Recently I commented on a growing level of concern regarding Gov. Tim Walz’s use of his statutory public safety “emergency” authority to promulgate wide-ranging and consequential executive orders affecting the state’s economy and citizens.  While many groups, including health care and service organizations, were required to suspend their operations for at least two months, the construction industry was deemed “essential” and, thus, allowed to continue normal operations, albeit subject to COVID-related “best practices”.  The good news is that the construction industry has been able to maintain its operational capacity notwithstanding a general pause in business and commercial spending.  The better news is that the construction industry seemingly has done so with very limited COVID-related infections.  You would think that would count for something? You would be wrong.

With this backdrop, it was a surprise to see the new “guidance” with Executive Order 20-74 released by the state’s Department of Labor and Industry (“DLI”) which imposes significant new mandatory requirements on the construction industry.  This guidance, which has the force of law, comes with limited input from the construction industry itself.  To the extent it did consult, it chose not to listen to the concerns raised by construction industry representatives about the scope of DLI’s new policies.  These new policies “mandate” site-specific safety plans for all participants in the construction industry, whether they are general contractors, sub-contractors, suppliers, service consultants or owners.  On the surface, the notion that this industry should have credible COVID safety plans in place makes sense—which have been required since March 2020.  But DLI’s new mandatory policies turn common sense on its head by mandating an overly bureaucratic safety program for the construction industry that will be expensive, prone to errors and likely will not measurably affect safety.  Construction is unique in that the “job site” can change by the day, week or hour.  Sub-contractors and their workers come and go with no pre-determined schedule.  Combine that with the task of managing many, perhaps dozens, of active job sites, and one begins to understand the record-keeping and compliance challenge posed by the new DLI directive.

Why do this? And why do this now?  Who knows?  Certainly, nobody within DLI or other state agencies have identified a problem they are seeking to solve.  It’s as though we’ve arrived at a spot in managing COVID risks in which someone’s random idea of public safety can be now be implemented simply at the stroke of a pen, with virtually no public input and dubious public policy justification, consequences be damned.  As a reminder, the governor’s authority to promulgate “emergency” Executive Orders is essentially a policy-mandating blank check.  It’s application in the modern era is without precedent and is virtually unchecked.

State legislators and the electorate will (hopefully) learn a lot from the COVID-related experiences; much of it undoubtedly beneficial, but plenty to raise legitimate cause for concern.  We do want state leaders to have the authority to respond to bona fide public safety emergencies, and Gov. Walz and his administration have done that.  But about a month ago, they passed the threshold of true COVID crisis management and have missed the opportunity to bring the rest of the state along with their long term response to COVID.  It’s not too late.

Executive Order 20-74: Continuing to Safely Reopen Minnesota’s Economy and Ensure Safe NonWork Activities during the COVID-19 Peacetime Emergency Order 

Preparedness Plan Requirements Guidance –Construction