DSV Legal Insights
July 2020
How Does This Affect Your Construction Project?
COVID-19 has increased the costs of construction at every level of the industry. Supply chain delays, worker shortages, increased PPE requirements, project suspension, and the impacts of demobilization and remobilization have all conspired to create additional expense that was unanticipated at the contracting stage. Although a force majeure clause may create schedule relief or an avenue for avoiding liquidated damages, many contracts lack a corresponding cost recovery mechanism. As a result, some contractors are seeking recovery under theories of cardinal change or constructive change. However, a recent decision by the Civilian Board of Contract Appeals demonstrates how difficult it may be to successfully assert such claims and that recovery, if any, remains largely a function of contractual risk allocation.

Read more about the difference between a cardinal and constructive change and how it may affect your projects.
Recent Blogs
Employers everywhere are struggling to bring employees back into the workplace in a way that creates the safest environment for everyone. I wrote last month on EEOC Guidance for bringing higher risk employees back to work [“ Returning Higher Risk Employees to Work: EEOC COVID-19 Guidance Updates ”]. That version of the EEOC Guidance made it clear that employers could require specific medical tests such as a temperature check or a COVID-19 virus test to detect the presence of the COVID-19 virus before permitting employees to enter the workplace. Since that time, the EEOC has updated their guidance several times, most recently to address the new question of whether under the Americans with Disabilities Act (“ADA”) an employer may require antibody testing before permitting employees to re-enter the workplace.

Learn more about the difference between antibody and viral testing in the workplace.
On June 29, 2020, the Indiana State Department of Health (“ISDH”) issued updated guidelines addressing continuing COVID-19 related infection prevention and control policies, outdoor and indoor visitation, outside appointments, and internal activities/personal services. See guidelines  here  and  here .  The guidelines apply to both comprehensive care facilities (nursing homes) and residential care facilities (licensed assisted living facilities). These guidelines recognize residents’ need for increased socialization to promote their physical and mental well-being while also protecting them from COVID-19, and are consistent with and subject to the State’s Back on Track Plan found  here .

Read more about the guidelines in place for long-term care facilities.
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This publication is published by Drewry Simmons Vornehm, LLP (DSV). This publication is intended for general information purposes only, and neither the information nor opinions expressed herein are intended, and should not be construed as furnishing of legal advice to any individual or group. Under no circumstances should the contents of this publication be used or relied upon as a substitute for engaged legal counsel. No portion of this newsletter may be reproduced without the express written consent of DSV.