of just taking the employee’s word for it. Be sure to provide a phone number that will be answered in case law enforcement needs to verify the letter.
Allow remote work as much as possible. The ideal solution is to allow the employee to work remotely as much as possible. For the construction superintendent in the above hypothetical, this is not likely a long-term solution, if at all. However, any day the employee can work remotely is one less day that employee risks violating a stay-at-home order.
Document project impacts from these orders. As with all potential impacts from COVID-19 and the governmental responses, contractors would be well advised to document each and every potential contributor to increased costs or delays. This can include the inability or restricted ability of key project personnel from being able to reach the project site due to unanticipated differing state orders. Impacts from these government actions may be compensable or excusable under the relevant construction contracts, but only if the affected parties properly document the impacts and meet the notice requirements of the contracts.
For strategies on responding to and documenting impacts from these government actions and COVID-19 in general, please refer to our previous client alert, “COVID-19 Strategies for the Construction Industry.” Additionally, visit Cozen O’Connor’s COVID-19 website for new updates.