Atlanta Stay at Home Order and the Construction Industry

By Trent Cotney and Elliot Haney, Cotney Construction Law, LLP

Shortly before midnight on Monday, Atlanta Mayor Keisha Lance Bottoms issued Executive Order 2020-21 (https://www.atlantaga.gov/Home/ShowDocument?id=45508), enforcing a “stay-at-home” directive for all residents within Atlanta’s city limits. The Executive Order, which took effect at midnight Tuesday and will remain in effect for 14 days, follows a long line of major metropolitan cities issuing similar orders to combat the spread of the novel Coronavirus. The Order does, however, contain an “Essential Business” exception that allows businesses who “provide… certain essential services or engage in certain essential activities and work for essential business and government services” to remain active. This exception can have significant consequences for the construction industry, as many Atlanta-based contractors are left wondering whether they can continue to operate as a result of the Order.

Public Works Construction

           Contractors involved in public-works projects are explicitly exempt from the stay-at-home directive as a business providing “Essential Infrastructure”, pursuant to Section 6(c) of the Order. The public-works exception applies to any individuals or businesses who “provide any services or perform any work necessary to the operations and maintenance of… public works construction, airport operations, utility, water, sewer, gas, electrical, oil refining, roads and highways, railroads, public transportation…” or other similar publicly available services that must be maintained as part of the local infrastructure. It is important to note, however, that businesses exempt from the stay-at-home directive for such a purpose – or any purpose for that matter – must continue to follow social distancing requirements when on the jobsite.

Residential Construction

           Contractors involved in residential construction certainly have a good argument that they are covered under the “Essential Business” exception found in Section 6(f) of the Order. Section 6(f) defines “Essential Businesses”, in relevant part, as “[p]lumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation and essential operation of residences, Essential Activities, and Essential Businesses[]”.While certain trades are explicitly exempt under the Atlanta Order, the provision exempting “other services” necessary to “maintain[] the safety, sanitation and essential operation of residences[]” provides all residential contractors with solid legal ground to stand on when arguing they should be included in such an exception. The legal principle known as elusdem generis requires us to look to the terms explicitly defined in statutory or regulatory text for guidance as to how we should interpret or define a catch-all provision – such as the “other services” considered as an “Essential Business”. Here, plumbers, electricians and exterminators are expressly included presumably to further the purpose of the stay-at-home order itself – enabling people to remain at home in self quarantine. To effectuate such a purpose, those homes must remain safe, sanitary and adequate for long-term dwelling, and accordingly, the “other services” referred to in the Order must include those construction-based services that are also necessary to promote safe and sanitary home-living. This could apply to any type of residential construction, as the necessity of building and repairing residences to ensure their safety and sanitation applies broadly across all residential construction and goes to the heart of the stay-at-home Order itself. The broad nature of Atlanta’s Order allows for well-reasoned, policy-based arguments supporting the overall purpose of the Order when analyzing who falls under the Essential Business exception.

It is also important to note that the definition of “Essential Businesses” provided in the Atlanta Order tracks the language issued by the Department of Homeland Security (DHS) in its memorandum providing guidelines for states and localities implementing state-wide and city-wide shutdowns in response to the COVID-19 outbreak. While the DHS guidelines do not provide any additional guidance as to the definition of “Essential Businesses”, Atlanta-based contractors should look to other cities, such as San Francisco and Boston, who have also enacted stay-at-home orders based on the same DHS guidelines, but who have included more contractor-friendly language in their respective essential business exceptions. For example, San Francisco Order C19-07 emphasizes the need for residential construction to remain in operation in its preamble, where it states “this Order requires all individuals anywhere in San Francisco to shelter in place – that is, stay at home – except for certain essential activities and work to provide essential business and government services or perform essential public infrastructure construction, including housing.” (emphasis added). Similarly, as part of Boston’s response to COVID-19, its Mayor placed a moratorium on all construction in the city, except for those providing “essential work”, defined as utility and transportation work, as well as “other work necessary to render occupied residential buildings fully habitable.” So, whereas the Atlanta Order follows the DHS guidelines verbatim, there is plenty of support from other cities who have interpreted the DHS guidelines to exempt residential contractors as “Essential Businesses”.

Commercial Construction

           As for commercial contractors, the analysis is less straight-forward. Based on the language of Section 6(f) of the Order, whether commercial construction is exempt from the stay-at-home Order will largely depend on the nature of the project itself, and whether the contractor’s performance is considered necessary to maintain the essential operation of an “Essential Activit[y]” or an “Essential Business”. For example, contractors providing facilities necessary for an Essential Business to operate, such as health-care facilities or temporary shelters, are more likely to be exempt from the Atlanta Order than those involved in projects that would not otherwise enable the operation of an “Essential Business” or “Essential Activity”. However, because hotels, grocery stores, banks, and some restaurants are also considered “Essential” under the Order, there is an argument to be made that providing construction for such businesses falls under such an exception. For this reason, each commercial construction job should be analyzed on a case-by-case basis to determine whether an exemption applies.

           If you believe your contracting business is exempt from the Atlanta stay-at-home Order, you should contact your attorney for documentation to provide your crews in case they are questioned on a jobsite. As government responses to COVID-19 change daily, it is more important than ever that contractors are up to date on the most recent measures taken by their federal, state and local authorities, and are armored with legal support for any actions it decides to take.

Author’s note: The information contained in this article is for general educational purposes only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

Trent Cotney is the CEO of Cotney Construction Law. He is also General Counsel of NRCA, FRSA, WSRCA, RT3 and NSA. With 14 offices across the United States, Cotney Construction Law fights for the roofing industry nationwide. For more information, please go to www.cotneycl.com or www.roofinglawyer.com