Construction is an Essential Service in Massachusetts

As in other parts of the country, the state and local response to COVID-19 has been universal but not uniform. On March 23, 2020 Massachusetts Governor Baker issued Order No. 13 directing “brick and mortar” businesses to close their physical doors until April 7, 2020, encouraging them to continue operations online. The list of “essential services” that can continue to operate as usual includes construction projects, utilizing social distancing practices, of course.

Following up on this Order, in a March 25, 2020 Guidance to municipalities, the Governor confirmed that Order No. 13 was issued under the Massachusetts Civil Defense Act. As such, any inconsistent municipal rule, regulation, ordinance, or by-law is inoperative. In particular, the most recent Guidance makes clear that construction projects are continuous essential projects requiring uniform, statewide management during this pandemic and should adhere to the state’s health and safety guidelines, rather than be subject to individual municipal requirements. The March 25, 2020 Guidance directs municipalities to follow the state’s guidelines for safety at construction sites allowing work to continue across the state.

The lack of uniformity comes with the fact that Boston Mayor Marty Walsh had earlier directed that construction in the City of Boston must cease, except for essential construction related to transportation and gas hookups. Mayor Walsh’s March 16, 2020 directive would seem to be superseded by the Governor’s Order No. 13 and March 25 Guidance.

In response to the Governor, Mayor Walsh affirmatively extended the City of Boston’s order pausing “non-essential” construction in the City. Such construction sites should have already been locked down by the time the Governor issued Order No. 13 on March 23, 2020, but may have been hoping to reopen.

Home Rule in Massachusetts was granted to cities and towns by constitutional amendment, and while viewed as very strong, the Commonwealth retained unlimited power to overturn local decision-making, which the Governor has exercised in this case. As such, the Governor’s Order is controlling, even in the City of Boston. The Mayor’s press release indicates that he is working with various partners including construction firms and the building trades to determine protocols that would allow these sites to safely re-open in Boston. The Governor’s office recommends that cities and towns implement guidance consistent with the state’s guidance to ensure safe and consistent practices.

Before restarting a construction project in the City of Boston, check the City’s Inspectional Services website for updates.

Please contact our Construction COVID-19 Task Force for assistance in developing your safety protocols or in any regard to assist in responding to the COVID-19 challenges on your existing projects or preparing your upcoming contracts and projects.

Visit our COVID-19 Hub for ongoing updates.