Study Findings Reinforce Need for Construction Industry to Stay Vigilant and Committed to COVID-19 Restrictions and Protecting Workers

This post was authored by Jonathan Schaefer, who is a member of Robinson+Cole’s Environmental, Energy + Telecommunications Group. Jon focuses his practice on environmental compliance counseling, occupational health and safety, permitting, site remediation, and litigation related to federal and state regulatory programs.

The results of a recently published study show that construction workers in Texas were more likely to be hospitalized with COVID-19 compared to the general population. An equally problematic finding is that the increased hospitalization of construction workers resulted in greater community spread of COVID-19. This study and its findings are a much-needed reminder to stay vigilant and continue to monitor and enforce COVID-19 safety precautions and guidelines. Continue Reading

Repurposing Real Estate Development to Counter Weakened Demand: Know the Risks Before Terminating Contracts

Pacta sunt servanda, i.e., agreements must be kept. This applies in both good economies and bad.

Companies considering a modification of their business operations to offset lower revenue must be mindful of existing commercial contracts. Implicit in almost every New York agreement is a covenant of good faith and fair dealing in the course of performance. Output and requirements contracts are an exception, however. With an output contract, the parties agree that the seller will sell all the goods or services it may produce to a buyer in exchange for the buyer’s agreement to purchase them. A requirements contract obligates the buyer to purchase what it needs or requires from a seller in exchange for the seller’s promise to supply the buyer.

Where an agreement is neither an output nor a requirements contract, then both parties have continuing obligations throughout the term. The defenses of “impossibility” and “frustration of purpose” excuse performance in only the rarest of circumstances. What may seem like an obvious obstacle may not meet the threshold. A company that fails to understand the nature of its agreement or is unfamiliar with the applicable case law is exposed to significant monetary penalties. As a leading New York case has made clear, this counts for real estate development and hotel contracts as well. Continue Reading

Robinson+Cole Hosts Roundtable on Diversity & Inclusion

Robinson+Cole’s Construction Law Group hosted its first industry-wide, virtual roundtable on the topic of diversity and inclusion (“D&I”) on September 17, 2020. The program grew out of an earlier Roundtable conversation and focused specifically on strategies and techniques to promote diversity and inclusion in the construction industry. Recognized diversity & inclusion program leaders across the northeast area from government agencies, construction industry organizations, contractor and sub-contractor firms, suppliers, and architectural and engineering firms joined the closed-panel, working-group discussion. Continue Reading

Finding Synchronicity Between Governor Cuomo’s New Cluster Action Initiative and the NYC DOB’s Corresponding Requirements

Synchronicity

A connecting principle,

Linked to the invisible

Almost imperceptible

Something inexpressible.

Science insusceptible

Logic so inflexible

Causally connectable

Nothing is invincible.

“The Police”, 1983.

This week, in response to the emergence of COVID-19 hot spots in downstate New York, Governor Cuomo instituted a new “cluster action initiative” to “crush” the clusters and contain the spread. New rules and restrictions, to be “in effect for a minimum of 14 days”, are designed to directly target “areas with the highest concentration of COVID cases and the surrounding communities.” Continue Reading

Guidance on Using Drones for Real Estate and Construction in Dense Cities: How Much Does the Public Value Privacy? (Part II)

As our previous post stated, the commercial use of drones, or small unmanned aerial systems (sUAS), for urban real estate and construction has gained some traction with the passage of the New York City Council’s bill requiring the Department of Buildings (DOB) to study the feasibility of using sUAS to inspect building facades. With this new bill, as well as other metropolitan cities surely following suit, one of the biggest issues on the forefront for the public at large is privacy. Continue Reading

Singapore Company Introduces Drones to Urban Building Inspection

Singapore analytics and acoustic solutions company H3 Zoom.AI’s founder, Shaun Koo, began using drones for building inspection and facilities management after realizing that the city’s highly urban landscape was “overdue for digital technology disruption.” For example, traditional building facade inspection involves workers tethered to ropes or on gondola lifts, scaling high and/or remote areas to inspect or take photographs. This manual process is risky and allows room for human error.

Instead, Koo suggested equipping drones with cameras and flying them around buildings to scan and capture images of building facades from multiple angles. The images could be fed into an AI and machine-learning platform designed to flag problem areas, thus making the inspection process safer, faster and more accurate. Koo demonstrated that his drone inspection system and AI technology could reduce the inspection time by 70 percent. For example, in one demo, the use of the drones lessened the inspection time from 4 weeks to 4 days. H3 Zoom.AI aims to partner with government agencies like the Housing & Development Board and Singapore Land Authority to spread the use of drones for building inspections throughout the city. As of last month, H3 Zoom.AI had used drones to inspect over 200 buildings in Singapore, and the company aims to expand into Indonesia, Australia, Hong Kong and Japan. The key to this drone system is the AI; this technology uses predictive thinking to inform its clients about structural faults that COULD happen to their buildings in the future, in addition to the current structural issues. This is a key to safety and cost reduction for big cities like Singapore.

As we continue to integrate drones into the U.S. national airspace, perhaps companies and cities will use drones equipped with AI technology like H3 Zoom.AI’s to bring this same efficiency and safety to building inspections and management here as well.

This post was authored by Kathryn Rattigan 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.

Guidance on Using Drones for Real Estate and Construction in Dense Cities: Getting Close – But Not Too Close (Part I)

The commercial use of drones, or small unmanned aerial systems (sUAS), for urban real estate and construction may finally be gaining traction. This month, the New York City Council passed a bill requiring the Department of Buildings (DOB) to study the feasibility of using sUAS to inspect building facades. Continue Reading

Note to “Additional Insureds” Relying on Builders’ Risk Insurance: Federal Court Decision Evaluates Extent of Coverage

The United States District Court for the District of Massachusetts has provided construction project owners, developers, general contractors, sub-contractors, suppliers, and vendors with a helpful reminder about obtaining effective additional insurance coverage on construction projects.

In Factory Mut. Ins. Co. v. Skanska United States Bldg., No. 18-cv-11700-DLC, 2020. U.S. Dist. LEXIS 95403, the District Court held that a construction project’s general contractor and sub-contractor were not additional insureds under the construction project’s owner’s Builders Risk insurance policy (“the Policy”). The construction project’s general contractor and its sub-contractor contended they were additional insureds as a defense based on Massachusetts’ anti-subrogation doctrine, which prevents insurers from subrogating against their own insureds for the type of risk the insurer provided to such insureds. The two contractors moved for summary judgment in the subrogation recovery action brought against them claiming they were both additional insureds under the Policy. The District Court, in dismissing the project’s general contractor’s and its sub-contractor’s motions for summary judgment based on their anti-subrogation defenses, determined that the project’s general contractor and its sub-contractor did not qualify as additional insureds under the Policy because: (1) additional insureds under the Policy are those whose liability would be purely vicarious “to the extent of the insured’s legal liability for insured physical loss or damage,” which the District Court determined was not applicable to the undisputed facts pled in the subrogation recovery action and (2) the language of the policy itself seemed to indicate that it applied to only one (and not multiple) insureds, which, in the District Court’s opinion, applied only the construction project’s owner. As a result, the subrogation lawsuit against both the project’s general contractor and its sub-contractor may proceed as the anti-subrogation rule did not apply. Continue Reading

AIHA Releases COVID-19 Guidelines for Construction Industry

This post was authored by Jonathan Schaefer, who is a member of Robinson+Cole’s Environmental, Energy + Telecommunications Group. Jon focuses his practice on environmental compliance counseling, occupational health and safety, permitting, site remediation, and litigation related to federal and state regulatory programs.

Since the COVID-19 pandemic began affecting jobsites in the U.S., the Occupational Safety and Health Administration (OSHA) has released, and revised, COVID-19-related workplace guidance several times (see, Additional OSHA Guidance on COVID-19). To date, OSHA has not put in place COVID-19 specific regulations. Instead, OSHA has warned employers that they may be subject to citations under potentially applicable existing regulations or for violation of the General Duty Clause (see, OSHA’s COVID-19 Standards webpage). OSHA’s General Duty Clause requires employers to provide their employees with a workplace (or jobsite) free from recognized hazards likely to cause death or serious physical harm.

OSHA’s position so far has demonstrated that it may view exposure to COVID-19 at a jobsite as a General Duty Clause violation. As the potential for receipt of OSHA General Duty Clause citations related to COVID-19 remains, employers across the country, and especially in the construction industry, continue to wait for clearer COVID-19-related guidance (and possibly regulations) from OSHA.

However, further action from OSHA may not be coming anytime soon. In the meantime, at least one state (more accurately, commonwealth) has taken concrete action to put in place COVID-19-related OSHA standards (see, Virginia Issues First COVID-19 OSHA Standard). Local governments have also stepped in with their own regulations and guidelines (see, OSHA’s COVID-19 Guidelines for the Construction Industry are Generally Consistent with New York State’s and New York City’s Existing Guidelines).

Enter the American Industrial Hygiene Association (AIHA). The AIHA recently released “Focus on Construction Health: COVID-19” a guidance document intended to help the construction industry manage COVID-19 on jobsites. The guidance document breaks down key background information about COVID-19, its health effects, and how it can be spread.

The AIHA’s guidance also provides construction employers key information on the types of factors that affect workplace exposures. It further lays out, in an easily consumable and usable format, a seven-step plan for protecting workers on construction jobsites. The plan walks through a Job Safety Analysis (JSA) to tailor precautions and controls to jobsite-specific tasks and changing conditions.

While the AIHA’s guidance is that of a nongovernmental organization and does not have the force of law, it could be a useful tool for addressing COVID-19 risks. Each jobsite is unique and will require different approaches to best address the continuing threat COVID-19 poses to workers and the ability for projects to continue on schedule. Concise and convenient guidance documents like AIHA’s can be valuable tools for construction employers as we continue to wade into unchartered territory for jobsite health and safety.

Governor Lamont Issues Executive Order Allowing Pandemic Workers Easier Access to Workers’ Compensation Benefits

On July 24th, Connecticut Governor Ned Lamont signed Executive Order No. 7JJJ, which creates a rebuttable presumption that all employees who worked on site and tested positive for COVID-19 during the first three months of the pandemic contracted the disease while on the job, giving employees a presumptive claim to workers’ compensation coverage. Connecticut follows suit with states such as Arkansas and California in taking executive order action to make it easier for pandemic workers to access workers’ compensation benefits. Continue Reading

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