Robinson+Cole Among The Top 50 Construction Law Firms™

Robinson+Cole’s Construction Group has been ranked #35 in the second annual The Top 50 Construction Law Firms list published by Construction Executive magazine on June 19, 2020.

“We are honored to receive this ranking and be listed among the top 50 firms in the country,” said Robinson+Cole Construction Group Chair Gregory R. Faulkner. “Being ranked by a respected industry publication that is widely-read by construction business owners is a validation of the commitment and approach that our whole team takes to support our clients and the industry, and we look forward to continuing that effort on their important projects.” Read more.

OSHA’s COVID-19 Guidelines for the Construction Industry are Generally Consistent with New York State’s and New York City’s Existing Guidelines

This post was co-authored with 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.

On May 26, 2020, the Occupational Safety and Health Administration (OSHA) launched a webpage with coronavirus-related guidance for construction employers and workers. The guidance includes recommended actions to reduce the risk of exposure to the coronavirus. While this guidance is not a standard or regulation and creates no new legal obligations, following OSHA guidance could help in defending a General Duty Clause citation.

Under OSHA, all employers have the obligation, pursuant to the General Duty Clause, to “furnish to each of its employees a workplace that is free from recognized hazards that are causing or likely to cause death or serious physical harm.” Consistent with trends seen prior to the COVID-19 pandemic, most OSHA investigations and citations for COVID-19 related issues are arising from employee complaints. Should OSHA issue a citation to an employer, the penalties per violation can range from $9,472 to $134,937. Continue Reading

New York Empire State Development Issues Guidance for Construction Staging Activities

In anticipation of reopening all construction activities statewide, on May 22, 2020, Governor Cuomo announced that construction staging activities would be allowed to commence before the Regions officially reopen. On May 31, 2020, the New York Empire State Development (“ESD”) updated its Guidance on Executive Order 202.6 (“NY Guidelines”) to provide specifications regarding construction staging. With most Regions currently in Phase One or Phase Two, the staging guidance is most applicable to New York City which is currently restricted to conducting only essential construction until it is cleared for a Phase One reopening. The allowed activities include the following: Continue Reading

Massachusetts Construction Litigation Scheduled to Get Back on Track

With the issuance of a revised order by the Massachusetts Supreme Judicial Court (SJC) dated May 26, 2020, construction litigation in Massachusetts is poised to re-start in earnest after July 1, 2020. As the SJC stated in its Order, “unless there is a new surge in COVID-19 cases in the Commonwealth,” the de facto pause in litigation that went into effect in mid-March 2020 with the tolling of all civil statutes of limitations and all deadlines set forth in statutes or court rules, standing orders, tracking orders, or guidelines, “shall end and not be further extended.”

As some Massachusetts construction litigators have experienced, the SJC’s prior orders, which extended the time to respond to or enforce crucial litigation mechanisms indefinitely, had the effect of stemming litigation activities on the whole by discouraging the filing of new matters, service of written discovery requests, and the conducting of motion practice. Now that the SJC has signaled to the litigation bar that the guardrails enacted in the wake of COVID-19 will come off as of July 1, 2020, members of the construction industry should expect to be served with third-party subpoenas for documents, direct payment claims, and mechanic’s liens. Current litigants should also be prepared to attend remote depositions, which the SJC also blessed to begin immediately without the affirmative consent of the party being deposed, as had been required in the past.

A link to the press release from the SJC highlighting these changes can be found here.

Balancing New Technology and Privacy When Using Drones in Land Use and Construction

The mixture of sheltering-in-place, warm weather, and increasing drone usage creates a combustible situation – literally. Drone shootings are on the rise as property owners seek to combat perceived trespass, nuisance and invasions of privacy.

These were some of the legal issues discussed during a webinar presented by the American Bar Association’s Section on Real Property Trusts and Estates (ABA RPTE) at its 32nd Annual Conference (held virtually for the first time) on May 15, 2020. The webinar focused on the legal landscape and issues to consider in counseling real estate and construction businesses on the commercial use of small unmanned aerial systems (sUAS). The panel included attorneys as well as an engineer, who presented drone video footage and computer graphics used to collect data more efficiently during land use evaluation, mid-construction and post-construction. Continue Reading

New York’s Multi-Faceted Approach to Reopening “Non-Essential” Construction

COVID-19’s impact in New York has been particularly region-specific. To address the disparity, Governor Cuomo created a four-phase reopening plan to be implemented where geographic regions meet their required “health metrics.”

Each phase correlates with a group of industries in which their non-essential businesses may permit the return of their in-person workforce – under certain conditions – in qualifying regions. (As of the date of this publication, the regions that have qualified based on their health metrics are the Capital Region, Central New York, Finger Lakes, Mohawk Valley, North Country, Southern Tier and Western New York.) Construction is one of the industries comprising “Phase One.”

Construction companies within an eligible region may reopen so long as they satisfy the specific construction industry health and safety guidelines in four categories: physical distancing, protective equipment, cleaning and hygiene, and communication. The guidelines outline the mandatory requirements and provide additional recommended “best practices,” as follows: Continue Reading

An Eye in the City Sky

Why it might be time to reconsider permitting the use of drones for development & construction in dense urban areas

 

Excerpt of a contributed article published in Construction Business Owner magazine on May 19, 2020.

COVID-19’s severe impact on some major metropolitan areas has been attributed to their density, infrastructure and inherent difficulty with “social distancing.” This same challenge with social distancing has led to either mandatory or pressured shutdowns of construction projects throughout many states and metropolitan areas. Meanwhile, and particularly during the shutdowns, building-safety mandates require that some people still physically be at the projects to ensure ongoing compliance—especially important where a half-complete project can result in its own safety problems. Simultaneously, to complete new real estate transactions, investigations of sites must still be performed for due diligence data.

Could commercial drones, i.e., small unmanned aircraft systems (sUAS), assist in these aspects to continue development and construction while mitigating health risks? Read the full article.

Massachusetts Construction Projects May Reopen Immediately, Governor Announces; Boston to Follow May 25th

This post was published by High Profile magazine on May 27, 2020.

Governor Charlie Baker announced today that all construction projects in Massachusetts may reopen immediately, provided contractors and owners comply with new safety guidelines and compliance documentation requirements. These new requirements include, but are not limited to, the following: Continue Reading

Connecticut Appellate Court Recognizes Cardinal Change Doctrine for the First Time

Changes are made to the scope of work on construction projects every day. In some cases, the contract party being asked to accept these changes is reluctant to do so, viewing the changes to be so substantial as to result in a scope of work radically and materially different than what it originally agreed to perform. Faced with these circumstances, the decision to refuse to perform the extra work and walk away from the project can be a tempting one.

The “cardinal change doctrine” is a tool available to address these situations. The doctrine provides that, when changes are made to a contract which are so disproportionate to the original scope of a contractor’s work that they constitute an abandonment of the original agreement by the other party, the contractor is relieved of further performance obligations. Continue Reading

Boston Issues New COVID-19 Guidelines Applicable to All City-Permitted Projects

In an effort to prepare to restart construction on suspended projects after imposing pandemic-related restrictions on construction deemed nonessential, the City of Boston recently issued its revised “Temporary Guidance for Construction in the City of Boston,” which took effect on April 27, 2020.

Last week, the City indicated that this new policy is effective for active permitted projects, and for all future permit applications moving forward, including Alterations, Amendments, Erect Building, Use of Premises, Short Form, Electrical (Temp Service, Low Voltage, Fire Alarm, and general), Plumbing, Gas, Sprinkler, Sheet Metal and Trench permits. Continue Reading

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