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Construction sector – encouragement to gradually resume activity

Guide to health protection recommendations and interministerial circular of 4 April 2020

09/04/2020

Following announcement of the lockdown, most construction sites were closed. The profession and the government are now encouraging companies to resume activity.

Following the second address by the French President and the subsequent lockdown, the vast majority of construction companies were forced or decided to suspend their activity and particularly their construction sites. In this context, the French Minister of Labour “appeal[led] to the civic responsibility” of companies on 19 March and lamented the systematic shutdown of construction sites, after the call by the French Minister for the Economy the previous day for employees in “essential sectors” to go to work, while asking employers to ensure that “maximum health protection conditions” were met.

To end this situation of uncertainty and hesitation, and after lengthy discussions, representatives of construction companies and the government managed to find common ground. A press release, published on 21 March on the website of the French Ministry of Ecological Transition and Solidarity, began by reasserting that “the protection of employees is an absolute priority” and that the necessary measures must imperatively be taken, but also that the employer’s liability is only incurred “if it does not take appropriate preventive measures to protect employees" and that this is a “due care obligation”.

The press release then stated the objective: “Construction and public works companies are essential to the economic life of the country and its functioning, by contributing to the daily needs of the French population, including housing, water, energy, waste management, transport and telecommunications. It is therefore necessary to work towards the continuation of their activity and avoid a complete shutdown of construction sites, which would destabilise not only the companies concerned but also the entire economic chain.” Consequently, representatives from the construction and public works sector hoped “by the evening of 23 [March] to reach an agreement in which the government could reassure them on three points: eligibility for short-time working, no employer liability for contaminated employees and ‘clarification of contractual relationships’ with principals” (Contexte.com).

On 2 April, a press release from the construction and public works federations announced that an agreement, in the form of a “guide”, had been drawn up with the OPP-BTP (professional prevention body for the construction and public works sector) detailing the sanitary requirements and the procedures to be followed to protect employees’ health and safety on construction sites. Several professional federations were involved in drafting the document, validated by four ministries (Ecological Transition, Labour, Territorial Cohesion, Social Affairs and Health), according to the press release from the French Ministry of Ecological Transition and Solidarity.

On 3 April, the “Guide to health protection recommendations for continuation of construction activities during the Covid-19 coronavirus epidemic” was published. It is intended for all construction trades. It therefore covers public works sites as well as work in private homes. During all such work, employers must limit “coactivity”. On construction sites, the project owner is asked by the profession to appoint a “Covid-19 officer”, responsible for coordinating the measures to be implemented. In particular, employees must be able to wash their hands regularly, with access to a tap and soap (“essential condition for authorising the activity”) and must at all times maintain a minimum distance of one meter between themselves and other people, including during breaks, meals and other peripheral activities. In the event of practical impossibility, other safety measures are imposed, such as the obligation to wear a mask and goggles. Whenever available, hydroalcoholic gel must be provided in construction site premises and vehicles. If application of these measures appears unrealistic, the activity must remain suspended. The Guide also contains several practical prevention fact sheets to help companies communicate internally about the new measures to adopt.

Meanwhile, an  interministerial circular, dated 4 April, not published to date on the dedicated official website (www.circulaires.legifrance.gouv.fr), was sent to prefects to confirm that an agreement had been reached between the public authorities and representatives of the construction and public works sector with a view to “the forthcoming resumption of priority construction sites in such a way as to protect the health of employees” and to entrust them with implementation within their territorial jurisdiction. Prefects are also responsible for coordinating measures necessary for the continuation of activities essential to meeting the needs of the population and, “as far as possible, for the resumption of interrupted construction sites whatever the sector concerned, as well as […] the rapid resumption of all construction sites at the end of the health emergency period.”

The message would appear to be that it is essential for construction and public works to continue or resume without delay in respect of projects essential to the life of the nation and to resume on other construction sites as soon as the measures recommended by the Guide are practicable, and that only construction projects for which employee protection measures (particularly distancing and wearing a mask) are impossible need to be suspended until the end of the health emergency. The government therefore intends to encourage the resumption of economic activity in this key sector, with a certain firmness.

It is not yet clear what prefects will do to establish these priorities, but it is reasonable to assume that they could be reflected in the choices made to ensure gradual lifting of the lockdown. It is also worth noting the publication, in the Official Journal of 9 April 2020, of decree no. 2020-412 of 8 April 2020 relating to the derogation right granted to the prefects. This follows an experiment prior to the health crisis, but which could contribute to managing the exit, whereby regional and departmental prefects can now derogate from standards passed by government to take non-regulatory decisions in seven areas, including “subsidies, financial assistance and support mechanisms in favour of economic players, associations and regional authorities”, construction, housing and urban planning as well as "employment and economic activity.”

We also know that the production of hydroalcoholic gel has increased significantly and that the shortage of masks is about to be eliminated in an increasing number of departments. This should allow the measures recommended by the Guide to be rapidly implemented nationwide.

It goes without saying that – notwithstanding this encouragement from professional bodies and the government, and soon prefects – it is up to business leaders, as well as health and safety coordinators where applicable, to take the necessary measures to protect employees and to ensure that they are properly implemented on construction sites. Obviously none of the other risks should be overlooked.

Finally, these recommendations must be taken into consideration by companies to assess whether the conditions of force majeure are met (or are still met), in the framework of a factual and rolling assessment of their contractual obligations (on this point, see our article “Covid-19 and force majeure: Q&A”).

For any questions, our team is at your disposal:

Christophe Barthelemy

Christophe Barthélemy, Partner, Energy & Regulated Sectors law

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Raphaël Bordier, Partner, Employment law

Florence Cherel

Florence Chérel, Partner, Public Real Estate, Urban Planning and Development

Céline Cloché-Dubois

Céline Cloché-Dubois, Partner, Public Real Estate, Urban Planning and Development

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Aline Divo, Partner, Real Estate & Construction Law

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Philippe Riglet, Partner, Real Estate & Construction Law

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François Tenailleau, Partner, Public Law

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Jean-Luc Tixier, Partner, Real Estate & Construction Law


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