In certain jurisdictions, the number of people testing positive for COVID-19 is on the rise. As this occurs, there is the possibility that a construction project will have to deal with one or more workers testing positive. That is the current reality. If the dialogue has not occurred before, now is the time to discuss any enhanced measures—above OSHA guidelines—that could be implemented to address this reality and mitigate the risk. Part of the reality, though, is that regardless of the enhanced measures and mitigation, it is impossible to truly prevent this risk.
No one disputes COVID-19. There may be a dispute as to whether COVID-19 constitutes a force majeure event or some other event, however, before you start labeling it, you still NEED TO PROVE the impact caused by COVID-19. There needs to be a cause-and-effect relationship so you can address (i) how this impacted the critical path of your schedule and/or (ii) how this impacted labor productivity. In other words, you need to prove causation. Stating there was a delay or loss of productivity without establishing the cause-and-effect relationship (i.e, causation) provides no value because it does not support the production impact or time extension and, without either, there is no basis for additional compensation (even if you establish it should be deemed an excusable, compensable delay).
We have all read articles about how COVID-19 can impact a project. This does not mean that all or any of these issues impacted your project. If they did, and you are seeking a time extension and/or additional compensation, remember, it is your burden of proof to support the entitlement, both as to time and money. This is not an easy task and, in many situations, the impact may be very difficult to actually prove. But again, stating you have a COVID-19 impact without truly demonstrating causation will be, and should be, a claim that is denied. If you need assistance putting together or evaluating a COVID-19 claim, make sure you work with experienced counsel and consultants to best package and present the claim.
Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.