Phone: 210-349-8888 | Fax: 210-349-8805

Our Response to COVID-19

The purpose of this correspondence is to address construction related issues that may be created by the COVID-19 Pandemic.

Almost every construction contract has a notice provision regarding labor availability, delivery, material availability, jobsite access and related issues. These notice requirements typically require notice be sent in order to preserve claims or defenses. The knowledge of the condition giving rise to the claim is the key.

On Friday March 13, 2020, the President declared that COVID-19 was a National Emergency and the CDC declared that COVID-19 was a Public Health Emergency. On Sunday March 15, 2020, the CDC issued guidance that stated that gatherings of greater than 50 people should be cancelled.

It is reasonable to think that we now have knowledge of the condition giving rise to claims related to COVID-19. You may wish to consider some sort of notice of potential impact to your customers on each project.

Construction contracts also contain force majeure clauses. The force majeure clause can create an excusable delay for events outside of the contract of an upstream or downstream party. The COVID-19 situation seems to fit within most force majeure clauses although the clause may be somewhat vague. You may wish to consider notice based on your force majeure clause.

Last, but certainly not least, safety concerns. To the extent project sites are still open and have not been closed (due to employee size, quarantine or upstream directive) we suggest that construction companies have a safety talk and immediately discuss what is currently known about COVID-19, and the recommendation from the CDC and other governmental agencies concerning preventing transmission of same. We also suggest discussions with employees regarding the symptoms of COVID-19. This safety talk must be a high priority to protect employees and those of other contractors/subcontractors on the project site.

In short, if someone is sick, they do not need to be at the job site. If they suspect they are sick or have been around someone who is sick, they do not need to be at the jobsite. Comply with the recommendations of the CDC and governmental authorities as to when and how to seek medical attention if someone feels they are ill.

You should also be prepared to address Personal Protective Equipment (“PPE”) issues regarding continued work on project sites. While we are aware of no specific OSHA guidance at this time, if employees request PPE to continue work on the project site, employers should be prepared to address those concerns. Many trades will already have access to respirators, face shields and other forms of PPE. However, it is unknown at this time the preventive ability of common construction industry PPE against the COVID-19 virus and no representations should be made to employees where the CDC has not provided supporting information. We caution that if employees request PPE, and you cannot provide same, that it could easily create a legal risk to your company if you force them to work in that situation.

We do not mean to be pessimistic; however, these times do require a degree of caution.

Thank you.

Lee Elms

elmslawadmin

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