Free CLE: Construction Legislative Update

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Nationwide Changes Important To the Industry and Your Practice

This free course, led by a construction attorney, will focus on emerging trends in construction legislation around the country. It will also cover what to expect next legislative session. The course will provide practical advice for attorneys and industry professionals on how best to adjust to the ever-evolving legislative environment.

What we’ll cover:

  • Changes to mechanic’s lien law, design defects law, and retainage law
  • Contractor-subcontractor liability
  • Public works contracting and funding
  • COVID restrictions and workers’ compensation
  • And more!

 

The course will be led by construction attorney Danielle Waltz, of Jackson Kelly in West Virginia. It is eligible for a 1 hour CLE credit contingent on approval by your state’s Bar.

Transcript

 

Kathryn Barona (00:06):
Good afternoon or good morning on the west coast, we are joined by Danielle waltz today of Jackson Kelly in West Virginia. And she’s going to present emerging legislative trends in construction law, and she will get started in just a moment. We’ll just let people continue to join the webinar today. And for the construction attorneys tuning in, if you are interested in gaining CLE credit for this, you can email me. I’m going to put my information in the, um, in the chat box after Danielle gets started and you will receive the recording the email by Friday at the latest, and then we’ll have instructions in there as well about how to obtain credit. So we have you covered there and it is accredited in Virginia, West Virginia. Excuse me. So, Nope. Wonderful. Thank you, Kathryn. And thanks to a Levelset for inviting me to be here today.

Danielle Waltz (01:18):
Um, as Kathryn said, my name is Danielle waltz. Um, I’m a member at Jackson Kelly in Charleston, West Virginia. Uh, this topic that I’m talking about today is sort of a perfect match for my skillset. Um, I am a member of our firm’s government relations teams. So over time have worked on a whole host of different types of legislation at the West Virginia state Capitol and federally. I also do commercial and construction relations work. Um, I started doing construction work. Um, I have a math background. I was a former mechanical and aerospace engineering major. So I had a background in the field and, and really showed some interest in and decided to start work in that area. Um, I chair West Virginia is the associated builders and contractors legislative committee. I also, uh, am the vice chair of the DRI construction committee, which is a national association of civil defense lawyers.

Danielle Waltz (02:21):
One, I gave you all a little idea of what we plan to cover today. Um, and, and I think one thing that’s important at the outset is to, to really set the expectations of, of how in depth we’re going to cover information. And then of course, to say to you, uh, I’m going to try to monitor the question and answer in chat session during, um, if you do have questions I will try to get to them. If not, I will certainly try to leave some time at the end to address any questions. And then of course you all are welcome to reach out to me at any time. Um, my email address I can drop at the end, uh, in the chat box, uh, as far as what we’re going to cover, uh, we’re going to cover mechanics lanes, uh, some changes in certain states, design defect, uh, different areas related to contractor and subcontractor liability.

Danielle Waltz (03:13):
Uh, the relationships between contractors and subcontractors, some routine its changes, uh, some issues related to the contractor owner, relationship it. And we’re going to focus a little bit, which may be a little bit outside of everyone’s bailiwick on this call on, uh, public works, contracting, uh, financing, um, some changes to the statute of limitations and statute of repose in certain states. Uh, we’re going to talk a little bit, I’m extremely thankful that we’re not having an entire presentation on, on COVID restrictions and worker’s comp that a lot of us have seen those they’re important, but I am going to touch a little bit on that, um, as we go through this presentation, because I think we need to, uh, get to talk a lot about, uh, the various funds that have been allocated to states for infrastructure work, as well as what the status is, uh, with respect to, uh, the federal infrastructure plan, which, you know, as of right now, uh, there has been no final agreement on that, but it does appear that the two sides are getting closer.

Danielle Waltz (04:17):
Uh, one thing I think it’s important to say is that we’re not going to cover every state, uh, and we’re not going to cover all the changes, but I’m going to do my best to hit everything at, at a very high level. And then of course, you know, attempt to, um, address any questions you may have, um, as we move through the material. Um, the first area that we’re going to talk about are, uh, trends in, in mechanics, lien law, and the states that we’re going to cover, um, are Georgia, uh, Texas and Tennessee. Uh, there may have been some other changes around the country, but these seem to be, uh, the most notable. Uh, I think if I were going to describe a general theme of, as we go through these changes is what you give it is what you take it the way. And you’ll see, um, as we cover them, uh, what, uh, what I mean by that?

Danielle Waltz (05:16):
So Georgia made a change, uh, with a bill that was passed, uh, started in its Senate that was effective in January of 21 this year. Um, and it basically says that when you have a mechanics lien waiver, you only, you only waive lien at bond rates and that contractual claims are not waived a, you may ask, well, why did the Georgia legislature decide to take this on? And, and the reason that it happened is that in 2019, uh, the Georgia court of appeals came down with a decision that basically said that, uh, the contractor waived the breach of contract claim as well as their lien rights, uh, with the waiver. And so I think that the legislature in responding to that said, no, that’s not what we meant. And we want to clarify that. So there that’s one of the changes that were made there.

Danielle Waltz (06:12):
And as you can see on this slide, I believe you all are going to be provided it. Uh, some other significant changes made there as well. Um, Texas house bill 2237, uh, which is actually not yet effective, uh, will be effective one, one, 2022. Um, some important things to, to note there. Uh, it adds architects, engineers in surveyors, uh, th that do not have a privy of contract with the owner that they may be able to file a mechanic’s lien. Uh, but sort of along the lines of what we talked about at the outset is that, uh, the deadline to file a lawsuit to pre-close and commercial construction has been shortened to a year, uh, in the statute. So that was one of the major things that happened in, in a Texas bill, um, in Tennessee. And this went into effect last year, uh, Senate bill, a 2 6 8 1 and house bill 26, 27 0 6.

Danielle Waltz (07:17):
Uh, it calls into question as to whether or not, uh, lien subordination agreements are enforceable, turning our attention, uh, to, uh, changes in design defect law. Uh, we’re going to generally cover some changes that have been made both in Texas and in, in Tennessee, uh, in both are really, uh, I would describe as favorable for contractors. Uh, and we tried to identify as we’ve gone through, uh, these various legislation, legislative changes to say, well, who are the parties that this may benefit? Um, and one of the things I failed to do at the outset of the presentation, I want to make sure that I do right now. Um, I’ve been assisted in this presentation, uh, by Harrison and Wright, who is a first-year law student at West Virginia university. And he’s also a summer associate in our office. So when I give him credit for a lot of the great research and information, he was able to provide, um, in the presentation, uh, turning our attention to changes in Texas house bill 2019, um, before we discuss it, uh, important to note that Texas was one of the only two states that allow contractors to be held liable for design defects.

Danielle Waltz (08:41):
And when you look at this language, it basically says you can be liable, but it ha a contractor can be liable, but it has to result from design documents provided from that contractors, agents, fabricators suppliers, or consultants. And so, you know, it seems like that liability would not be as evidence, uh, perhaps if there was no previous contract with, if the individual was not the contractors, uh, employee, um, you know, moving more changes in house bill two 19, um, that architects and engineers are going to be held to the professional standard of care. And one thing, um, for those of you that are drafting contracts in Texas, um, that the professional standard of care must be a numerated in the contract. So there’s a particular standard, uh, that you want to be sure that the architects or engineers are following. Um, it’s short be sure to, to set that forth in the contract, or if you were an architecture engineer and there’s a particular standard that you want to be held to, uh, that might be something you want to negotiate.

Danielle Waltz (09:54):
Um, uh, as, as you’re taking a look at the contract also, um, Tennessee made some changes as well. Um, Senate bill 2 6, 8 1 house bill 27 0 6, this went into effect last year. Uh, and this deals with a notice of payment. And again, if you’re drafting contracts in Tennessee, uh, you know, it basically states that the contractual provisions are going to take any precedents over the rights or obligations of the statute. So I think, you know, if you don’t like what the statute says or what the obligations are, uh, I think it would be important to, to craft, uh, some contractual provisions that you may be comfortable with, um, legislative trends as it relates to contractor and subcontractor liability. Uh, we’re going to cover both New York and Virginia and New York. Uh, this is one thing this is not yet been signed, but the pending legislation, um, is, is really what we view as an unfavorable change for contractors as it relates to liability for unpaid wages. Um, and then we’re also gonna cover a change that’s happened in Virginia. Again, also viewed as, uh, unfavorable for a general contractor, is it relates to unpaid employee wages.

Danielle Waltz (11:31):
So looking at, um, New York, again, this is pending, um, it’s effective 120 days after the governor signs, the bill, uh, and why we view it as being a little bit unfavorable is that said, the contractor will assume liability general contractor for subcontractor, uh, and in this is not waivable, but there is at least, you know, a three-year limit, uh, of liability. Uh, there is a built in protection, uh, where the contractor, uh, made with hold payments, uh, for failure to provide payroll records. So, you know, there, there are certain circumstances where the contractor would not have to pay that amount. Uh, if the certain payroll, uh, records that it requested from its subcontractor, uh, were not provided.

Danielle Waltz (12:30):
Okay. Um, with respect to, uh, Virginia sort of along the same lines as the contractors are going to the Senate, bill 8 38 was effective, uh, last year contractors assume liability for the unpaid wages, but there’s a caveat. Uh, that’s a little bit different than what we just covered in New York where the contractor knew, uh, or should have known, um, that wages were not being paid in candidly with how that language is drafted. I don’t know that there’s going to be a lot of wiggle room, um, with it, particularly when it says, knew, or should have known, had the language been limited to just new. I think perhaps you might’ve had a little more wiggle room there. Um, some exceptions here, uh, it does not apply where the project is below $500,000. And, um, it does not apply when, uh, the project, uh, is a single family residence. So if you were looking at building a residential home, um, the contractors are not going to have to assume liability for the subcontractors wages in that particular circumstance.

Danielle Waltz (13:49):
Um, also in Virginia Senate bill 2 0 8, which was again effective last year. Um, it really talks about, um, the ability to withhold payments, uh, for failure to perform labor or furnish materials. And again, in the written materials that you’ll be provided, there’s a more specific context, uh, on that particular piece of legislation. Um, and another trend, uh, in a contractor subcontractor law, uh, was in Nevada. Uh, there was a bill that was passed. Um, we’ll get a little bit more down in the weeds here in a second, but it gives, uh, a contractor the ability to complete to have its employees complete work that requires a license, but the employees don’t necessarily have to be licensed. Uh, it also deals with, uh, if you, if the contractor will go to the statute here, it’s, uh, assembly bill 2027 or 2, 2 7, and this again is not yet effective, uh, will be effective, um, October 1, 21. Um, and so one provision is only licensed. Contractors are their employees may perform the work. And, uh, th it builds in a disciplinary action for contracting for work requiring a contractor’s license. If someone does not fall within that license, um, in an agreement such that we’ll do that would be void and unenforceable under the provisions of the legislation.

Danielle Waltz (15:37):
So if you changes, um, as it relates to, uh, retain inch, um, Florida, there’s a favorable change for contractors, um, and limits on retainage that may be withheld by public entities. Um, and again, along the way, the lines of what we talked about earlier, what you give, if you take it away, um, there’s going to be a small, uh, loss of rights as it relates to retain is withheld from subcontractors. And then, uh, Tennessee, there is a procedural change in its legislation, um, to ensure that retainage is properly escrowed. And I’ll give you copy of, uh, the bill numbers for this particular piece of like these particular pieces of legislation. So in Florida it’s house bill 1 0 1, it was effective in October of last year. Um, important things to know about that is the reduction, as I just mentioned, uh, the maximum retainage, uh, being withheld from, uh, 10% to 5%.

Danielle Waltz (16:45):
And, but it also eliminates the requirement that the government entity reduced retainage withheld wants 50% of the project was complete, and it eliminates the contractor authority to request release of up to half, once 50% of the contract is complete. And then the same is true as it relates to subcontractors, uh, turning our attention to, uh, Tennessee Senate bill 2 6 8 1 and house bill 27 0 6, which again was effective. Um, last year, uh, is it requires the retainers must be deposited into an escrow account, um, in the damages for failure to pay, uh, for the date, retainage was first withheld. Uh, so the legislation does provide for that, that particular set of information as well.

Danielle Waltz (17:40):
So this is, is a pretty interesting, uh, piece of legislation. Um, and it’s a trend, you know, looking at the trend, the contractor owner relationship, and, uh, we view it as a favorable change, uh, for a scenario for when contractors are in a scenario where they remain on paid by the owner and at a high level, it, contractors are given authority to stop work, uh, due to non-payments. Uh, there are some steps, uh, to, to proceed with injunctive relief. Uh, they’re given the authority, uh, to see that the owner can, you know, is able to pay. Um, and there are some procedural changes to the notice provisions and give you a little bit more information, uh, about this since the Senate bill 2 6 8 1 house bill 27 0 6. Um, this was effective, uh, last year. And with, we just kinda touched on this as a very big bill.

Danielle Waltz (18:43):
Um, so big, big changes. Contractors don’t have to provide written notice that work has begun. Um, it significantly alters the procedures to seek injunction relief or injunctive relief or stop work, uh, due to nonpayment. Uh, so one, um, after sending notice the, the unpaid contractor has to furnish a bond. It used to be double the claim to balance. Now it’s just the, the actual claim amount. Um, this is important. Um, I think something to note, if you do work in Tennessee, is that even if the construction contract with the owner contained an arbitration provision, that the arbitration provision does not prevent, uh, the contractor from seeking and, or the unpaid party from seeking an injunction in court, um, the unpaid party is permitted to stop work if there’s no adequate reason for nonpayment. And they also are, are entitled to schedule an extension under the contract.

Danielle Waltz (19:52):
And then there’s a default interest rate for any late payments. So this, this is really a bill that really protects contractors in, in an instance where they haven’t been paid, um, and gives them some, um, legal remedies of one, not to continue work without payment, uh, but to, uh, to be able to perhaps use the legal system, um, you know, to assure that it can adequately be paid and perhaps be compensated for any delay in the work being performed. Uh, the, the last piece of this is that it is interesting is that bankruptcy, uh, air insolvency is not an excuse for failing to release money that is due to the contractor.

Danielle Waltz (20:44):
So we’re going to talk a little bit, um, about, uh, public works contracting, and, and before we get into that, um, you know, there, there are, there’s a lot of money out there right now, um, in the, in the construction world, um, in particularly with respect to public works projects that we’re going to touch a little bit more on this later in the presentation, but, um, a lot of the rescue plans, the cares act money that became available, uh, from the federal government as a result of the pandemic has flagged down, um, to the state legislator legislatures, and as a result, um, you know, there, there was, there were a whole host of different changes in appropriations that have been made on a state level. A additionally, I think a lot of states, um, you know, I come from West Virginia, so I could come from the background of looking at what’s going on, um, have some significant infrastructure needs.

Danielle Waltz (21:58):
And I think that is, uh, true around the country. And so, you know, you’re seeing different states and in a lot of states are looking at using different methods. Um, and a lot of it has to do with, um, there’s a little bit of politics involved here, like who controls the state legislator legislature as to what type of methods or ways they’re looking at approaching state’s infrastructure problems, but also looking at ways to approach, uh, the utilization of this, these vast amounts of money that have become available, uh, for states to engage in construction projects. So I provide that overview because we’re, we are going to cover a little bit about what monies have become available in various states and what restrictions may be placed around those monies. Uh, just talking about some general trends, uh, in, in, uh, public works contracting, we’re going to talk a little bit about, uh, Georgia, uh, New Jersey in Virginia has made some pretty significant changes and at California as well.

Danielle Waltz (23:10):
So talking about, uh, Georgia house bill 5 77, which again is not yet affective, but it looks like it will be effective tomorrow, uh, deals with, um, various ways to bid on projects. But I think when you look at the overarching view, and I thought this was an interesting way of looking at public works contracting is, uh, the Georgia legislature said these changes that they made were really based on their, what is the public interest? How do we, uh, are we able to design in a way that avoids risk, how complex is the project? Um, how can we control the money that the state is spending and make sure it’s used in the best way possible. And then of course, trying to keep projects on, on schedule. So, uh, that, that was how Georgia looked at it. And if you go to, um, New Jersey assembly, bill 1285, which just became effective in April, uh, as it relates to public works contracts, um, it allows for, um, design build, um, in, in the public works contracts, as opposed to, uh, as opposed to design bid build.

Danielle Waltz (24:32):
Uh, so that was a change that they made, uh, in new, in New Jersey, uh, looking at Virginia. Um, and again, I’m talking about what I would describe as some, some public policy decisions, uh, house bill 2046, which again would be, uh, effective tomorrow, um, is, is that you can’t deny a building permits because of, uh, affordable housing component. And then there was also, um, a prevailing wage component. So house bill 8 33, this was, this was last year, uh, that allow for a prevailing wage to be paid, um, on public projects, but not applying to projects that are $250,000 or less, uh, in California, um, assembly bill 2231. And I think again, uh, effective tomorrow, California legislature is looking at a balance saying if it’s a private project that receives a public subsidy, that if that public subsidy is diminimous so $600,000 or less, or 2% of the cost of the project that prevailing wage would not a prevailing wage would not be required to be paid on the contract. And again, it may be an instance of balancing if there’s private money available for this project, then they’re not there isn’t an interest necessarily in the state requiring the prevailing wage.

Speaker 2 (26:12):
It

Danielle Waltz (26:12):
See that there may be some questions on them. I’ll nevermind that that question was related to accreditation. Um, there are also some trends, um, in public works funding, um, and there are, these are, we’re going to cover these, uh, relatively quickly, uh, looking at Washington, um, Maryland and New Jersey. So in Washington, um, Senate bill 50 24, um, which will be in effect, uh, at the end of July, it requires developers to use, uh, earnest money deposits held in escrow. Uh, if, if the purchase agreement provides that the deposit funds may be used and the developer obtains and maintains a surety bond, um, in Maryland. And again, this is, uh, sort of one of those something you’re seeing, I think, across the United States. Um, I know that I see this where I live, there are a number of historic buildings, um, where they have either gone in disrepair or they have been, you know, bandits in and there’s, you know, I think some desire that there be some commercial or residential use for those properties.

Danielle Waltz (27:47):
Uh, but unfortunately, you know, perhaps the amount of money to rehab or restore the property, uh, may be greater than what the property is worth. You’re seeing some states and we’ll get into depth about what bear Lynn did say, well, we’re going to provide some incentives to what Marilyn says. We’ll provide financial assistance to cover the appraisal gap. If the construction expenses exceed the sales price of the property. Um, I know in West Virginia and in a number of other states around the country, uh, there have been, um, historic tax credits provided, uh, for properties that are on the historic register. And, you know, those credits can provide, uh, incentive for a developer or contractor to come in and take on a project that may not be financially feasible, but with the credit or with the financial assistance offered by Maryland, uh, you know, make the project feasible in, in ends up being a win-win situation, because that allows that that financial payment may allow the developer, uh, to have a financially successful project, but it also allows the town or the state or the city to have a building that wasn’t in good use, uh, be able to, to be used.

Danielle Waltz (29:16):
It have been refurbished. And so you’re, you’re, you’re seeing a lot of incentive, uh, across the country, uh, to, to perhaps, you know, get developers and contractors, uh, rehabbing and revitalizing historic buildings. Um, New Jersey also passed a bill, uh, related to, uh, public works funding. And that is a Senate bill 7 67, and it exempts local government, um, from a 5% down payments, uh, finance, uh, for transportation projects financed by the New Jersey infrastructure bank.

Danielle Waltz (29:57):
So turning our attention to some trends in, um, statute of limitations, statute of repose, uh, Texas has passed a statute that relates primarily to the government’s ability to Sue over and improvements real property. Um, Tennessee also, uh, made some changes. And I think again, um, as, as I was preparing for this presentation, I think Tennessee, uh, in some of the recent, uh, construction related statutes that they’ve provided have had some innovative ways of addressing things. And then also a change in Virginia as well. So starting off in Texas, uh, give house bill 30, 69, uh, which just became effective in the middle of this month. And it reduces the statute of repose for the government entity suing over and improvement to real property from 10 years to eight, uh, eight reduces the extension of the statute reposed, uh, for a damages or contribution or an indemnification claim from two years to one.

Danielle Waltz (31:14):
Uh, but notably does not apply to, uh, contracts entered into, by the department of transportation for projects receiving highway funding, money or other civil works projects. So, you know, the little bit of a narrowing there, uh, but a reduction, you know, maybe perhaps protection of the states and the amount of time for which parties, for which you could bring claim, um, Tennessee, uh, which I thought this was very interesting. Um, they have already have a four year statute of repose, but with, uh, Senate bill, uh, 26 81 house bill 27 0 6, uh, these were both effective last year, uh, extending that four year statute of repose to, uh, arbitrations and other binding dispute resolution proceedings to recover damages. So, you know, I think making a formal recognition that, uh, you know, by having an arbitration clause in your contract, uh, you’re not able to, you know, get around the statute of repose that, that four year limitation on bringing suits is going to apply to, to arbitrations and other, uh, binding dispute proceedings, um, in Virginia, um, house bill 1300, that was effective last year.

Danielle Waltz (32:54):
Um, it basically states that an action against a surety on performance of a bond must be brought within five years of completion of the contract, uh, that statute, uh, on construction architectural engineering, uh, is 15 years after completion of the contract. And what constitutes completion of the contract is final payment, uh, to the contractor. And that the statute of limitations could commence no later than 12 months following the issue of the final certificate of occupancy and the final acceptance of the project is issued. So, uh, again, some important clarification as to how the statute of limitations you’ve proposed, uh, operate in Virginia.

Danielle Waltz (33:42):
So as much as I, you know, had hoped not to focus, uh, you know, my presentation on, on, uh, trends in related to COVID-19, I think it’s impossible when you look at, um, items that were recently passed by a state legislature legislatures and the federal government and not have that discussion. And, you know, I think at the outset, um, something that I think everyone on this webinar knows is really across the country, um, where most people or a lot of people were working remotely or working from home, um, the construction industry by and large, either by executive order or statute was really deemed essential almost at the outset of the pandemic. And so you had construction companies and their employees, their subcontractors, uh, who were going into work really at the height of the spread of COVID-19. And so, you know, some of these things that some, all of them are very applicable in the construction industry.

Danielle Waltz (34:53):
So we’re not going to get, uh, extremely down into the weeds on these items, but I do think it’s important that we go through some of them, um, something to note is that, you know, every state, um, has really addressed some of these issues differently. Um, some states have passed, for example, West Virginia, did, you know, comprehensive, you know, COVID liability legislation where they dealt with any sort of liability related arising out of a pandemic, um, including, you know, addressing, uh, workers’ compensation coverage, some states limited to healthcare workers. So if you have a question voucher state, you read, they’re going to have to look too. Did your state pass a statute, uh, did, did, uh, the governor issued an executive order that’s still in place? Uh, is your state still considering some legislation, um, is a lot of the legislation as you’ll see, as we go through it, uh, this retroactive to the beginning of the pandemic, or even in advance of that, uh, normally retroactivity is frowned upon, but in this instance there was a recognition that, uh, because folks really, you know, weren’t aware of the pandemic, you know, right.

Danielle Waltz (36:12):
When it happens that the retroactivity may be something that’s important when you look at these, um, pieces of legislation. So we’re going to talk about, um, federal legislation, and then we’re going to talk a little bit about, we’re not covering every state, but we’re going to talk about, um, the state presumption of compensable injury under the workers’ compensation system. And talk a little bit about, uh, what New York is doing, which is a little bit different than what a lot of other states have done. But I think important to understand if you do work in that area. Yeah. Um, the federal side, you had the American rescue plan act of 2021. Um, and it basically states that certain federal employees who can track COVID-19 are deemed to have a compensable injury proximately caused by exposure. Uh, and it applies where federal employees carry, carry out duties that require contact with patients, uh, members of the public or coworkers, or a risk of exposure to the novel coronavirus. And it excludes, uh, remote workers. I’m looking at a few examples, uh, Senate bill 1159, and this was passed in September of 20 in California. And as we discussed earlier, has that retroactive component that we talked about, um, defines injury, um, to include illness or death from Kevin 19, a creates a disputable presumption that the injury arose in the course of employment. And, um, claim is presumptively compensable after 30 days, unless the employer rejects liability.

Danielle Waltz (38:07):
And in course the employer must have five or more employees, um, in New Jersey Senate bill 2 20, 3 80, and it was effective, um, in September of 20, again, has that retroactive component to it that we discussed and essential workers under under this bill, uh, contracting COVID-19, um, creates a rebuttable presumption that the contraction is work-related, unless it’s rebutting rebutted by a showing that contractions did not occur at the place of employment. Again, you’ll see that remote workers are excluded. Uh, and that essential worker here is identified in a way that delves public safety, transportation, financial services, et cetera, uh, Virginia, um, house bill 1985, and that is effective, um, was effective July 1 21. And, uh, so tomorrow it limits presumptions of occupational injury for COVID-19 to healthcare workers and it knits any reference to a central workers. Um, and in Texas, um, Senate bill 22 effective last month, uh, limits the presumption of COVID-19, uh, two contraction is during the course of, in the scope of employment and it limits it to detention officers, custodial officers, firefighters, peace officers in other emergency medical technicians. So a very limited view, and it emits any reference to, uh, essential workers.

Danielle Waltz (40:03):
So looking at New York, which is in some ways, um, what I would describe as maybe at the opposite end of the spectrum for what we were just discussing. Um, you look at Senate bill, uh, the 67 68, and it was effective, uh, in June of 21. And it requires, uh, the department of health to create an infectious, to seize exposure prevention standard, um, for industries representing a major portion of the workforce. And that is to include procedures for health screenings, mask, hygiene stations, disaffected stations, social distancing, and every employer that fits in this category has to establish an individual prevention plan. And I think, you know, if you were thinking about that through New York, if you’re doing business in New York, uh, you know, the prevention plan is probably going to create your own standard of care and a lot of circumstances. And so I think taking good care in and putting together a prevention plan, that number one complies, but to complies with the requirements of the department of health, but also is something that, you know, the employer itself is able to achieve because once those guidelines are, are, you know, on paper, they’re not being followed, you know, you’re really looking at violating what, you’re your own, your own standard of care and other important piece of this, uh, particular, uh, bill is that it, it says an employer can’t retaliate against an employee for exercising rights and reporting violations, expressing concerns or refusing to work where risk of exposure exists.

Danielle Waltz (41:54):
So again, I’m looking at, if somebody said, I don’t want to come to work, I feel unsafe, you know, evaluating whether that maybe in fact accurate or, you know, whether or not taking action as a result of that, or being sure to document a file in a way such that there may be another reason for denying their request, but you would never, uh, if you’re doing business in New York would not want to retaliate if a worker were to, to feel unsafe in their work environment.

Danielle Waltz (42:29):
So earlier I talked a little bit about trends in allocation of federal funding. So there is just a huge influx of money that is coming into the states, not just coming to the states, but a lot of it is going to counties and municipalities and cities, uh, you know, as a result of, of the pandemic and, and this money is being appropriated to things, uh, that are, you know, things like infrastructure improvements, repairs, and resilience. And so we’re talking about roads, bridges, ports, fairies, you know, anything that fits in that category. Uh, one thing that’s become, uh, you know, I think extremely popular, uh, easy to have discussions about our crew, the safety of public transit, especially during the pandemic and also efforts to, to perhaps, you know, get people to consider, you know, uh, being greener. Um, so there’s been a great deal of, uh, push for investment in public transit and other transportation.

Danielle Waltz (43:42):
Um, we talked a little bit about community revitalization earlier, uh, you know, get getting money into some communities, either into rural areas, urban areas, uh, where revitalization is necessary. That’s where some of the money is being used. Uh, it’s being used for silhouette facility improvement, maintenance, uh, a lot’s been used for affordable housing. And finally, um, kind of like I just touched on projects related to clean energy and environmental conservation. And in that has really been something that’s been a focus of the Biden administration. Um, and as you look at kind of the discussions on the infrastructure deal, uh, you know, that, that is one of the things that has been a focus of the Biden administration is to, to those components as, as part of a part of that, um, looking at some places, and we’ll go through this relatively quickly, uh, where there’s been a state allocation of federal funding, uh, toward construction, uh, Colorado stimuli had a stimulus bill, uh, that allocated, um, you know, money, uh, all around the states, um, and including highways, community revitalization, capital construction.

Danielle Waltz (45:01):
Again, you’re looking at, uh, clean energy projects, a lot of them for electric vehicle charging stations, um, for clean energy infrastructure and to the Colorado water conservation board to, uh, you know, invest in water infrastructure projects, uh, Florida, um, made some major investments. Um, these really just became effective in one tomorrow and the other last month, um, $9.2 billion for transportation, 2 billion for the state highways, uh, 350 million, uh, for deferred building maintenance and 65.9 million, um, to people transportation, the transportation disadvantage program, and then also, uh, 50 million, uh, that’s going to be used for the land acquisition fund, uh, Arkansas, uh, again just recently. And a lot of this is just happening as we speak West Virginia just had a special session appropriating about $250 million worth of federal money, uh, to various projects. And so I think you’re going to see, um, if you own a construction company, um, there’s going, there’s just a lot of work out there.

Danielle Waltz (46:22):
And I think it’s only going to increase, uh, with these investments. So I think it’s exciting time to be in the construction industry, but you see Arkansas again with the theme of transportation, 15 million to the department of transportation. And, uh, and then there’s also another, you know, 1.8, 5 billion, uh, for state roads and construction of in Arkansas as well. Um, Nevada housing is, uh, gonna be, uh, investments for nonprofit housing, uh, Utah, uh, housing and trans transit reinvestment zone act of, and again, is to, uh, help finance, you know, housing and transit projects, because there is a real hope or shift that people will start using alternative types of transportation, a lot of different areas, uh, in the country, uh, Delaware. Um, look, they has said it bill 30, which was effective in February, uh, made some changes, uh, for a number of its funds and allowing you to allocate, uh, monies as we talked about earlier to, uh, restoration and maintenance of projects, uh, on historic buildings and sites, and to, you know, allow the department of transportation, um, to address some items as well.

Danielle Waltz (47:53):
So I’m kind of following up on that. Uh, as I’ve discussed, there’s just billions of dollars going out there to the states to, to work on certain infrastructure projects. And the department of treasury has put out some, um, pretty, uh, what I would describe as, uh, descriptive rules, uh, but the rules allow for an expansive, uh, use of the funds as it relates to construction projects, which is certainly good for the industry industry. Um, as is you, I think a lot of you may be watching, uh, the infrastructure bill, uh, there has not been an agreement yet. Um, I think there’s a hope from, uh, you know, states and, you know, people across the United States that there will be, uh, in agreement on, on the infrastructure bill. And, and we’re going to go through a little bit more in depth of some of these items, uh, in what was included in them.

Danielle Waltz (48:56):
Um, the American rescue plan act of 2021, um, again, a hundred million to each state for, uh, critical construction projects, um, for the local fiscal recovery, um, 219 billion to states to use, to make investment water sewer. Broadband’s 130 billion to cities and local governments for water, sewer, and broad bands, um, allowing for permissible use, uh, 30.5 billion in grants from the federal transit administration. So lots of exciting stuff out there. Uh, and then this next statute relates to, uh, as you can see, there’s a house version of, of the, the infrastructure bill. And then there’s the Senate version of the bill and, uh, in an American jobs plan. And, you know, there’s been proposals by the Republicans and then counterproposals by, uh, uh, by the Democrats and also from the president. Uh, but it does look like they are getting closer on, on reaching a deal, um, which would, you know, result in a great deal of investment infrastructure and really where a lot of the disputes have been.

Danielle Waltz (50:13):
You’ve seen a lot of different means and things out here about this is what exactly is deemed infrastructure. And if you look at the differences of the plans, there are some expansive views of what infrastructure may or may not be. There also are different priorities for him on the Republican side, as opposed to the democratic side, but the sides are getting closer to making a deal. Um, in this, you know, is something that may, um, change, you know, with the change of administrations, uh, though that the border wall was a priority of a prior administration, um, but not necessarily, uh, as much of a priority right now. Uh, but you look at there then $2.2 billion, uh, from canceled border wall projects towards 66 military construction projects and, um, $299 million, uh, in the U S um, 608 million in Guam, Puerto Rico and the Virgin islands. And one to 1.2, five, 9 billion, um, over overseas.

Danielle Waltz (51:24):
So, you know, what, what is it that, you know, we’ve covered a lot of material and, you know, I want to think through, you know, what, what is it to, what do I want to leave you with? Um, what is the overarching trend? And in short, um, there’s, as it relates to like, um, actual construction procedure, uh, there, aren’t a lot of trends that are the same across the country. Um, we covered everything at a very high level, um, but one, um, there is substantive changes that are geared, uh, towards protection against nonpayment and an excessive liability at each level. So, you know, kind of trying to weigh and balance and our contractor subcontractor in the lower tier contractor, uh, there’s some procedural changes geared at simplifying processes, uh, while retaining nature provisions, protecting the party most at risk, so changes into deadlines and those requirements and scheduling.

Danielle Waltz (52:32):
Um, I think if there were an overarching theme, um, there’s been a lot of public works legislation. Um, and a lot of that’s been aimed at it either best utilizing the public money. How do you streamline, uh, product delivery? Um, how do you make housing more affordable? Uh, how do you make it more attractive for investment to go in, you know, historic areas or we’re building to have that following disrepair, uh, you know, how do you increase the viability of various transit options? And so that, those were, I think some trends that we covered, uh, I think are gonna continue to see, um, legislation, uh, that arises out of, of sort of the pandemic. Uh, it is very specific. Uh, I would encourage if you’re not familiar with it, uh, for your state or the states in which you do business to become familiar with, uh, what does your state require as it relates to workplace safety?

Danielle Waltz (53:41):
Uh, what are the rules as it relates to workers’ compensation? Do you, uh, are there immunities provided, um, for claims arising out of the pandemic and, you know, what are the thresholds to be able to, to meet those, uh, eight and again, uh, I think in the pandemic will continue to impact legislation, uh, that will impact both construction law. We’ll deal with workplace safety and we’ll deal with, uh, in some ways the financial, uh, viability, um, of various projects. And, and finally, um, you know, I think we are really at the front end of the state and federal money that’s been coming in, um, to, to deal with various construction projects. Uh, if, uh, in a federal level, they were able to reach a deal on infrastructure. I think that the construction industry is really, uh, if they aren’t already are really going to see a boom, a lot of my clients have said that, you know, a lot of their projects had been perhaps delayed.

Danielle Waltz (54:58):
Uh, and it seems like they’re feeling very crunched right now because they have the projects that were delayed. There’s a number of new projects. They want to make themselves available for, uh, like you have to weigh, you know, can you do that? And also the availability of workforce right now has been very tricky, as well as the availability and cost of various supplies. And so, you know, the construction boom will be a good thing. Um, but particularly with the amount of money that’s going to going out into the world to improve infrastructure. But the real question will be, you know, will the industry rise to the occasion, uh, with the cost of materials, with the ability of workers with backup of, of jobs during the pandemic, what will that look like? And so I think, um, those are all important things to pay attention to.

Danielle Waltz (55:56):
Um, with that, I am happy to take any questions I’m going to drop my email address in the chat box. If any of you would like to reach out, uh, to me directly, uh, please, please let me know anybody have any questions that is a quiet group here. Well, I want to thank you for the opportunity, uh, to present to all of you, uh, hope you learned something. Um, and like I said, uh, please, please let me know, uh, reach out to me directly. If you have any questions, I am happy to answer them any time, and I really appreciate thank you to Catherine and Tara, the Levelset team for inviting me to be here today.

Danielle Waltz (56:57):
Thank you so much, Danielle. That was a wonderful presentation. You’re a great speaker. And I know everyone got a lot out of this today. So I just put in the chat box for any attorneys watching. If you have any questions about how to get credits, um, just email me, I put my email address there and, um, you, everyone watching will be receiving recording by Friday at the latest, and there will also be instructions there for obtaining credits. So thank you again, Danielle, that was a wonderful presentation. So thank you for having me and I hope everybody has a wonderful day. You too take care. And that concludes our webinar.