As states and municipalities continue to cope with the spread of COVID-19 and regulate essential and non-essential business, the U.S. Dept. of Homeland Security on April 17 updated federal guidance on essential infrastructure by expanding categories of construction workers that are considered critical.

The latest guidance, termed Version 3.0, now considers as critical workers performing housing and commercial construction related activities, including those supporting government functions in the building and development process such as inspections, permitting and plan review services that enable construction continuity, DHS said.

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“Oddly, this revision falls within the residential sector, not the commercial sector, yet it clearly deems commercial construction as a part of the critical infrastructure,”  said Laura LoBue, a partner in Arlington, Va. and Elizabeth Dye, a Houston-based associate in the construction practice of law firm Pillsbury Winthrop Shaw Pittman.

The original guidance issued March 19 outlined four areas of construction considered essential, and was updated March 28 to include 21 additional areas.

The April update identifies workers and services that are typically essential and lists specific types of construction tied to certain industries, LoBue and Dye said.

Guidance 3.0 expands the construction services deemed critical within the energy sector. While earlier guidance limited critical construction to services supporting renewable projects, pipeline construction and construction supporting fuels, the new guidance considers construction workers who support the energy sector regardless of the energy source as critical, the attorneys said.

The guidance appears to expand the list of supporting construction services to onsite property managers, building engineers and service technicians in various construction sectors including energy, electrical and public works.

State and local governments are not mandated to follow the DHS guidance in how they determine what is essential construction, the attorneys said. “For that reason, it is important to consult state executive orders and directives related to construction services,” they added.

“We see this guidance as a way of addressing some of the concerns from some local officials about whether vertical construction should be considered essential,” says Brian Turmail, vice president of the Associated General Contractors.

Earlier guidance was vague and the new version is much more clear, he says.