Client Alerts, News Articles & Blog Posts

Everything you need to know about BMD and the industry.

COVID-19 & Your Construction Business - A Triage Checklist

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.

UPDATE: Governor Dewine Signs HB 606 Granting Short Window of Immunity from COVID-19 Personal Injury Lawsuits

The Ohio General Assembly, in Am. Sub. H.B. No. 606, is in the final stages of passing a law that will prohibit lawsuits seeking damages from COVID-19. This includes injury, death, or loss to person or property if the lawsuits are based, in whole or in part, on the exposure to, or the transmission or contraction of the coronavirus, unless the defendant in the lawsuit acted intentionally or recklessly. In circumstances where this immunity does not apply, H.B. 606 prohibits such claims being aggregated and brought as a class action.

Revised Department of Labor FFCRA Guidance, Effective September 16, 2020

In response to attacks on the legality of the Department of Labor’s (“DOL”) Final Rule regarding the Families First Coronavirus Act (“FFCRA” or the “Act”), which took effect in April 2020, the Department of Labor issued new guidance on Friday, September 11th to formally address ongoing questions and concerns related to the COVID-19 legislation.

FCC Adds $198 Million to Strengthen Telehealth for Rural Healthcare Providers

The Federal Communications Commission (“FCC”) has added an additional $198 million in funding to its Rural Health Care Program. These funds will be used to increase broadband services and telecommunications to bolster telehealth/telemedicine services for rural healthcare providers. Funding for rural healthcare providers was initially capped at $605 million in 2020, but the added funds will now allow the FCC to provide over $800 million to eligible providers.

Finding Opportunity in Adversity: Optimism for the Construction Industry

Looking for good news? If so, you are not alone. Aside from the collective mental, physical and emotional human toll imposed by the COVID-19 pandemic, entire sectors of the economy have been ravaged, and old, familiar ways of doing business have been disrupted. Although deemed essential, the construction industry has not been immune to interruption and uncertainty during these unprecedented times. Amid new health and safety concerns, coupled with financial uncertainty, progress on projects has slowed, and the start dates for a number of new projects slated to begin in 2020 have been deferred. However, resilience has always been a trademark of contractors, subcontractors and other industry professionals. Reports indicate that while the construction industry lost more than one million jobs February through April, at least 600,000 of those jobs had been gained back by the end of June.

Yard Sign Do’s and Don’ts: How to Avoid Legal Challenges to Municipal Sign Codes this Election Season

As the nation heads into the tail end of the 2020 general election, municipalities will inevitably face challenges as they seek to regulate the seasonal proliferation of yard signs on residential property. While the matter may seem trifling, a seemingly benign yet content-based sign ordinance can result in significant legal exposure for municipalities that have not heeded recent Supreme Court decisions on content neutrality.