Critical Infrastructure Construction in Austin Allowed Under Governor Abbott’s Latest Order

On March 31, Governor Greg Abbott issued Executive Order GA 14 to provide statewide continuity regarding essential services that are exempt from the stay-at-home orders issued by municipalities in response to the COVID-19 disaster.  For the Austin construction industry, the Order contains welcome guidance regarding what construction work is exempt from the City of Austin’s restrictive Stay-at-Home Order issued on March 24.

Addressing Order GA 14, Mayor Steve Adler confirmed in his April 1 televised interview that residential construction is permitted in Austin.  Adler signaled that commercial construction in Austin “may very well be allowed” and advised that City of Austin attorneys are reviewing the Governor’s order as it applies to commercial construction.  Additional guidance from the City is expected soon, and efforts will likely shift to enforcing safety regulations instead of shutting down projects.

Executive Order GA 14 Overrides Conflicting Local Orders

In defining the scope of exempt work in Texas, Governor Abbott adopted the guidance issued by the Cybersecurity and Infrastructure Security Agency (CISA), the federal agency tasked with identifying critical infrastructure industries necessary for public health and safety.  Work that is part of the critical infrastructure industries identified by CISA is exempt, per Order GA 14.  Those industries include both the residential and commercial facilities sectors.

Governor Abbott also made clear that Order GA 14 supersedes “any conflicting order issued by local officials in response to the COVD-19 disaster” and requires that local officials not impose restrictions inconsistent with the order.  Mayor Adler conceded today that the Governor’s executive order takes precedence over the City of Austin’s order.

CISA Guidance on Construction

On March 28, CISA updated its guidance to clarify that the following workers within the residential facilities sector are essential critical infrastructure workers:

  • “workers performing housing construction related activities to ensure additional units can be made available to combat the nation’s existing housing supply shortage”;
  • “workers supporting the construction of housing”.

Within its guidance for workers within the commercial facilities sector, CISA included as essential critical infrastructure workers:

  • “workers who support the supply chain of building materials…through installation”.

The above language, coupled with the Governor’s desire to establish continuity of essential services and activity across Texas, appears to allow both residential and commercial construction to proceed statewide.

In his April 1 interview, Mayor Adler agreed that residential construction is clearly permitted under Governor Abbott’s executive order.  Adler suggested that he and Travis County Judge Sarah Eckhardt “may very well” allow commercial construction to proceed locally.  Adler also hinted that the City’s focus will likely shift to enforcing safety regulations on-site instead of trying to shut projects down.

Summary

Industry groups have been urging the City to grant an exemption for construction since the Austin Stay-at-Home Order was issued.  While exempted construction in Austin must still comply with applicable safety requirements, Order GA 14 finally provides the relief that the construction industry has been seeking with regard to critical infrastructure construction.

As Governor Abbott noted, a list of exempt, essential services can be found at http://tdem.texas.gov/essentialservices.  Businesses not included in one of CISA’s critical sectors may also use that link to request a determination from The Texas Division of Emergency Management that their businesses be designated as essential.  Cokinos Young is actively working on preparedness plans, indemnification agreements, and other materials to protect its clients and facilitate continued work on projects in Austin and Travis County.  Cokinos Young will continue to monitor developments and update our clients with operations in Central Texas.