By Mike Moran
On April 27, Texas Governor Greg Abbott announced his plan for beginning to reopen businesses in Texas. In doing so, he issued a new executive order that, effective May 1, expands the scope of permitted business activities across the state. Governor Abbott’s prior orders on the subject defined those activities by referring to version 2.0 of the federal Cybersecurity and Infrastructure Security Agency’s guidance on critical infrastructure (CISA 2.0). Effective May 1, however, version 3.0 of CISA’s guidance (CISA 3.0) will set the baseline for those businesses allowed to operate across Texas going forward.
When addressing the effect of CISA upon allowing workers to proceed with construction activities, there has been confusion throughout the industry. CISA 1.0 only noted “commercial facilities” without referencing construction work, but U.S. Department of Homeland Security’s website referenced commercial and residential construction. When CISA 2.0 was issued, it added specificity and clarity in some essential critical infrastructure areas, but allowed for some construction-related confusion to remain. It clarified that residential, energy, and public sector construction could continue. It also referenced certain construction trades that that could proceed, because they supported “the supply chain of building materials”; however, it was not clear on commercial construction, in general.
CISA 3.0 now clearly states that commercial and residential construction workers can proceed with their job duties. It continues to allow public sector, communications, and energy construction work to proceed. CISA 3.0 also references workers whose activities support the construction industry and other maintenance portions of certain commercial industries as being part of essential critical infrastructure.
Michael W. Moran is a business litigation attorney whose practice focuses on construction litigation, real estate litigation, land use and municipal law litigation, eminent domain/condemnation, corporate litigation, surety bonds, and business fraud. His construction clients have included property owners, developers, governmental entities, general contractors, subcontractors, sureties, architects, engineers, and individual corporate officers and directors. He is currently the head of JW’s Construction section.
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