Plot Twist: Construction Industry Groups Applaud Court's Decision to Defer to OSHA

Construction industry association groups applaud the June 11, 2020 U.S. Court of Appeals for the District of Columbia’s decision, which denied the AFL-CIO’s (American Federation of Labor and Congress of Industrial Organizations) emergency petition for a writ of mandamus against OSHA (Occupational Safety and Health Administration).¹ In what some may call a surprising turn of events, the construction industry is celebrating deference to OSHA.

The administrative petition, filed on May 18, 2020 by the AFL-CIO, together with 23 national unions, was intended to compel OSHA to issue an emergency temporary standard ("ETS") to protect U.S. workers against COVID-19. OSHA is authorized to issue an ETS upon its determination that an ETS is "necessary" because "employees are exposed to grave danger" in the workplace. 29 U.S.C. §655(c); see In re AFL-CIO, USCA Case #20-1158, (D.C. Cir. 2020). The court stated that OSHA is owed "considerable deference," especially in these unprecedented times, and found that it acted reasonably when it determined not to issue an ETS at this time. In re AFL-CIO, USCA Case #20-1158, (D.C. Cir. 2020).

Construction industry association groups, such as the Associated Builders and Contractors and National Association of Home Builders, are happy with the decision because they considered an ETS to be an inappropriate measure in such turbulent times. Following the decision, OSHA will continue to develop guidance documents. Not only does this approach allow the agency to swiftly adapt to new COVID-19 information released by other government officials and scientists, it also allows OSHA to continue to rely on the Centers for Disease Control and Prevention.

The problem with this approach, as alleged by AFL-CIO, is that these guidance documents are not mandatory. As follows, AFL-CIO and its supporters are disappointed with the decision, claiming that OSHA’s guidelines are too flexible in that they do not pose a threat of OSHA action for an employer’s noncompliance. Given that OSHA in-person checks of construction sites have fallen to about 16% of pre-COVID-19 inspection levels, the concern may not be unfounded.² Construction workers, perhaps to a layperson’s surprise, were among the most universally essential workers during the pandemic. This fact can be concerning since, as mentioned by Gaetano Piccirilli and Patrick McKnight in an earlier Dispute Resolver blogpost, construction workers had one of the highest mortality rates during the 1918 Flu pandemic. The combination of higher risk and less frequent OSHA visits may be a reason complaints have increased nearly tenfold.³ In fact, the AFL-CIO’s petition set forth that thousands of workers have been infected on the job.

Nonetheless, construction sites are certainly not going unwatched. Instead, the decrease of OSHA visits is most likely replaced with an increase of state and local inspections. States like Massachusetts, for example, have implemented their own Mandatory Workplace Safety Standards and sector-specific workplace protocols, including Safety Standards for Construction. And although nobody knows exactly how to proceed during COVID-19, after the U.S. Court of Appeal’s decision, at least some construction industry groups are comfortable leaving it up to the "experts."

Learn more about the scope of OSHA, the extent it preempts (and does not preempt) state and local government action, and what state and local governments are doing to ensure the safety of workers within their jurisdictions at an upcoming ABA webinar on June 29 at 1 pm ET. More details here: https://www.americanbar.org/events-cle/mtg/web/401521567/.

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1 Court Rejects Bid for OSHA COVID-19 Emergency Standard, CONSTRUCTION DIVE (June 12, 2020).^↩
2 OSHA Construction Safety Inspections Plunge 84% in Pandemic, BLOOMBERG LAW (May 14, 2020).^↩
3 Id.^↩

Author Lexie R. Pereira is an incoming third year J.D./M.B.A. student at Boston College Law School and Carroll School of Management, studying to become a litigator, with a specialty in construction law. Currently, she works as a legal intern at Consigli Construction Co., Inc., serves on the Editorial Team of the ABA’s Forum on Construction Law’s Dispute Resolver blog, and acts as the new 2020 Student Liaison of the ABA's Forum on Construction Law. This summer, she was invited to rejoin Hinckley Allen as a Summer Associate with a focus in the Construction and Public Contracts group. At school, Lexie is the President of the Real Estate Law Society and the President of the Eagle-to-Eagle Mentoring Program. Lexie earned her B.A. and a varsity letter from Boston College in 2017. Contact Information: pereirle@bc.edu; https://www.linkedin.com/in/lexie-pereira/

Division 1 Opportunities Galore! Join Us!

Hi, my name is Tom Dunn.  I am a construction lawyer at Pierce Atwood LLP.  I represent owners, contractors, subcontractors, suppliers, and other participants in the construction industry in state and federal trials and ADR.  I am an arbitrator panelist with the American Bar Association's Construction. I am the Partner-In-Charge of our Providence office, but I practice and office in both of my firm's Providence and Boston offices. 

COVID-19 Time Capsule Photo.
Note the Forum branded vest. Buff for face
coverings.  And, of course, the long hair with a hat!

For the past nine years, the ABA Forum on Construction Law's Division 1 (Litigation & Dispute Resolution) has been an active, fun, and rewarding part of my career.  

First, I attended D1's breakfasts/lunches.  I tested out 2-3 Divisions at the time to see which one fit the best.  

Next, I attended a D1 Planning Retreat as a guest and started to communicate with the D1 Chair (Buzz Tarlow) about involvement. He asked that I draft the Division meeting minutes, join the publications subcommittee, and serve as D1 liaison to the Forum's Membership Committee.   

Tony Lehman (former D1 Chair and incoming Governing Committee Member) and I, with the assistance of others (oddly mostly named Anthony or Tony), started The Dispute Resolver blog under Buzz' guidance.  We did it in PDF / paper format for a number of years before transitioning it to this blog. Working as one of the editors of this The Dispute Resolver blog led me to becoming the Editor of the Forum's publication, Under Construction, in 2015.  I also serve as an at-large member of the Membership Committee doing various things for the Forum. None of those leadership opportunities would have been available without Division 1!

Following the incredible leadership of Buzz, Luis Prats, Nick Holmes, Tony Lehman, and Cassidy Rosenthal, it is now my time to serve as the Division 1 Chair. I am SO EXCITED to work with you all!  I view my role as D1 Chair to be a matchmaker / facilitator for our members. You tell me what you are thinking and I do my best to give you an opportunity:

If you have an idea, I want to hear it.  

If you want to volunteer, but don't know how, contact me and I will find a place for you.

If you don't know why it makes sense to get involved with the Forum or Division 1, reach out to any of Division 1's Steering Committee members.  You will find out that each of them have stories similar to mine. 

If you are a trial attorney, arbitrator, mediator in the construction industry, we want to hear from you on The Dispute Resolver, we want you to speak at one of our programs, we want you to help plan our events, and/or we want your input.   

While Division 1 is one of the larger Divisions of the Forum, we have a strong steering committee and dedicated volunteers. So, you have the benefit of a larger platform while being able to form strong contacts within Division 1.  

One of my goals was to work to improve our blog that Tony and I started many years ago. I am jazzed about the planning Catherine Delorey, TDR's Editor-in-Chief, has done to improve this blog.  She scheduled numerous meetings with interested participants and has finally formed an impressive editorial team of contributors: 

• Megan Burnett
• Patrick McKnight
• Lexie Pereira (a law student!)
• Christopher Wise

I can't wait to see the great articles this team publishes in the coming months!  Thank you for your efforts!

In addition to this blog, remember to join Division 1's ABA Connect Page and set your notifications to current notifications (as opposed to digests).  This will ensure you get our posts as soon as they are made.  

I know the past 3+ months have been a challenge for us all in dealing with COVID-19. The numerous zoom calls I have had with Forum members over the past months have made it a lot better for me.  Whether a zoom happy hour, webinars, or business meetings, this technology has enabled Forum members to stay connected throughout the country. Division 1's monthly calls (second Monday at 3PM) will be on the zoom platform and I welcome each of you at attend: 

Click here to join
Meeting ID: 669-178-3882Password: ForumCL2020!

Before our next call (July 14th), send me your ideas or express your interest in joining Division 1 in a more active manner.  I will add you to our "Friends of D1" email list and work with you on getting a D1 job!  

Looking forward to collaborating with all of Division 1's Members -- new and old!  If you have questions, reach out. Stay safe and be well.  

Tom Dunn, Division 1 Chair

Pierce Atwood LLP

rtdunn@pierceatwood.com

508-838-9779 (m)

#TheDisputeResolver #FCL_D1 

Emerging from COVID-19: Impacts to Consider

The relaxation of COVID-19 stay-at-home orders and reopening of the economy is a prominent news headline. As the return to everyday activity progresses it is important to prepare in advance for this “return to normalcy”, which will almost certainly come in stages, especially as it relates to construction activity. As it happens, there will be numerous considerations depending on the stage of your project in the construction lifecycle, the status of the project stakeholders, and the implementation of revised or new safety requirements. Consideration should be given to productivity, schedule, and supply chain impacts.

Productivity Impacts

Projects that have been allowed to continue operations during COVID-19 restrictions should not expect normal work activity to be achieved as the stay-at-home restrictions are relaxed. Current social distancing and personal hygiene requirements will likely remain in place and continue to impact site access and worker productivity until a vaccine is developed or the severity of the virus wanes. There are numerous considerations for assessing realistic productivity when planning for work in the post-stay-at-home world:

• How will the flow and assignment of workers be coordinated and monitored to ensure required distances are maintained?
• What about coffee and lunch breaks?
• Are adequate cleaning stations and disinfectant supplies available per applicable regulations worker hygiene and tool and equipment cleaning?

Careful consideration of social distancing and personal hygiene requirements should be applied to projects resuming operations following a shutdown as well as those starting from day one. The construction industry’s emergence from COVID-19 will be a slow, methodical process that will result in reduced productivity levels. Losses in productive time will come in many forms:

• Vertical transportation (hoist / elevator) limitations
• Site workflow constraints
• Getting workforce to project site
• Work area changes / restrictions
• Field health checks
• More regular cleaning requirements
• Additional tools to minimize sharing
• Longer/more workdays to stagger shifts
• Added supervision
• Limitations on labor on site

For projects that were suspended or restricted, a reforecasting of costs will be in order as many contractual Notice provisions require an estimated cost of the anticipated impacts to be provided to Owners. For new project starts, the same steps will be needed to justify changes in bid price.

Projects that have been shut down or slowed will need to account for demobilization and remobilization impacts. The pre-shutdown conditions and worker productivity must be thoroughly documented and communicated to all project stakeholders. This baseline condition will be critical to establishing the additional effort expended to remobilize and resume operations on site.

Schedule Impacts

On projects that have been shuttered, scheduling impacts will need to be addressed before work can resume and some of those steps may be significant.

• What will be the impact of the timing for restarting a project?
• What is the availability of labor, particularly in union markets?
• Will multiple work shifts or resequencing of work be needed?
• Are contractual actions required to document and address schedule impacts?

Validation of your project schedule will be necessary regardless of what stage your project was in when it was shuttered or otherwise impacted by COVID-19 restrictions. Some projects will require a recovery schedule to make up for delays and account for changes resulting from COVID-19. This schedule should memorialize the schedule scenario that was in effect before the project was impacted by the virus and it should clearly show what changes were made to recover from any resultant delays.

There will be many projects looking to restart at the same time and that could put constraints on resource availability including materials, equipment, and labor. The work force will be restricted and will be driving the schedule not the other way around.  Based on the work force and expected productivity, adjustments to the schedule will be needed to reflect reality. Only then can the labor force, to the extent possible, be effectively coordinated and a schedule implemented.

Notice of COVID-19 impacts submitted earlier should be amended to reflect current conditions, and the amended notices should accompany submissions of recovery schedules in order to: (1) strengthen contractors’ arguments for relief, and (2) allow the owner to evaluate the financial implications of following the recovery schedule. Regardless of whether a recovery schedule is submitted and/or accepted, regular monthly schedule updates should be prepared and submitted in order to document progress as well as any additional COVID-19 related impacts that may arise.

Supply Chain Impacts

Procurement is another serious consideration because, although construction may be allowed to resume in your area, there may be supply chain impacts.

• Are subcontractors and suppliers located in states that remain under stay-at-home orders?
• Are subcontractors and suppliers able to pick up where they left off before a shutdown?
• Were lead times interrupted on orders placed before shutdowns came into effect?

All vendors should be contacted to confirm material delivery dates. These arrangements need to be made in advance of remobilization and resuming job site operations, especially if alternate options need to be pursued because of restrictions on the use of international or bankrupt suppliers.

Contractors should consult with their subcontractors and suppliers when they resume work. Overlooking these parties can give rise to unnecessary delays and claims. Clear communication on changes to the project and collaboration on recovery actions are some steps that can be taken to involve subcontractors and suppliers.

We will emerge from COVID-19, but it will take a concerted effort by all of us. It will be no different for the construction industry. Taking time now to consider and address impacts will set the stage for successful recovery that will benefit all stakeholders.

Author Information

Charles F. Boland, PE, is principal and chairman at GREYHAWK in Mt. Laurel, New Jersey. He has over 40 years of experience in engineering, construction, project management, and in cost/schedule analysis in the preparation and evaluation of contract claims on construction and industrial projects.

Barrett L. Richards, CCC, CEP, PSP, is a senior managing consultant at GREYHAWK in Melville, New York. He has over 20 years of experience in project management oversight; claims and litigation support; project planning and scheduling; as well as preconstruction and construction cost estimating.