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COVID-19 & Your Construction Business - A Triage Checklist

Client Alert

Many business operations are shutting down at an alarming pace. The coronavirus (“COVID-19”) pandemic is already impacting the construction industry and creating uncertainty for the progress of current and future projects. Small/mid-size businesses may not be in financial position to sustain prolonged economic revenue declines. Navigating the next few months will be vital in preserving existing business relationships and planning for future business when the conditions improve. BMD offers some practical advice to manage risks and take reasonable precautions during this pandemic.

The following checklist is designed to help you identify prudent actions so you can successfully navigate the unknown:

Prioritize the Health and Welfare of Your Employees and Clients:

  • Make sure your employees, contractors, suppliers and facilities are safe and smart - forced quarantine will result in labor shortages and shutdowns
  • Over-communicate about best safety practices with employees and clients
  • Assess current projects and enforce heightened safety obligations
    • Ongoing projects in medical facilities? Nursing homes? Schools?
    • Mandatory temperature testing prior to entering healthcare facilities
    • Daily questionnaires regarding potential safety basics
    • Anything from washing hands to properly shielding coughs
  • Consult the CDC and/or State departments of health for guidance.
    Ex: https://www.cdc.gov/coronavirus/2019-ncov/downloads/workplace-school-and-home-guidance.pdf

Run Your Business:

  • Create and enforce an effective company policy approved by your employment attorney
  • Internal communications are vitally important
    • Promote safe practices in the workplace
    • Identify essential staff and functions
    • Prepare, equip and train staff to work remotely, if possible or if deemed mandatory
  • Review Employment Policies and enact emergency policies, if necessary
      • Sick leave
      • Family medical leave
      • Performance expectations
      • Protocol for working remotely

Evaluate Current Projects:

  • Prioritize clients and proper allocation of resources for projects
  • Evaluate availability of workforce, now and in the future when workers become ill
  • Evaluate supply chain impact on materials and supplies
    • Inventory and ration materials where possible
    •  

Review Your Contracts:

  • Review current contracts
  • Do not assume you have an ‘out’
    • Not all construction contracts have ‘force majeure’ provisions
    • Consult §8.3.1 of the AIA A201 regarding circumstances that may be commonly described or accepted as ‘force majeure’ events
  • Consider negotiating a modification of existing contracts and key terms
    • Consult §1.1.1, 1.1.2, 2.5, 3.11, 4.1.2, 4.2.1, 5.2.3, 7, 8.3.1, 9.7, 10.3.2 of the AIA A201 regarding modification
      • Contract duration
      • The goods/services involved in the contract
        • Adding or subtracting goods/services covered in the contract
      • The payment terms
      • The delivery terms
  • Determine notification requirements if performance is impossible or impractical and you are seeking to delay or excuse performance
    • §15.1.6 and §15.1.3 of the AIA A201 provides guidance on claims for delay
  • Do not ‘Self Help’ or bury your head in the sand
    • Communication and transparency are vital
    • Be pro-active and reasonable

Review Your Insurance Policy:

  • Coverage for the treatment of infected employees
  • Coverage for lawsuits filed by employees or other parties relating to COVID-19 exposure
  • Coverage for loss of revenue associated with epidemics, pandemics, and viruses such as COVID-19, governmental shutdown, or limitation of access to an insured’s business
  • Loss of earnings caused by delays or government (foreign or domestic) actions
  • Provide proper written notice of claims to avoid waiver of rights

If you have any questions, or for more information, please contact any member of the BMD Real Estate or Construction Law teams.


House Bill 249: Key Updates to Involuntary Hospitalization Law for Mental Health Providers

House Bill 249 (HB 249) proposes changes to Ohio Revised Code (ORC) Sections 5122.01 and 5122.10 to expand the conditions under which a person with a mental illness can be involuntarily hospitalized.

Starting an Advanced Practice Provider Practice

Advanced practice providers (APPs), which includes non-physician providers such as nurse practitioners, physician assistants, and nurse anesthetists, commonly start their own healthcare practices. Practices may provide, for example, service offerings such as primary care, anesthesiology, mental health, and aesthetics (medical spas). However, there are a number of considerations and steps that must be taken for APPs to compliantly function independently.

FTC Increases Targeting of Companies Lacking Cyber Protection

The Federal Trade Commission (FTC) recently released a comprehensive cybersecurity report outlining key findings and recommendations based on emerging threats, trends in data breaches, and strategies for businesses to enhance their cybersecurity posture observed over the last year.

New Federal Medical Conscience Rule and Its Implications

The Department of Health and Human Services Office for Civil Rights issued a Final Rule to clarify protections for healthcare providers who refuse services based on religious or moral beliefs. This includes protection against discrimination for refusing procedures like assisted suicide or abortion. The OCR can receive complaints, conduct investigations, and enforce these protections. Entities are encouraged to update policies accordingly and display a model notice provided by the OCR.

Marijuana Reclassification and APRN/PA Prescribing

Marijuana is expected to be reclassified by the Drug Enforcement Administration (DEA) from a Schedule I controlled substance to a Schedule III controlled substance as a result of efforts by the Biden administration.