President Trump recently referred to COVID-19 as the “invisible enemy.” While fighting an “invisible enemy” is daunting and should not be taken lightly, we want to make sure you are taking proactive steps to protect your people and to protect your interests on a project.
PROTECT YOUR PEOPLE
OSHA has set forth guidance and recommendations in dealing with COVID-19. You can access that document here. OSHA has divided job tasks into four risk exposure levels: very high, high, medium, and lower risk. OSHA believes most American workers will fall within the lower exposure risk and medium exposure risk levels; however, it is important for you to review OSHA’s criteria to better understand your exposure risk. Notwithstanding, for all exposure risk levels, OHSA recommends employers implement the following basic steps to reduce the risk of worker exposure in the workplace:
- Develop an Infectious Disease Preparedness Plan;
- Prepare to Implement Basic Infectious Prevention Measures;
- Develop Policies and Procedures for Prompt Identification and Isolation of Sick People, if Appropriate; and
- Develop, Implement, and Communicate about Workplace Flexibilities and Protections.
In developing and executing your workplace Preparedness Plans, remember that other laws and rules, such as the American with Disabilities Act (“ADA”) and Rehabilitation Act, continue to apply. However, they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19. Here are some practical and aggressive steps you can take to protect your workers:
Ask your employees if they are experiencing symptoms commonly associated with COVID-19.
During a pandemic, ADA-covered employers may ask employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
Take your employees’ temperature.
Generally, measuring an employee’s body temperature is a medical examination and not permissible. However, because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, be aware that some people with COVID-19 do not have a fever, so this may not be the most reliable means for determining whether an employee has been affected.
Require employees to stay home if they have symptoms of COVID-19.
The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.
When employees return to work, require doctors’ notes certifying their fitness for duty.
Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.
Other practical steps:
- Space workers out on the jobsite.
- Use staggered skeleton crews.
- Provide gloves and masks (if available and appropriate).
- Regularly clean and disinfect job trailers and rest facilities.
- Increase hand washing or hand sanitizing facilities.
- Conduct video or telephonic conferences in lieu of in-person meetings.
- Ask employees to help monitor their team members.
PROTECT YOUR INTERESTS
In addition to ensuring that your people are protected, make sure your interests in the project are protected.
Review executive orders issued by Governors of the States in which projects are located.
By reviewing those executive orders, you can determine whether construction is considered an essential service that may continue. Most likely, your projects will be allowed to continue as essential.
Review your contracts, subcontracts, and purchase agreements.
Review your contract’s safety provisions and know what is required of you. For example, Article 10 of the A201 assigns certain obligations to the Contractor to ensure the safety of personnel on the job site. Part of that responsibility requires compliance with all “applicable laws, statutes, ordinances, codes, rules and regulations of public authorities, bearing on the safety of persons . . . .” Be abreast of what leaders are recommending or requiring of employers. Implement the Preparedness Plan you developed and inform others for whom you are responsible what will be required of them on the jobsite. Communicate safety precautions early and often.
Locate your contract’s “force majeure” clause. A force majeure clause generally relieves parties from performing contractual obligations when an extraordinary event or circumstance beyond the parties’ control occurs. In the A201, this provision is located in § 8.3.1. In the Consensus 200, the force majeure clause is located in § 6.3.1. Nevertheless, it is important to locate the force majeure clause in your agreement because it will be the basis for any potential delay or impact cost claim you may have.
Analyze your contract’s claims provision. A contract’s claims provision outlines the steps you must take in order to put the other party on notice of an adjustment to the contract time or price you may require as a result of an unanticipated occurrence. In the A201, this provision is located in § 15.1. In the Consensus 200, it is located in § 8.4. Please note, it is not uncommon for a claims provision to require claims to be asserted within a specific period of time from the act giving rise to the claim, or the claim is waived.
Review your contract’s differing site conditions provision and change order and change directive provisions. In the A201, differing site conditions is discussed in § 3.7.4. Change orders and change directives are discussed in §§ 7.2 and 7.3. Familiarize yourself those provisions’ requirements.
As a practical matter, be proactive. Contact your clients on each of your projects and discuss with them whether they would like to suspend the Project or push forward. If the directive is to push forward with construction, notify your clients by letter of potential claims for additional time and additional costs that may arise from the difficulties and challenges presented by COVID-19. Document vigorously any basis for increased time or increased costs. Send letters to any subcontractors (or downstream personnel) advising them of the status of the Project, whether operations will continue, what will be required of them, and the need to document any claims for increased time or costs. Update your claims on a weekly—or even a daily—basis as you gain a better appreciation for the circumstances. Now is the time to put others on notice of any possible delay or impact cost that you anticipate may occur as a result of labor shortages and supply disruptions. Do not wait.
Contractors on federal projects, review FAR provision incorporated into your contract.
Construction contracts involving the federal government incorporate directly or by reference provisions of the Federal Acquisition Regulations (“FAR”). Review your contracts to determine what provisions have been included in your agreement that may offer some relief. For example, 48 CFR § 52.249-10 and 48 CFR § 52.249-14 discuss the occurrence of unforeseen events. 48 CFR § 52.242-15 discusses what happens if the federal government issues a stop-work order.
Study your insurance policies.
Review your insurance policies to determine whether you have business interruption coverage if the owner suspends or terminates the Project. If you do, decide whether it is appropriate to assert a claim. Generally, business interruption coverage covers loss of income that a business suffers as a result of a disaster. Whether “viruses” or other epidemiological events are covered losses will depend on the specific language of your policy. Make sure to pay attention to your policy’s exclusions and endorsements.