Create Files for Claims and Project Management
Before the project begins, make sure your record keeping practices are up to date and each record keeper knows what is expected. Prepare and maintain the following materials in an organized manner in the normal course of business, preferably using separate electronic data files or binders: (1) Daily reports, (2) Meeting minutes and internal memoranda concerning the project and claim, (3) All plans and specifications, and any changes, amendments, details, and clarifications, (4) Correspondence, including all communications and outside memos relating to a specific claim, (5) Schedules – original as-planned and updated, (6) Visual evidence (photographs, videos, recordings) to establish work completed, site conditions, and conditions necessitating modifications, (7) Change orders, work orders requested and all extra work, (8) Records reflecting dealings with subcontractors and suppliers, (9) Key document binder for other records used to establish a claim, including inspection reports, completion schedules, projections, charts, work progress, and accident reports, and (10) Job cost records. Documenting and updating this information routinely keeps everyone on your team in the know and significantly increases efficiencies in pursuing claims.
For projects already secured, you know the scope, drawings, and completion deadlines. Take time to look at the “fine print.” Do you have the structure in place to meet your deadlines? When must claims or notices of a claim be submitted under the contract? Calendar triggering dates and set up automatic reminders of approaching deadlines so claims about the work, site conditions, Notices of Furnishing, and Affidavits of Lien are timely filed. Promptly file RFIs for ambiguous or conflicting drawings or specifications. Submitting for extensions due to other parties’ delays and coordinating the impact on the schedule should also be automated so the entire team and process keeps on track.
There is no substitution for safety. In 2016, 21.1% of fatalities in private industry were in construction. Three of the top 10 most frequently cited were in the construction section as well: Fall protection (29 CFR 1926.501); Scaffolding (29 CFR 1926.451); and Ladders (29 CFR 1926.1053). Accidents happen. Are you ready?
Make sure your OSHA 300 logs are up to date. Become fluent with on-line reporting as OSHA now requires it. More importantly, review your safety training, policies, and procedures. Develop a safety plan properly tailored to the current project. Include appropriate training in areas that might not have been covered on the last job (fall protection, lock out/tag out; hazardous materials). Make sure your safety policies and procedures are part of your company’s culture and not just a paper tiger. When your website boasts safety as a priority, but your track record suggests otherwise, revisit your practices and reinvigorate your training.
Be prepared for an OSHA visit. Have a designated point of contact to interact with the OSHA inspector. Keep an “inspection toolbox” handy. When you anticipate compliance may be an issue on a particular job, apply for a variance before OSHA has a reason to pay a visit.
Train your employees to document incidents properly. Avoid opinion, guesswork and inappropriate statements and stick to the facts. Prevention is the best risk mitigator, but preparedness is equally essential since it is virtually impossible to avoid all accidents.
Is your coverage up to date and sufficient for the size of your projects? When another party is required to provide coverage, make sure that coverage is actually in place and is designated as the primary coverage. Get a copy of the policy. If the insurer will not give it to you, ask the original insured who is adding you to the policy to get you a copy. Do not just rely on a one page Certificate of Insurance. Also, keep in mind Ohio’s Anti-Indemnity Statute (ORC § 2305.31) generally prohibits a contractor from getting indemnity for its own negligence. That prohibition cannot be circumvented by having the subcontractor provide insurance (rather than indemnity) for the contractor’s negligence. Do not rely on that “coverage” for protection against your own negligence.
Review Your Drug-Free Workplace Policies
Ohio is in the process of implementing a medical marijuana program. There is no current requirement under Ohio law to permit employees to use medical marijuana, and Ohio’s medical marijuana law does not prohibit an employer from refusing to hire, suspend, discipline, or terminate an employee for using medical marijuana.
In addition, employers can continue to enforce any drug testing policy, drug-free workplace policy, and/or zero-tolerance drug policy. If you decide to prohibit employees from using medical marijuana, update your policies to specifically address its use. Ohio law precludes employees from obtaining unemployment compensation benefits if the employee’s use was “in violation of an employer's drug-free workplace policy, zero-tolerance policy, or other formal program or policy regulating the use of medical marijuana.”
Review new apps for personal devices that could be used in the field to increase the efficiency of collecting and transmitting information. If using any new technology on a project (using a drone for aerial photography, for example), make sure you know the regulations governing their use and maintain compliance with them.
The busy season has arrived. By tuning up both your equipment and your practices, you will be well positioned to complete your projects on time and to protect your rights should a problem arise.