Executive Order 202.6 - Clarification and Guidance on "Non-Essential" Construction

By Robert J. Lum

Today, New York Governor Andrew Cuomo has limited the types of construction that qualify as essential and allowed to continue in light of the COVID-19 pandemic. Pursuant to today’s guidance on Executive Order 202.6 “Essential Business” issued by the Governor’s office, all “all non-essential construction must shut down except for "emergency construction,  (e.g. a project necessary to protect health and safety of the occupants, or to continue a project if it would be unsafe to allow to remain undone until it is safe to shut the site).” Infrastructure projects such as “roads, bridges, transit facilities, utilities, hospitals or health care facilities” may be considered an essential service and allowed to continue.

In effect, the Executive Order purports to shut down all construction of housing units except for those for affordable units and homeless shelters. Further, the construction of on-going projects must come to a stop unless it is unsafe to leave the project as it stands now. See Executive Order 202.6 (“to continue a project if it would be unsafe to allow to remain undone until it is safe to shut the site".) The construction of new developments, such as high rises, condominiums, and apartment buildings, has noticeably marched on throughout New York City despite concerns of the on-going coronavirus crisis. Prior to today’s guidance, there was a considerable amount of confusion and ambiguity concerning what constituted “Construction” and whether it should distinguish emergency and condominium developments.

Real estate developers and contractors should be familiar that the new guidance was expanded to include that a failure to cease construction that is “non-essential” will result in a steep fine of $10,000 per violation.