Influence of coronavirus (COVID-19) on construction sector
Although construction sector is not among those areas which were hit by coronavirus (COVID-19) epidemic the most, its influence on the running of construction projects cannot be disregarded. Several construction companies have already experienced how hard or even impossible is to purchase certain construction materials in the current situation, while at the same time some construction companies are facing also labour shortages due to restrictive government measures related to coronavirus (COVID-19). Consequently, it may in certain cases come to delays in the execution of construction works and/or to significant increase of construction costs. Nevertheless, some contractors will be able to mitigate these adverse impacts with legal remedies incorporated in the construction agreement or prescribed by law applicable to it.
Construction agreements and force majeure
From the legal point of view, coronavirus (COVID-19) epidemic and restrictive measures related to it represent so-called force majeure. However, this does not mean that in the current circumstances each delay in the execution of construction works or every increase of construction costs can be automatically attributable to the force majeure. Contractors will for each specific construction project have to prove a causal link between the breach of construction agreement and the epidemic or restrictive measures related to it.
If the construction operator wishes to be relieved from his responsibility for a delay, unfulfillment of construction agreement etc., he will have to prove that coronavirus (COVID-19) epidemic represents a circumstance he could not foresee at the time of conclusion of construction agreement and that he took all necessary steps for the construction works to continue despite the epidemic. Similar applies in the case of construction costs increase, where the contractor will, in addition to the proving a causal link between the cost increase and the epidemic, have to demonstrate that he did everything in his power to avoid the cost increase or to minimize it as much as possible. It is also important that the contractor immediately notifies his client about the individual unexpected circumstances affecting the construction and the contractual deadline.
A range of claims that can be in the event of force majeure invoked by the contractor against the client (a claim for the change of construction price due to changed circumstances, a claim for prolongation of the contraction works deadline etc.) is not the same for all construction agreements. Namely, it depends whether goes for usual or FIDIC construction agreement, if also Special construction national rules (Posebne gradbene uzance) apply to such agreement and if already construction agreement itself contains any provisions on force majeure.
However, enforcement of above-mentioned claims in the event of force majeure is not automatic and the burden of proof with respect to the justification of such claims lies on the construction works contractor. Exception to these rule applies only to construction agreements that were concluded by private companies with state and other public authorities and for which newly adopted intervention law explicitly stipulates that for the duration of epidemic the provisions on contractual penalty shall not apply in case of delay as well as that contractually agreed deadlines are prolonged for the duration of coronavirus (COVID-19) epidemic.
Performance of construction works in times of epidemic
Although performance of construction works (with the exception of construction works by which the contacts with the consumers cannot be avoided) is in Slovenia not prohibited during coronavirus (COVID-19) epidemic, the Ministry of Economic Development and Technology and the Construction chamber by the Slovenian Chamber of Commerce already issued certain guidelines and instructions for a safe performance of construction works during this time.
Construction workers are allowed to continue with construction works only under the condition that besides them nobody else (e.g. the client) is present on the construction site. In addition, construction workers must use proper personal protection equipment (masks, gloves etc.). In the changing facilities/containers only one person can be present at one time. Therefore, the time for changing should be correspondingly prolonged or divided so that it is ensured there are not more people simultaneously present in the changing facilities. If possible, workers should already come to the construction site in working clothes.
Construction works must be performed in such a way that construction workers are at least 2 m away from one another. If necessary, time for performance of individual construction works shall be prolonged so that proper distance between workers can be ensured. Meetings on the construction site should take place only outside and by respecting proper safety distance.
Employers should provide construction workers with sufficient volume of drinking water and with hot water and soap for implementation of hygiene measures. If there is no running water on the construction site, sufficient quantities of disinfectants should be available to workers. In addition, working spaces, construction containers and working equipment must be regularly disinfected.
It is also advisable to keep a daily list of all workers present on the construction site so that in case of an infected worker all persons that were during the work in contact with him can be identified. If one or several workers are coughing or have other signs of disease, they should immediately leave the construction site and come back to work only after they are fully recovered.
