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March 28, 2020, 1:25 p.m. EDT

A loophole for construction workers shows how arbitrary and confusing ‘stay at home’ regulations are

Who can work and who can’t during the coronavirus pandemic?

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By Matt Smith


JEFF HAYNES/AFP/Getty Images

The San Francisco construction contractor with the slate of multimillion-dollar remodeling jobs is maneuvering through the oddest weeks of his career. In early March when the first COVID-19 cases hit California, he said he’d pay workers to stay home if they showed flu symptoms. When six Bay Area counties issued stay-at-home orders on March 16 he told workers to lock up their job sites indefinitely. But when the state of California ordered people to stay home March 19, the contractor learned his 30 crew members were key to “essential infrastructure,” and thus permitted to work.

Perhaps the most surreal moment came when he had to tell this reporter to keep his name out of a story — despite the potential publicity for his company’s high-end services — because he fears a backlash from people who might wonder why his crews were returning to $2 million to $8 million home-remodeling jobs, while armies of other workers were at home often without pay.

“What we’re doing is slowly restarting our jobs, and being careful because people in the neighborhood might freak out,” he said. “There’s a lot of talk about how people aren’t taking the mandatory quarantine seriously, or not being disciplined about it, and they’re going to see housing construction projects that are operating, and maybe react badly.”

California, viewed as taking a cautious approach to the COVID-19 outbreak, created a loophole that’s being interpreted as allowing construction workers to toil in and around people’s homes on designer kitchens, bathrooms, decks and laundry rooms — as long as the project had been initiated before the order. A similar carve-out has been introduced in states such as New York, where Gov. Andrew Cuomo’s stay-at-home order makes an exception for “construction firms and professionals for essential infrastructure.” There are loopholes for construction work in locations around the world, too: In the U.K. the government has allowed construction to continue, so long as workers stay about 6 feet apart.

Not everyone approves of these policies. Critics say some construction projects aren’t essential during the crisis. The “essential” designation is “endangering the lives of construction workers and their families,” Brooklyn city councilman Carlos Menchaca wrote in a March 26 op-ed.

‘If you have an 80-year-old and the heater is broken, that’s essential. If toilets are backing up, that’s a legitimate job. Finishing carpentry work is not an essential job, in my view.’

George Rutherford, UCSF

The ongoing operation of residential construction sites echoes the ad hoc nature of regulations that govern who can go to work and who can’t in many parts of the world. The controversial orders in California, New York and elsewhere suggest that even the best practices established in the West to battle the coronavirus epidemic have been strongly shaped by political and economic considerations. Municipalities and states around America have developed differing ideas of what constitutes work “essential.” Anchorage and Denver, for example, anointed marijuana sales. California’s list of essential workers also includes farmworkers, firefighters and mechanics. And what critics decry as a gap between the rationale and the reality of cities’ treatment of construction workers provides another example of the world’s unsure efforts to contain the disease.

“There are a million problems responding to epidemics: You have people who are dying. There’s misinformation floating around. And there are people who want to push the envelope. And I think this is pushing the envelope,” said George Rutherford, a professor of epidemiology at the University of California San Francisco. “If you have an 80-year-old and the heater is broken, that’s essential. If toilets are backing up, that’s a legitimate job. Finishing carpentry work is not an essential job, in my view.”

Lack of adequate housing is indeed a health-care problem in states such as California. Visitors to the state come away shocked at the tens of thousands of homeless people camped unhealthfully on city streets. Additionally, health-care companies, teaching hospitals and local health agencies are among employers struggling to recruit staff because of scarce and expensive housing.

But infrastructure projects and apartment buildings typically take years to complete, rather than the months Californians are projected to shelter in their homes. And anti-development political forces that block housing construction in San Francisco also mean newly minted tech millionaires spend their fortunes on state-of-the-art remodeling jobs rather than new houses. An analysis of city data shows that during the past two years San Francisco has issued 3,389 permits for remodeling work that have not been completed, canceled or withdrawn. Builders are being told these are the kinds of jobs they’re allowed to return to and complete. And according to Jay Cheng, public-policy director of the San Francisco Chamber of Commerce, construction job sites and critical shops such as grocery stores are the rare businesses with workers not at home.

“The construction industry is critical in San Francisco. With a tight labor market and huge construction demand it’s an important driver of our economy. And it’s seen as an essential industry in ‘shelter in place,’ ” he said. “We’re seeing those remodeling jobs continuing during shelter in place. I’m staring out the window at one that’s happening right now.”

The mayor’s office did not respond to multiple requests for comment, nor did officials with the offices of California’s governor or its health-care agencies.

However, a source familiar with San Francisco’s coronavirus response who wasn’t authorized to speak on the record said that when Mayor London Breed received a draft of the proposed March 16 six-county stay-at-home order, she responded that it should characterize housing construction as “essential” to ensure peoples’ homes were habitable. The final draft allowed for the continuation of residential construction, as did the subsequent order by Gov. Gavin Newsom, who was the mayor of San Francisco from 2004 to 2011.

Sean Keighran, president of San Francisco’s Residential Builders Association, a local lobbying group, said he’s pleased Breed pushed for construction to proceed. “I suspect it has to do with the large impact construction has on the economy, and California and San Francisco have a severe shortage of housing,” he said.

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