Potential Expansion of ESDC Guidelines for Essential Construction

Posted on April, 8 2020

We have seen some recent guidance provided by the Empire State Development Corporation (ESDC) with respect to Essential Business designations. This updated list does not appear on the ESDC’s web site. It was obtained from email responses to specific waiver requests from ESDC. The Department of Buildings is currently in discussions with ESDC in an effort to coordinate their response to the expanded list. As this list is not official, we are providing it in anticipation of potential changes. Again, this is an advance document that has neither been formally published in the ESDC web site nor accepted by the Department of Buildings.

The following is our understanding of the updated version of Section 9 – Construction, of the ESDC interpretation of Essential Businesses in accordance with Governor’s Order 202.6

  • All non-essential construction must shut down except 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).
  • Essential construction may continue and includes roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing, and homeless shelters. At every site, if essential or emergency non-essential construction, this includes maintaining social distance, including for purposes of elevators/meals/entry and exit. Sites that cannot maintain distance and safety best practices must close and enforcement will be provided by the state in coordination with the city/local governments. This will include fines of up to $10,000 per violation.
  • Any project that includes affordable housing is essential.
  • Construction of any essential business is essential as long as they can maintain social distancing (6ft between people) and do all appropriate cleaning & disinfecting.
  • Emergency repairs such as roof repair, or other construction work necessary to protect health and safety is essential.
  • Fire suppression systems can be installed in a building that will be shut down.
  • Construction of senior living facilities are essential.
  • Completing building of homes for Hurricane Sandy victims who are still in temporary housing is essential. G
  • Governmental construction projects:  restriction does not apply to government projects; however, governments are expected to use discretion and postpone non-essential work.
  • Construction of public & charter schools is essential. Private schools – no.
  • Single employee at construction site is ok.
  • All services necessary for essential construction (environmental monitoring, surveyors, architects) are essential.

If you believe your project falls into the expanded definitions, we urge you to continue to monitor for changes in these rules.