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Finding Opportunity in Adversity: Optimism for the Construction Industry

Client Alert

It is said that opportunity hides itself in adversity, and so, for those industry stakeholders still struggling with the impacts of the pandemic, it is fair to ask: what opportunities has the COVID-19 pandemic created within the construction industry?

Opportunities to Collaborate are at an All-Time High. Collaboration is, at times, a byproduct of necessity. For many years, contractors, subcontractors and lower tiers have all talked about a more collaborative approach to building, but habit always seemed to get in the way, as many of those same parties were quick to resort to familiar, one-sided contracting methods and traditional risk allocation mechanisms. Now, however, faced with the need to revise project programs, manage disrupted supply chains, accommodate public health restrictions, and mitigate project delays, project owners and construction managers are learning that it is in their best interest to work with team members in unison, not restricted by lines of contractual privity. This presents a real opportunity for the industry to come together to develop processes and procedures that correspond to the changed public health and market conditions.

We expect that along the way, project owners and program managers may see the benefit of increased participation in joint efforts related to managing project budget, scope and time. Adding stakeholders to the conversation lends itself to the future use of more collaborative project delivery methods, and improved contracting processes through which parties agree to fairly allocate risk based on their ability to control, and prevent, such risk. 

Innovations in Technology and Building Methods.  Physical distancing is now the norm, which necessarily changes the way contractors, subcontractors and other project participants interact with one another. Interactive web-based meetings have replaced in-person meetings. Tours and inspections are being conducted virtually to allow stakeholders to monitor project progress from miles away. Artificially intelligent sensors and devices can be worn to ensure physical distancing measures are being observed. All of these tools offer real-time information so that issues can be identified and resolved quickly, thus improving productivity and efficiency. 

We can also expect to see an increase in the modular building trend. Here, control is the key. When physical components or units are built off-site, the benefit is two-fold: first, more opportunities to better control the safety of that off-site environment, and second, a greater ability to control, and reduce, on-site congestion. 

Made in the U.S.A.  The pandemic has exposed another truth: the construction industry in the United States is still dependent on international materials and workers. Reports indicate that nearly 30% of building materials used in the United States are imported from China. When international borders are closed, or trade relations are strained, disruptions in critical supply chains are inevitable. Herein lies an opportunity to bring production and manufacturing operations back to the United States, particularly where owners and developers may be willing to pay higher prices for materials that come from a more reliable supply chain. The construction of those very manufacturing facilities could, in and of itself, also be a boon for the industry. 

Safer and Cleaner Project Sites.  Practices such as temperature checks, frequent handwashing, improved mask and glove policies, and sanitization of work sites and equipment are all drivers for improved public health, and are likely to continue beyond the pandemic. We may also see evidence of secondary benefits from certain health and safety measures. For example, staggered shifts will lead to less crowded work areas, which should aid accident prevention efforts. Less congested work areas may also lessen burdens to coordinate work, which in turn may increase productivity. With these practices likely here for the long-term, the project participants most willing to embrace the new measures are most likely to succeed.

Justin M. Alaburda is a member and co-managing partner of the Akron office of Brennan, Manna & Diamond. He can be reached at jmalaburda@bmdllc.com. 


Employment Law Pitfalls in the New Normal

This week the state of Ohio announced its Responsible RestartOhio plan and issued a Stay Safe Order amending to Department of Health’s prior order, designed to get people back to work and gradually reopen the state, available at https://coronavirus.ohio.gov/static/publicorders/Directors-Stay-Safe-Ohio-Order.pdf. This new order directs employers to require their employees to wear masks (with certain limited exceptions) and recommends changes to shifts, break times, and use of break rooms as a means to limit the spread of the virus. These workplace developments raise a number of potential concerns regarding wage and hour issues, reasonable accommodation, employee medical information, and off-duty conduct policies.

Did You Know that Certain Expenses May Not Be Deductible if You Received a PPP Loan?

On April 30, 2020, the IRS issued a Notice stating that for Federal income tax purposes, certain expenses that would otherwise be deductible in a taxpayer’s trade or business may not be deductible if the taxpayer received a loan under the Paycheck Protection Program (“PPP”).

Unemployment Requests From Former Employees

Have you received a Request for Information or Unemployment Award Decision from the a state unemployment agency for an employee who left your employ weeks or months ago? With the dramatic rise of unemployment filings as a result of the COVID-19 pandemic, many employers are receiving unemployment decisions or requests for employment information for former employees have have not been employed by them for a great period of time.

Essential Businesses in Ohio: Today’s Announcements Apply to You

Governor DeWine announced the “Responsible Restart Ohio” program this afternoon to set the stage for reopening certain areas of the Ohio economy. Matt Heinle and Jeff Miller posted on the overall requirements today. While the announcement and our post focused on reopening certain businesses, the mandatory requirements and recommendations apply to ALL businesses, including those which had been open and operating as an Essential Business.

Responsible Restart Ohio: Stay at Home Stays in Place – First Phase of Back to Work with Precaution and Protocols

Governor Mike DeWine announced new plans today regarding the reopening of Ohio, including the first wave of businesses to welcome employees and customers back inside. This will not be rapid process and that is by design, as DeWine emphasizes that the guiding principles behind Ohio’s plan are to protect the health of employees, customers and their families, support community efforts to control the spread of the virus and to take the lead in responsibly getting Ohio back to work.