TEN NEW YEAR’S RESOLUTIONS FOR CONTRACTORS-2021

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   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

Coronavirus and Construction-Slow the Spread!


Yesterday I received my first call from a client with a corona-virus related legal question: If their company suspended projects for two weeks, would they get sued?  Would they be facing legal liability?

So, I would like to provide some reassurance and advice for those of you in the construction industry.
First, the disclaimers.  I am not a medical professional.  We have not formed an attorney-client relationship (unless we have one already).  I am not advising you on your unique situation.

Photo by CDC on Unsplash

1.       Can I put projects on hold without facing liability?

Yes.  At the end of the day, this is a national emergency.  You have the right to protect yourself, your employees, subcontractors and your customers.

2.       Are there clauses I can put in my projects that will protect me?

Yes. Some of you have one already, but it can be expanded.  If you have ever wondered what “force majeure” means, it refers to natural disasters or Acts of God.  Many of you have “no damages for delay” in your contracts.  If you don’t, you should.  In addition, we can now spell out that a pandemic is one of the circumstances that would prevent damages for delay.  I would add the following:

Contractor reserves the right to suspend or cancel projects in the event of a pandemic, natural disaster or other force majeure events in order to protect the health and safety of its workers and customers.  Contractor will make every effort to resume its projects once, in Contractor’s discretion, it has been deemed safe to undertake its regular business operations.

If you prefer, you can also give your customers the same right to suspend or cancel.

Here’s another clause:

In no event will Builder be liable to Owners or any other party for any special, incidental, delay, emotional distress or consequential damages arising from this Contract.  Builder shall not be liable to Owners for any damages resulting from coronavirus or other force majeure policies enacted by Builder.

3.       Should I suspend operations?

It depends.  This is clearly a decision that is unique to each company.  If you are performing new construction or an addition, it may be easy for you to continue working, as long as your workers maintain social distancing.  If you are in the remodeling industry, the situation is different.  If your workers can block off an area of a house or building and keep the owners from entering the area, they may be able to continue working.  If so, it’s time to rent that Port-a-Potty and tell your workers not to use the Owner’s bathroom.  They should wear their masks to prevent transmitting illness to customers.  They should not interact with their animals or children.  They should sanitize or wash their hands as frequently as possible.  If workers are even slightly ill, they should not come to work.




4.       Can I get sued for suspending or canceling a job?

Yes.  Anybody can sue anyone at any time for any reason.  That said, a lawsuit based on delay or breach of contract related to coronavirus will probably not survive a motion to dismiss (this is just my opinion).  What court or jury would award someone damages for protecting public safety?

5.       Create a policy for your workers and enforce it.

I found out I was exposed to coronavirus on a Saturday.  I had an arbitration that Monday.  I had no way to contact the parties in advance and needed to decide how to proceed.  I did reach the other arbitrators, and we agreed I would participate by telephone as long as the parties agreed.  It would have been much easier if there was a procedure in place in advance.  Here are some ideas:

a.       Create a private company Facebook page where employees can post.
b.       Utilize an interactive software program so you can keep customers aware of what is happening with their projects.
c.       Agree to respond to texts (limit to emergencies if you prefer).
d.       Remind your workers to check these forms of communication every day so they are up-to-date on the latest issues.

I will send out another newsletter if I receive more questions from clients or think of more challenges that the industry may be facing.  I implore everyone to use common sense and work to slow the spread of the virus.

Please feel free to call or email me with your questions.


Andrea

Goldman Law Group
60 Austin Street, Suite 210                                              
Newton, MA 02460                                                                
 T: 617-953-3760

“Massachusetts Builders Blog” www.buildingconfidence-llc.blogspot.com
"Home Contractor vs. Homeowner Blog"  www.andreagoldmanlaw.blogspot.com

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