Submitted by Craig Martin, Construction Attorney with Lamson Dugan and Murray
COVID-19 has clearly changed the way we all do business in the construction realm. And, while there are more articles than you can count about how to deal with the current crisis, what are you doing today to prepare for the next crisis? This article looks to the future, be it this fall or 2022, when we may again be impacted by another pandemic and what you can do today to prepare for an uncertain future of pandemics.
The Way We Work
COVID-19 has certainly forced us to consider the impact of working from home and social distancing on the worksite. You’ve probably learned a lot about this altered way of work. Now is the time to create policies and procedures for the next pandemic. If you found that you lacked the IT infrastructure to facilitate working from home, now is the time to consider implementing new measures that will shore up this shortfall. Now is also the time to create Toolbox Talks about social distancing at the worksite. Whatever the next pandemic may be, it will likely be transmitted by close contact and you need to be prepared to train employees. Why not prepare those training pieces now while it’s fresh in everyone’s mind?
The Way We Communicate
Given the lack of personal contact - we are experiencing, the way we communicate is changing. Now is a good time to review the policies requiring personal contact and assess whether there are more effective ways to accomplish the goal. For example, does your labor force check in with a supervisor each morning? Is there a way this can be done electronically via text or e-mail? Can assignments be provided electronically with some type of confirmation that the employee received it and understands the directions? Should your employees gather together for a Toolbox Talk on social distancing? Is there a way to provide this training virtually, like through a Zoom call? What infrastructure would you need in place to accomplish this type of communication? Obviously, this infrastructure assessment is at both ends of the spectrum, in that the employer may need to be able to provide this type of information, but the employee must also be able to receive it. And, the exchange of communication must be documented, both the sending and receiving, so that if OSHA stops by, you can show the work you have done to keep your employees safe.
The Way We Contract
Everyone in the construction industry is now familiar with the phrase Force Majeure. But, that phrase was intended to cover the unforeseen situation. Pandemics are now foreseeable, if not expected. Future construction contracts will need to be drafted with an eye toward pandemic impact and the remedies available during and after a pandemic. Should you include a cooperation clause to allow the parties to work together to resolve disruptions caused by a pandemic? Of course, the lawyers will want clarity, such as whether the parties are required to work together or whether reasonable or best efforts to work together is enough. There should also be some consideration given delay and termination clauses. If a project is delayed due to a pandemic, how is the schedule impacted? Can additional costs be recovered or is recovery limited to more time? If a contract is terminated due to a pandemic, are lost profits recoverable? What about dispute resolution? With the real potential that court houses will be closed during the next pandemic, should the parties agree to arbitrate disputes through video conference?
This pandemic has changed the way we do business. Now is the time to adopt policies and procedures that will put you in a better position to deal with the next pandemic. Review the way you work, the way you communicate, and the way you contract to make sure you are ready to deal with the next worldwide crisis.
Craig Martin is a construction attorney with Lamson Dugan & Murray, LLP law firm and is a member of the collaborative Johnson Team. The Johnson Team consists of a collaborating group of specialists serving LICA members on matters of significance – planning, protection, and preservation of their businesses and families. If you have any questions, Craig’s e-mail is cmartin@ldmlaw.com.
The Way We Work
COVID-19 has certainly forced us to consider the impact of working from home and social distancing on the worksite. You’ve probably learned a lot about this altered way of work. Now is the time to create policies and procedures for the next pandemic. If you found that you lacked the IT infrastructure to facilitate working from home, now is the time to consider implementing new measures that will shore up this shortfall. Now is also the time to create Toolbox Talks about social distancing at the worksite. Whatever the next pandemic may be, it will likely be transmitted by close contact and you need to be prepared to train employees. Why not prepare those training pieces now while it’s fresh in everyone’s mind?
The Way We Communicate
Given the lack of personal contact - we are experiencing, the way we communicate is changing. Now is a good time to review the policies requiring personal contact and assess whether there are more effective ways to accomplish the goal. For example, does your labor force check in with a supervisor each morning? Is there a way this can be done electronically via text or e-mail? Can assignments be provided electronically with some type of confirmation that the employee received it and understands the directions? Should your employees gather together for a Toolbox Talk on social distancing? Is there a way to provide this training virtually, like through a Zoom call? What infrastructure would you need in place to accomplish this type of communication? Obviously, this infrastructure assessment is at both ends of the spectrum, in that the employer may need to be able to provide this type of information, but the employee must also be able to receive it. And, the exchange of communication must be documented, both the sending and receiving, so that if OSHA stops by, you can show the work you have done to keep your employees safe.
The Way We Contract
Everyone in the construction industry is now familiar with the phrase Force Majeure. But, that phrase was intended to cover the unforeseen situation. Pandemics are now foreseeable, if not expected. Future construction contracts will need to be drafted with an eye toward pandemic impact and the remedies available during and after a pandemic. Should you include a cooperation clause to allow the parties to work together to resolve disruptions caused by a pandemic? Of course, the lawyers will want clarity, such as whether the parties are required to work together or whether reasonable or best efforts to work together is enough. There should also be some consideration given delay and termination clauses. If a project is delayed due to a pandemic, how is the schedule impacted? Can additional costs be recovered or is recovery limited to more time? If a contract is terminated due to a pandemic, are lost profits recoverable? What about dispute resolution? With the real potential that court houses will be closed during the next pandemic, should the parties agree to arbitrate disputes through video conference?
This pandemic has changed the way we do business. Now is the time to adopt policies and procedures that will put you in a better position to deal with the next pandemic. Review the way you work, the way you communicate, and the way you contract to make sure you are ready to deal with the next worldwide crisis.
Craig Martin is a construction attorney with Lamson Dugan & Murray, LLP law firm and is a member of the collaborative Johnson Team. The Johnson Team consists of a collaborating group of specialists serving LICA members on matters of significance – planning, protection, and preservation of their businesses and families. If you have any questions, Craig’s e-mail is cmartin@ldmlaw.com.