New Jersey Resumes Non-Essential Construction, Are Permit Extensions Next?

On May 13, 2020, New Jersey Gov. Phil Murphy signed an Executive Order lifting the state’s ban on non-essential construction. However, it will not be business as usual…

On May 13, 2020, New Jersey Gov. Phil Murphy signed an Executive Order lifting the state’s ban on non-essential construction. However, it will not be business as usual — the construction industry must adopt strict infection control measures.

In additional good news for the New Jersey construction industry, the New Jersey Legislature has approved a bill that would extend permits approved prior to the COVID-19-related state of emergency until at least six months after the state of emergency ends. The legislation, Assembly Bill 3919, now awaits Gov. Phil Murphy’s signature.

COVID-19 Restrictions on New Jersey Construction Projects

Construction projects across New Jersey came to an abrupt halt in March, when Gov. Murphy shuttered all non-essential construction projects in an effort to combat the spread of coronavirus (COVID-19). Those restrictions are now being slowly relaxed as COVID-19 cases in New Jersey are steadily falling. Under Executive Order 142, the physical operations of all construction projects that were not designated as essential in Executive Order No. 122 are permitted to resume.  In support, the Order notes that construction sites are generally limited to workers, rather than customers and other members of the public, and therefore involve less risk of significant transmission of COVID-19 in the community

COVID-19 Requirements for NJ Construction Projects

As of May 18, 2020, non-essential construction projects may resume in New Jersey. However, they are subject to mandatory mitigation requirements. Under Executive Order 142, all businesses engaged in construction projects in the State must adopt policies that include, at minimum, the following requirements:

• Prohibit non-essential visitors from entering the work site;
• Engage in appropriate social distancing measures when picking up or delivering equipment or materials;
• Limit worksite meetings, inductions, and workgroups to groups of fewer than 10 individuals;
• Require individuals to maintain six feet or more distance between them wherever possible;
• Stagger work start and stop times where practicable to limit the number of individuals entering and leaving the worksite concurrently;
• Identify congested and “high-risk areas,” including but not limited to lunchrooms, breakrooms, portable restrooms, and elevators, and limit the number of individuals at those sites concurrently where practicable;
• Stagger lunch breaks and work times where practicable to enable operations to safely continue while utilizing the least number of individuals possible at the site;
• Require workers and visitors to wear cloth face coverings, in accordance with CDC recommendations, while on the premises, except where doing so would inhibit the individual’s health or the individual is under two years of age, and require workers to wear gloves while on the premises. Businesses must provide, at their expense, such face coverings and gloves for their employees. If a visitor refuses to wear a cloth face covering for non-medical reasons and if such covering cannot be provided to the individual by the business at the point of entry, then the business must decline entry to the individual. Nothing in the stated policy should prevent workers or visitors from wearing a surgical-grade mask or other more protective face covering if the individual is already in possession of such equipment, or if the business is otherwise required to provide such worker with more protective equipment due to the nature of the work involved. Where an individual declines to wear a face-covering on the premises due to a medical condition that inhibits such usage, neither the business nor its staff shall require the individual to produce medical documentation verifying the stated condition;
• Require infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal;
• Limit sharing of tools, equipment, and machinery;
• Where running water is not available, provide portable washing stations with soap and/or alcohol-based hand sanitizers that have greater than 60% ethanol or 70% isopropanol;
• Require frequent sanitization of high-touch areas like restrooms, breakrooms, equipment, and machinery;
• When the worksite is an occupied residence, require workers to sanitize work areas and keep a distance of at least six feet from the occupants; and
• Place conspicuous signage at entrances and throughout the worksite detailing the above mandates.

New Jersey Permit Extension Legislation

Given that many construction projects were forced to shut down for more than two months, Assembly Bill 3919 would toll the term of permits and approvals during the course of the COVID-19 emergency. As set forth in the statement accompanying the bill, the measure aims to prevent the abandonment of approved projects and the concomitant waste of public and private resources, as well as to be ready to quickly resume these projects when it is safe to restart normal levels of business and government activity.

“Work has been frozen. The economy was stopped in its tracks by strict social distancing orders to slow the spread of the virus,” said sponsor Sen. Anthony Bucco, R-5th District, in a press statement. “Permit approvals can expire during indefinite delays, jeopardizing important construction and placing public and private investment at risk. Extending permits during the state of emergency will prevent important, already-approved work from being abandoned.” He added:  “We must do all that we can to make sure these projects remain viable so people can get back to work now that the governor has allowed nonessential projects to resume construction.”

New Jersey adopted similar legislation in the wake of Superstorm Sandy. In response to the state’s latest crisis, Assembly Bill 3919 would create a new extension period under the “Permit Extension Act of 2008” that covers permits in existence during the period in which the COVID-19 public health emergency or state of emergency is in effect.  Such approvals would not extend beyond six months after the conclusion of the extension period, except that for a construction project suspended pursuant to either the Governor’s Executive Order No. 122 or any other government order, the tolling period would be 12 months beyond the conclusion of the COVID-19 extension period. The Senate passed the bill 36-0, while the Assembly passed the bill 78-0-0. If signed into law by Gov. Murphy, Assembly Bill 3919 would take effect immediately and be retroactive to March 9, 2020, when Executive Order No. 103  declared a state of emergency in response to COVID-19.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Don Pepe, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.