June 5, 2020
By Lee B. Brumitt, David M. Buffo and Benjamin J. Stringer
States across the nation are lifting stay-at-home orders and allowing businesses to reopen and employees to return to work. While for many this has brought a sense of relief, for businesses and employers it brings a new set of challenges as uncertainty about the virus remains high. The construction industry is no exception.
Return-to-Work Order / Guidelines
While businesses and employees return to work, it is important to understand the orders and guidelines issued by your state and local governments. Interpreting and navigating the web of sometimes conflicting orders and guidelines can be complicated. These orders and guidelines are generally more restrictive in the populated metropolitan areas than in rural communities, where state orders typically prevail. As your employees return to work, be sure to have a firm grasp of all the guidelines or orders in your area and design protocols around those guidelines. In developing protocols, be mindful that there are varying degrees of risk that may be encountered in the construction industry and even within one firm. Some employees work on construction sites, others within a fabrication plant and still others in an office setting. Different protocols may be necessary depending on the makeup of your workforce.
A business’s top priority is its employees and keeping them safe. While it may add complications, employers in the construction industry should find ways to both field sufficient workforces and adhere to recommended social distancing guidelines. Simple measures, such as removing community coolers and making all employees responsible for their own food and water, are necessary. Regardless of trade, requiring all workers to wear and utilize personal protection equipment such as face masks and gloves is a must. Some trades working around more dangerous conditions, such as workers coming in contact with wastewater, will require more stringent PPE, like bodysuits, rubber boots and/or face shields.
Importantly, all employees should be encouraged and required to stay home if they feel ill. Similarly, temperature checks at the beginning of shifts is a measure that should strongly be considered. For construction projects, it is important to review and obtain as much information as available from other trades, the general contractor, the owner and public authorities regarding the development of any health concerns on the job site. Once any such information is received, adequate safety measures must be taken to protect those working in and around these conditions.
Liability to Third Parties
Protecting your employees is not just important for their safety but also the safety of others. One of the greatest areas of uncertainty is an employer’s potential liability to third parties. An inevitable reality of returning to work is the possibility of your employees being exposed to the virus while at work or being an asymptomatic carrier of the virus. What happens if an employee goes home and passes the virus on to a family member or passes the virus to someone they come in contact with while on the job? There are steps you should be taking now to help reduce your potential exposure to liability.
First, if their work can be conducted off-site, provide employees the opportunity to remain home or, if available, provide flexible work hours. Some employees may be caring for elderly parents or children, for whom obtaining care or assistance from third parties is unavailable or unwise. Do your best to accommodate these employees, even if it means extending the ability for such employees to work from home.
Second, assess the potential risk of your employees being exposed to the virus for each of your project sites. Some project sites will inherently carry a higher risk of exposure. Hospitals, airports, sewers, wastewater facilities and other similar facilities potentially carry a higher risk of exposure than constructing a single-family residence in a rural community. Only after you understand the risk of exposure can you properly prepare to protect your employees and the third parties they may contact.
Finally, understand your contractual rights to temporarily suspend or delay work on the project. Some projects may remain too great a risk to return to work or you may be working on a project that unexpectedly becomes too risky for your employees. Whatever the scenario, your contract likely protects you, but it is important to understand what measures you are allowed to take and what procedures you must comply with in order to do so.
Force Majeure and Other Contract Clauses
Force majeure has become a trendy buzzword since the pandemic started. Force majeure clauses are contract provisions excusing a party from performance where unforeseen or uncontrollable circumstances occur, often called “Acts of God.” Another provision that is often utilized in a construction setting where novel and unexpected conditions are found on a job site is the “differing site condition” provision.
Differing site condition provisions are often used to address discovery of unknown underground conditions, utility conflicts or hazardous conditions such as asbestos. Discovery of the coronavirus on a job site may very well fall within either a force majeure clause or “constitute a physical condition of an unusual nature differing materially from those ordinarily found to exist” sufficient to trigger treatment under the typical differing site condition provision.
Disputes certainly arise as to what constitutes an unforeseen, uncontrollable or unusual circumstance and what rights a party has available when these clauses are triggered. Either clause in your contract may be beneficial to you if you need to keep your workers home to ensure their safety and/or need additional time to complete a project, but it may be crippling if the project owner is attempting to use it to cancel the project.
Other provisions that may considerably impact a contractor’s ability to suspend or decrease work on a project are contract provisions by which contractors are responsible and obligated to maintain safety on a job site and notice provisions. It is very important to know and understand the time within which a change proposal, a claim or some other notice must be given when force majeure, differing site conditions or material safety concerns are encountered.
As the repercussions of the pandemic continue to reverberate for the foreseeable future, businesses will continue to face new and unforeseen challenges. The challenges and recommendations above are just the beginning. To best protect yourself and your business, it is important that you consult experienced and skilled legal counsel who can help you fully explore and prepare for these and other challenges you will likely face in the coming months.
This article was originally published in Construction Best Practices.