Questions & Answers


Government

Q: I am fairly confused as to what we are supposed to do in the construction industry. I hear we are supposed to stay home. However, the BC Premier also says WorkSafeBC should visit construction sites to enforce Safety procedures. In my area, we have few Safety officers and a massive territory. I try my best to stay 2m away from other contractors. However, the confines on certain projects make it difficult to facilitate, especially when you are not aware of someone, say in a stairwell.  In the contracting world, we are bound by schedules and contracts. This makes it difficult for us to stay at home. I worry that if I stay home without a clear government statement that clients and contractors can come after me for delays. Not everyone is a caring rational person. I also worry that I will not qualify for financial assistance as I am self-employed. Again without a clear government statement, this is confusing. 

A: It can be confusing, and the situation and information is changing rapidly. However what we do know is that the construction industry is designated as an essential service, so we are not directed to close down the way nonessential services like bars and restaurants are. However, work sites should only be operating if they can achieve the safety standards directed by the Provincial Health Officer. Worker safety is the first priority. These standards can be extremely difficult to meet in our industry, as you point out. If a contractor or work site needs time to figure it out, they should pause work as needed to do what is necessary. Talk to your clients and try to negotiate an arrangement that can accommodate delays (see our Q&A from yesterday regarding Force Majeure). The government financial supports that were announced earlier this week  -- including $2000 per month for 4 months - are available to self-employed workers who cannot work due to COVID-19, so there are financial supports in place if you need them even though you are self-employed.

 

Q: If workers are laid off due to slow down / market, can the one week wait also be waived now?

A: The EI waiting period is waived for sickness benefits only.  (Jouta HR Group)

 
Q: I would like to know what government support can be made available in the event that payment of invoices slow. I would also like to know what support will be available in the event that construction sites are shut down. We have a staff of 35 who depend on us to pay rent and mortgages. These people have worked hard for this firm over the years and they depend on us to help see them through the economic impacts of this outbreak.

A:  At times like this we recommend you talk to your 35 employees, let them know your particular situation and seek input from them. Potential compensation for them could be temporary lay offs, workshare, sick leave (EI or STD), and you may also wish to consider applying for and implementing a supplemental unemployment benefit (SUB) plan where the employer pays a top up to EI benefits.  For more info see https://www.canada.ca/en/employment-social-development/programs/ei/ei-list/ei-employers-supplemental-unemployment-benefit.html. There are many other leaves available to you/them as well depending on the circumstances.  Please see our blog https://jouta.com/blog/ for the latest updates.   (Jouta HR Group)

To help with financial pressures, the Federal government has introduced an $82BN financial support package, of which $55BN will be mostly in the form of deferred taxes, and $27 billion on direct financial help to workers and businesses. Finance Minister Bill Morneau is also reporting that the big banks will defer mortgage payments, interest, and capital payments on loans.


Health & Safety

Q: I have a question regarding the distancing required for the employees. I own a concrete cutting company and the guys work in pairs. Currently, they travel to and from different job sites in company trucks. Is the distance between the driver's seat and passenger seat considered safe distancing? Or should they be taking separate vehicles (company truck and a personal vehicle) to the multiple sites they are on each day?  

A: The distance between car seats is not considered safe distancing. Employees should not be carpooling to work.  Talk with the crew to figure out solutions together.

 

Q: We operate a plumbing and heating business. Should everyone stay home or can we go to work, as long as we meet the criteria of social distancing?  What about emergency calls?  Should we consider emergency work an essential service?  There is no clear direction from government officials on this subject.


A: Dr. Bonnie Henry, Provincial Health Officer, has issued a directive that all health care providers should reduce their services to seeing only patients requiring emergency care.  The same direction has not been given to construction, but our industry does provide emergency services that are critical to keeping essential services like hospitals operating during this time. While it is the decision of the business owner, we would urge you to continue to provide emergency services as long as important health protocols can be followed ( 2 meters social distancing, regular hand washing, etc.).

 

Q: A foreman is COVID presumptive, should the entire crew be isolated?

A: If the crew has been practicing social distancing everyone going home may not be necessary. If social distancing has not been possible, then yes isolating the crew may be the right approach.  It will be important to talk to the crew in case they have at-risk family members at home that they may be concerned about.

 

Q: If workers distance on-site but aggregate on breaks off-site, should they be permitted re-entry?

A: Education and communication are critically important right now.  Set the expectations you have for the crew and then hold them accountable to that.  Social distancing is required at all times. If they don’t do it, they can be sent home. 

 

Q: Some of the crews that are sick carpool, how is that to be regulated?

A: No one should be coming to work sick.  This has been clearly communicated to all workers across Canada and construction is no exception. Employers must talk to the crews and talk collectively about how you can help one another get to work safely. What are the options and alternatives?

 

Q: What if workers cannot be physically distanced?

A: Dr. Henry has made it clear that social distancing is a requirement - not a nice to have.  Talk to your people…maybe they have ideas of how social distancing can occur, ways you may not have thought of yet.  Creativity and innovation at times like this are important, together anything is possible.  

 


Contracts & Force Majeure

Q: I am an OFA3 Gold Seal Construction Safety Coordinator.  How do I provide FA to someone while maintaining a 6' distance? How do I provide First Aid to my crews while maintaining a 6' distance. The province is possibly liable if I contract this.

A: The BCCSA Hygienist referred us to the BCCSA guidance document “Prevention Procedures: Working on a Construction Site” section on First Aid Treatment (see excerpt below).

  • First Aid Attendants to wear N95 mask or 1⁄2 mask respirator, face shield and medical gloves when treating workers. 
  • If conscious and capable of answering, ask the worker the BC COVID-19 Self Assessment Tool questions to verify current status of their health. 
  • The area should be cleaned and disinfected as soon as possible after treatment has completed. 

Of course, adequate supplies of PPE are essential. We're working to find out where Safety Officers who need supplies can access PPE and if they are considered health care providers.

Q: My company had an agreement with a home builder to provide work to do a residential home foundation, house framing and fascia,soffit and siding. I completed the foundation and was paid in full. I started the framing and within the first few days I myself had a picked up a small stomach bug from my daughter after she vomited during the weekend. I felt it was best to stay home as I would not get very much production while having to continually run to the outhouse. After the day I was back up and ready to go to work feeling completely better and hydrating and eating again. The builder decided to tell me I needed to quarantine and he was shutting the site down. A few days later he terminated the agreement and put his own employees on the jobsite to continue the work.Trying to at least receive money for work provided and consider legal action for loss of work. Should I be looking at the force majeure clauses in my contracts in order to get relief from pressures resulting in a shortage of materials and workers? What are my options?

A: You should seek professional legal advice to see whether you have a claim.

Q: We are having difficulty ensuring that deadlines are met because other trades are not showing up which delays production. We cant guarantee that we always have a full staff and we are still trying to meet the social distancing parameters. We are feeling pressure by general contractors to fulfill our contracts but aren't able to because we aren't fully staffed. How can we function efficiently like this? How do we advocate for our small business? We also have supervisors feeling like they need to show up to work even when they are sick because of the pressure to meet deadlines. We need to have instructions on how we can continue to work safely but also not put our business in the red!

A:  We strongly urge everyone in our industry to work to avoid invoking force majeure clauses: talk to your contractors and suppliers first.  Work things out if you can. Using common sense and mutual respect we can fight COVID-19, not each other. The vast majority of us will be tested in the same way, so we need to be able to negotiate reasonable solutions that will work for everyone. If everyone defaults to force majeure without making efforts to resolve stoppages and slowdowns in other ways, our industry will grind to a halt and it will take even longer to recover.   

That said, the applicable terms in a contract cannot change except by agreement of the parties, so that is where you need to focus. Come to a written agreement. The parties need to send out notices to alert the other side to the problems they are facing and otherwise protect their rights under the contract.  If, for example, a party misses a notice deadline it will lose a possibly legitimate extension claim and then be contractually liable for the impacts of the delay caused by COVID-19 (even though that is unfair), so to protect your interests you should give written notice. The focus should be on the purpose of notice (i.e. to let the other party know the issues being faced and give the other party a chance to mitigate the issues). The conversation should start before the notice is given but the notice can serve as a useful tool in finding solutions, rather than causing problems.

Be aware that most if not all construction activities are permitted to continue and this undermines a claim that a contractor can't perform its obligations.  Even if the work is delayed in order to comply with Provincial Health Officer safety protocols, there is no legal reason preventing a contractor from continuing to try and do the work.

Let's not make the lawyers richer unless we have to!

 

Q: How do we get statutory declarations if the lawyer's offices are closed? Can the necessity to be there be waived and done by video, or online, or another mechanism?

A: (Response as provided by Jenkins Marzban Logan LLP)

Executive Summary - 

The legal requirements regarding statutory declarations currently require that the commissioner for oaths be physically present with the declarant when the statutory declaration is executed.

The requirement to have statutory declarations sworn is a contractual requirement.  Any contractual requirement may be waived if the parties to the contract agree.  It is hoped that based on the current directions regarding COVID-19 and where there is no commissioner for oaths available, parties to contracts will work cooperatively together and agree to waive the contractual requirement that a statutory declaration be executed by and in front of a commissioner for oaths.

References -  

The BC Evidence Act provides:

69 A gold commissioner, mayor or commissioner authorized to take affidavits, or any other person authorized by law to administer an oath in any matter, may receive the solemn declaration of any person voluntarily making it before him or her in attestation of the execution of any writing, deed or instrument, or of the truth of any fact, or of any account rendered in writing, in the following words:

I, A.B., solemnly declare that [state the facts declared to], and I make this solemn declaration conscientiously believing it to be true and knowing that it is of the same legal force and effect as if made under oath.

The Professional Code of Conduct for Lawyers at Appendix A provides:

Affidavits and solemn declarations

1.  A lawyer must not swear an affidavit or take a solemn declaration unless the deponent:

            (a)  is physically present before the lawyer,

            (b)  acknowledges that he or she is the deponent,

(c)  understands or appears to understand the statement contained in the document,

(d)  in the case of an affidavit, swears, declares or affirms that the contents of the document are true,

(e)  in the case of a solemn declaration, orally states that the deponent makes the solemn declaration conscientiously believing it to be true and knowing that it is of the same legal force and effect as if made under oath, and

(f)   signs the document, or if permitted by statute, swears that the signature on the document is that of the deponent.

Applicable case law provides:

R. v. Schultz, [1922] 2 WWR 582 (Sask. CA) in which the accused filled in and signed a declaration and left it on the desk of a commissioner for taking oaths, later meeting the commissioner outside and asking him to complete it. The court held that it was not a solemn declaration within the meaning of the Canada Evidence Act, stating that: “The mere fact that it was signed by the accused does not make it a solemn declaration. The written statement by the commissioner that it was ‘declared before him’ is not true. The essential requirement of the Act is not the signature of the declarant but his solemn declaration made before the commissioner.” (p. 584)

 


Q: Public owner informed by GC that due to COVID, shipments for specified products for a project will be delayed. Owner considering assignment of penalties due to delay in product.  This appears to be a Force Majeure condition in the CCDC contract. 

A: Please refer to the Force Majeure information on our website and this document submitted by law firm Jenkins Marzban Logan :

  • The virus falls under the definition of force majeure in CCDC section 6.5.3.4:
    • "any cause beyond the Contractor's control other than one resulting from a default or breach of Contract by the Contractor"
  • This grants an extension of time only (not money):
    •  the Contract Time shall be extended
      for such reasonable time as the Consultant may recommend in consultation with the Contractor. The extension of time shall not be less than the time lost as the result of the event causing the delay, unless the Contractor agrees to a shorter extension.
    • The Contractor shall not be entitled to payment for costs incurred by such delays unless such delays result from actions by the Owner, Consultant or anyone employed or engaged by them directly or indirectly
  • Time is of the essence:
    • 6.5.4 -notify within 10 days of the delay, or lose the right of delay claim.

 


Your Workforce

Q: Workers are not disclosing illness in fear of losing jobs.  What can we do?

A: Fear of losing their jobs is an unfortunate reality in all industries at the moment. As an employer, consider how can you make it safe for them to be honest with you.  Now is the time to talk to your people, make sure the communication lines are open.  Let them know there are options out there, even if they are hourly workers. Can you help them through the self-isolation period? EI is an option? Can you top up their EI? Make sure they are aware of federal and provincial government financial supports.  Make sure they understand the seriousness of this pandemic and the greater repercussions if they are not honest and don't take the necessary precautions.

 

Q: Are workers required to disclose illness of family members?

A: Employees don’t have to disclose these details, but under these circumstances, open dialogue with health and safety in mind is paramount.  And, if family members they live with are sick with COVIC-19 or are presenting symptoms people should be self-isolating.  Employers should have a clear plan in place and communicate with employers regarding expectations and supports that will encourage honesty and safety.  The provincial government is providing some funding to ease the burden for those who must stay home with sick family members.

 


Calls for Site Shutdowns

No Questions to date


International Operations / Supply Chain

No Questions to date

 

This is information only and is not offered and should not be treated as legal advice.