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Tom Dunn

This author Tom Dunn has created 41 entries.

Construction Shutdown is Lifted in Massachusetts

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Non-essential private construction projects were suspended on March 31, 2020 in Massachusetts.  That suspension has been in place for the construction industry until today — May 18, 2020.

As part of the first phase of the Four-Phase Approach to Reopening Massachusetts, Governor Baker announced that the construction industry may commence work provided the mandatory safety standards and protocols can be followed.  See Report from the Reopening Committee.  Before a project may reopen, each business must have a COVID-19 Control Plan in place and posting of posters.

Three resource documents were distributed

The safety standards include social distancing (crews 6 feet apart at all times) and no meetings of more than 10 people.  Where social distancing is not possible, PPE (face covering, gloves, and eye protection) must be used.

Cloth Face Masks Required for Rhode Island Employees Through May 18, 2020

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On April 14, 2020, Governor Raimondo issued the Twenty-First Supplemental Emergency Declaration — Requiring Cloth Face Masks At Work.  The Order is effective Saturday, April 18 and continues through May 18, 2020.

Cloth face coverings are required for any Rhode Island employee working at a customer/client-facing business, non-profit organization, office-based businesses, and any other such business category as determined by the Department of Business Regulation (DBR) that is still in operation.  Previously, on March 22, 2020, the Governor ordered all Rhode Island employees that can work from home to work from home.

Cloth face coverings are not required if an employee can “easily, continuously, and measurably maintain at least six (6) feet of distance from other employees for the duration of his or her work (e.g. solo office) or unless doing so would damage the employee’s health.  Thus, if an employee has a dedicated office with the doorway six feet away, a face covering would not be required while

Securing Mechanic’s Liens in Rhode Island During the COVID-19 Crisis

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The current COVID-19 crisis has complicated all facets of life, including securing mechanic’s liens.  Properly notarizing your lien and recording the lien are crucial steps to securing a valid and enforceable mechanic’s lien in Rhode Island. While Rhode Island has implemented some procedures to remotely notarize documents and in some instances, e-record documents, neither procedure is without its hiccups.

One of the first crucial steps in securing your mechanic’s lien is filing your notice of intention (“NOI”) pursuant to RIGL § 34-28-4.  The statute requires that the NOI be executed under oath.  With mandated office closures and social distancing orders in place for the foreseeable future, how do you go about completing this essential step?  On April 3, 2020, the Rhode Island Secretary of State announced that it is temporarily allowing remote online notarization (“RON”).  RON, while helpful under these circumstances, presents its own headaches.  Here are the steps to get your NOI notarized:

  1. Find a notary who is authorized to

Virtual Mediations Are Zooming Forward . . . Jump on Board

With most of the country on stay at home orders of some variety and court closings, parties to claims, litigation, and arbitrations are adapting quickly to virtual litigation activities that are customarily done in person.  This includes virtual depositions, mediations, arbitrations, and trials.

In this post, I will talk about virtual mediations.

Contractual mediation is a requirement in many construction contracts to proceeding forward with litigation/arbitration.  There is often a period of time in which the mediation should be concluded before a party may proceed to the next step of dispute resolution.

No matter the parties to the case, it is customary for parties, their counsel, experts, and insurance representatives to meet in-person at the mediator’s office, one of the law firms, or some neutral location like JAMS and/or AAA’s offices.  The physical presence is an advantage in that it gets parties and their counsel together at the same place with one objective in mind — settle

Massachusetts Issues New Guidance on “Essential” “Construction-Related Activities” — Appears More Narrow

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On March 31, 2020, Massachusetts Governor Baker replaced its prior list of “Essential Services” with a new list available online.

Missing from the new listing of “Essential Services” was the prior bullet point that stated construction workers who support the construction of projects was essential. That language from the March 23, 2020 Order is below:

While construction is mentioned a number of times as supporting other essential services, a new section titled “Construction-Related Activities” was added.  This appears to be more narrow than the bullet-point above in that it refers to specific industries as opposed to a blanket “construction project.” The new section is below.

While guidance/explanation is not currently available as to the scope of this change from the Governor, the new policy of “Essential Services” appears to be more narrow than the Exhibit A list of “Essential Services” issued on March 23, 2020.  Those industries that fall

“Essential” and “Safe” Construction Services During COVID-19 Outbreak

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Effective today (March 27, 2020) at midnight, New Hampshire joins various other states in closing non-essential businesses and ordering citizens to stay at home.  Governor Sununu issued Executive Order #17 on March 26, 2020.

All businesses that do not provide “Essential Services,” which are listed in Exhibit A to the order, must close their physical workplaces and facilities and stop all in-person operations.  The order also requires businesses providing Essential Services to develop procedures for social distancing consistent with guidance from the CDC and Department of Public Health.  Employees of essential businesses may continue to cross state borders for work-related travel, including travel to and from work, and to transport products to distribution facilities, etc.  All businesses, essential or not, are permitted—and encouraged—to continue their operations through remote means.

Construction services are listed as an “essential service” under the Order.  The Exhibit A closely tracks the listing of essential services issued by the Massachusetts Governor earlier this week.  As the

Mass Governor’s Legal Office’s Letter to Municipalities: Withdraw Conflicting City/Town Policies Suspending Essential Construction Services

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On March 25, 2020, the Massachusetts Governor’s Legal Office issued a letter to Municipal Chief Executive Officers in the Commonwealth that “provides guidance regarding the effect of the Governor’s March 23, 2020 Order ‘Assuring Continued Operation of Essential Services in the Commonwealth, Closing Certain Workplaces, and Prohibiting Gatherings of More than 10 People’ insofar as the Order intersects with municipal efforts to address the COVID-19 crisis.”

The Governor’s order deemed construction services as essential services, but some Cities/Towns have issued temporary suspensions of construction projects in their locale.  The letter emphasizes the importance that “public officials avoid conflicting directives and duplication of efforts.”  The Chief Legal Counsel stated:

Then, the letter confirms that the Governor’s March 23, 2020 Order included such a superseding provision “to ensure unitary management of this crisis.”  The letter concludes, after reciting that constructions services were included as “essential services” in the list of essential services of the March 23 Order,

Accordingly,

Project Suspended or Payment Delays? Don’t Lose Your Mechanic’s Lien Rights!

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While many construction projects are advancing in a safe manner during the COVID-19 pandemic, some have been suspended by governmental order, like the Cities of Boston and Cambridge, or based upon the direction of the Owner and/or general contractor.

In a recent survey by the AGC (March 17-19), 28% of the respondents reported a project delay ordered by owners and/or governmental bodies.  Of the delays and disruptions, respondents reported various causes including:

    • 16% material/equipment shortage
    • 11% labor shortages (including subcontractor laborers)
    • 18% labor shortages from authorities having jurisdiction (AHJ) for inspections, permits, certificates of occupancy

(The AGC is proving to be an invaluable resource with a 8 part webinar series on COVID-19 related issues plus excellent e-blasts and an online resource page.  Locally, the AGC of Massachusetts and CIM are also on the forefront of COVID-19 related construction industry issues.  I encourage you

Rhode Island Issues Work from Home Order “If You Can”

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On March 22, 2020, Governor Raimondo issued the Seventh Supplemental Emergency Declaration that ordered “[a]ll business service personnel that can work from home are required to do so.”  The order was effective immediately and operates through March 30, 2020.

At the time of preparing this post, Rhode Island has not suspended business activities for “essential businesses.”  Based upon this policy, field construction services cannot be performed remotely so they can continue provided the following practices are in place:

Gatherings of ten (10) or more people in public or private spaces in Rhode Island are prohibited.  In addition, businesses that remain open must post notices of these policies as noted in paragraph 5 below.

For Rhode Island news and updates about COVID-19, visit https://health.ri.gov/diseases/ncov2019/.

 

Massachusetts Closes In-Person Non-Essential Businesses Effective March 24 — Construction Designated Essential

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Effective March 24th at 12:00 noon, Massachusetts is closing all non-essential businesses “physical workplaces and facilities (“brick-and-mortar premises”) through April 7, 2020.   See COVID-19 Order No. 13.

As an update to my post from Friday on Non-Essential Businesses, Massachusetts did not adopt the CISA Guidelines, but appears to have followed the structure of them.

The essential services list for Massachusetts can be found HERE.   Construction services is included as “essential” servcies as follows:

All indication is that MassDOT, MBTA, and MassPort projects are continuing (as noted by the above-referenced public works inclusion as an essential service.  During a board meeting of MassDOT, the Commissioner stated that the work is continuing but each project will be reviewed on a case-by-case basis.  Below is a letter Construction Industries of Massachusetts received from MassDOT on March 23, 2020 stating