Saul Ewing Arnstein & Lehr’s 2020 Construction Risk Management Symposium: Three Key Takeaways

From environmental risks and shifting OSHA regulations to community engagement and emerging workplace issues involving medical marijuana use, the construction industry faces many challenges. These risks and challenges—along with strategies and solutions to address them—were the primary topics discussed at Saul Ewing Arnstein & Lehr’s recent Construction Risk Management Symposium attended by more than 70 professionals from the construction, real estate development, insurance, consulting and recruiting industries. Below are three key takeaways from the event.

1. Engaging community stakeholders and preserving the historic character of neighborhoods are paramount to the long-term success of large-scale redevelopment projects.
Keynote speakers Caroline Kenney of Urban Atlantic in Washington, D.C. and Regina Stilp of Farpoint Development LLC in Chicago stressed these points as they discussed some of their most recent, complex development and redevelopment projects.

  • “If our development ends at our border then we’ve failed,” Regina stated. “The people in the surrounding community want to be part of what’s being developed in their neighborhood, so it’s really important to take cues from them when creating new spaces so everyone is working together towards a finished product.” She highlighted how her firm is working with more than 50 representatives from the Bronzeville community in Chicago on a large 100-acre property to get their input on development.
  • Caroline discussed how her firm keeps a keen focus on a project’s primary value proposition throughout its lifecycle, continually reorienting to it, while also maintaining great relationships with their public partners and local community stakeholders. “With our Walter Reed project in Washington, D.C., we have 25 acres of open space preserved that is adjacent to a park, so it’s a different urban residential experience that’s open, green and breathable,” she explained. “We plan several events throughout the year to bring local community members onto the site to experience the space, putting it on their radar and fostering excitement about the property.”

2. While multi-employer worksites have grown in size with many subcontractors and temporary employees, there is a lack of clear guidance on OSHA compliance in this area.
As the moderator of the first panel discussion, Don Rea of Saul Ewing Arnstein & Lehr kicked it off by noting that OSHA regulations governing multi-employer worksites are the vehicle by which most citations in commercial construction are issued, and how there is a fairly complex matrix under the regulations of who serves what role on a particular site when it comes to safety violations, training and other safety issues.

  • “Recently, federal courts have issued opinions that have fairly sweeping changes in these regulations whereby upstream contractors all going through the general contractor can be held liable for downstream violations and errors,” Don explained. “This has been a significant sea change expanding liability under these regulations.”

Panelists agreed that compliance guidelines in this area remain murky.

  • Eric Charlebois of Cianbro said, “On a multi-employer worksite, more than one employer may be cited for hazardous conditions that violate an OSHA standard. There’s no magic number in the OSHA standards guide that multi-employer worksites fall under. Rather it falls under the General Duty Clause.”
  • Noah Benson of Turner Construction discussed confusion around how roles are defined in any particular circumstance on a job site. “Each contractor on a site can be labeled to fit into multiple categories depending on various situations.”

The panel also addressed OSHA’s views on the reasonable standard of care that applies to the employer with regards to compliance.

  • Kevin Cannon of the Associated General Contractors of America said, “OSHA evaluates reasonable care when they’re conducting an investigation onsite and asks questions such as: Did you require frequent enough inspections? Did you have a process in place to correct the hazards that were found? Did you hold yourself accountable for those safety and health program areas within your control?”

3. With 33 U.S. states currently authorizing the use of medical marijuana and state laws rapidly changing, employers should update their drug policies while also communicating their expectation of a drug-free workplace and maintaining a drug-testing policy.
Garry Boehlert of Saul Ewing Arnstein & Lehr moderated a discussion on “Managing the Use and Abuse of Prescription Drugs and Medical and Recreational Marijuana in Your Workplace” with Jo McGuire of the National Drug and Alcohol Screening Association and Dena Calo, a Labor and Employment partner at Saul Ewing Arnstein & Lehr.

  • From a legal perspective, Dena highlighted how it is hard for employers to balance an employee’s legal right to medical marijuana in certain states and an employer’s right to drug test. She noted that there are three different categories of statutes related to medical marijuana and employment that states have implemented. “For anyone with operations in Ohio and Montana, discrimination against an employee who uses medical marijuana is permitted, but those are the only two states where discrimination is allowed,” she explained. “In other locations, there are some laws that say you may not discriminate against an employee for medical marijuana use. In the third category, statutes are silent on the issue. However, laws state that an employee may not be impaired or use substances while at work.” While this is a broad summary of the types of laws, each specific situation facing employers involves its own challenges and will not necessarily fit squarely into one of these boxes.

If you would like more information on these and/or related topics in the industry, including recent case options, please contact any of the attorneys below: