Devine Millimet | NH Law Firm

My Construction Company Can Still Work on Projects, What Do I Do to Protect My Workers and Company?

Matthew R. Johnson, Esq.
Nicholas K. Holmes, Esq.

April 1, 2020

For your workers, first, continue to monitor the guidance coming from the Centers for Disease Control (“CDC”).  Make sure you are providing your workers with all the tools they need to protect themselves such as washing facilities and a confidential method for them to report concerns about others on the job site.  Check regularly as the CDC’s guidance is evolving over time.  Second, review carefully the construction guidelines issued by the Commonwealth of Massachusetts and the State of New Hampshire about workplace safety during the COVID-19 pandemic.  These guidelines do not answer every question, so regular communication with other members of the project team is key.  We are here to help as well.

For your company, it is critical that you review your existing construction contracts and any construction contracts that you are considering executing.  Carefully review the provisions governing how you can obtain an extension of time.  These provisions are often called “force majeure” provisions, but this term is not always used in the contract so not only look for this language but also any language discussing delays or extensions of time.  You need to know exactly what will entitle you to an extension and how you must request an extension of time.  You also need to review carefully how you must notify the other party.  Your contract will have a provision in it covering how notice must be given and to whom.  Strictly follow whatever process is called for in that section. 

Next, start documenting as fully and completely as you can the evidence to show how, why and for how long you will be delayed.  Also document any financial losses or costs associated with this delay.  This information is likely in a paper and digital format so make sure you retain all forms of documentation.  In particular, make sure you can document that the delay is on the critical path.  All of this information will be necessary to prove you are entitled to an extension of time and also, if permitted under your contract, a change order for your additional costs.

Finally, consider when to start providing notice to your contracting partners about delays.  You could begin to send anticipatory notices now, just to prepare them for the eventuality of needing an extension of time.  Regardless of whether you do this advanced notice, you must provide notice of actual delay as soon as you become aware of it, otherwise you may lose the contractual right to seek an extension of time. 

Remember, each contract may be different so review all of them.  If you have questions or concerns, please reach out to any member of Devine’s construction team.  We are all available digitally to answer your questions.

Contact info

Matthew R. Johnson
Nicholas K. Holmes
Richard C. Nelson
Christopher D. Hawkins
William F. Gramer


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