Common Questions on EO GA 14 as it Relates to the City of Austin
Austin — April 1, 2020 — The issuance of the Governor of Texas’ Executive Order GA 14 has been a welcome respite from the shelter-in-place orders issued by the City of Austin and Travis County, and their associated guidance memoranda, as they impact construction projects in Central Texas. However, after discussing the matter with a number of construction industry participants, questions still remain across the state as to the types of projects permitted to proceed by virtue of the Executive Order.
The Executive Order does not prohibit any type of construction from proceeding. The Executive Order plainly states that local orders cannot limit construction activities that are otherwise deemed essential by the Governor. If your local order permits construction to continue, then that local order is not changed by the Governor’s Order.
While every scenario is fact-specific, below are some common questions that have been posed and associated answers of general applicability:
1. How does the Executive Order change what construction can and cannot proceed?
The Executive Order is effective April 2, 2020 through April 30, 2020. It requires that “every person in Texas shall, except where necessary to provide or obtain essential services, minimize social gatherings and minimize in-person contact with people who are not in the same household.” And it “shall supersede any conflicting order issued by local officials in response to the COVID-19 disaster, but only to the extent that such a local order restricts essential services allowed by this executive order or allows gatherings prohibited by this executive order.…”
Basically, if an applicable local order allows more types of construction than the Executive Order, then that construction can proceed. If an applicable local order restricts a type of construction that is deemed “essential” under the Executive Order, then that construction can also proceed. For example, many projects that were potentially subject to wind-down and closure by virtue of orders issued by the City of Austin and Travis County (at least as interpreted by the city and county pursuant to their own guidance memoranda) should now be able to proceed.
2. What types of construction sectors are included in the Governor’s order (and are general commercial and multi-family projects included)?
The Executive Order defines “essential services” as “everything listed by the U.S. Department of Homeland Security in its Guidance on the Essential Critical Infrastructure Workforce, Version 2.0, plus religious services conducted in churches, congregations, and houses of worship.”
The referenced guidance is available here and includes 17 broad sectors and a number of types of workers, including but not limited to:
- Energy (e.g., “Workers supporting the energy sector…”; “Workers supporting the energy sector through renewable energy infrastructure (including, but not limited to wind, solar, biomass, hydrogen, ocean, geothermal, and/or hydroelectric), including those supporting construction….;” “Supporting new and existing construction projects, including, but not limited to, pipeline construction;” “Natural gas, propane, natural gas liquids, and other liquid fuel processing plants, including construction….”
- Public Works / Infrastructure (e.g., “Workers who support the operation, inspection, and maintenance of essential public works facilities and operations, including bridges, water and sewer main breaks, fleet maintenance personnel, construction of critical or strategic infrastructure, traffic signal maintenance, emergency location services for buried utilities, maintenance of digital systems infrastructure supporting public works operations, and other emergent issues;” “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 operation of residences, businesses and buildings such as hospitals, senior living facilities, any temporary construction required to support COVID-19 response”)
- Communications / Information Technology (e.g., “Engineers, technicians and associated personnel responsible for infrastructure construction and restoration, including contractors for construction and engineering of fiber optic cables, buried conduit, small cells, other wireless facilities, and other communications sector-related infrastructure;” “Suppliers, designers, transporters and other workers supporting the … construction of essential global, national and local infrastructure for computing services (including cloud computing services and telework capabilities), business infrastructure, financial transactions/services, web-based services, and critical manufacturing”)
- Community and Government Operations (e.g., “Workers to ensure continuity of building functions, including but not limited to security and environmental controls (e.g., HVAC), the manufacturing and distribution of the products required for these functions, and the permits and inspections for construction supporting essential infrastructure”)
- Commercial Facilities (e.g., “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 distributing, servicing, repairing, installing residential and commercial HVAC systems, boilers, furnaces and other heating, cooling, refrigeration, and ventilation equipment”
- Residential Facilities (e.g., “Workers performing housing construction related activities to ensure additional units can be made available to combat the nation’s existing housing supply shortage;” “Workers supporting the construction of housing….”
Further, the Executive Order provides that “[o]ther essential services may be added to this list with the approval of the Texas Division of Emergency Management (TDEM),” which can be emailed at EssentialServices@tdem.texas.gov or contacted through the website. General commercial construction and multifamily construction can, in many instances, easily fit into many of the listed categories. A full review of the TDEM list is worthwhile.
3. What about rules for jobsites issued by local governments (e.g., cities and/or counties)?
Those rules should generally be followed unless they truly restrict essential services allowed by the Executive Order (e.g., “[t]his executive order shall supersede any conflicting order issued by local officials in response to the COVID-19 disaster, but only to the extent that such a local order restricts essential services allowed by this executive order”). By way of example, some local orders have required items such as:
- Mandatory temperature checks of all workers;
- Prohibition of gatherings during meals or breaks;
- Keeping a 6 foot distance between people at all times, unless the work being performed requires multiple individuals for the safety of the workers;
- Not using a common water cooler. Providing individual water bottles or instructing workers to bring their own;
- Mandatory rest breaks of at least fifteen (15) minutes for every four (4) hours worked so workers may follow hygiene guidelines;
- Providing one (1) working flushing toilet for every fifteen (15) workers on site or one (1) outdoor portable toilet for every 10 workers on site;
- Designating a COVID-19 safety monitor on each site who has the authority to enforce these rules.
Since these are established to protect the safety of the workers and not prevent a type of construction from proceeding, we expect these rules to remain enforceable.
Of course, how these matters are enforced at the project level still remains to be seen in the face of this constantly changing atmosphere. In any event, a decision to continue work on many types of projects can be supported by arguments made available by virtue of the Executive Order and federal guidance. As with prior updates, this continues to be an evolving matter, but the TDEM web page regarding “Essential Services” should be consulted for any sector-specific questions, and it appears that it may be subject to regular updates (it has already been changed once since yesterday).
A previous summary of the Executive Order can be found here.
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