The Irish Government's roadmap ("the Roadmap") for reopening business sets our five distinct phases for the lifting of the lockdown restrictions.
The indicative timeline for the phases is as follows:
Here, we touch on some of the areas of detail not prescribed in the Roadmap which businesses are considering, including some issues specifically relating to the construction industry, as one of the first sectors to get back in to gear. We welcome any questions you may have as a result of reading this – please do get in touch.
EASING OF RESTRICTIONS: WHAT DOES THAT MEAN FOR BUSINESSES?
Across all businesses, the social distancing considerations we have become so familiar with will continue to be required for the foreseeable future. This means in reality that you will have to consider what measures you will need to take, in light of public health advice, that are appropriate for your business, whilst protecting staff, clients and customers and managing the health and safety risks involved. All issues should be carefully considered and decisions recorded.
What measures should businesses take?
For businesses that are permitted to reopen, it is not so much a return to normal but a return to a new regime. The Government has also published a "Return to Work Safely" protocol to assist in this planning, but businesses will need to implement specific additional health and safety measures before allowing employees (or anyone else) into the workplace.
- Health and safety obligations of employers in the context of COVID-19: Employers should review health and safety policies and procedures including the safety statement and risk assessment and hazard identification procedures, with a specific COVID-19 focus. It may be necessary to prepare a comprehensive COVID-19 safety statement identifying risks in resuming business activity and the attached briefing note raises issues that businesses should be considering in preparing a safety statement.
- Consider the health and safety obligations of employees: In the context of COVID-19, this will likely place an obligation on employees to report to their employers if they are experiencing symptoms or have been in close contact with those who have been diagnosed.
What does this mean for the practical steps employers should take as restrictions are eased?
Employers should start work now on determining what steps are “reasonably practicable” for them to take to ensure a safe return to the workplace. For instance, the CIF SOPs require the appointment of a COVID-19 Compliance Officer to monitor day to day activities and to ensure social distancing and hygiene rules are being maintained.
At a minimum we suggest:
- Setting up a working group of appropriately skilled employees and managers
- Producing a draft amended health and safety policy and risk assessment
- Monitoring (and recording with dates) all official guidance to employers on health and safety measures
- Assessing the physical work environment to comply with physical distancing requirements
- Reviewing sick leave policy and protocols for suspected or confirmed COVID-19 cases in the workplace.
What about those continuing to work from home?
For employers whose employees will continue working from home, we have provided an indicative checklist of considerations here, as a guide.
Communicating with Employees
Maintaining social distance measures may require changes in shift patterns, earlier start times and later finish times, and potentially reduced working hours. The importance of open and frequent communication with employees, unions and employee representatives should not be underestimated.
Employers Liability Insurance
Employers should review their insurance cover for any potential liabilities to employees, clients and customers linked to COVID-19 and its consequences.
Exiting the Temporary COVID-19 Wage Subsidy Scheme
One of the key decisions that employers will need to take is what shape their workforce takes, compared to what it was before COVID-19.
Construction Industry - which building sites to reopen?
While it is yet to be determined with any degree of certainty which workers on particular sites will be categorised as "outdoor workers", many have already returned to site to make sites "COVID-ready" for the Phase 1 start date.
COVID-Safe Construction Practices
For those building sites that can reopen, the Safety, Health & Welfare at Work Act 2005 will continue to apply. This places a general duty on employers to ensure "so far as is reasonably practicable" that the safety, health and welfare at work of employees is protected.
The CIF has published "Construction Sector C-19 Pandemic Standard Operating Procedures" which can be downloaded from this link. The RIAI has done similarly with the publication (in April 2020) of "RIAI Proposals for reopening of construction sites to promote suitable protocols for working environments" which can be downloaded from this link.
Just how these procedures will affect the progress (and the cost) of works on each site will depend on specific site characteristics. We can help you determine precisely how safe work practices can be implemented on individual sites and what their impact on the programme and cost will be.
COVID Claims
Interim payment applications are now already filtering through on most building sites including claims for additional costs associated with COVID-19 related issues. Under most commonly used forms of contract there will be contractual issues for these claims (further advice available here), not to mention significant problems for the quantification of additional costs and delay durations. Most sites will be looking at some very challenging programming issues, particularly as regards the assessment of entitlements (if any) associated with the contemplated restrictive work practices. Clear and comprehensive records will be very important. In the absence of negotiated settlements on these claims, we anticipate that adjudication under the Construction Contract Act becomes a more popular option than it has been in the past.