Covid-19 delays, compliance - contractors may not need to bear full cost

Michelle Kerr, consultant, MDA Attorneys

“Contractors have an obligation to implement various measures on site to minimise the risk of transmission of Covid-19 among workers. Not only do the measures carry a cost to execute, but they will also result in time losses which will need to be accounted for in the programme,” says Kerr.

Relief for contractors

The standard form contracts recommended by the Construction Industry Development Board (CIDB) for construction work in South Africa contain some form of relief for contractors.

“Contractors should be able to claim an extension of time for the lockdown period itself, including the time taken to secure the site for the lockdown period, and restore the site to the condition it was in once the lockdown ends. Depending on the contract form governing their project, contractors may also be able to claim site de-establishment and re-establishment costs, standing time costs and preliminary and general items under the clauses dealing with change in legislation, employer’s risk or force majeure,” says Kerr.

Delays in the execution of the works caused by the further measures taken to avoid the transmission of Covid-19 and the costs thereof can also potentially be claimed under most of the standard form contracts.

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Implementation of health, safety measures

“The additional health and safety requirements could result in further delays and substantial costs. Contractors must ensure that the appropriate hygiene and social distancing measures are followed by workers, that workers are re-inducted for Covid-19, that time is taken to educate these workers on and reinforce the need for the Covid-19 health and safety measures on site, that daily testing and screening is implemented and that additional supervision is available to monitor the implementation of these requirements. This is in addition to the procurement of masks, sanitisers, PPE, respirators, safety goggles, surgical gloves, non-contact thermometers and appropriate Covid-19 signage, and the provision of additional transport for workers to ensure that it complies with social distancing protocols. The regular disinfection of high traffic areas is also crucial,” says Kerr.

Actions that must be taken on each site include:

• Reviewing and updating health and safety risk assessments;
  
• Minimising the number of workers through rotation, staggered working hours, shift systems and remote working arrangements;
  
• Minimising contact between workers and between workers and members of the public, with a minimum of 1.5 meters between workers while working;
  
• If it is not possible to distance workstations, providing physical barriers or supplying the workers with appropriate personal protective equipment (PPE);
  
• Queuing systems for canteens and other shared areas, and staggered breaks to avoid a concentration of workers in common areas;
  
• Raising awareness among workers of personal hygiene, social distancing, use of masks, cough etiquette and where to go for screening and testing;
  
• Screening for symptoms;
  
• Supplying and ensuring that workers wear cloth masks, including laundering them;
  
• Supplying and ensuring that workers use hand sanitiser;
  
• Providing adequate hand washing facilities;
  
• Constantly disinfecting surfaces; and
  
• Disabling biometric systems or making them Covid-19 proof.

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Kerr says that several contractors have invested in additional technology such as misting booths and nano silver-based sanitising spray. “These initiatives go further than what is required for compliance, but of course such technology can be costly. As always, contractors should have a clear understanding of what their contracts provide for and what is solely for their account,” says Kerr.