Across the country, construction projects are being impacted by the on-set of the COVID-19 pandemic. The situation is dynamic and will change quickly. We thought it important to prepare some guidelines that would help firms navigate the situation from a risk management perspective. A one-size-fits-all solution does not exist, and this global challenge continues to evolve. What works today may not address tomorrow’s needs. Appropriate measures for one location or project may not suit another. However, the following guidelines provide an organized and systematic approach to initiate a thoughtful and thorough review to better define the best course of action should your project be suspended.

Contractual and Legal Assessment

• Undertake a project by project assessment of contractual provisions of all parties, including termination and suspension rights, force majeure, notice requirements, time extensions and effect of refused extensions, exclusions or waiver of delay and consequential damages, escalation clauses, change in law clauses, flow down provisions, and powers available for emergency and safety.
• Pay attention to state and local orders impacting work. For example, in California, various State and local orders have been issued that prioritize certain kinds of projects (public works, housing).
• Review your professional obligations under your local jurisdiction as some of them may have germane provisions for you to think about. California Professional Engineers, for example, must adhere to the Code of Professional Conduct to, “protect and safeguard the health, safety, welfare, and property of the public.”¹
• Carefully assess your firm's rights and obligations in the event that the project proponent decides to shut-down or suspend the work, or otherwise limit access to the site.

Develop a Plan for Your People

• Assess whether your employees may continue to work based on project type and official orders in place.
  • California rules differ depending on whether there is a local shelter in place order and this is likely also true in other jurisdictions.
• Decide whether to require or allow employees to continue to work.
  • An employer’s responsibility to an employee who becomes ill after being directed to return to work is currently unclear; however, it is probably best to allow employees to work rather than direct them to continue.
• Direct employees to maintain social distancing, but develop a plan for scenarios where the work does not allow for it.
  • Can you suspend or resequence the task to occur later without schedule impact? Is there additional protective equipment that will reduce the risk; should the additional protective equipment be required at all times? Track and provide notice of activities where distancing is not possible and individuals involved.
  • Stagger lunches and breaks to limit group size if possible.
• Undertake additional sanitation measures for your employees.
  • Limit shared equipment including iPads, radios, phones, and vehicles. Provide gloves, hand sanitizer, no touch trash cans, boot wash stations, and individual water bottles.
• Shift meetings to phone or video conferences.
• Create a text and/or email group to provide simultaneous updates to all employees.

Steps to Take if an Exposure is Possible or Occurred

• Direct any employee or contractor for your company who is ill, or who has been in contact with someone who is ill, to stay home.
  • Send home any employee or contractor who becomes ill while onsite.
• Advise clients to implement directives to prevent people who are ill or who have been exposed to a person with COVID-19 to stay home.
• Interview the affected employee or contractor to identify who they worked with and where they worked.
• Prepare a notice, ensuring the individual is not identified, to communicate the details of the possible exposure event.
• Assess and request or perform needed sanitation activities.

In the Event of a Project Closure or Partial Closure

• Public safety is paramount. Evaluate the risks of your work in the current condition and advise as to shoring and bracing needs or work to be completed due to safety concerns.
• Advise clients and project partners to secure the entire project site against unauthorized access and provide appropriate warning signage.
• Understand your worksite’s specific risks and recommend measures to prevent damage from sources like wind, flooding, pollution, heat, erosion, and subsidence.
• Inform clients about work that can proceed remotely and/or offsite.
• Suggest areas that could benefit from additional site monitoring including added cameras, security personnel, and the use of drones.
• Inform of any inspection needs.
• Put documentation of the work in order:
  • Photograph or video and prepare as-builts of conditions at time of notice of suspension and after securing the site.
  • File, manage, back-up, and store all project records.
  • Maintain a copy of your February 2020 schedules including critical path and overall project progress and planning.
• Plan how your equipment might be quickly removed from the site and consider whether stored materials might be better protected on the site or elsewhere.
• Label, store, and log your materials with the understanding that the returning workforce may be different than that at suspension of activities.
• Document your client’s acknowledgement of the suspension including the scope and effect.
• Prepare a notice letter to your client reserving the right to seek additional time and compensation resulting from the closure.

 

¹ Code of Regulations Title 16, Division 5 § 475