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WISCONSIN SAFER AT HOME ORDER

SAFER AT HOME ORDER – FREQUENTLY ASKED QUESTIONS

Updated 3/26/2020

 

Q: Can remodeling businesses stay open under the Governor’s Safer at Home Order?

 

A:  It is the WBA’s understanding that remodeling may continue with limitations. The Order does not use the word “remodeling” in it. Instead, the Governor declared that “housing construction” to be “Essential Infrastructure”. The term “housing construction” is not defined so we look to its common understanding. A common understanding of “housing construction” certainly would include both home improvements and remodeling. Moreover, the Order states that “’Essential Infrastructure’ shall be construed broadly to avoid any impacts to essential infrastructure, broadly defined.”  Based on this phrase, we believe that “housing construction” should be broadly defined to avoid impacts to housing construction, which means remolding and home improvement would be part of housing construction.

 

A concern has been raised about an ambiguous phrase in the Order. The full phrase states “housing construction, except that optional or aesthetic construction should be avoided”. It is very important to note that whenever the Order prohibits conduct it expressly and clearly states so. It will say individuals “are ordered to stay at home” or gatherings “are prohibited” or all entities “shall meet Social Distancing Requirements”.  In contrast, “should be avoided” is ambiguous. Literally, it does not say that optional or aesthetic construction is prohibited. 

 

Accordingly, we do not see the phrase “except that optional or aesthetic construction should be avoided” as prohibiting remodeling or home improvement. If the Order intended to prohibit it remodeling or home improvement, the Order would have specifically said so. Instead, our best guess is that this portion of the Order is asking that housing construction businesses use common sense to avoid optional or aesthetic construction.

 

Since housing construction is “Essential Infrastructure”, it is also considered an Essential Business and Operation. As an Essential Business, all housing construction “shall” meet Social Distancing Requirements between all individuals on the premises to the extent possible. Essential Businesses and Operations “shall”, to the greatest extent possible, use technology to avoid meeting in person, including virtual meetings, teleconference, and remote work (i.e., work from home).  Essential Businesses and Operations shall, to the greatest extent possible, ensure that both employees and members of the public are maintaining six-foot social distancing, including but not limited to when any customers are standing in line.

 

The WBA is constantly monitoring updates and clarifications from the state of Wisconsin on all its orders and will update its members if it obtains an interpretation or clarification from the state of Wisconsin.

 

Q:   Is new construction allowed under the Order.

 

A.   We are in uncharted water, so we are constantly look for clarification.  As set forth in previous posts, the order clearly includes housing construction as Essential Infrastructure. Further the Order makes clear that “Essential Infrastructure” shall be construed broadly to avoid any impacts to essential infrastructure. The only limitation we see in the order is where it states: “housing construction, except that optional or aesthetic construction should be avoided”. There is no explanation as to what is “optional or aesthetic” housing or what the Governor meant by “should be avoided”.

 

Since the order specifically says that Essential Businesses and Operations are encouraged to remain open, and that Essential Infrastructure should be read broadly – it is our position that the home construction industry is to stay open. To stay open would mean there needs to be new construction.  We read the optional or aesthetic construction narrowly to mean optional and aesthetic construction to be something small on an existing house that can easily be done later. 

 

If we read the term “optional or aesthetic construction” broadly to say it prohibits new construction, then housing construction would be essentially shut down. 

 

It is our position that since the intent of the Governor’s Order was to keep “housing construction” as an Essential Business – saying no new contraction would defy that intent.  If the governor intended to have no new home construction, he would have just written it that way.

 

Based on the above interpretation, it is the WBA’s position that new construction can go forward.

 

 

Q. May residential roofers continue to operate under the Governor’s Safer at Home Order?

 

A. Yes. In most cases residential roofers can continue to operate. There are two areas in the Order that likely apply to residential roofers.

 

First, residential roofing on new construction or replacing an existing roof is likely an “Essential Infrastructure”. Governor declared that “housing construction” is part of the “Essential Infrastructure”. The term “housing construction” is not defined so we look to its common understanding. A common understanding of “housing construction” certainly would include installing a roof. Moreover, the Order states that “’Essential Infrastructure’ shall be construed broadly to avoid any impacts to essential infrastructure, broadly defined.” The Governor’s order does say that “optional or aesthetic construction should be avoided.” As stated in a previous post, this phrase is ambiguous.  However, we do not believe that the replacement of a roof that is damaged or nearing the end of its life would be the type of optional or aesthetic construction that should be avoided. Common sense should be used to avoid doing work that is optional or aesthetic.

 

Second, the Order specifically includes “critical trades” as Essential Businesses that may continue to operate. “Critical trades” include but are 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. It seems clear that roofing installers would be included under the critical trades especially since maintaining, repairing, and replacing a roof is necessary to maintaining the essential operation of a residence.

 

For the replacement of an existing roof, we do not believe it needs to be failing (i.e., leaking, etc.) to be replaced. The essential operation of a residence does not require that there be damage to the residence before the work is essential. If the roof has reached the end of its lifespan, it is essential to the operation of the residence that it be replaced before there is damage to the home.

 

Since residential roofing is part of housing construction and part of the critical trades, it can continue to operate. This would include being able to have estimators measure roofs, etc., to provide bids to the homeowners.  However, you cannot engage in door-to-door solicitation, regardless of its purpose.

 

Residential roofers as Essential Businesses and Operations under the Order shall, to the greatest extent possible, use technology to avoid meeting in person including virtual meetings, teleconference, and remote work (i.e., work from home). To the greatest extent feasible, Essential Businesses and Operations shall comply with Social Distancing Requirements as defined in the Order; in doing so, Essential Businesses and Operations shall, to the greatest extent possible, ensure that both employees and members of the public are maintaining six-foot social distancing, including but not limited to when any customers are standing in line.

 

Q:  May construction material supply stores such as lumber, flooring, paint, lighting, electrical, and plumbing distributors and retailers continue to stay open and operate under the Governor’s Safer at Home Order?

 

A:  Yes. The Governor’s Order specifically lists “hardware and supplies stores” as Essential Businesses and Operations. The provision applies to “hardware stores and businesses that sell electrical, plumbing, heating, and construction material.” The term "construction material" provides a broad "catch-all" for stores that supply the construction industry. Accordingly, that provide building materials, including flooring, wall coverings, lighting, and like material used in commercial and housing, are allowed to maintain normal operation.

 

Hardware and supplies stores as Essential Businesses and Operations under the Order shall, to the greatest extent possible, use technology to avoid meeting in person including virtual meetings, teleconference, and remote work (i.e., work from home). To the greatest extent feasible, Essential Businesses and Operations shall comply with Social Distancing Requirements as defined in the Order; in doing so, Essential Businesses and Operations shall, to the greatest extent possible, ensure that both employees and members of the public are maintaining six-foot social distancing, including but not limited to when any customers are standing in line.

 

 

Q.  Will I be required to carry documentation to leave my home?

 

A.  No. Individuals do not need special permission to leave their homes, but they must comply with this order as to when it is permissible to leave home. Similarly, if a business is an essential business or operation as outlined in this order, it does not need documentation or certification to continue work that is done in compliance with this order.

 

Q:  How does the construction of a pool apply under the Order?

 

A:   We have provided several responses relating to “housing construction” being considered Essential Infrastructure under the Safer at Home Order.  If the pool is part of a home construction, then the contractor completing the pool should be able to remain open to complete construction of it. The pool contractor would be considered part of “housing construction”.  As part of housing construction, the pool contractor would be an Essential Business and Operations. 

 

We have also previously pointed out that the provision that addresses housing construction states “except that optional or aesthetic construction should be avoided.” As previously stated, common sense needs to be used by businesses.  A pool that is being constructed as part of housing construction likely qualifies as being allowed under the Order.  However, a person simply wanting to construct a new pool on a residence, should be avoided.

 

Q. An employee has reported that he has a fever, can he come to work?

 

A. No.  The employee should stay at home. In order to be a business currently open under the Safer at Home Order, it must be an Essential Business and Operation. Under the Order, all Essential Businesses and Operations must comply with DHS guidelines located: https://www.dhs.wisconsin.gov/covid-19/employers.htm.  The website provides a list of guidance for businesses on employee issues.

 

Under the DHS guidelines, it explains that Essential Businesses and Operations need to actively encourage employees with any acute respiratory illness to stay home. Specifically, the DHS guidance states:

  • Ensure that employees who have symptoms of respiratory illness stay home and do not come to work until they are free of fever (>100.4°F) AND respiratory symptoms (for example, cough, shortness of breath) for at least three days (72 hours) without the use of fever-reducing medicine AND seven days have passed since symptoms first appeared. Employees should notify their supervisor and stay home if they are sick.
  • Talk with companies that provide your business with contract or temporary employees about the importance of sick employees staying home and encourage them to develop non-punitive leave policies. 
  • Do not require a health care provider’s note for employees who are sick with acute respiratory illness to validate their illness or to return to work.

All businesses that are currently open as an Essential Business and Operation should review the DHS requirements as they are a condition of operating.

 

Human resource issues are very fact specific; we strongly urge members to seek legal advice from an employment attorney when taking actions related to employees.

 

Q. May a mason stay open to do stonework under the Governor’s Safer at Home Order? If yes, what if some of the work is decorative?

 

A1. Yes. Masonry is a specific trade called out as an Essential Business and Operation. Under the Order, the Governor designates “Critical trades” to include 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.

 

A2. For the specifically called out critical trades such as masonry, there is not limitation on the work that they can do.

 

A question was rated about the requirement that the work be “necessary to maintaining the safety, sanitation, and essential operation of residences . . .” This provision does not apply to the listed trades such as plumbers, electricians, carpenters, laborers, sheet metal, iron workers, masonry, etc. It only applies to limit the catch all category of “other service providers”.

 

Governor Evers deemed masonry an Essential Businesses and Operation.  There is no additional determination that needs to be made by a mason to stay open and continue working.

 

 

On March 28, 2020, the Cybersecurity and Infrastructure Security Agency (CISA) issued new guidance amending the “Essential Critical Infrastructure Workforce” list to add Landscapers to workers considered essential for Public Works and Infrastructure Support Services under its “Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response.” This is important because CISA’s list of Essential Critical Infrastructure Workforce businesses is incorporated into Wisconsin’s Safer at Home Order.

 

The Safer At Home Order was issued on March 24, 2020, and went into effect on March 25, 2020. Initially, Governor Evers’ Office issued a FAQ document on March 24, 2020, which stated that landscapers were not included as an Essential Business and Operation. One reason landscaping was not an Essential Business and Operation was because it was not included in the CISA’s initial Memorandum as part of the Essential Critical Infrastructure Workforce.

 

The Safer At Home Order identifies those “Essential Businesses and Operations” that may continue to operate during the order.  Section 13(a) of the Safer At Home Order specifically includes any business listed in the CISA’s Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response, updated March 23, 2020, “and any subsequent versions of this Memorandum.” This means that the newest version of the CISA Memorandum adopted on March 28, 2020 is incorporated into the Safer At Home Order, and landscape businesses may remain open and their employees may continue to perform landscaping work.

 

The specific reference to Landscapers in the updated Memorandum can be found in the second bullet point provided in the Section entitled PUBLIC WORKS AND INFRASTRUCTURE SUPPORT SERVICES:

 

·     Workers such as plumbers, electricians, exterminators, builders, contractors, HVAC Technicians, landscapers, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, businesses and buildings such as hospitals, senior living facilities, any temporary construction required to support COVID-19 response.

This updated version of the CISA Memorandum which now includes landscapers as workers considered essential means that landscapers are excluded from the Safer at Home Order and can work.   However, landscapers should exercise sound judgment in choosing the work they perform.  The Memorandum advises that “. . . owners and operators are expected to use their own judgement on issues of the prioritization of business processes and workforce allocation to best ensure continuity of the essential goods and services they support. All decisions should appropriately balance public safety, the health and safety of the workforce, and the continued delivery of essential critical infrastructure services and functions.”   

 

 

Essential Businesses and Operations under the Order shall, to the greatest extent possible, use technology to avoid meeting in person including virtual meetings, teleconference, and remote work (i.e., work from home). To the greatest extent feasible, Essential Businesses and Operations shall comply with Social Distancing Requirements as defined in the Order; in doing so, Essential Businesses and Operations shall, to the greatest extent possible, ensure that both employees and members of the public are maintaining six-foot social distancing, including but not limited to when any customers are standing in line.

 

When taking any action permitted under the Order, all individuals, organizations, government bodies, and any other permitted group of individuals shall, to the extent possible, follow DHS guidelines located here: www.dhs.wisconsin.gov/covid-19/index.htm.

 

All Essential Businesses and Operations shall comply with DHS guidelines for businesses located here:  www.dhs.wisconsin.gov/covid-19/employers.htm

 

An FAQ from the Evers Administration is available here.

What does Wisconsin’s Safer At Home Order Mean For The Home Building Industry?
March 24, 2020

The Order creates a clear mandate for all residents to stay at home. However, it also creates a number of broad exceptions that apply to home builders, trades, and suppliers. The order is effective from 8 a.m. Wednesday, March 25th until 8 a.m., April 24th.


Stay at Home

At its core, the Order requires all individuals living in Wisconsin to stay at home.


Exceptions For Home Construction

Based on the Essential Infrastructure and the Essential Businesses exceptions, home construction can continue in Wisconsin under the Order including, real estate services, the trades, and building supply companies.

NOTE: All business that are Essential Businesses and Operations shall meet Social Distancing Requirements between all individuals on the premises to the extent possible. Essential Businesses and Operations shall, to the greatest extent possible, use technology to avoid meeting in person, including virtual meetings, teleconferences, and remote work from home. See the end of the articles for these requirements.


Essential Infrastructure

This exception will allow people to leave their residence to provide any services or perform any work necessary to offer, provide, operate, maintain and repair Essential Infrastructure. Essential Infrastructure includes the following (this is not a complete list):

  • Housing construction;
  • Construction required in response to this public health emergency, hospital construction, construction of long-term care facilities, public works construction, school construction, essential business construction;
  • Building management and maintenance; and
  • Roads and highways.

Further, the Order makes clear that “Essential Infrastructure” shall be construed broadly to avoid any impacts to essential infrastructure.


Essential Businesses

In addition to the Essential Infrastructure exception, there is an exception for Essential Businesses. A person can leave home to perform work providing essential products and services at Essential Businesses or Operations. Essential Businesses include (summaries – see Order for complete descriptions):

  • Hardware and supply stores. Hardware stores and business that sell electrical, plumbing, heating, and construction material.
  • Critical Trades. 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, cleaning and janitorial staff for commercial and governmental properties, security staff, operating engineers, HVAC, painting, moving and relocation services, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences, and Essential Businesses and Operations.
  • Supplies for Essential Businesses and Operations. Businesses that sell, manufacture, or supply other Essential Businesses and Operations with the support or materials necessary to carry out their operations.
  • Financial and Insurance Institutions. This includes banks, credit unions, and other lending services.
  • Professional Services such as legal or accounting services, insurance services, real estate services (including appraisal, home inspection, and title services). These services shall, to the greatest extent possible, use technology to avoid meeting in person, including virtual meetings, teleconference, and remote work (i.e., work from home).
  • Essential Governmental Functions. This exception includes governmental employees working for or to support Essential Business and Operations, which would allow municipalities to conduct inspections.


In the Order, Governor Evers encourages all Essential Businesses and Operations to remain open. Essential Businesses and Operations shall, to the greatest extent possible, ensure that both employees and members of the public are maintaining six-foot social distancing, including but not limited to when any customers are standing in line.


When taking any action permitted under this Order, all individuals, organizations, government bodies, and any other permitted group of individuals shall, to the extent possible, follow DHS guidelines located here: https://www.dhs.wisconsin.gov/covid-19/index.htm. All Essential Businesses and Operations and all businesses performing Minimum Basic Operations shall comply with DHS guidelines for businesses located here: https://www.dhs.wisconsin.gov/covid-19/employers.htm.


For more information about "What does Wisconsin’s Safer At Home Order Mean For The Home Building Industry?," contact Robert C. Procter at rprocter@axley.com or 608.283.6762.

DSPS, Construction & Inspections
The Wisconsin Builders Association has been in constant communications with DSPS on your behalf to ensure that you continue to receive the services needed to continue working. Thanks to the agency’s response to our requests, we have received the following information:

DSPS is continuing to serve our customers during the COVID-19 outbreak. They have closed the counters in all five state offices, and encourage customers to use resources available on their website to submit materials and requests. Currently, the department plans to continue conducting inspections.  For more information on inspections, click here.

WBA has also been in contact with local HBA Executive Officers and the Wisconsin League of Municipalities to assess how local units of government have been handling the inspection of remodeling projects, new home construction, and commercial buildings.  At this time, most municipalities have announced changes (encouraging online permit submission, flexibilities to allow pictures for some inspections, and new procedures for in person applications).  Most municipalities remain committed to continuing with permit applications and inspections.  Several local HBAs have been in close contact with municipalities in their area and can be a resource for that information.  If you have questions for a municipality you are currently working in, we would recommend calling or emailing them to see if they have changed their procedures.


Any contractor who is told to proceed without an inspection sighting SPS 320.10(2)(b)(3), "construction may proceed if the inspection has not taken place by the end of the second business day following the day of notification or as otherwise agreed between the applicant and the municipality or authorized UDC inspection agency" should confirm with the inspector that this will not effect the ability to receive an occupancy permit once the project is completed. 


Construction, construction sites and projects, including public works and remodeling projects have been exempt from the 10-person limit per our request. For additional information, please refer to the Executive Order 8 Amendment.


Many customers and members have had questions regarding deadlines and requirements. DSPS has ensure they are working as quickly as possible to make decisions and communicate answers. For the most up to date information on changes to DSPS operations, please visit www.DSPS.WI.Gov.



Facemasks and Other PPE

The COVID-19 outbreak is placing tremendous strain on Wisconsin health care’s supply of Personal Protection Equipment (PPE).  This includes quickly dwindling supplies of gowns, gloves, eye shields and, especially, face masks (specifically NIOSH 95 masks, or N95s).  This equipment is critical to protecting our frontline health care workforce from infection when testing and treating for COVID-19, keeping our dedicated doctors, nurses, technicians and others there when we all need them most.   


Because of surging usage and still inadequate supply, Vice President Pence, at the White House briefing earlier this week, asked all construction companies to donate unused/packaged N95 masks to their local hospitals and to limit ordering more. 


Click here for the list of hospital managers around the state that you can direct your donations to. While our industry, along with so many others, are feeling the effects of this pandemic, we appreciate your help in protecting our healthcare workers who are on the front lines of battling this disease.

Protecting Yourself, Your Employees, and Your Worksites


The Center of Disease Control has put together an extensive document on recommendations to ensure you are doing your part in limiting the spread of the virus at your workplace and worksites. Please click here for information on what you can do to protect yourself and your workers.

Labor & Employment-Related Information

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (the Act) into law. The Act requires employers to provide paid leave for some employees related to the coronavirus (COVID-19) pandemic, among other measures. The leave provisions of the Act take effect no later than 15 days after it is signed by the president. Click here to learn more.


This link provides information on how small and midsize employers can begin taking advantage of two new refundable payroll tax credits, designed to immediately and fully reimburse them, dollar-for-dollar, for the cost of providing Coronavirus-related leave to their employees. 


For questions regarding Unemployment, Workers Compensation, Training, Equal Rights, and other Workforce Questions, please click here.