Business and Legal Insights

In response to the novel coronavirus, on April 1, 2020, Governor DeSantis issued Executive Order 2020-91 (since amended by Executive Order 2020-92), which shut down all “non-essential” business activity in Florida from April 3 through April 30. Per the Governor’s order, work may continue on “open construction sites” as an “essential business” activity.

Despite the construction industry’s “essential” status, contractors should not think they can conduct “business as usual” at their jobsites. The City of Miami Beach recently issued stop work orders to two construction sites for failing to comply with controlling coronavirus safety regulations, and they indefinitely ordered the jobsites closed “until the emergency order is over.” Unfortunately, the stop work orders shutting down the jobsites did not list violations of any specific City, County, State, or Federal laws; they just generically stated “failure to comply with the CDC safety regulations during the COVID-19 emergency period.”

Nonetheless, the Miami Herald reported that the City found the contractors “failed to keep proper employee health logs” and that jobsites “with more than eight workers are required to screen their employees daily for coronavirus symptoms.”

The government, and contractors alike, should be taking every precaution to make sure open construction sites do not increase the spread of Covid-19. However, this requirement is vaguely set forth on the City of Miami-Beach’s Coronavirus Update website, and while the CDC has posted OSHA’s Guidance on Preparing Workplaces for COVID-19 on its website, the CDC’s own guidance for such “safety regulations” are not available.

The lessons here for contractors are clear:

1. First, contractors keeping their jobsites open during this crisis should not assume they have found all the relevant rules just by browsing the government’s websites, but should confirm by asking their government counter-parts for copies of all the rules they must follow with respect to COVID-19 and the procedures for appealing a notice of violation (or have their counsel, lobbyists, or other representatives do so on their behalf).
2. Second, contractors should follow any issued rules (this one is a no-brainer, but it never hurts to say).
3. Third, if a contractor receives a notice of violation which it believes is groundless, it should consult with legal counsel about their appeal rights, and should do so promptly (e.g., within 12 hours of receipt of the notice) to avoid waiving its rights, as some jurisdictions may have very short time periods within which an appeal may be filed.It is appropriate for the government to shut down a jobsite that is in violation of controlling safety rules. But if the government is going to let construction work continue as an “essential business,” contractors have a right to know what rules they need to follow and a right to challenge groundless citations and stop work orders.

The Construction attorneys at Shutts & Bowen have substantial experience in proactively and practically handling the challenges and issues unfolding as a result of the coronavirus pandemic. Our attorneys can also help avoid potential harm or injury to you or others, and possible disruption to existing business and long-term relationships, while keeping cost-efficiencies top of mind.