In the wake of Governor Whitmer’s “Stay Safe, Stay Home” Executive Order 2020-21, many residential contractors have been uncertain as to what steps they could take to “button up” ongoing projects. There has been a lot of confusion about whether existing projects could be finished, or whether all construction activities had to end immediately. The latter issue posed a significant risk to contractors who had ongoing, active projects that could pose a potential threat to unused inventory, equipment stored on site and public safety.

On Friday, March 27, 2020, Kent County Prosecutor Christopher Becker sent a letter to all Kent County law enforcement agencies providing much-needed and welcome clarification for residential contractors throughout the County.

While Prosecutor Becker made it clear that residential construction is not exempt from the Executive Order, which means that no new projects may be started and the work on all existing projects must stop in its tracks, he wisely noted that contractors need some time to secure their job sites, retrieve unused inventory and equipment and (where necessary) install safety fencing to prevent unauthorized access to or injuries from projects under construction when the Executive Order was issued.

In part, Prosecutor Becker wrote:

Clearly, any residential construction that is continuing should cease until this Executive Order has expired.  However, even under this executive order, an exemption is made for workers who “are necessary to conduct minimum basic operations,” and whose presence is necessary to “allow the business or operation to maintain the value of inventory and equipment … (and) ensure security.”

A reasonable amount of time should be allowed to these residential builders to protect and preserve projects that were suspended due to the Governor’s order. … There are construction supplies like tools or materials at work sites that need to be removed to prevent theft, fencing that may need to be placed around open foundations for safety, even tarping or placing of plywood or covering over doors and windows to prevent access while there is no work. Obviously, this work should be done with the minimum amount of people necessary, and adhere to the social distancing practices and mitigation measures to protect those workers as much as possible.

Prosecutor Becker noted that the window for conducting this “cleanup and button up” work is limited. It is strongly recommended that contractors therefore make sure that all of this clean up, pick up and button up work is completed within one week – by April 3 – if at all possible.

Every construction project is different and has its own factors making what may need to be done to protect the public health, preserve inventory or equipment, or ensure security at the work site. But the Executive Order clearly does not authorize any work to finish a project or even push it closer to completion. It only allows work done to clean up, secure, and retrieve inventory and equipment from existing sites.

Law enforcement officials will still investigate complaints of contractors suspected of performing residential construction in violation of the Executive Order. Any construction that is viewed to be in violation of the Order can result in a misdemeanor punishable by up to 90 days in jail and/or a $500 fine per violation.

Should you have any questions about what work may or may not be covered under this exception to the Executive Order, or for more information regarding Rhoades McKee’s construction services, please contact a member of the Rhoades McKee Construction Law Team.

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