Governor Evers Extends Safer at Home Order With Subtle Changes To Housing Construction

April 17, 2020

Governor Evers just issued Emergency Order #28, which extends the Safer at Home Order (Emergency Order #12) with some minor changes, through 8:00 a.m., Tuesday, May 26, 2020. Emergency Order #28 leaves in place all of the main requirements of the Safer at Home Order. The new Order has made some subtle changes relating to “aesthetic or optional” work that will affect home construction contractors. The following revisions do not go into effect until 8:00 a.m. on Friday, April 24, 2020.

Under Emergency Order #12, “housing construction” is an Essential Business and Operation, but included the ambiguous limitation “that optional or aesthetic construction should be avoided.” Under Emergency Order #28, housing construction is still an Essential Business and Operation, but the limitation relating to optional and aesthetic construction has been changed to state: “optional or aesthetic construction should be avoided except as permitted as a Minimum Basic Operation.” Although this would appear to limit some of the types of work that could be done by contractors, there has been some flexibility added to Minimum Basic Operations. Emergency Order #28 adds a provision to Minimum Basic Operations that provides:

“Aesthetic or optional exterior work. 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.”

There has been a lot of confusion as to what work can and cannot be done under the existing Emergency Order #12 relating to remodeling and lawn care. On the positive side, starting on April 24, 2020, it is clear that aesthetic and optional exterior lawn care and construction is allowed, as long as it can be done by one person (it is not crystal clear in the language cited above but it is more clear in the Governor’s FAQ follow up).

The question has already been asked whether this allows remodelers to do more or less work. Tough to answer. The original Emergency Order #12 was ambiguous as it said that optional or aesthetic construction “should be avoided.” The phrase “should be avoided” was being enforced differently by different municipalities. Under the new Order, we now know that aesthetic or optional exterior work may be done if it is done by one person. Accordingly, this is an improvement because no municipality should be shutting down this type of work.

We are still left with the issue of what exactly is “optional or aesthetic construction,” and what does it mean that it “should be avoided.” For example, we believe that aesthetic construction may be done when finishing a newly constructed home, so that the house is not left unfinished. The same construction probably should not be done if it is purely aesthetic as a home improvement project. Since this area is still gray, we expect that each municipality will view it differently when issuing permits or confronting contractors that are doing work at a residence.