Litigation-I Win, You Lose vs. Mediation-Win/Win

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  Litigation is a zero-sum game.  It destroys relationships and fosters enmity between the parties.  Parties rarely walk away happy.  Even if they win, the expense of litigation is enormous, and collecting on judgments is difficult. Disputes ultimately resolve, but the focus on winning at any cost can lead to prolonged legal battles.  Living with a lawsuit causes ongoing stress, which can distract you from your business and even have an effect on your health. In a courtroom, the final decision lies with a judge or jury who may not fully grasp the complexities of the case. Parties relinquish control over the outcome, potentially leaving them dissatisfied with the final judgment. Mediation has the opposite effect.   Rather than polarizing people, it enables the parties to attack the issues and not each other.     The process promotes open communication, collaboration and problem-solving, which enables parties to actively participate in crafting ...

Coronavirus and Construction-Guidance as of March 25, 2020

Yesterday the Governor wrote a letter providing further guidance for construction projects in Massachusetts.  It provides additional information and clarity regarding the March 23, 2020 Order
"Assuring Continued Operation of Essential Services in the Commonwealth, Closing Certain
Workplaces, and Prohibiting Gatherings of More than 10 People."
Photo by Alex Iby on Unsplash

I am writing this newsletter in order to (hopefully) provide more guidance for those of you in the residential construction arena.

The first issue to keep in mind is that the Governors’ order supersedes any rules issued by municipalities: “This Order supersedes and makes inoperative any order or rule issued by a municipality that will or might in any way impede or interfere with the achievement of the objectives of this Order.”

This is directly from the order:

Exhibit A of the Order contains two entries that designate construction projects as COVID-19 Essential Services and identify workers engaged in construction projects as included within the Order's COVID-19 Essential Workforce:

• Guidance: Workers -including contracted vendors-involved in the construction of
critical or strategic infrastructure including public works construction, airport operations,
water, sewer, gas, electrical, nuclear, oil refining and other critical energy services, roads
and highways, public transportation, solid waste collection and removal, and internet, and
telecommunications systems (including the provision of essential global, national, and
local infrastructure for computing services)

• Guidance: Construction Workers who support the construction, operation, inspection,
and maintenance of construction sites and construction projects (including housing ·
construction)

The following is from Mayor Walsh for work in Boston:

Essential work includes: ● Emergency utility, road or building work, such as gas leaks, water leaks and sinkholes; ● New utility connections to occupied buildings; ● Mandated building or utility work; ● Work at public health facilities, healthcare facilities, shelters, including temporary shelters and other facilities that support vulnerable populations; ● Work that ensures the reliability of the transportation network; ● Small residential construction projects in dwellings of 3 units or less (e.g. kitchen or bathroom remodeling); and ● Other work necessary to render occupied residential buildings fully habitable.

However, the Order also requires that the projects are to "continue operations during the state of emergency, but to do so with allowance for social distancing protocols consistent with guidance provided by the Department of Public Health."

This is the issue.  The Public Health regulations are extensive.  Here is a link for the COVID-19 GUIDELINES AND PROCEDURES FOR ALL CONSTRUCTION SITES AND WORKERS AT ALL PUBLIC WORK https://www.architects.org/uploads/3.25.2020.SIGNED-Construction-Letter-with-Guidance.pdf

Here are some highlights from the Public Health Guidelines.  Please keep in mind that these guidelines are for PUBLIC work.
  1. Employers must have a Safety Stand Down day to disseminate the Guidelines to all employees and workers.
  2. There is a zero-tolerance policy for sick workers.
  3. Workers have to self-certify that they don’t have a fever or symptoms prior to coming to work.
  4. They haven’t been exposed to anyone who has tested positive for COVID-18
  5. They haven’t been told to self-isolate.
  6. Workers have to maintain 6’ of social distancing.
  7. Jobsites must develop cleaning and decontamination procedures.
  8. All meetings must be conducted by conference calls.
  9. 100% glove policy. Eye protection is recommended.
  10. PPE is recommended if social distancing isn’t possible.
  11. Employees must drive to work alone.
  12. Surfaces are to be cleaned and sanitized frequently.
  13. A site-specific COVID-19 Officer (who may also be the Health and Safety Officer) shall be designated for every site.
What does this mean for residential new construction and renovation?  For most companies, it will be impossible to follow these guidelines.  So, it is important to consider what is essential.  There is a balance between protecting you, your employees and your customers.  Here are some scenarios to consider:
  • If a homeowner is about to start a bathroom renovation, I would say that it is non-essential and could expose others.
  • If you are in the middle of new construction and the owners are living in a hotel or with others, it could be essential for them to be able to move to their home ASAP. In that case, as long as your workers can maintain social distancing, it would make sense to complete the home.
  • If you are in the middle of a renovation and things cannot be buttoned up to protect the work from the elements, you need to keep going.
  • If a family is greatly impacted by your construction work and are living in great discomfort, you should keep working, as long as your workers are protected.
Please call with questions.  Remember, these are guidelines only.  Each company needs to do what works for them, their employees and subcontractors.  Even though the economic impact has been very difficult, the most important thing right now is to slow the spread of the virus.




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