Navigating Construction Issues During COVID-19

By David Matthews, Mediator & Arbitrator

Every facet of the construction industry has been impacted by COVID-19.  Commercial and residential contractors of all types and sizes have felt the pain which COVID-19 has caused to the construction industry.  The pressures brought on by this “new normal” may feel specific to you and your company, but it is shared throughout the industry. 


Most contractors have experienced a significant decrease in active jobs and it is not unusual for a contractor to have at least half of its jobs shut down because of COVID-19.  Many municipalities have delayed the permitting and inspection process which, in turn, results in less work for everyone within the construction chain.  Unfortunately, there are not a lot of good ways to expedite the permitting and inspection process.  In fact, the squeaky wheel looking for oil in this situation may actually make things worse as municipalities may resent outside pressure to expedite their work.   


Many contractors are now “working for free.”  In other words, they may take jobs for no profit in order to maintain their crews and supervisors.  This can be a risky practice as a job which loses money may cause long-term damage to the contractor.   


The jobsite now has perils which were not even considered six months ago.  For example, management now has to balance the risk of utilizing workers with underlying health problems on-site.  Contractors should confer with counsel in making decisions regarding the health and age of field workers before making the decision to send or restrict workers from participating on a particular job.  This is an issue which could result in significant litigation as the pandemic progresses. 


Once personnel decisions are made for a given project, contractors should focus on site-specific questions: Should masks be compulsory?  What is the protocol if a worker feels sick?  How will the site be disinfected if there is an outbreak?  What parties should be notified if a worker has a positive COVID-19 test?  Planning is essential.  The contractor should have a protocol for all likely issues before sending workers to the field.  Waiting until issues arise to establish protocols will almost certainly lead to significant problems down the road. 


All contractors are not created equally.  Indoor painters may have a different set of risks than brick masons.  Proximity with other contractors during construction must also be considered.  This requires a separate analysis on each job. 


The key is for construction related businesses to establish a well thought out office protocol.  What are the best strategies to maximize safety and productivity?  What reasonable precautions can be taken to make employees feel comfortable?  Of course, field and office protocols only work when they are properly followed and each individual must take responsibility for his or her conduct.   


The bottom line for contractors is to establish a safety protocol, effectively communicate the protocol with employees, accept feedback, and move forward.  The entire industry is facing unprecedented challenges and companies which are innovative and flexible in their response to this situation will prosper.  Do not be discouraged.  Remember, almost everyone in the industry has been or will be affected by COVID-19, and this too shall pass.  Take whatever steps are necessary to weather the storm and look forward to better days ahead.  




As a mediator and arbitrator at Miles, David Matthews handles disputes of all nature between businesses, contract disputes, fee/commission claims, trade, sales and property disputes as well as business divorce cases.