As I sit down to write my annual list of resolutions for contractors, I am amazed at how much things changed in 2020. Construction was going well and then, in March 2020, COVID-19 hit. At first, we thought it was going to be a disaster for the construction industry. States, cities and towns shut down projects and many applied for PPP loans. Then, something amazing happened. Construction was considered an essential service and everyone was back to work.  That said, the work world changed: companies were donating their PPE to frontline workers, COVID-19 protocols had to be followed and paperwork had to be filed. Everyone was scrambling to figure out how to comply and keep their businesses going. So, you may or may not ask, what was I, as a construction lawyer doing? I spent March and April thinking about the new risks contractors/construction companies were facing and developing contract clauses to protect the industry. I wrote a number of blog posts with clauses to add to your contra

Test for Lead, and Then You're Off the Hook?

I have run into so many contractors who think they can solve the dilemma of how to handle the RRP rule by having the house tested for lead.  There are now approved lead test kits out there.  All the contractor has to do is test, and if the house if negative, proceed with the work without doing the lead-safe practices.  That's it, right?

Not so fast.  Consider the following scenario:

Contractor tests for lead.  Negative result.  Four to twenty-one years later, the contractor is sued because a member of the household is suffering from lead poisoning.  Contractor contacts the lead test kit company (if it is still in existence).  How does the company respond?  Will they stand by their product?  Or, will they request documentation of all of the testing procedures including where the test was conducted, how it was conducted and verifiable results?  What if they say the testing was conducted improperly, or inadequately?

Why face an additional risk by doing your own testing?  If the homeowner wants to test the home, have them contract with a lead testing company directly who will stand by its results.  Better yet, if you contract with them, have them sign an indemnification clause where they will protect, defend (provide a lawyer) and pay you back if you are held accountable for poisoning after a negative result.  After all, why take on the additional liability?

I would love comments from the lead testing kit companies.

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