R. Thomas Dunn

Rhode Island Removed From Massachusetts “Lower-Risk States” COVID Travel Exemption Effective August 7, 2020

Practice area:

Effective August 7, 2020, Massachusetts removed Rhode Island from one of its “Lower-Risk States” COVID Travel Exemption.  This applies to Massachusetts recently imposed travel restrictions that commenced on August 1, 2020.

The impact of the order means that a Rhode Island resident that travels into Massachusetts must quarantine for 14 days unless one of the following can be established:

(1) Person is coming from a lower risk-state – does not apply to persons coming from Rhode Island;

(2) Negative COVID test taken within the previous 72 hours; or

(3) Meets the exemption criteria.

The exemption criteria includes:

    • Transitory travel — passing through Massachusetts
    • Persons commuting for work or school – only permits travel from a person’s residence to a “fixed place” to attend school or work.  Does not apply to “travel to any place that is not their home state

Virtual Arbitrations/Trials — Should You Use An Expanded Witness Oath?

For arbitrations and trials that are pending and/or are scheduled for the near term, the judges/arbitrators/counsel/parties are now confronting the decision on whether to proceed forward with conducting the proceedings remotely.  If they decide to proceed forward, there will naturally be some reluctance to proceed forward.  The reluctance is because it is new and unfamiliar.  It is because there is a sense that it may be more challenging to evaluate a witness’ credibility and veracity.

There are also technological concerns of virtual hearings — both as to functionality (testing the video/audio connection) and the integrity of the testimony.  In this post, I am sharing a contribution from my Pierce Atwood law partner John Bulman, FCIArb who regularly serves as an arbitrator handling construction and commercial cases domestically and internationally.  In his post below, John addresses specifically the issue of additional measures that should be considered by arbitrators, attorneys, and witnesses to ensure the integrity of the virtual arbitration process.

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Construction Shutdown is Lifted in Massachusetts

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Non-essential private construction projects were suspended on March 31, 2020 in Massachusetts.  That suspension has been in place for the construction industry until today — May 18, 2020.

As part of the first phase of the Four-Phase Approach to Reopening Massachusetts, Governor Baker announced that the construction industry may commence work provided the mandatory safety standards and protocols can be followed.  See Report from the Reopening Committee.  Before a project may reopen, each business must have a COVID-19 Control Plan in place and posting of posters.

Three resource documents were distributed

The safety standards include social distancing (crews 6 feet apart at all times) and no meetings of more than 10 people.  Where social distancing is not possible, PPE (face covering, gloves, and eye protection) must be used.

Cloth Face Masks Required for Rhode Island Employees Through May 18, 2020

Practice area:

On April 14, 2020, Governor Raimondo issued the Twenty-First Supplemental Emergency Declaration — Requiring Cloth Face Masks At Work.  The Order is effective Saturday, April 18 and continues through May 18, 2020.

Cloth face coverings are required for any Rhode Island employee working at a customer/client-facing business, non-profit organization, office-based businesses, and any other such business category as determined by the Department of Business Regulation (DBR) that is still in operation.  Previously, on March 22, 2020, the Governor ordered all Rhode Island employees that can work from home to work from home.

Cloth face coverings are not required if an employee can “easily, continuously, and measurably maintain at least six (6) feet of distance from other employees for the duration of his or her work (e.g. solo office) or unless doing so would damage the employee’s health.  Thus, if an employee has a dedicated office with the doorway six feet away, a face covering would not be required while

Virtual Mediations Are Zooming Forward . . . Jump on Board

With most of the country on stay at home orders of some variety and court closings, parties to claims, litigation, and arbitrations are adapting quickly to virtual litigation activities that are customarily done in person.  This includes virtual depositions, mediations, arbitrations, and trials.

In this post, I will talk about virtual mediations.

Contractual mediation is a requirement in many construction contracts to proceeding forward with litigation/arbitration.  There is often a period of time in which the mediation should be concluded before a party may proceed to the next step of dispute resolution.

No matter the parties to the case, it is customary for parties, their counsel, experts, and insurance representatives to meet in-person at the mediator’s office, one of the law firms, or some neutral location like JAMS and/or AAA’s offices.  The physical presence is an advantage in that it gets parties and their counsel together at the same place with one objective in mind — settle

Massachusetts Issues New Guidance on “Essential” “Construction-Related Activities” — Appears More Narrow

Practice area:

On March 31, 2020, Massachusetts Governor Baker replaced its prior list of “Essential Services” with a new list available online.

Missing from the new listing of “Essential Services” was the prior bullet point that stated construction workers who support the construction of projects was essential. That language from the March 23, 2020 Order is below:

While construction is mentioned a number of times as supporting other essential services, a new section titled “Construction-Related Activities” was added.  This appears to be more narrow than the bullet-point above in that it refers to specific industries as opposed to a blanket “construction project.” The new section is below.

While guidance/explanation is not currently available as to the scope of this change from the Governor, the new policy of “Essential Services” appears to be more narrow than the Exhibit A list of “Essential Services” issued on March 23, 2020.  Those industries that fall

“Essential” and “Safe” Construction Services During COVID-19 Outbreak

Practice area:

Effective today (March 27, 2020) at midnight, New Hampshire joins various other states in closing non-essential businesses and ordering citizens to stay at home.  Governor Sununu issued Executive Order #17 on March 26, 2020.

All businesses that do not provide “Essential Services,” which are listed in Exhibit A to the order, must close their physical workplaces and facilities and stop all in-person operations.  The order also requires businesses providing Essential Services to develop procedures for social distancing consistent with guidance from the CDC and Department of Public Health.  Employees of essential businesses may continue to cross state borders for work-related travel, including travel to and from work, and to transport products to distribution facilities, etc.  All businesses, essential or not, are permitted—and encouraged—to continue their operations through remote means.

Construction services are listed as an “essential service” under the Order.  The Exhibit A closely tracks the listing of essential services issued by the Massachusetts Governor earlier this week.  As the

Mass Governor’s Legal Office’s Letter to Municipalities: Withdraw Conflicting City/Town Policies Suspending Essential Construction Services

Practice area:

On March 25, 2020, the Massachusetts Governor’s Legal Office issued a letter to Municipal Chief Executive Officers in the Commonwealth that “provides guidance regarding the effect of the Governor’s March 23, 2020 Order ‘Assuring Continued Operation of Essential Services in the Commonwealth, Closing Certain Workplaces, and Prohibiting Gatherings of More than 10 People’ insofar as the Order intersects with municipal efforts to address the COVID-19 crisis.”

The Governor’s order deemed construction services as essential services, but some Cities/Towns have issued temporary suspensions of construction projects in their locale.  The letter emphasizes the importance that “public officials avoid conflicting directives and duplication of efforts.”  The Chief Legal Counsel stated:

Then, the letter confirms that the Governor’s March 23, 2020 Order included such a superseding provision “to ensure unitary management of this crisis.”  The letter concludes, after reciting that constructions services were included as “essential services” in the list of essential services of the March 23 Order,

Accordingly,

Project Suspended or Payment Delays? Don’t Lose Your Mechanic’s Lien Rights!

Practice area:

While many construction projects are advancing in a safe manner during the COVID-19 pandemic, some have been suspended by governmental order, like the Cities of Boston and Cambridge, or based upon the direction of the Owner and/or general contractor.

In a recent survey by the AGC (March 17-19), 28% of the respondents reported a project delay ordered by owners and/or governmental bodies.  Of the delays and disruptions, respondents reported various causes including:

    • 16% material/equipment shortage
    • 11% labor shortages (including subcontractor laborers)
    • 18% labor shortages from authorities having jurisdiction (AHJ) for inspections, permits, certificates of occupancy

(The AGC is proving to be an invaluable resource with a 8 part webinar series on COVID-19 related issues plus excellent e-blasts and an online resource page.  Locally, the AGC of Massachusetts and CIM are also on the forefront of COVID-19 related construction industry issues.  I encourage you

Rhode Island Issues Work from Home Order “If You Can”

Practice area:

On March 22, 2020, Governor Raimondo issued the Seventh Supplemental Emergency Declaration that ordered “[a]ll business service personnel that can work from home are required to do so.”  The order was effective immediately and operates through March 30, 2020.

At the time of preparing this post, Rhode Island has not suspended business activities for “essential businesses.”  Based upon this policy, field construction services cannot be performed remotely so they can continue provided the following practices are in place:

Gatherings of ten (10) or more people in public or private spaces in Rhode Island are prohibited.  In addition, businesses that remain open must post notices of these policies as noted in paragraph 5 below.

For Rhode Island news and updates about COVID-19, visit https://health.ri.gov/diseases/ncov2019/.