Reusable Mask Inserts Designed to Improve the Comfort Level of Mask Wearers

HeartFormSF offers an innovative product designed to improve the comfort level of mask-wearers in the era of COVID-19. HeartForm’s lightweight, heart-shaped shields — called HeartForm — hold the mask fabric just a few millimeters away from the nose and mouth. According to the manufacturer, this simple action makes breathing easier, blocks the face mask from entering the mouth, making it easier to talk while keeping the face cool and its users comfortable. 

HeartForm works equally well with paper and fabric masks. Made of smooth, FDA approved medical-grade polypropylene, these shields are reusable and recyclable. You can easily 

wash or sanitize the product between uses. Each one weighs just 1/8 of an ounce. 

HeartFormSF is donating a portion of each order to the not for profit World Central Kitchen’s COVID-19 relief program to feed victims of the pandemic across the United States. In addition to fulfilling individual orders, the company also supplies the product in bulk to businesses and organizations. Bulk orders can include the choice of a variety of colors and branding with company names and slogans. 

For more information, visit www.heartformsf.com

Construction Contracts and Coronavirus Complications

As a result of the novel coronavirus (COVID-19), many construction projects around the United States have been, and are being, significantly delayed or curtailed. In many instances, the delays have arisen from supply chain disruptions, state or local government stay-at-home orders, new safety protocols, and workforce disruptions on every level of the construction project — design, field construction, manufacturing, and inspection.

One thing certain to change in the post-COVID-19 world will be protection clauses in construction contracts. Boilerplate legal terms typically couched in fine print, such as “force majeure” and “frustration,” will be closely reviewed by contractors, owners, and their attorneys in the future.

Depending on the circumstances and the terms of the construction contract, the effects of COVID-19 may allow a party to invoke different rights to relief and compensation, or otherwise excuse delays or non-performance. Whether a party to a construction contract will be relieved, compensated, or excused from performance will depend on, among other factors, the language of the force majeure clause, the facts at issue, and the law governing the contract.

Construction businesses should consider the following with regard to current and future contracts:

  • Does the COVID-19 disruption constitute a force majeure event under the contract?
  • Is epidemic, pandemic, or illness specifically identified in the force majeure clause?
  • If not, does COVID-19 fall under some other event often referenced in force majeure clauses, such as an “act of God,” a “natural disaster,” or something beyond the contractors’ control?
  • Does the force majeure clause entitle parties to extensions, termination, or some other form of relief or modification?
  • Does the law that controls the contract — federal, state, or international — reinforce or limit how the force majeure clause is applied?
  • Are there alternate avenues for relief outside of the force majeure clause, such as commercial impracticability or impossibility?
  • How should parties impacted by COVID-19 reserve their rights or document their position?

Force Majeure Clauses: Events and Interpretation

Force majeure clauses set forth certain conditions under which a party is permitted to extend, suspend, or terminate a contract as a result of unexpected and unavoidable events. Under U.S. common and civil law, force majeure protection generally extends to natural and unavoidable catastrophes that impact the parties’ ability to perform their contractual obligations and allocates the risk in such events.

So, what constitutes a force majeure event? Generally, a force majeure event exists where said event is unforeseeable and outside of the contractor’s control. In addition to the specific facts at issue, determining whether a force majeure clause offers relief for such an event will likely depend on three factors: (1) whether the language in the force majeure clause specifically references the event as beyond the parties’ control; (2) whether the force majeure event was unforeseeable; and (3) whether the force majeure event caused the party’s non-performance.

In analyzing the contract language, look to see if the force majeure clause specifically references events like “epidemic,” “pandemic,” or “outbreak of disease.” If so, then COVID-19 is almost certainly covered by that cause. Courts will generally construe the precise language of the force majeure clause to exclude events that are not specifically identified. To that end, if the force majeure clause limits covered events to those involving nature, such as “severe floods,” “hurricanes,” or “earthquakes,” the court may be less likely to find that the parties intended to cover the COVID-19 pandemic.

Analysis of specific language used in construction contracts is critical. Standard form contracts, such as AIA and ConsensusDocs, do not have specific force majeure clauses but do, however, contain excusable delay clauses that could likely be applied to COVID-19 delays. For example, AIA forms generally contain language concerning excusable delays, termination, and suspension of work while ConsensusDocs expressly provide relief for “epidemics” as well as termination and suspension of work.

In some instances, the force majeure clause may contain both specific and broad forms of events and include a catchall provision intended to cover potential scenarios other than specific events. Some courts have deferred to common law principles such as unforeseeability to determine whether the event in question is covered by the contract. There, the determination would ultimately depend on what the parties contemplated and if the parties voluntarily assumed the risk of COVID-19, or, more likely, a general pandemic.

Finally, the force majeure clause may reference “acts of God” as an excusable delay or grounds for suspension or termination of the contract. Whether COVID-19 falls under the definition of “acts of God” is dependent on the state where the contract was entered into or where the contract will be performed. Where a state defines an “act of God” to include wars, riots, floods, epidemics, and natural disasters, COVID-19 would likely be covered. However, where a state more narrowly defines “acts of God” as something caused by nature, COVID-19 may not be covered and the court will likely defer to what the parties contemplated with regard to risk allocation.

Other Force Majeure Considerations

A construction business seeking to invoke a force majeure clause must follow the contractual requirements for doing so. A party should pay particular attention to the form and substance of any required notice as well as time limits to provide such notice as required by the contract. Many states demand strict adherence and compliance with the notice requirements, and failure to adhere to even one aspect could render a claim or request for extension void or result in a waiver of entitlements to relief. Parties should keep in mind that a force majeure event that is continuing in nature, or otherwise evolving, such as COVID-19, the contract may require regular updates and reporting of extra costs in order to obtain relief.

COVID-19 will likely not be interpreted as an event that completely relieves a party from its contractual obligations. As such, the general principal of construction contracts that all parties to the contract must mitigate and minimize the impact of adverse events, will apply. Depending on the circumstances and the terms of the contract, the duty to mitigate could include incurring extra costs as the affected party or serve as a condition to relief.

Generally, a force majeure event will only temporarily excuse performance of those obligations impacted by the event, meaning both the affected party and unaffected party must continue to perform contractual obligation not impacted by the event. Upon the occurrence of a force majeure event, an affected party may, however, claim extension of time for performance based on the impact of the event or as long as the event prevents performance, provided that the contract permits such extension. In drastic situations, the contract may also permit termination of the contract should the event continue for a certain extended period of time. Such clauses may require that all or substantially all of a party’s obligations be affected for a specific period of time before termination is permitted. In these situations, parties generally agree to share the costs of the delay.

Planning for the Future

Contractors entering into construction contracts in the future should take necessary steps to minimize the likelihood of disputes, claims, and litigation resulting from the occurrence of force majeure events. When seeking to limit exposure, contractors must be specific and clear in their contract language when defining the scope and effect of a force majeure clause to protect themselves from unexpected liabilities. Moving forward, parties to a construction contract should address future concerns by drafting more precise force majeure definitions, develop flexibility in supply chains to reduce risk of disruption, maintain appropriate records of cost increases, and consider the inclusion of a well-drafted termination clause.

About the author: Keith A. Boyette is an attorney with Anderson Jones, PLLC in Raleigh, North Carolina, a law firm with attorneys licensed in North Carolina, South Carolina, and Georgia. For more information or questions about this article, please email him at kboyette@andersonandjones.com.

Author’s note: This article is intended only for informational purposes and should not be construed as legal advice.

Interesting Times

“Stay safe.”

“Take care.”

“Hope you are healthy and safe.”

Work correspondence has taken on a different tone in the last couple of months as events have been overshadowed by the coronavirus pandemic. It’s touching. People have been so kind in their responses. It puts me in mind of the gruff but friendly desk sergeant in the 1980s TV series “Hill Street Blues,” who would end every pre-shift meeting — no matter how chaotic — with this reminder: “Let’s be careful out there.”

When I emailed safety expert Richard Hawk to thank him for his column in our last issue, he responded, “There is a centuries old Asian saying that is both a blessing and a curse: ‘May you live in interesting times.’ It fits now, huh?” 

It does. The business landscape and most work environments are changing rapidly. In this issue you’ll see case studies and technical columns, as well as several articles geared specifically to coping with the coronavirus pandemic as the roofing industry continues to fulfill its indispensable role in maintaining our infrastructure.

This issue contains advice for employers coping with the fallout of COVID-19 from Benjamin Briggs and Elliot Haney at Cotney Construction Law. You’ll find tips from contractors like Ken Kelly of Kelly Roofing and Steve Little of KPost Roofing & Waterproofing, who had to come up with creative solutions to meet new jobsite regulations and keep business flowing. You’ll also see the story of a roofing manufacturer that found a way to help meet critical shortages of medical personal protective equipment.

Duro-Last CEO Tom Saeli told me how a team of employees at Duro-Last came up with the idea to use the company’s materials and equipment to make medical gowns and masks for area hospitals. He also assured me his company was doing all it could to ensure employees manufactured the equipment safely — including maintaining social distancing, cleaning and disinfecting the plant and equipment, providing masks and face shields, and taking everyone’s temperature.

At Roofing, we are committed to maintaining our role as “the industry’s voice” through our glossy print issue and digital edition, as well as our website and e-newsletter. Tom Saeli noted Duro-Last was sharing its story in the hopes that it would inspire others to help. If you have a story you’d like to share, please let us know.

And hey — let’s be careful out there.

OSHA Issues Guidance to Help Construction Workers During the Coronavirus Pandemic

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has launched a webpage with coronavirus-related guidance for construction employers and workers. The guidance includes recommended actions to reduce the risk of exposure to the coronavirus.

Employers of workers engaged in construction (such as carpentry, ironworking, plumbing, electrical, heating/air conditioning/ventilation, utility construction work, and earth-moving activities) should remain alert to changing outbreak conditions, including as they relate to community spread of the virus and testing availability. In response to changing conditions, employers should implement coronavirus infection prevention measures accordingly.

The webpage includes information regarding:

  • Using physical barriers, such as walls, closed doors, or plastic sheeting, to separate workers from individuals experiencing signs or symptoms consistent with the coronavirus;
  • Keeping in-person meetings (including toolbox talks and safety meetings) as short as possible, limiting the number of workers in attendance, and using social distancing practices;
  • Screening calls when scheduling indoor construction work to assess potential exposures and circumstances in the work environment before worker entry;
  • Requesting that shared spaces in home environments where construction activities are being performed, or other construction areas in occupied buildings, have good air flow; and
  • Staggering work schedules, such as alternating workdays or extra shifts, to reduce the total number of employees on a job site at any given time and to ensure physical distancing.

Visit OSHA’s coronavirus webpage frequently for updates. For further information about the coronavirus, please visit the Centers for Disease Control and Prevention.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit www.osha.gov.

U.S. Department of Labor Adopts Revised Enforcement Policies For Coronavirus

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has adopted revised policies for enforcing OSHA’s requirements with respect to coronavirus as economies reopen in states throughout the country.

Throughout the course of the pandemic, understanding about the transmission and prevention of infection has improved. The government and the private sector have taken rapid and evolving measures to slow the virus’s spread, protect employees, and adapt to new ways of doing business.

Now, as states begin reopening their economies, OSHA has issued two revised enforcement policies to ensure employers are taking action to protect their employees.

First, OSHA is increasing in-person inspections at all types of workplaces. The new enforcement guidancereflects changing circumstances in which many non-critical businesses have begun to reopen in areas of lower community spread. The risk of transmission is lower in specific categories of workplaces, and personal protective equipment potentially needed for inspections is more widely available. OSHA staff will continue to prioritize COVID-19 inspections, and will utilize all enforcement tools as OSHA has historically done.

Second, OSHA is revising its previous enforcement policy for recording cases of coronavirus. Under OSHA’s recordkeeping requirements, coronavirus is a recordable illness, and employers are responsible for recording cases of the coronavirus, if the case:

Under the new policy issued today, OSHA will enforce the recordkeeping requirements of 29 CFR 1904for employee coronavirus illnesses for all employers. Given the nature of the disease and community spread, however, in many instances it remains difficult to determine whether a coronavirus illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace. OSHA’s guidance emphasizes that employers must make reasonable efforts, based on the evidence available to the employer, to ascertain whether a particular case of coronavirus is work-related.

Recording a coronavirus illness does not mean that the employer has violated any OSHA standard. Following existing regulations, employers with 10 or fewer employees and certain employers in low hazard industries have no recording obligations; they need only report work-related coronavirus illnesses that result in a fatality or an employee’s in-patient hospitalization, amputation, or loss of an eye. 

For further information and resources about the coronavirus disease, please visit OSHA’s coronavirus webpage.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit www.osha.gov.

RT3 Announces Webinar on Virtualizing Your Roofing Business in Light of Coronavirus

Roofing Technology Think Tank (RT3), a group of progressive roofing professionals focused on technology solutions for the roofing industry, announced a special webinar that is open to the industry. Virtualizing your Roofing Business in Light of the Coronavirus is scheduled for Wednesday, March 18 at 5:00 p.m. ET. 

During this worldwide epidemic, many owners of roofing companies have questions and concerns about their ability to thrive in this uncharted territory. Join the following experts to hear their insights on how a roofing company can virtualize their business to avoid the inevitable impact of the virus.

Presenters include: 

  • Host and Marketing Expert: Anna Anderson, Art Unlimited
  • Sales Expert: Ryan Groth, Sales Transformation Group
  • Commercial Roofing: Steve Little, KPost Roofing & Waterproofing
  • Residential Roofing: Ken Kelly, Kelly Roofing
  • Legal Ramification Expert: Trent Cotney, Cotney Construction Law

Register to attend the webinar

For more information and to sign up for the RT3 SmartBrief Newsletter, visit www.rt3thinktank.com.