Below is an excerpt of an article co-authored by Megan Baroni and Jon Schaefer and published in Construction Executive on May 26, 2021. Megan and Jon are partners in Robinson+Cole’s Environmental, Energy + Telecommunications Group.

There are a number of best practices that an employer may wish to follow when faced with any Occupational Safety and Health Administration inspection, including:

  • determining the reason for the inspection;
  • obtaining a copy of the complaint;
  • designating an employee representative;
  • accompanying the inspector on the visit;
  • documenting the inspector’s findings;
  • providing requested documents; and
  • being prepared for follow-up.

But how are these best practices complicated by a global pandemic? Over the past year, COVID-19 has brought changes to construction workplaces and to OSHA’s inspection and enforcement focus. The construction industry has kept moving in the face of these challenges, but COVID-19 has and will continue to impact workplaces, and workplace procedures, into the future. Read the article.

Proposed New York legislation that would expose general contractors to increased liability for their subcontractors’ alleged wage theft is the subject of a new Report, co-authored by myself, issued by the New York City Bar Association’s Construction Law Committee. In the Report, the Committee urges the legislature to carefully consider the ramifications of enacting A.3350 and S.2766-A (collectively the “Bill”) in their current forms. The Bill proposes adding section 198-e to the Labor Law to permit a private right of action to hold a general contractor “jointly and severally liable for any unpaid wages, benefits, wage supplements, penalties, liquidated damages, attorneys’ fees and any other costs” owed a laborer for work performed on behalf of any lower-tiered subcontractor. The Committee opined that such a law would add a burden on general contractors well beyond their actual role; would likely result in increased construction project costs and decreased development; would have a disparate impact on small contractors, thereby limiting opportunities for Minority/Woman-Owned Business Entities (“M/WBEs”); and would stunt economic growth, thereby reducing job opportunities for laborers, the very population the Bill seeks to protect. A full copy of the Report can be found here.

Below is an excerpt of an article published in Construction Executive on May 11, 2021.

The COVID-19 pandemic has created opportunities for retrofitting new, flexible layouts in existing health care facilities and in existing commercial premises (e.g., office, retail and restaurant) where there is new community demand for an urgent care or drive-thru clinic.

Health care providers altering their design and construction desire to move quickly. They are understandably anxious to accommodate existing and new patients in this “new normal” of unpredictable demand surges, implementing flexible, varying circulation and workflow configurations.

However, the need to ensure an opportunity for planning and reflection is particularly important for a heavily regulated project such as health care construction. Not only must the design and construction meet the requirements of the local buildings department, but additional life safety and other patient-centered protective features must comply with federal regulations and referenced guidelines, as well as additional, state-mandated regulations. Read the article.

When a party to a construction contract is faced with nonperformance of another party, often the desire to keep the project moving takes precedence in responding to the performance default. Problems arise, however, when the party who is owed the performance acts without first considering the terms and conditions of the written instruments governing the parties’ relationship on the project. For example, a construction contract may require the posting of payment and performance bonds guaranteeing, among other things, the performance of the bonded contract work by obligating the guarantor – a surety – to arrange for the completion of the work.  Where a party fails to perform as promised, the party promised the performance should first review the language of both the construction agreement and any associated surety bonds before taking action, so as not to lose the benefits of the contract and/or bonds, as was the case in Arch Ins. Co. v. Graphic Builders, LLC, No. CV 19-12445-NMG, 2021 WL 534807 (D. Mass. Feb. 12, 2021).

Continue Reading Obtaining the Benefits of a Performance Bond: Tread Carefully

This post was co-authored by Abby M. WarrenAlisha N. Sullivan and Emily A. Zaklukiewicz who are members of Robinson+Cole’s Labor, Employment, Benefits + Immigration Groups.

Although millions of people in the United States have been vaccinated since COVID-19 vaccine distribution began in December 2020, a large percentage of the population still remains unvaccinated. Many lawmakers and companies are brainstorming ways to remove barriers to individuals obtaining the vaccine, especially frontline workers who remain at a higher risk of COVID-19 exposure and infection. One such barrier is the time away from work that may be required to obtain the vaccination and the risk that the time will be unpaid. Many employers, including contractors, are questioning whether they must, or should, provide employees with paid time off for time spent related to obtaining the COVID-19 vaccine. Continue Reading Are Employers Required to Pay For Employee Time Spent Receiving COVID-19 Vaccine?

Anyone monitoring construction industry trends is aware that the prices of raw construction materials, particularly steel and lumber, have been rapidly increasing since early 2020. Earlier this year, Associated Builders and Contractors reported that iron and steel prices were up 15.6 percent from January of 2020 to January of 2021, and that softwood lumber prices had increased by as much as 73 percent during the same period.

The reasons for these price increases are varied (ranging from supply chain and shipping disruptions to the increased demand for new home construction), and many have their roots in changes introduced to the global economy by the COVID-19 pandemic. Regardless of the explanations for the price increases, the reality is that builders and owners are more frequently facing busted budgets and difficult conversations, sometimes resulting in litigation, about which party is responsible for absorbing the increased costs. As is often the case, the answer to resolving these disputes likely lies in the particular provisions of the contract for construction.

Continue Reading Revisiting Price Escalation Clauses in a Time of Skyrocketing Material Costs

Below is an excerpt of an article published in Construction Executive on April 15, 2021.

Modular construction is literally on the rise. It is rapidly displacing traditional stick-built construction for new commercial, industrial and residential buildings. Over the past decade, an increasing number of health care, education facilities and apartment buildings have been built using modular construction. As the need for housing, and especially affordable housing, has grown as a result of the COVID-19 pandemic, modular construction is becoming increasingly popular.

Recently, the Canadian government, through the Canadian Mortgage Housing Corporation, launched a “Rapid Housing Initiative,” a $1 billion program utilizing only modular construction to rapidly construct affordable housing for its citizens. Similarly, the city of Toronto (which last year approved a plan to build 250 modular homes in response to homelessness) plans to build 1,000 modular homes by 2030. The pandemic also has resulted in an urgent demand for modules for medical facilities and schools. Modular construction allows contractors to build “leaner” and “greener” buildings while increasing quality control and improving site safety and potentially saving valuable time and money.

The modular process involves unique commercial and legal challenges not present in traditional contracting. In order to successfully navigate these challenges and to properly allocate risk, a well-drafted contract is important. Key legal considerations in drafting such contracts include:  Read the article.

In an effort to keep our readers abreast of cybersecurity issues affecting companies in the construction industry, we’re sharing the below post originally published on our Data Privacy + Cybersecurity Insider blog:

The Federal Bureau of Investigations (FBI) recently issued a joint alert with the Department of Homeland Security/Cybersecurity Infrastructure and Security Agency (CISA) that “Mamba ransomware has been deployed against local governments, public transportation agencies, legal services, technology services, industrial, commercial, manufacturing, and construction businesses.”

According to the Alert, the hacking group behind the Mamba ransomware attacks is weaponizing an open source tool used for disc encryption—DiskCryptor—to encrypt entire operating systems of victims. Once the operating system has been encrypted, a ransom note appears and demands payment for the decryption key.

The Alert states, “[T]he ransomware program consists of the open source, off-the-shelf, disk encryption software DiskCryptor wrapped in a program which installs and starts disk encryption in the background using a key of the attacker’s choosing….The ransomware extracts a set of files and installs an encryption service. The ransomware program restarts the system about two minutes after installation of DiskCryptor to complete driver installation.”

The Alert lists the key artifacts, which can be accessed here.

The FBI recommends the following mitigation:

  • Regularly back up data, utilize air gap network security measures, and password protect backup copies offline. Ensure that copies of critical data are not accessible for modification or deletion from the system where the data resides.
  • Implement network segmentation.
  • Require administrator credentials to install software.
  • If DiskCryptor is not used by the organization, add the key artifact files used by DiskCryptor to the organization’s execution blacklist. Any attempts to install or run this encryption program and its associated files should be prevented.
  • Implement a recovery plan to maintain and retain multiple copies of sensitive or proprietary data and servers in a physically separate, segmented, secure location (i.e., hard drive, storage device, the cloud).
  • Install updates/patch operating systems, software, and firmware as soon as they are released.
  • Use multifactor authentication where possible.
  • Regularly change passwords to network systems and accounts and avoid reusing passwords for different accounts. Implement the shortest acceptable timeframe for password changes.
  • Disable unused remote access/RDP ports and monitor remote access/RDP logs.
  • Audit user accounts with administrative privileges and configure access controls with least privilege in mind.
  • Install and regularly update anti-virus and anti-malware software on all hosts.
  • Only use secure networks and avoid using public Wi-Fi networks. Consider installing and using a VPN.

This post was authored by Linn Freedman is also being shared on our Data Privacy + Cybersecurity Insider blog. If you’re interested in getting updates on developments affecting data privacy and security, we invite you to subscribe to the blog.

Below is an excerpt of an article co-authored with Robinson+Cole Health Law Group lawyer Conor O. Duffy and published in Healthcare Facilities Today on March 31, 2021. 

The need to update and implement new processes for delivering healthcare in response to the COVID-19 pandemic has resulted in the adoption of more automation, remote access and monitoring technologies. It also has brought data analytics into treatment and the patient environment. Healthcare providers have shifted from traditional waiting rooms and in-person visits for routine needs to remote check-ins, check-ups and updates via personal health record applications.

Providers increasingly rely on smart grid technologies, cloud computing, medical devices and health monitors connected via the internet of things (IoT), bio-sensing wearables, touchless technology, telehealth, online scheduling applications, electronic health records, virtual and remote triages, AI-based predictive analytics and machine learning, and most recently, interactive floor-plan images used by regulatory inspectors.

These technologies and care-delivery approaches depend on seamless connected systems and instant access to data that create a recipe for cybervulnerability. Decades of HIPAA and extensive penalties for non-compliance ensure that healthcare organizations are cognizant of obligations to maintain the privacy of their patients’ personally identifiable information. Read the full article.

This post is also being shared on our Health Law Diagnosis blog. If you’re interested in getting updates on developments affecting health information privacy and HIPAA related topics, we invite you to subscribe to the blog. 

 

Below is an excerpt of an article published in the Spring 2021 edition of Under Construction, a  newsletter publication of the American Bar Association Forum on Construction Law.

As the construction industry recovers from and adjusts to the effects of the COVID-19 pandemic and prepares for a new normal, post-COVID world, claims for losses of productivity on projects that were in progress when COVID-19 struck will likely increase due to contractors performing work under conditions far different than originally contemplated when they bid the project and signed the contract.  Consequently, as contractors pursue claims seeking compensation for adverse impacts to the productivity on projects shut down or slowed because of the COVID-19 pandemic, and owners defend such claims, documenting causation and accurately assessing loss of productivity will be vital to both parties. While COVID-19 has changed our lives and the construction industry in many ways, it has not changed the fact that claims for loss of productivity remain some of the most contentious, and most difficult to quantify and prove.
Today, contractors must balance common, but often competing, goals of progressing the work to complete projects while at the same time taking unprecedented steps to protect the safety and health of their workers and the public. In addition to impacts due to design errors and omissions, performing work out of sequence or in adverse weather conditions because of delays, or excessive overtime due to acceleration, contractors must recognize that a host of causes—impacts due to social distancing, labor unavailability due to illness, quarantine, owner restrictions and government restrictions, compliance with OSHA and other safety guidelines, medical testing, work stoppages and suspensions, and supply-chain challenges—may result in losses of productivity on projects. To maintain this balancing act, contractors often expend more actual labor hours on the project than planned, resulting in losses of productivity. Successfully identifying, quantifying and proving such losses is critical to a contractor’s financial success, especially in today’s economy.
While the right to recover for losses of productivity is well-settled, there is no universally accepted standard for calculating damages for these claims. Contractors and their experts rely upon various treatises and studies on loss of productivity to present such claims in mediation, litigation and arbitration proceedings. Over the years, courts have decided claims and awarded damages based on different methodologies for quantifying and proving such claims, often leading to inconsistent results. The American Society of Civil Engineers (ASCE), in conjunction with its Construction Institute, seeks to develop consistency and provide guidance through its soon-to-be-published standard “Identifying, Quantifying and Proving Loss of Productivity”.  Read the full article.