In a further effort to curtail the spread of COVID-19, the Ohio Department of Health today issued a “Stay-At-Home” Order restricting the operation of all “non-essential businesses.” Unlike previous measures taken by the State, today’s Oder is enforceable by State and local law enforcement. For now, these restrictions largely spared the construction industry, which the Order views as an essential business and operation. The Order also exempts those supply chain businesses that support the construction industry.

Under the Order, Ohioans must remain in their homes or place of residence unless exempt by the Order. One of these exemptions permits people to leave “to participate in Essential Businesses and Operations.” The Order defines Essential Businesses and Operations as:

  • Essential Infrastructure: The Order permits the continued operations of Essential Infrastructure which specifically includes construction, operation and maintenance of utilities (water, sewer, and gas), and electrical (including power generation, distribution, and production of raw materials). Significantly, the Order expressly states that the term Essential Infrastructure “shall be construed broadly” so as to avoid impacts to essential infrastructures, itself broadly defined.
  • Critical Trades: The Order exempts building and construction tradesmen and tradeswomen, including but not limited to, plumbers, electricians, HVAC, painting, and any other services “necessary to maintain the safety, sanitation, and essential operation of” residences and essential business operations.
  • Supplies for Essential Businesses + Operations: Also exempt from the Order are those businesses that “sell, manufacture, or supply other essential businesses and operations with the support or materials necessary to operate, including . . . hardware, paint, flat glass, electrical, plumbing and heating materials, soaps and detergents. . ..”
  • Manufacture, Distribution + Supply Chain for Critical Products and Industries: The Order further exempts manufacturing companies, distributors, and supply chain companies “producing and supplying essential products and services in and for industries such as . . . construction . . . ,” and products used by other essential businesses and operations.

The Order does not, however, define or otherwise illustrate what is “necessary” or “essential” to the operation of essential businesses or essential infrastructure, as those terms are defined in the Order. But the Order’s broad definition of Essential Infrastructure, which specifically identifies construction, combined with exemptions for the trades and businesses supplying and supporting the construction industry, indicates that the Order intended to limit restrictions on the construction industry for now.

However, businesses who will continue operating under an exemption to the Order—whether in construction or not—should do so in a way that effectuates the State’s Social Distancing Requirements, which is the purpose of the Order and mandated by the Order itself.