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Pillsbury continues to track the impact on construction projects of COVID-19-related orders and guidance in all 50 states and the District of Columbia as well as guidance from CISA and OSHA. We are updating our chart weekly. Click here for the latest COVID-19 Construction Chart.

July 27 update – Now updated bi-weekly.

July 14 update – More updates.

July 7 update – This week’s chart includes updates to state orders. Although a few states have reversed course or paused their reopening plans in the face of a resurgence of the virus, so far none of those states’ orders have impacted construction.

June 29 update – More updates.

June 22 update – More updates on various reopening orders and guidance.

June 16 update – The chart is updated to include various reopening orders and guidance.

June 9 update – In addition to tracking orders and guidance in the 50 states and the District of Columbia, this week’s update also includes the OSHA’s new COVID-19-related guidance for Construction Work.

May 27 update – As we pivot toward less shelter in place orders and more reopening orders, more and more states are also issuing guidance for implementing safety measures on construction projects. Pillsbury modified its chart to include a column describing any state-issued guidance and some guidance from large cities. As described in our client alert Safety Measures for Construction Projects During the COVID-19 Pandemic, construction sites will be very different under the “new normal.”

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Our latest look at the judiciary is focused mainly on the federal appeals system, with a side of regulatory development thrown in for good measure.

The U.S. Court of Appeals for the Third Circuit—Baptiste et al. v. Bethlehem Landfill Company
In this case, decided on July 13, 2020, the plaintiffs, neighbors of the Bethlehem Landfill, claimed that the operations of the landfill seriously interfered with the enjoyment of their homes, and resulted in a loss in their property values because of noxious odors. The lawsuit was grounded in Pennsylvania common law torts—public nuisance, private nuisance and negligence. The landfill is located on 224 acres and receives tons of waste on a daily basis which, as it decomposes, generates extremely noxious odors that are allegedly unbearable. The plaintiffs have asked for $5 million in property damages and other relief. The landfill is subject to extensive regulation by the Pennsylvania Solid Waste Disposal Act, and the rules of the Pennsylvania Department of Environmental Protection. However, since the statute does not provide a private right of action, the plaintiffs have resorted to the state common law remedies. The lower court dismissed the lawsuit, a decision the Third Circuit has now reversed. The appeals court held that the complaint was well pleaded and the case should be tried. The court noted some environmental justice concerns, but did not rely on these factors. The case was remanded to the trial court.

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In most states, the force majeure event must have proximately caused the delay or deficiency in performance. In Tour de Force: When Is COVID-19 the Cause of Nonperformance?, colleagues  Andrew C. Smith, Anne C. Lefever, Brian L. Beckerman, Stephanie S. Gomez, Colin Davis, and Eugenie Dubin discus how causation considerations may impact force majeure claims in the COVID-19 era.

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Virginia has adopted statewide emergency workplace safety standards, the first in the nation, to prevent and mitigate the spread of COVID-19.  In client alert “Virginia Adopts First COVID-19 Workplace Safety Mandates“, colleagues Mario F. Dottori, Julia E. Judish, Sarah Konnerth and Kristina Sgambati discuss the Coronavirus-related workplace safety mandates adopted by the Commonwealth of Virginia.

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Illinois Governor’s Executive Order prohibited sale of food or beverages for on-premises consumption held to partially excuse restaurant tenant’s rent payment obligations. In “Court Holds COVID-19 Executive Order Triggers Lease’s Force Majeure Clause, Excusing Some Rent Obligations,” colleagues David L. Miller, Patrick J. Potter, Jessica H. Lee, and Katherine Sauter examine the order in the sixth article in a series of alerts on insolvency topics affecting real estate.

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GI-623690468-contactless-technology-300x200On May 1, Texas began Phase I of its economic reopening, permitting certain businesses to begin operating again. Many states have since followed. As state governors look to continue to reopen with additional safety precautions in place, several (including California, Kansas, Texas, Ohio and Delaware) have implemented rules that require the use of face coverings in public places when social distancing is not an option, which includes work places. COVID-19-related orders have impacted construction projects statewide, though many states are reopening and construction projects are getting underway again, if their progress was even affected in the first place.

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In this blog post, colleagues, Joel M. Simon, Matthew Oresman, Kenneth Suh, Russell DaSilva, and Gloria H. Kim provide a simplified decision tree to assist you in making a selection that is right for your business. The flowchart presented here highlights certain differences between the facilities (however, not all requirements for each facility are addressed).

 

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The pandemic is expected to lead to a significant and sustained increase in remote working. The shift to remote working will have major implications for end user computing solutions and services regardless of industry. In “Impact of Remote Working on End User Computing Solutions and Services,” colleagues Jeffrey D. Hutchings and Craig A. de Ridder discuss key considerations that CIOs need to consider for addressing this shift in the workplace and update their outsourcing agreements for end user computing services.

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Here’s a report on several new decisions made over the past few days.

U.S. SUPREME COURT

U.S. Army Corps of Engineers v. Northern Plains Resources Council
On July 8, 2020, the Court has issued a partial stay of the decision of the U.S. District Court for Montana, which had held that the nationwide use by the Corps of Engineers of its Nationwide Permit 12 to permit oil and gas pipelines must be vacated because the Corps, when it reissued these permits in 2012, failed to follow the requirements of the Endangered Species Act. The breadth of this ruling seems to have surprised and alarmed many past and perspective permittees of the Corps. The stay will not apply to the ongoing Ninth Circuit litigation.

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June 2020 may forever be known as the month that international arbitration invaded the U.S. Supreme Court docket. In “Important International Arbitration Issues Fill Supreme Court Docket“, colleagues Richard Deutsch discuss how these rulings will likely impact critical strategic decisions early in international arbitrations.