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Latest COVID-19 legislation: Implications for the construction sector


Tuesday, January 12, 2021

Introduction

Level 5 Lockdown – January 2021

On 31 December 2020 Ireland entered into another Level 5 lockdown provided for in the ‘Resilience and Recovery 2020-2021: Plan for Living with COVID-19’, which saw the closure of all non-essential businesses and the introduction of domestic travel restrictions. This provides that people are to remain within 5km of their homes with the exception of essential travel. Level 5 restrictions are currently to remain in place until midnight on 31 January 2021 (the “Current Lockdown Period”).

On Wednesday, 6 January 2021, the Government announced further lockdown measures in a bid to reduce the rising surge of Covid-19 cases. This note will focus in particular on the implications for the construction sector.

A full list of current Level 5 restrictions can be found here, and we have set out below some of the implications of these Level 5 restrictions: –

  • All schools are to close until 1 February with some specific exemptions for Youthreach services where onsite support is essential.
  • All childcare facilities will be closed, with the exception of care for vulnerable children and children of essential workers.
  • All non-essential retail outlets will remain closed and click and collect from non-essential retail outlets will no longer be permitted after existing orders are fulfilled, however, click and deliver will continue.
  • The travel ban on all flights arriving from Great Britain or South Africa was extended until midnight on Friday 8 January 2021. From 9 January 2021, all passengers arriving at Irish airports and ports whose journey originates in Great Britain or South Africa will now be required to have evidence of a negative result from a PCR COVID-19 test, taken up to 72 hours prior to arrival in Ireland. Failure to produce a negative COVID-19 test upon arrival into Ireland will be an offence and may be subject to prosecution, punishable by a fine not exceeding €2,500 or imprisonment for a term not exceeding 6 months or both.
  • Non-essential construction sites were ordered to close from 6pm on Friday 8 January 2021, with limited exceptions.

The regulations giving legal effect to the above-mentioned current Level 5 restrictions, the Health Act 1947 (Section 31A- Temporary Restrictions) (COVID-19) (No.10) Regulations 2020 (the “Principal Regulations”) and the Health Act 1947 (Section 31A- Temporary Restrictions) (COVID-19) (No.10) (Amendment) Regulations 2021 (the “Enhanced Regulations”) (together, the “Regulations”) came into operation on 31 December 2020 and remain in place until the end of the Current Lockdown Period.

For ease, see link to the Regulations here.

When must construction sites close and what projects are allowed to continue?

The last Level 5 lockdown, which began on 21 October 2020 for a period of six weeks, saw construction designated as an “essential service” and sites remained operational. In a departure from this, the Government announced on 6 January 2021 that all “non-essential” construction sites were to close from 6pm on Friday, 8 January until at least the end of the Current Lockdown Period.

In the Government guidance published on 6 January 2021, it was acknowledged that in exceptional circumstances extra time may be needed for a wind down of activity or may be necessary for a site to continue to operate at a reduced level of activity (examples provided were for complex manufacturing processes or very large construction projects). However, it appears that this guidance has since been withdrawn and is not included in the latest draft of the Government guidance.[1]

The Enhanced Regulations amended paragraph 5 of Part 2 of the Schedule to the Principal Regulations which sets out the following list of services relating to construction and development as being essential and can therefore remain operational during the Current Lockdown Period:

a) Essential health and related projects relevant to preventing, limiting, minimising or slowing the spread of COVID-19;

b) Essential educational facilities at primary and post-primary level, including school building projects, which will provide additional capacity for students or involve essential maintenance or refurbishment works in support of the continued provision of education;

c) Certain essential projects relating to the construction and development at Technological University Dublin Campus Grangegorman;

d) Social housing projects, whether contracted by, or on behalf of, a local authority or an approved housing body (“AHB”), (including those properties in a housing development that a local authority or AHB has agreed to lease, or where a developer has agreed to transfer ownership to a local authority or AHB or agreed the grant of a lease to a local authority) where:

i. the local authority, or the approved housing body concerned, confirms that the completion of the housing project is necessary to alleviate homelessness, overcrowding, the numbers in emergency or temporary accommodation and to facilitate transfers from emergency accommodation or other forms of social housing in order to prevent, limit, minimise or slow the spread of Covid-19,

ii. the project is funded, or has been approved for funding, in whole or in part, by the Department of Housing, Local Government and Heritage, and

iii. the project is scheduled to be completed by the 28th day of February 2021;

e) Essential works on vacant residential properties, owned or controlled by a local authority or an AHB, which are necessary to allow the property to be allocated to a household on the social housing waiting list, and which are scheduled to be completed by the 28th day of February 2021;

f) Adaptation grants where the homeowner is agreeable to adaptions being undertaken in their home;

g) Construction or development funded by the pyrite remediation scheme in accordance with the Pyrite Resolution Act 2013 (No. 51 of 2013) which are scheduled to be completed by the 31st day of January 2021 and where the completion of such construction or development is essential to prevent, limit, minimise or slow the spread of Covid-19;

h) Repair, maintenance and construction of critical transport and utility infrastructure;

i) Supply and delivery of essential or emergency maintenance and repair services to businesses and places of residence (including electrical, gas, oil, plumbing, glazing and roofing services) on an emergency call-out basis;

j) Housing construction and completion works ongoing on the 8th day of January 2021 where such works are scheduled to be completed by the 31st day of January 2021 and will render the home under construction capable of occupation by that date;

k) construction and development projects necessary for the maintenance of supply chains in respect of services specified in subparagraphs (h) to (p) of paragraph 2 (of Part 2 of the Principal Regulations) or information and communications specified in subparagraphs (c) and (d) of paragraph 9 (of Part 2 of the Principal Regulations) but shall exclude general purpose facilities such as office accommodation and car parks; and

l) Construction and development projects that relate to the direct supply of medical products for Covid-19.

What is an ‘essential worker’ in the context of construction/related professions?

Essential workers are those providing the services listed as ‘essential services’ in Part 2 of the Principal Regulations (as amended by the Enhanced Regulations) which can only be provided in person and cannot be delivered remotely.

It does not include administrative and other support for such businesses and services, unless specified under the ‘Administrative and Support Activities’ exception and where the physical presence of a worker is required. Physical attendance at workplaces is only permitted for such essential workers.

From a construction perspective, it is worth noting that the following services relating to professional, scientific and technical activities are deemed ‘essential services’ under Part 2 of the Principal Regulations, and thus those involved with providing such services are deemed ‘essential workers’:

  • the provision of engineering, technical testing activities and analysis (including the performance of physical, chemical and other analytical testing of materials and products);
  • the provision of scientific research and development services;
  • regulation, inspection and certification services, in accordance with law, of a particular sector by a body created by statute for that purpose.

It is recommended that ‘essential workers’ carry a letter from their employer confirming that they are an ‘essential worker’ and their physical attendance is required.

It is worth noting that separate guidance governs those travelling to Ireland during the Covid-19 pandemic with an essential function or need as set out in paragraph 19 of Council Recommendation (EU) 2020/1475 of 13 October 2020 on a coordinated approach to the restriction of free movement in response to the COVID-19 pandemic.[2]

 

For further information or advice on this topic, please contact Angelyn Rowan or Laura Mullen.

Article written with the assistance of Chloe Flynn and Sallie Shipsey.

 

[1] As of 12 January 2021 – https://www.gov.ie/en/publication/c9158-essential-services/?referrer=http://www.gov.ie/en/publication/dfeb8f-list-of-essential-service-providers-under-new-public-health-guidelin/

[2] As of 12 January 2021 – https://www.gov.ie/en/publication/b4020-travelling-to-ireland-during-the-covid-19-pandemic/


Author

Angelyn Rowan

PARTNER


Hugh Cummins

PARTNER

Laura Mullen

SENIOR ASSOCIATE

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