School Construction and Building Maintenance Projects During the COVID-19 Pandemic

With public school districts closed for purposes of in-person pupil instruction and extra-curricular activities for the remainder of the school year, many school districts are considering moving up construction and building maintenance projects that were previously scheduled to commence in the summer. In addition, some school districts had already commenced construction and building maintenance projects prior to the COVID-19 pandemic, and numerous school construction project referenda around the state were approved on April 7, 2020. School districts are questioning what types of projects may proceed during the Safer at Home Orders issued by Andrea Palm, Secretary-designee of the Wisconsin Department of Health Services, at the direction of Governor Evers. It is likely that most school district construction and building maintenance projects can proceed consistent with those Orders, while following social distancing requirements.

On March 24, 2020, Andrea Palm, Secretary-designee of the Wisconsin Department of Health Services, signed Emergency Order #12 (Safer at Home Order), which went into effect on March 25, 2020. The Order was to remain in effect until 8:00 a.m. on April 24, 2020, but was extended by Emergency Order #26 until 8:00 a.m. on May 26, 2020.

Emergency Order #12 (the initial Safer at Home Order) provides that individuals may leave their residences to perform the following functions:

• Essential Activities;
• Essential Governmental Functions;
• To operate Essential Business and Operations;
• To perform non-essential Minimum Basic Operations;
• Essential Travel; and
• Special Situations

In addition, the Order provides that “[e]xcept for facilitating distance learning or virtual learning, public and private K-12 schools are closed for pupil instruction and extracurricular activities.” However, schools “may be used for Essential Government Functions and food distribution.” The term “Essential Governmental Functions” is broadly defined as “all services provided by the State, tribal, or local governments needed to ensure the continuing operation of the government body and provide and support the health, safety, and welfare of the public.” Under the Order, each governmental body determines its own Essential Government Function and must “identify employees and contractors necessary to the performance of those functions.” Consequently, school district construction and building maintenance projects may constitute services needed to ensure the continuing operation of the governmental body.

The Order identifies “Essential Infrastructure” as one of the “Special Situations” for which individuals may leave their residences. Specifically, the Order states that “individuals may leave their residence to provide any services or perform any work necessary to offer, provide, operate, maintain, and repair Essential Infrastructure.” The term “Essential Infrastructure” includes “school construction,” “Essential Business and Operations construction,” and “construction necessary for Essential Governmental Functions.” However, this section of the Order also contains vague language that “optional or aesthetic construction should be avoided.” Notably, the term “Essential Infrastructure” also includes “building management and maintenance,” which is not subject to this vague language. Further, the Order states that “Essential Infrastructure shall be construed broadly to avoid any impacts to essential infrastructure, broadly defined.”

Under this section of the Order, school districts may proceed with building maintenance projects. School boards are required to “[k]eep the school buildings and grounds in good repair, suitably equipped and in safe and sanitary condition at all times.” Wis. Stat. § 120.12(5); Wis. Stat. § 120.44(2). Similarly, for constructions projects that are already in process, it is likely that such projects may proceed and will not be deemed “optional or aesthetic.”

Given that the term “Essential Infrastructure”, as noted above, must be construed broadly to avoid negative impacts on such infrastructure, it is unlikely that a new construction project for which the school district has received necessary authorization, secured necessary financing, and/or entered into construction-related contracts will be deemed “optional or aesthetic.”

In addition, the Order expressly permits tradespeople and suppliers to continue their operations. The term “Essential Businesses and Operations” includes “Essential Infrastructure”, “Essential Governmental Functions”, and also includes “Critical Trades”, which is defined as follows:

Building and Construction Tradesmen and Tradeswomen, and other trades including but not limited to plumbers, electricians, carpenters, laborers, sheet metal, iron workers, masonry, pipe trades, fabricators, finishers, exterminators, pesticide application, cleaning and janitorial staff for commercial and governmental properties, security staff, operating engineers, HVAC, painting, moving and relocation services, forestry and arborists, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, Essential Activities, Essential Governmental Functions, and Essential Businesses and Operations.

Businesses that “sell, manufacture, or supply other Essential Businesses and Operations and Essential Governmental Functions with the support or supplies necessary to operate” are likewise deemed “Essential Businesses and Operations.” Similarly, “manufacturing companies, distributors, and supply chain companies producing and supplying essential products and services” for the construction industry are deemed “Essential Businesses and Operations.”

With regard to “Essential Businesses and Operations,” entities must “meet Social Distancing Requirements between all individuals on the premises to the extent possible.” The term “Social Distancing Requirements” is defined as follows: “maintaining social distancing of six (6) feet between people; washing hands with soap and water for at least 20 seconds as frequently as possible or using hand sanitizer; covering coughs or sneezes (into the sleeve or elbow, not hands); regularly cleaning high-touch surfaces; not shaking hands; and following all other public health recommendations issued by DHS and the U.S. Centers for Disease Control.”

Emergency Order #28 (the extended Safer at Home Order), goes into effect at 8:00 a.m. on Friday, April 24, 2020 and states that it shall remain in effect until 8:00 a.m. on Tuesday, May 26, 2020. This Order is the subject of a lawsuit challenging the Secretary’s and Governor’s authority and therefore may be subject to further revisions as a result. Likewise, it is possible that the Secretary-designee will issue interim orders reducing certain restrictions, as provided in Emergency Order #31 (Badger Bounce Back). The Order is very similar to the initial Safer at Home Order described above, but there are several notable differences.

With regard to construction as “Essential Infrastructure,” the Order provides that “optional or aesthetic construction should be avoided except as permitted as a Minimum Basic Operation.” As with the previous Order, this clause does not apply to “building management and maintenance.” Further, the term “Minimum Basic Operations” includes certain “Basic Functions,” such as “minimum necessary activities to maintain the value of the business’s inventory [and] preserve the condition of the business’s physical plant and equipment.”

In the Order, the term “Minimum Basic Operations” also includes “Aesthetic or optional exterior work,” which is described as follows:

Minimum Basic Operations may include aesthetic or optional exterior residential construction and lawn care, if all the operations are performed by one person in a room or confined space, including a car or truck. No more than one employee or worker may be on the site at a time. Services may not require a signature by the recipient. Aesthetic or optional exterior work requiring more than one person on the site are prohibited.

The term “Minimum Basic Operations,” as it relates to optional or aesthetic construction, is vague and does not expressly address construction that is not residential. Consequently, it is not clear how or if this vague language applies to optional or aesthetic construction work that is commercial in nature.

Notwithstanding this vague language contained in Emergency Order #28, it is likely that most school district construction and building maintenance projects may proceed because they are unlikely to constitute “optional or aesthetic work.” School districts should ensure that contractors intend to adhere to appropriate social distancing measures, including restricting the number of workers present on the premises to no more than is strictly necessary to perform the work. Even if a project is “optional or aesthetic,” it may be possible to proceed with it as a necessary activity to preserve the property, or the school district could limit it to one worker on site.

There are new developments related to COVID-19 on a daily basis. Therefore, school districts engaged in construction and building maintenance projects should stay apprised of any changes and should be in regular communication with contractors to ensure that contractors on school property remain committed to following applicable requirements of the current and any subsequent orders. It is also advisable for school officials to confirm with contractors that any construction schedules included within existing contract documents remain in place.