Here is a headline most developers and builders would not want to see associated with their project: “’Life-sustaining’ casino? Construction continued in South Philly despite Gov. Wolf’s coronavirus shutdown. At least two workers have tested positive.”  Per the above Philadelphia Inquirer article, what has made matters worse for the developer are claims from many trades that the developer, a very large international development company, “wasn’t doing enough to protect them from being infected.”  Moreover, the developer’s “waiver” from the Governor’s Order, that essentially closed all non-life-sustaining businesses (more information available throughout this blog) to combat the COVID-19 coronavirus, is now at risk.

The story provides a great example of what not to do to if you want your business to avoid bad public relations, sick and upset employees and contractors, potential related lawsuits, and putting your waiver at risk.  Below are three short lessons pulled from the article:

Lesson 1: Comply with your waiver or your industry’s exemption.  Much has been unclear throughout the waiver and exemption process.  However, that does not excuse developers and builders from reviewing their waiver or the general exemption to determine whether and to what extent they can continue work on a project.  Given the lack of clarity from the Governor and the Department of Community and Economic Development to date, there certainly is room for interpretation when it comes to waivers and exemptions.  Therefore, a developer or builder should weigh the benefit of proceeding with the project against the potential liability (illness, bad PR, etc.) should it be determined that they acted beyond their authority.

Lesson 2: If your job site is open, comply with the Center for Disease Control’s distancing and other guidelines.  Provide your employees with the necessary equipment and supplies to be safe.  Monitor and enforce compliance for your employees.  Doing so will help limit the chance that one of your employees comes down with COVID-19 and, if they do, limit your exposure should you become a headline or be sued by someone on your crew, the property owner, or some other third-party.

Lesson 3:  Have a plan in place in case an employee, vendor or customer becomes ill with COVID-19.  Among other matters, your plan should include strategies to provide proper notification, to support the ill crew member, for public relations, and for locking down and sanitizing the job site if that were to become necessary.

With the exception of larger developers and general contractors that might deal with public relations from time to time, most of the new risks associated with COVID-19, the Governor’s Order, and operating job sites in today’s world are novel to all developers and general contractors.  However, planning ahead and seeking guidance on how to proceed with certain projects before taking action can significantly limit your risk.  Whether your question involves Real Estate, Construction Law, Environmental Law, Labor & Employment, Government Relations, or any other matter related to operating a business in today’s world, we at McNees Wallace & Nurick LLC are ready to help.  Please do not hesitate to contact any attorney in our firm for assistance.