A recent federal appeals court decision rejected a challenge to the Occupational Health and Safety Administration’s new rule for respirable crystalline silica (silica) exposure in the construction industry (the Silica Rule), keeping the rule largely intact. This new rule lowers the permissible exposure limit (PEL) for silica to fifty micrograms per cubic meter (50μ/m3) from the previous construction industry standard of 250 μ/m3. At the time OSHA began enforcing the Silica Rule on September 23, 2017, there still remained pending in federal court a challenge to the rule brought by multiple industry groups (Industry), mostly consisting of commercial construction trade associations representing general contractors, subcontractors, and suppliers. Continue Reading ICYMI: Federal Appeals Court Upholds New OSHA Silica Rule
UPDATE: On November 22, 2017, OSHA announced that it moved the electronic reporting deadline for 2016 data and information from December 1, 2017 to December 15, 2017. The following blog post has been updated to reflect this change. No other parts of the new electronic submission regulations were changed.
December 15, 2017 is the final deadline to comply with the newly implemented Occupational Safety and Health Administration (“OSHA”) regulations that require electronically submitting 2016 workplace injury data and information to OSHA. To help navigate these regulations, here are few reminders about this new reporting format that affects almost all construction industry businesses.
One of the general and principal benefits of incorporating a business entity is limited liability; the owners of a corporation are not liable for the corporation’s actions or debts. There are, however, exceptions. One of the exceptions is the doctrine of “piercing the corporate veil,” under which courts may cast aside the “veil” of incorporation and hold a corporation’s shareholders personally liable for the corporation’s actions. Continue Reading First Department of New York Loosens the Standard for “Piercing the Corporate Veil”
In a recent U.S. Supreme Court case about pregnancy discrimination, Justice Breyer asked: “Why, when the employer accommodated so many, could it not accommodate pregnant women as well?” As an employer, that is a question you should now be asking when preparing, reviewing, or updating your company’s accommodation policies.
Many employers have policies and practices to ensure accommodation of disabled workers or those with temporary injuries or disabilities. However, employers may be overlooking their legal obligations to accommodate another group of workers: pregnant women who have pregnancy-related work limitations. Continue Reading Does your Employee Handbook stand up to the Supreme Court’s latest decision about accommodations for pregnant workers?
The City of Philadelphia has issued new code requirements for construction worker safety training. The new rules went into effect on October 1, 2015, and the Department of Licenses and Inspections has announced that strict enforcement will begin on April 1, 2016.
Under the new regulations, all contractors and employees (including subcontractors) performing construction or demolition work in the City of Philadelphia for which permits have been issued are now required to complete OSHA 10 safety training, or an approved equivalent. This requirement applies to all trades, as well as state-registered home improvement contractors. Workers are required to carry written proof establishing that they have completed an OSHA 10 training course while on the job site, and their employers must also maintain on-site proof of completion for each worker. This information must be furnished to the Department of Licenses and Inspections upon request. The OSHA 10 training is only required to be completed once and does not expire.
Additionally, all contractors licensed under Section 9-1004 of the Philadelphia Code must employ at least one supervisory employee who has completed OSHA 30 safety training, or an approved equivalent, within the past 5 years. Construction or demolition of major buildings requires continuous oversight by a site safety manager who has completed an OSHA 30 course. The designated site safety manager must carry an identification card or certificate of completion issued by the provider of the OSHA 30 training course.
On February 12, 2016, New York City Mayor Bill de Blasio and New York City Department of Buildings Commissioner Rick Chandler announced a new aggressive campaign to improve worker safety on construction sites. Specifically, commencing next Tuesday, February 16, rigorous safety sweeps of constructions sites ten stories or less are expected to be performed.
Doubtlessly, this initiative is a direct result of 1) an increase in construction related deaths in 2015, and 2) the investigation into the death of a worker on a project at Ninth Avenue that resulted in, among other things, the August 5, 2015 indictment of Harco Construction and its site safety manager for manslaughter and the debarment of Harco for safety violations.
In 2015, there were 11 deaths on New York City construction sites during which time there has been a 300% increase in construction in the City. However, in an unexpected development, 70% of all accidents occur at building sites of less than 10 stories.
On December 3, Jennifer Horn and Maria Panichelli presented the second webinar in their core construction curriculum series for Women Impacting Public Policy and Give Me 5%. The presentation, entitled “Best Practices in Construction,” covered suggested best practices for before, during, and after conclusion of a construction project, in the context of both state and federal jobs. The presentation provides tips on contracting, documentation, compliance, and claims prevention strategies. Start implementing business practices that make the difference between a profitable construction project and one that exposes your company to financial risk now! Check out: “Give Me 5: Best Practices in Construction,” here.
December 21, 2012 was the effective date of the Philadelphia Lead Paint Bill 100011-A (the “Ordinance”), which amended Chapter 6-800 of the Philadelphia Code and established new lead paint disclosure and certification requirements for certain residential rental properties. The Ordinance places a substantial burden on the owners of affected properties (“Targeted Properties”), requiring costly and burdensome inspections and certifications regarding the presence of lead paint older housing units. The Ordinance also applies to existing leases, requiring property owners to comply with the Ordinance within ninety days of the effective date, or March 21, 2013.
Certain properties were exempted from the Ordinance:
- housing units in which children six years of age and younger will not be residing during the lease term;
- student housing owned by educational or academic institutions;
- buildings leased entirely to college or university students;
- housing units owned or subsidized by the Philadelphia Housing Authority; and
- units leased under the HUD Housing Choice Voucher Program, more commonly referred to as Section 8.
The Ordinance requires that when entering into a lease with a residential tenant, an owner of a Targeted Property must provide both the tenant and the Philadelphia Department of Public Health with a certification from a certified lead inspector, stating that the Targeted Property is either (i) lead safe or (ii) lead free. A certification that the property is lead safe is valid for two years, whereas a certification that the property is lead free is permanent in nature. If an owner fails to obtain one of the required lead certification before leasing a Targeted Property, the owner may be liable to the City of Philadelphia and/or the tenant for up to double the cost of the following expenses: (i) inspection of the leased property, (ii) rent abatement, (iii) injunctive relief necessary to compel the owner’s compliance with the Ordinance, (iv) attorneys’ fees and costs, and (v) exemplary damages of up to $2,000 per offense. Owners of a Targeted Property must annually certify their compliance with the requirements of the Ordinance or risk having their housing inspection license revoked.
Additionally, owners must notify tenants, in writing, that it is the tenant’s responsibility to periodically inspect the property and notify the owner of the presence of deteriorated paint, which is defined in the Ordinance as paint that is either cracking, flaking, chipping, peeling, chalking, not intact or otherwise separating from the substrate of a building component, except that pinholes and hairline fractures attributable to the settling of a building shall not be considered deteriorated coating. Upon such notification, the owner must promptly make the necessary repairs.
Owners should be careful not to violate other existing laws while trying to comply or exempt themselves from the Ordinance. For example, while properties not occupied by persons under the age of six are exempt, owners must be careful not to inquire if a potential tenant has children or intends to have children under the age of six living in the property, because inquiring about children when leasing a residential property may be a violation of the Pennsylvania Human Relations Act or the Federal Fair Housing Act. The Owner may only inquire if children will reside in the property after the owner has made a firm offer to rent to that tenant.
Marian A. Kornilowicz is the Chair of the Business Practice Group of Cohen Seglias Pallas Greenhall & Furman PC. His practice is concentrated in the representation of clients in varied business transactions and real estate matters.
By: Scott T. Earle House Bill 109 (HB 109), which was passed by the House of Representatives, has stalled out in the Senate. This Bill was a proposed amendment to Title 6, Chapter 35 of the Delaware Code Building and Construction Payments section (the Act).
What Would HB 109 Have Changed?
HB 109 would have changed the name of the Act to the “Building Construction Procedures Act” and expanded the scope of the Act to apply to all forms of construction, not just construction related to buildings or structures. The amendment would have also made it against public policy to apply any other law but Delaware law to construction contracts performed in the state. It also would have required an in-state contractor to participate in any legal proceedings inside the State of Delaware. Additionally, HB 109 would have consolidated and amended the contract clauses currently contained in Sections 3506 and 3507 into one section to harmonize the timing of events set forth in these Sections, which are presently inconsistent. Finally, the amendment would have also changed the time in which a contractor or subcontractor has to dispute an invoice from 7 days to 15 days.
Next Steps for HB 109
HB 109 was passed by the House on June 22, 2011 and received no opposition. The amendment was passed with forty out of a possible forty-one votes in its favor. After being passed by the House, the amendment was introduced to the Senate on June 23, 2011 where it stalled out in the Executive Committee and expired when the General Assembly recessed on June 30, 2011. HB 109 is anticipated to be reintroduced next January when the General Assembly reconvenes. We will monitor HB 109 and update you when the General Assemble reviews the legislation. Scott T. Earle is a Senior Associate with Cohen Seglias and a member of the Business Transactions Group.
Building owners in the City of Philadelphia had better start paying closer attention to what’s on the outside. Earlier this year, Mayor Michael Nutter signed an ordinance — Periodic Inspection of Exterior Walls and Appurtenances of Buildings — amending the City’s Building Construction and Occupancy Code, and mandating periodic inspection and repair of building exteriors. The ordinance also requires owners to file inspection reports with the Department of Licenses and Inspection (DLI). Affected buildings are defined by the ordinance as all buildings that are six stories or higher and all those that have any appurtenances greater than 60 feet in height. While the ordinance could make life more difficult for building owners, it will create opportunities for contractors seeking work in Philadelphia.
Pursuant to the newly enacted ordinance, the inspections must be conducted by a “Professional,” defined as a Pennsylvania “licensed Professional Engineer experienced in the practice of structural engineering or a licensed Registered Architect knowledgeable in the design, construction and inspection of building façades.”
The deadlines to complete the first inspections and reports are as follows:
- June 30, 2011-Buildings constructed prior to 1950 and those with a construction date that cannot be determined
- June 30, 2012-Buildings constructed between 1951 and 1970
- June 30, 2013-Buildings constructed between 1971 and 1980
- June 30, 2014-Buildings constructed between 1981 and 1990
- June 30, 2015-Buildings constructed between 1991 and 2005
- For buildings constructed since 2005, the first inspection and report are due 10 years after the issuance of the certificate of occupancy
After the initial round of inspections and reports, inspections must be conducted and reports filed on a 5 year cycle. Owners are responsible for retaining their reports and keeping them readily available for inspection by the DLI. Violations of the ordinance are considered Class III offenses and violators are subject to a fine of $2,000 per violation.