Construction and Commercial Real Estate Law

10 E 6th Ave, Conshohocken, PA 19428

Call Us: (610)-238-0880

BREAKING NEWS: Shutdown Order Lifted for Construction Industry

The Commonwealth of Pennsylvania has amended the previous Order barring “non-life sustaining” work from proceeding.   Under the amendment, EFFECTIVE MAY 8, 2020   “… limited construction activity is authorized to commence in-person operations statewide.”  However, this construction work must be performed in compliance with the CDC/DPH guidelines for mitigating the spread of COVID-19, including without limitation, social distancing practices.


PREPARE,  PRIOR TO APPEARING ON SITE, a safety plan for implementing CDC/DPH guidelines, and identify who will be providing the on-site hand washing stations, site cleaning,  PPE and employee screenings required by the guidelines under which the work must proceed. Employers at each tier should take affirmative steps to enforce proper COVID-19 guideline compliance, and should not merely rely upon ‘flow down’ provisions, to meet the evolving ‘‘standard of care’ owed to employees and third parties in this changing COVID-19 environment.

COORDINATE COVID-19 required resources with owners, general contractors and others on-site to avoid any duplicate efforts and duplicate costs.  Coordination may also realize some savings through shared resources. Consider the applicable builders risk, business owner policies or other coverages as a resource to recover impact costs.

COMMUNICATE with tiers as to what their written safety plan will involve to ensure on-site compliance with COVID-19 guidelines. Provide notice as to any default or other contract remedies that may be invoked for non-compliance. Also, obtain any costs or time extensions the tiers may request so you can submit a comprehensive upstream request for any adjustments.  

SUBMIT, or update, any anticipated or actual delay and/or cost notices for COVID-19 related impacts to the contract amount, unit prices, alternates, allowances, and/ or the schedule. Evaluate if COVID-19 will impact available labor, supplies or material delivery. Continue to update delay and/or change notices as the situation evolves.

EVALUATE  your contract for insurance and indemnity obligations.  Determine if you have waived any Employer immunity provided by the workers compensation acts, and consider requesting, as a condition for your return to work, voiding that waiver and/or removing other indemnity obligations, for injury/illness(including death) and/or property damage arising from COVID-19 related claims.  Otherwise, you may be accepting liability for conditions you may not be able to prevent even with reasonable care.

QUALIFY future scope of work proposals and unit prices as subject to further adjustment based upon anticipated COVID-19 impacts to trade line items, project schedules, the availability of labor, materials, supplies and the planned ‘means and methods’

COVID-19 IS A RECORDABLE OSHA ILLNESS, now subject to OSHA interim guidelines.  Under these interim guidelines, construction and other non-medical/emergency employers  must record an employee’s confirmed COVID-19 positive case that results in days away from work, treatment beyond first aid, or other applicable criteria, IF THERE IS ALSO:

  1. Objective evidence that a COVID-19 case may be work-related. This could include, for example, a number of cases developing among workers who work closely together without an alternative explanation; and
  2. The evidence was reasonably available to the employer. For purposes of this memorandum, examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees

If you would like more information on issues raised by returning to work in the COVID-19 environment, please click on this link for a 1-hour webinar we provided with  CFMA PHILADELPHIA.