Questions & Answers
Q: Some cities prohibit construction at certain times/days. To accommodate distancing and small crews, could we see sites continue further into the evening? Will industry ask cities to ease prohibitions?
A: This is not something BC is considering at this time but we are aware of these scheduling protocols in other jurisdictions.
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
March 2021 Update on COVID-19 Testing in the Construction Industry
Q: Does BC Have an Adequate Supply of Accurate Rapid-Response Tests That Could be Used in Private Sector?
A: Yes. The testing kits for BC are currently in the strategic reserve and held under the province’s control, with no public access.
The Government of Canada bought about 40 million of (1) Abbott Panbio Antigen Tests, and (2) BD Veritor Antigen Tests. About half of these tests have been shipped, including BC’s share. The tests have been in BC for several months and have been used by the province sparingly in several pilot situations to determine their best use.
The accuracy of the current tests is + 94%, Federal Health officials.
Health officials in Ontario, Alberta, and Newfoundland believe in the value of testing asymptomatic people, as do the Business Council of Canada and many corporate leaders.
Q: How Can Employers In BC’s Essential Industries Access The Tests?
A: BC’s private companies cannot access the tests yet, regardless of industry.
Q: When Will The Rapid-Response Tests be Available?
A: We anticipate the tests will be made available in BC by the end of March or early April.
The BC Ministry of Health is developing Guidance on Industry-Initiated COVID 19 Rapid Testing documents and plans to release the tests when these operational guidelines are ready. This is necessary to ensure the administration and delivery of rapid testing is done properly.
The BC Guidance document will outline how the kits are to be administered, including health and safety, employment, and privacy requirements, acceptable locations and who can give the tests.
The College of BC Physicians and Surgeons is working to approve the two rapid testing technologies that have already been approved by Health Canada and provided in large quantities for the Provinces to distribute.
Q: How Do I Get my Company on the List With the Province to Receive a Supply of Tests as Soon as They are Available?
A: These details have not yet been provided by the Province.
BCCA and COCA are working with the provincial government to assist where we can in preparing a distribution plan for the construction industry. (See 7 below for more information on how you can get involved.)
Q: Is Asymptomatic COVID-19 Testing Important or Useful?
A: Testing can determine if you have COVID-19. This is an important step to help reduce the spread of the virus. When a person tests positive for COVID-19, they stay home or isolate.
Testing is used to determine if someone currently has COVID-19. COVID-19 testing is done by swishing and gargling salt water and spitting it into a tube or by using a swab to collect a sample from a person’s nose. Learn more:
- When and where to get a COVID-19 test
- How to get your test result
- What your test result means
- Prepare for a mouth rinse and gargle test
Antibody testing is a type of test that can be used to determine if someone had COVID-19 in the past. You can learn more about it here:
Find out more here at the BC CDC site.
Q: When Should I Proactively Test my Asymptomatic Construction Crew and Staff?
A: Federal Health Officials recommend that employees that regularly come into contact with one another should be tested once every two weeks. Both the Alberta and Ontario guidelines require that a person with positive rapid test result must leave the site and report to a Provincial facility for a PCR test. Only the PCR (the most accurate test) test result will count in official of positive tests reported by the province. Quarantine and contact tracing will follow from a positive test from a provincially approved lab.
Also, you need a COVID-19 test if:
- You are a close contact of someone who tested positive for COVID-19 AND:
- A close contact is generally someone who has been near a person with COVID-19 for at least 15 minutes when health and safety measures were not in place or were insufficient. This includes up to two days before someone develops symptoms.
For more information on close contacts go to the close contacts page of the BCCDC website.
- A close contact is generally someone who has been near a person with COVID-19 for at least 15 minutes when health and safety measures were not in place or were insufficient. This includes up to two days before someone develops symptoms.
- You have 1 or more of these symptoms:
- Key symptoms of COVID-19 include:
- Fever or chills
- Loss of sense of smell or taste
- Difficulty breathing
- Other symptoms may include:
- Sore throat
- Loss of appetite
- Extreme fatigue or tiredness
- Body aches
- Nausea or vomiting
- Key symptoms of COVID-19 include:
Q: What Will The Testing Cost/How Should I Budget?
A: The tests themselves will be distributed for free with some conditions (e.g., no resale, for use only in Canada, and to be used in compliance with Provincial Guidelines on testing and rapid screening).
The cost for administering and reporting on the testing will be borne by employers. Final costs are not yet available and will likely be impacted the requirements detailed in the final guideline documents that the Province is preparing.
The federal government is paying $6/unit price for a bulk buy. The retail price for the Panbio Nasal Test is from $19.99 -$17.49 /unit based on volume, and the BD Veritor retail price varies from $39.99-$37.50/unit.
There is an additional cost of an analyzer instrument at $500 each for the BC Veritor tests. The tool to analyze the Panbio tests is included in the kit.
Q: What Other Steps Can I Take As Construction Employer?
A: COCA and BCCA have two early-adopter opportunities for employers interested in COVID 19 rapid test screening for asymptomatic employees.
- If you would like to participate in our work developing a roll-out plan for the testing across BC’s construction industry, we welcome your input. Our intention is to bring forward to the BC Government a case for the BC construction industry to have initial access to testing as an essential industry.
- Large companies and project owners (500+ employees in BC) that wish to deploy testing at scale and have a high IT capacity can joing us in exploring forming a BC Construction Industry Cohort Group in the Pilot Project being administered by the Creative Destruction Lab (CDL) for larger Canadian companies.
If you’re interested in either of these opportunities, please provide your information by following this link.
Q: Are specific health and safety regulations being introduced related to COVID-19?
A: According to a recent interview in the NorthShore News with Tom Brocklehurst, Director of Regulatory Practices at WorkSafeBC, for now no changes to existing regulations are imminent but this may change going forward. The current regulations regulate exposure to biological agents, and there is an overarching obligation on employers to ensure the health safety of their workers. Brocklehurst said it’s too early to say if workplace testing for COVID-19 will be a common policy tool in the future. There are many hurdles, such as personal privacy, false positives, and potential for discrimination. Construction, he said, is among the most dangerous industries for workers.
For now, existing occupational health and safety policies are guiding and complementing public health orders and advisory notices.
Q: If two employees are found to be infected with coronavirus, will a site be shut down?
A: This situation would be handled by the jurisdictional health authority. They would assess and make the determination whether a closure was necessary using their representatives or possibly local by-law or police officers. It is possible that WorkSafeBC could get involved if other violations of the Act or Regulations were identified.
Q: If I want to wear a non-medical mask on site, what is the best kind?
A: Non-medical masks are primarily to keep you from unknowingly infecting others, and should be worn when social distancing isn’t possible. N95 and medical masks must be reserved for health care workers who are regularly exposed to infected patients. The good news is that even a simple mask can do a good job keeping droplets from your coughs and sneezes away from others. It’s still very important to be washing your hands and practicing social distancing. You can make your own non-medical mask quite easily and there are lots of guides online. The important thing is to use fabric with higher filtration potential — a good example is two layers of heavy cotton or flannel. This is a very comprehensive article on non-medical masks from the New York Times.
Here’s what the BC CDC has to say about masks.
And here’s what the Public Health Agency of Canada advises
- Wearing a non-medical mask when in public or other settings is not a replacement for following proven measures such as hand washing and physical distancing.
- If you choose to use a non-medical mask, it should be well-fitted (non-gaping). People should also be aware that masks can become contaminated on the outside or when touched by hands. Avoid moving the mask around or adjusting it often. Also, masks should not be shared with others.
Q: Has the government/Worksafe provided concrete worksite regulations for construction sites, such as in Germany? If so, what are they? If not, do you expect that or want that? In absence of regulations, how are sites going to have consistent standards? And what should some of those standards be (how to work at a distance, staggered shifts, cleaning codes, hot water, and soap on site, sanitizer, paid sick leave for 14-day isolation?)
A: Yes, there are regulations in place for construction sites and also specifically for industrial sites and camps. Further information and resources to assist employers in enforcing the guidelines and supporting employee safety can be found at WorkSafe BC, BCCSA, and the BCCA COVID-19 resource pages.
Q: I work for a small construction company and we are very busy and trying to comply with all the new COVID health and safety rules. My question is this - if I live with the same people who I work with do we still have to follow the same worksite social distancing rules? It’s no problem to stay 6 ft away from other co-workers but I am wondering about this detail if family or roommates are involved.
A: On the worksite, the policies and procedures implemented by the Owner or prime contractor must be followed. We assume that whoever is co-ordinating work activities on your worksite is doing everything to adhere to the recommendations of the provincial health officer: you must abide by those directives when on site.
Q: I’m having an issue with seasonal allergies that fall into the category of sneezing and sore throat, thus have to stay home for 10 days. Can there not be some leeway given in this situation?
Q: Are there any BC Guidelines for workers who need to access personal residences for construction?
A: We had a similar question earlier in the week from an inspector who needs to enter homes to do their work. WorkSafe BC offered this advice: make sure the homeowners know when you’re coming because social distancing is much easier if you are planning ahead. Physical distancing is the most important safety tactic and does not appear to be an issue with adequate notification and planning. To manage the risk of surface contact you should wear some form of hand protection (disposable gloves) and then should be washing with soap and warm water after the work is complete and gloves are removed. You can do this back at your vehicle if necessary by carrying a 4-litre container of water in the vehicle and using either liquid or bar soap. If PPE for hands becomes difficult to procure then hand washing is still the most effective way to remove any potential virus from the hands. Sanitizer is an acceptable back-up if it’s at least 60% alcohol. If you need to complete paperwork such as a checklist, do that after the work period is over and the hand washing is finished. Bring your own pen. We also recommend that you wear a non-surgical mask in the event that you are unknowingly carrying the coronavirus and are asymptomatic.
Q: Residential construction has always had some people moving into homes prior to Occupancy, especially Owner-Builders. This puts Building Officials at risk when we carry out Occupancy inspections inside the homes: we are touching many surfaces to open cabinets looking for shutoffs, turning on fans, switches, checking windows for egress, etc. How are Gov Inspectors being protected? How long do we have to wait if we ask people to leave their home for aerosols? Do we wear gloves for multiple homes? What happens when we run out of PPE?
A: From WorkSafeBC – Physical distancing does not appear to be an issue provided there has been adequate notification of inspections. COVID19 has not been identified as being a risk in aerosol form except in very specific circumstances (ie ventilators). As far as personal belongings are concerned, we recommend the occupants wait outside and ensure (post inspection) that nothing has been misappropriated. The bigger issue appears to be the surface contact: the inspector should wear some form of hand protection (disposable gloves) and then should be washing with soap and warm water after the inspection is complete (this is easily accomplished by filling a 4-liter container of hot water at the start of the day and using either liquid or bar soap). Even if PPE for hands becomes difficult to procure, hand washing is still the most effective way to remove any potential virus from the hands. If the inspector needs to complete a checklist, that could be done after the inspection is complete and the handwashing is finished.
Q: I am a roofer and my employer is not following social distancing. For example, he is going out with groups of friends for social activity. Not washing hands and not taking things seriously.
A: If you find that your coworkers and or leaders are not following Health official’s advice regarding physical distancing etc., we encourage you to lead by example. Speak to leadership with the intention of helping keep employees safe and the business viable. As with any unsafe practice, if something at your workplace/on the worksite is clearly unsafe, you have the right to refuse unsafe work. Under current circumstances, you also have the option to self-isolate and apply for the CERB benefit.
As is the case for any safety measure required by WorkSafe BC (e.g. fall prevention measures, wearing PPE), physical distancing isn’t a recommendation. It’s a requirement.
Q: Who is sanitizing stairwells railings etc. Almost every worker on-site goes up and down multiple times a day in most cases packing tools and supplies. This causes people to breathe heavy sweat even cough from time to time. I’m yet to hear of large sites cleaning and sanitizing hi tragic areas
A: The photo below from PML shows their solution: clearly designating which stairwells are “up” and which are “down” so that workers don’t have to pass each other. Whenever possible/safe, don’t use the handrails, and if you do, wear gloves. Clean your gloves often, and your hands when you take your gloves off.
Q: I am an employer. What is the specific process for COVID-19 claims with WorkSafeBC?Assuming that the regular claims adjudication process will apply to determination of whether COVID-19 occurs in the course of employment, what are “determination” and “adjudication” rules for COVID-19 cases?
A: from WorkSafeBC: The principles that apply to regular claims apply to COVID-19 cases as well – contracting COVID-19 must have arisen out of and in the course of the worker’s employment. To satisfy the “arising out of” requirement, the nature of the worker’s employment must have created for them a risk of contracting COVID-19 that was significantly greater than the ordinary risk of exposure for the public at large. In addition, compensation is not payable unless the worker actually contracts the COVID-19. A typical example where coverage will apply would be a health care worker that contracts COVID-19 from their contact with infected patients.
Q: Will a claim for COVID-19 attributed to the workplace affect an employer’s experience rating? We feel this should not be the case given this is a Pandemic and not easily/readily within the control of employers, notwithstanding their responsibility for “physical and social distancing” among other measures. Can you please clarify.
A: from WorkSafeBC: As a general rule, if a claim is allowed for COVID-19, the costs of that claim will be included in the employer’s experience rating. If a worker is already on a claim for a non-COVID-19 injury, disease or mental disorder, and subsequently contracts COVID-19, some costs may be excluded if COVID-19 delays recovery from the compensable disability.
Policy item #115.33, Claims Relating to Subsequent Non-Compensable Incidents, of the Rehabilitation Services and Claims Manual excludes the costs of compensation associated with the delay in recovery.
The Board has adopted the experience rating plan under section 42 of the Workers Compensation Act. Policy item #115.30, Experience Rating Cost Exclusions, provides a limited number of circumstances where exceptions to the general rule can be considered, and currently, the only occupational diseases listed are those which on average require exposure for, or involve latency period of, two or more years before manifesting into a disability (e.g., silicosis, asbestosis, pneumoconiosis).
You can review the details of policy item #115.30.
WorkSafeBC recognizes the extraordinary circumstances we find ourselves in and the tremendous efforts employers are undertaking to keep their workers safe. It is recognized that the impacts of COVID-19 are not wholly within the control of the employers of BC. While we currently have no basis in policy for considering cost relief for this reason, we will be working with our Policy, Regulation and Research Department to investigate whether a policy change is necessary to address the COVID-19 pandemic.
Q: Does the employer need to sterilize the confined space prior to another worker entering?
A: from WorkSafe BC: No, but the employer now needs to implement higher frequency hand washing protocols and physical distancing practices. Physical distancing will prevent droplets that are temporarily airborne from reaching others if in a small chance that an infected worker comes to work prior to displaying symptoms.
- One strategy might be to limit the number of workers entering a small confined space to abide by the physical distancing rule.
- Ensuring handwashing before and after conducting the work may be another strategy of adaptation of work procedures for a confined space.
If a worker washes/disinfects their hands prior to entering the confined space and they are healthy and all workers do the same, the space itself should be relatively clean.
These are measures that the employer needs to think about after reviewing their normal practices under these extraordinary times.
Another practice might be to avoid sharing tools whenever possible and washing/wiping down high contact surfaces at the end of the day.
Q: What guidelines can you provide about traveling in work vehicles and responsibilities for supervision?
A: from WorkSafeBC: Employers need to ensure they are following Public Health Officer (PHO) orders and meeting minimum standards, including physical distancing, hand washing, sanitization, etc.
With respect to work vehicles, individual employers will need to assess their own situation and determine how to best comply with those guidelines.
In some cases that might result in a company policy of only one worker per vehicle, although an employer may determine that larger vehicles such as crew vans/buses can accommodate more than one worker and still meet physical distancing guidelines.
Employers still need to ensure that workers are adequately supervised.
- For intermittent supervision of remote worksites, it is assumed that some aspects of that supervision could continue to be done remotely – such as check-ins with foremen/ crew leads to verify safety program and procedures are being followed. If the employer has already determined that a continuous level of supervision is necessary to ensure the health and safety of its workers, then they need to find a way to continue to do that under COVID-19. We recognize that COVID has made the logistics more complicated, but it doesn’t relieve the employer of the regulatory obligations to adequately supervise workers.
- Perhaps the employer can provide supervisor training to a larger number of employees so that less travel is required?
- If that isn’t possible, employers may need to consider rescheduling work activities (in particular high-risk activities that require direct constant supervision) to a time when the employer is better able to provide the necessary supervision.
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: Are emailed stat decs that have been properly notarized considered a legal document or are originals still required?
A: Emailed stat decs that have been properly notarized are likely considered a legal document. If there is an express requirement in a contract for the original of the properly notarized stat dec it is recommended that both parties agree to waive that requirement and confirm that an emailed stat dec that has been properly notarized is sufficient for the purposes of the contract.
Q: There are currently discussions going on about the Emergency Order being enacted and how it affects lien time frames. Essentially, it allows for an indefinite time period to file a lien which means owners will not pay holdback when due as they could be exposed to paying it twice. This will hurt cash flow on projects wrapping up badly. Is this issue on the radar of BCCA?
A: Yes, this issue is something we are hard at work on with our legal counsel and addressing with government. We expect a resolution soon.
Q: Where to post a certificate of completion when many people are working from home?
A: A notice of certification of completion still needs to be posted in a prominent place on the improvement as per section 7(4)(c) of the Builders Lien Act. For those working offsite and worried about not seeing a notice of certification of completion posted on the improvement, those parties should make a written request to the payment certifier for the improvement under section 7(2) of the Builders Lien Act for each project they have worked, requesting that the payment certifier for the improvement deliver to them:
- particulars of any certificate of completion before and after the request, or
- particulars of certificates of completion issued, before and after the request, with respect to stipulated contracts or subcontracts.
Pursuant to section 7(4)(b) of the Builders Lien Act, anyone who makes such a written request to the payment certifier is entitled to receive a copy of the notice of certification of completion.
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.
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,  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 184.108.40.206:
- “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
- the Contract Time shall be extended
- Time is of the essence:
- 6.5.4 -notify within 10 days of the delay, or lose the right of delay claim.
Q: Workers who are working on a shift rotation staying in hotels or camps have an extra challenge if they develop COVID symptoms. How do they ‘get to’ the clinic or hospital to be tested? Is the only option to call the ambulance? What about on industrial sites? Do the medical testing technicians come to the camp to do the COVID test?
A: Workers should self-assess online and if they are showing symptoms then they should be notifying their employers and self-isolating. The authorities advise that you should only seek medical attention if symptoms become unmanageable, ie. contact the ambulance for transport to the hospital. With regard to testing at camp locations please refer to the guidance document produced by the province on April 28th specific to work at large industrial camps.
Q: Are there legal consequences if a worker contracts COVID because a contractor wasn’t applying COVID safety properly? Is anything legally binding these guidelines? How is this to be applied at sites across the province?
A: An order from Attorney General David Eby will shield businesses deemed essential services from liability if people are exposed to COVID-19 on their sites, as long as the businesses are following orders from the Provincial Health Officer.
- Essential service providers who do not comply or who are grossly negligent will not be protected by the order, which only applies to situations related to COVID-19 and will remain in effect for as long as B.C. remains in a state of emergency.
- The provincial health officer (PHO) has issued guidelines for bylaw and compliance officers tasked with ensuring B.C. businesses and residents are complying with public health orders.
- Any enforcement action will be at the direction of the PHO or local medical health officer. Local governments are also strongly encouraged to focus their enforcement efforts on PHO’s orders relating to COVID-19, per the public safety ministry, in order to provide “a consistent approach throughout the province.”
Q: Wondering if there is a protocol for sites that have confirmed case of COVID-19?
A: Yes, the BCCSA has released a guideline on protocols for both presumed and confirmed cases.
Q: A worker of ours has had a stomach ailment the last few days, but seems to be pulling out of it now. I feel that the 14-day isolation would be well advised, but he insists he is fine. Is the isolation period enforceable in a case like this?
A: Unless tested they will not know for sure whether they have the virus and not know it. With so many unknowns relating to COVID-19 and the obligation of an employer to take measures to ensure safety of the work environment, enforcement of the self-isolation period for this employee is recommended, and something you yourself feel would be well advised.
If you as the employer enforce the self-isolation you will want to ensure the employee either receives sick benefits from you or applies for the Canada Emergency Response Benefit (CERB)
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
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This is information only and is not offered and should not be treated as legal advice.