The Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020 – NEC Contract Considerations

8th April 2020

The Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020 (“Coronavirus Restrictions Regulations”) have been amended with effect from 7 April 2020 to introduce general restrictions on places of work, which were not previously covered.

The new Coronavirus Restrictions Regulation 6A states:

“6A. – (1) A person responsible for work being carried out at premises where a person is working must, when such work is being carried out during the emergency period, take all reasonable measures to ensure that a distance of 2 meters is maintained between any persons on the premises (except between two members of the same household, or a carer and the person assisted by the carer).”

A breach of the above regulation may result in a fine (the amount of which is unlimited) or fixed penalty.

Coronavirus Restrictions Regulation compliance for active sites

In the context of active construction sites, the onus will be on the contractor to ensure compliance with the new regulation (unless the employer also has workers on site). However, such compliance may trigger contractual provisions which allow the contractor to claim additional monies and/or adjustment to the completion date under their construction contracts.

Secondary Option Clause X2 of the NEC suite of contracts provides that (where it is stated to apply) a change in the law is a compensation event. For contracts entered into before 7 April 2020, it would be difficult to argue that the new Coronavirus Restrictions Regulations are not a change in the law and it is likely that many contractors will now begin notifying their project managers of compensation events.

What does the contractor have to do?

However, there is a question as to whether the Coronavirus Restrictions Regulations require the contractor to do anything more than they were already obliged to do under existing health and safety regulations.

Under the Construction (Design and Management) Regulations 2015 (“CDM Regulations”) a contractor is required to ensure that “A construction site must be, so far as is reasonably practicable, made and kept safe for, and without risks to, the health of a person at work there”. Furthermore, the Principal Contractor is required to “plan, manage and monitor the construction phase and coordinate matters relating to health and safety during the construction phase to ensure that, so far as is reasonably practicable, construction work is carried out without risks to health or safety”.

The Construction Leadership Council (“CLC”) has issued (and kept under review) its Site Operating Procedures in the context of ensuring health and safety on construction sites during the Covid-19 pandemic.

This CLC guidance sets out the steps that are considered to be required in order to ensure that works can be carried out without risks to health or safety of those working on construction sites. Whilst version 2 of the Site Operating Procedures (which provided that workers must be two meters apart on site) has been temporarily withdrawn from the CLC website pending a review of industry feedback, version 1 continues to apply. The Site Operating Procedures are clear in the introduction that:

“These are exceptional circumstances and the industry must comply with the latest Government advice on Coronavirus at all times… If an activity cannot be undertaken safely due to a lack of suitably qualified personnel being available or social distancing being implemented, it should not take place”

The Site Operating Procedures then go on to provide more detailed guidance on avoiding close working.

Has the change in law caused delay?

Although the CDM Regulations do not explicitly say that workers on a construction site must be two meters apart at all times, when taken with government guidance on social distancing (and the CLC guidance), it is arguable that the obligation on contractors to maintain safe distances already existed.

If so, employers/project managers might claim that the change in law has not caused an increase to the cost, or a delay.  It is therefore unclear that a contractor would be entitled to additional time or money due to the introduction of the new Regulations.  What is likely to be of greater concern to contractors (at least in the short term) is the ongoing lack of clarity around the CLC’s position and whether sites can continue to remain open.

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