Subcontractors, including glazing contractors, have been impacted by suspended operations during the COVID-19 outbreak. The American Subcontractors Association (ASA) addressed how suspension impacts contract provisions, safety requirements and how to deal with supply chain issues in the webinar, “ASA COVID-19 Response: Reopening the Worksite Attorneys’ Council Panel.”
Bethany Beck, attorneys’ council chair-elect at Sanderford & Carroll, addressed which causes are acceptable to suspend work. The first is suspension by owner in compliance with orders in their geographic area. The second is by general contractor (GC) and the third is by subcontractor.
If a GC has suspended work, Beck said the first step is to look at the contract. However, if a company works for another subcontractor they may or may not have the right to claim costs associated with the shutdown. A subcontractor may suspend work due to nonpayment or unsafe work conditions. This could require notice on the subcontractor’s part and Beck recommended hiring a lawyer to make sure the situation is handled correctly and to make sure the company is complying with the correct applicable statute.
Beck addressed situations in which a project is suspended due to an economic situation. She said in one case, because gyms and spas were deemed nonessential and closed, an owner of a high-end spa/gym under construction suspended activity for economic reasons.
“How should you handle a situation in which a suspension notice is less than truthful or self-serving? Document your position and create a timeline of events. Another thing to do is secure your payment rights. Do what you need to do to get paid. Don’t forget to read the contract,” she said.
Finally, Beck addressed what the impact of suspension could be on contract provisions. She emphasized the importance of reading the entire contract first and looking for a notice of claim, including the time frame to submit, content that needs to be submitted and the correct manner to submit. She also said to look for allowable claims.
Dan McLennon, attorneys’ council chair with Smith, Currie & Hancock, addressed worker safety. One question he’s been asked is if companies should require a certification of a need to leave due to the Family and Medical Leave Act. He said it’s probably a good idea to do so across the board.
He also said that employers are required to pay for and provide personal protective equipment (PPE). They can’t require an employee to pay for it but if an employee chooses to use their own PPE it should be documented. An employer should also provide masks, gloves, hand washing stations and hand sanitizer.
McLennon has also been asked by employers what their obligations are regarding the safe return of workers to the jobsite. He recommended that companies start with the basics and that they don’t assume that all employees are aware of the risks and symptoms.
“Assume that your employees have been on a deserted island while all this has happened and that they’re clueless,” he said. “Start by educating all workers and management to ensure they are all aware of symptoms and what’s required of them. There should be education and a training process before they set foot on the site. Workers need to know that if they are sick or have been exposed that they should not be coming to work.”
McLennon recommended that if employers require temperature checks that they do so privately and find a discreet way for someone to leave the jobsite. He also said that instead of 14 days of isolation a company could require two negative tests in 48 hours.
Charles Keller with Snell & Wilmer proposed actions companies can take to defend themselves from Occupational Safety and Health Administration (OSHA) liability under COVID-19.
Those actions include:
- Improving a facility’s ventilation system by changing filters and increasing fresh air flow;
- Installing physical barriers in reception areas;
- Apply social distancing markers;
- Removing handles;
- Installing no-touch faucets and doors;
- Eliminating the use of personal fans/heaters;
- Implementing toolbox meetings to emphasize social distancing measures;
- Erecting safety signage; and
- Making sanitizing stations with sanitizer and disinfectant wipes available.
He also recommended minimizing the number of people at a delivery area at a time and setting up specific hours for deliveries. Limiting office equipment and vehicle use and preventing congregation are also important. Keller said to modify visitor, vendor and inspector access by prohibiting the entrance of people exhibiting symptoms. Establishing a workplace coordinator to ensure COVID-19 compliance can help to enforce new policies and confirm cleaning.
Courtney Little, ACE Glass president and member of the ASA executive committee, addressed how COVID-19 has impacted supply chains. He explained that the heavy-hit material chain includes PPE, technology, manufacturing equipment and supplies. There are imminent delays on imported materials due to supply chain interruptions in China and other countries as well as delays at ports due to workforce shortages. Some domestic materials also have been delayed.
Little recommended that as jobsites begin to reopen, glazing contractors review the schedule and request adjustments as needed. They also should give timely notice of delays in the supply chain and request price escalations where possible. Companies can seek alternate materials and stockpile common parts in some cases. He also recommended that glazing contractors review and revise outstanding bids to reflect the current environment and to review and revise new contracts.