Can construction companies currently work on a building site after the latest measures with respect to COVID19?

Contact

Lieven Peeters

Partner

Esther Soetens

Managing Associate

Updated on Monday 10 August 2020 - 10am

In order for the economy not to come to a complete standstill, a number of construction companies have decided or have been asked to restart all or part of their activities in the coming days or weeks. As a general rule construction companies are considered as “non-essential companies” in accordance with the annex to the Ministerial Decree of 3 April 2020 (which modifies the ministerial decree of 23 March 2020 containing urgent measures to limit the spreading of COVID-19; applicable as of the date of its publication in the Belgian State Gazette on 3 April 2020; hereinafter the “MD”), with the exception of (i) urgent work/repairs and interventions, (ii) companies for the management of polluted soil and (iii) cement companies. For public procurement contracts we refer to the other blogs on our Q&A.

Article 2 of the MD is clear as it makes teleworking compulsory as a rule for all non-essential companies (whatever the size) for all jobs apt to be performed via teleworking. However, for many jobs in a construction company teleworking is not an option. For the functions incompatible with teleworking, the company has to undertake the necessary measures to comply with the rules of social distancing (amongst others at least 1.5 meters distance) on the building site but also during the transport from and to or in between building sites.  Non-essential companies that cannot comply with such measures are to close down.

As a result, construction companies can thus in principle continue their activities, subject to compliance with social distancing, but as a result of the first measures taken in order to limit  the COVID-19 outbreak, many construction companies, have temporarily stopped all or most of the building sites, also due to the (risk of) lack of personnel or uncertainty over the availability of building materials.

If the building site was stopped, by the construction company or the principal, it is advisable to examine the applicable provisions in the construction contracts, as they often provide for a procedure to be followed in case of (i) a suspension of the work, (ii) measures to be taken during the suspension period and the consequences of the suspension and (iii) a restart of the work on the site.  It is essential that these rules are strictly complied with and that any deviations thereof are confirmed in writing between the parties (e.g. if certain materials for the site are not yet in possession of the contractor, it is advisable to provide for adequate wording between parties in relation thereto).

Before resuming the works effectively, sufficient clarity must be created between the principal and the construction company regarding the impact of the measures in relation to COVID-19. Amongst others parties should agree upon (i) the (adaptation of the) time schedule for completing the works, (ii) the impact on the penalty system for delays, (iii) the payment of issued and pending invoices of the construction company, (iv) the costs in relation to the suspension, the safeguarding and the restart of the site, (iv) the potential extension of the current guarantees, and/or (v) the non-availability of some subcontractors.

For construction companies that wish to ensure the continuity of their activities or to restart these activities, it is crucial, as stated above, to apply ‘social distancing’ in a workable and effective way and, in the event of an inspection, to be able to demonstrate that a policy has been developed around this and that the necessary prevention and safety measures have been taken.  The social inspectorate and the police closely monitor strict compliance with the social distancing and other safety and prevention measures and carry out inspections. If they establish that these measures are not being complied with, the construction company may incur a criminal fine (between EUR 800 and EUR 8,000), or an administrative fine (between EUR 400 and EUR 4,000). If an employee suffers health damage, the penalties are increased. In most cases, when an offence is detected, the social inspectorate will first issue a warning. In the event of a second violation, the social inspectorate will close the building site or the construction company.

An employee who is of the opinion that social distancing or other preventive measures are not complied with by his/her employer can report this to the social inspection services (Wellbeing at Work) or to the police services. Reports can also be made on the website of the Social Fraud Disclosure Office (Meldpunt sociale fraude / Point de contact fraude sociale).

How can a construction company, as an employer, prepare itself for an inspection on compliance with health & safety measures?

  • First of all, review your risk analysis and adapt it to the COVID-19 situation per workstation or activity in consultation with your internal and/or external prevention advisor. For each workstation or activity, indicate the risk, the evaluation of the risk and the specific measures (to be) taken.
    If it turns out that compliance with 'social distancing' measures is not possible for certain activities, suspend them temporarily in order to safeguard other more essential activities where social distancing is possible.
  • The Federal Public Service Employment has drawn up a 'prevention checklist COVID-19' based on WHO guidelines, the measures of the National Security Council and the Wellbeing legislation, which is a useful tool for self-monitoring by employers. In practice, this checklist is even used by the inspectorate as a tool to organise inspection rounds by telephone or by e-mail. Go through this checklist (Dutch version here and French version here) and check whether you are taking the necessary prevention measures.
  • Specific prevention measures that you as a construction company can take are the following :
  1. Provide information and training on the coronavirus COVID-19 and its implications to your employees;
  2. Create smaller groups;
  3. Spread breaks and do not have your personnel take breaks in the building site huts, but in the open air or in a building where social distancing between employees can be guaranteed;
  4. Organise site meetings digitally;
  5. Use markings to mark a distance of 1.5 metres;
  6. Make sure that employees work as much as possible with their own material. If material and tools have to be used by different employees, make sure that this material is regularly cleaned and disinfected.
  7. Provide your employees with a certificate to account for the transfer to and from work and between building sites. Although this is not compulsory in Belgium, it may be useful in the event of an inspection. However, for employees needing to cross the border to work, the Belgian government has drawn up a standard certificate for the employer to complete, which will then serve as proof of the need to cross the border for professional purposes. This standard form can be downloaded here. This is useful because article 7 of the MD stipulates as a general rule that all non-essential trips from and to Belgium are forbidden, so the link between travelling and work needs to be proven.
  • Probably the most problematic area in the construction sector is transport since the social distancing measure must also be observed during transport. Ideally, transport should be limited to 1 person per vehicle. If this is not practically feasible, the number of people in a compact van for a maximum of 4 or 5 people should in any case be limited to 2 people, with the passenger sitting diagonally behind the driver with a distance of 1.5 metres. In a large van of 8 to 10 people, a maximum of 4 people can be accommodated with, once again, a distance of minimum 1.5 metres between each person. We advise you to keep a record of who is driving which vehicle and the number of times this vehicle has been cleaned and disinfected (in principle with each switch) so that you can present it during a possible inspection.

If you have any queries concerning your construction site or construction contracts, please do not hesitate to contact your usual ALTIUS contact or Lieven Peeters, Real Estate Partner and Esther Soetens, Managing Associate Employment Law.

The above information is merely intended as comment on relevant issues of Belgian law and is not intended as legal advice. Before taking action or relying on the comments and the information given, please seek specific advice on the matters that are of concern to you.

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