Introduction
On Monday this week the Government announced that Ireland will enter into Level 5 of the framework of restrictions provided for in the 'Resilience and Recovery 2020-2021: Plan for Living with COVID-19'. The new restrictions took effect from midnight last night and will remain in place for the next six weeks until 1 December 2020.
The following are some of the implications of placing the country at Level 5 Restrictions:
- people are asked to stay at home. People should work from home unless providing an essential service for which their physical presence is required (discussed in further detail below);
- people will be permitted to exercise within a radius of 5 km of their home; and
- there will be a penalty for movement outside 5km of home, with exemptions to this for essential work and other essential purposes.
In making this announcement which coincidentally coincided with the launch of the Construction Industry Federation's (the "CIF") Construction Safety Week, it was confirmed that construction sites will remain operational. In this regard, construction has been designated as an "essential service".
Background to Emergency Legislation – the Public Health Measures
On 20 March 2020, the Government introduced the Health (Preservation and Protection and Other Emergency Measures in the Public Interest) Act 2020 (the "Act"). The Act gives the Minister for Health (the "Minister") the power to make regulations to introduce measures to slow down the spread of the virus (the "Regulations"). Since March, several Regulations have been introduced, many of which have applied for short periods of time.
Under the Act, the Minster can introduce Regulations which cover the following:
- Restrict travel to and from Ireland;
- Restrict travel within Ireland to stop people moving to and from 'affected areas';
- Permit the designation of specified classes of persons who can be exempted from the regulations including, but not limited to persons, who perform 'essential services';
- Stop gatherings of people from taking place, and to make organisers of these gatherings put safeguards in place to prevent the virus from spreading;
- Make businesses put safeguards in place to protect their staff and customers;
- Close certain premises, including pubs, restaurants and non-essential retail; and
- Any other measures that the Minister considers necessary in order to prevent, limit, minimise or slow the spread of COVID-19.
Previous measures brought about a 'lockdown' between 27 March 2020 to 18 May 2020 and resulted in the majority of on-going "non-essential" construction projects pausing works on site.
Previously implemented Regulations concerning the above have been overtaken by other Regulations that were subsequently introduced and the current restrictions (placing Ireland at Level 5) have now been implemented by way of the Health Act 1947 (Section 31A- Temporary Restrictions) (COVID-19) (No. 8) Regulations 2020 which came into operation today.
Current framework of restrictions
On 15 September 2020, the Government launched its new six to nine-month 'Resilience and Recovery 2020-2021: Plan for Living with COVID-19'. The Plan is a five level framework of restrictions, with Level 5 being the most restrictive level, similar to the restrictions that were imposed in Ireland in March 2020. The Plan is not based in law. It is a roadmap for various possible levels of restrictions that can be introduced by way of further Regulations.
The Government has now accepted the National Public Health Emergency Team's ("NPHET") recommendation to place the entire country under Level 5 restrictions which will remain in place for 6 weeks.
In terms of the impact on construction, the following considerations under the framework are relevant:
Domestic travel restrictions
Previously, at Level 3, restrictions were in place which provided that people were to remain within their counties except for work, education and essential purposes. The move to Level 5 will mean that only 'essential workers' can travel and all others are restricted to staying at home with a 5km limit for exercise, unless travelling for an essential purpose.
Workplace restrictions
Under Level 3 of the framework, it was specified that people should attend their workplace only if absolutely necessary. The move to Level 5 means that attendance at work is restricted to 'essential workers' only and in this regard the Government has confirmed that construction activity can continue. However, it is important to note that physical attendance at workplaces is only permitted where such services can only be provided in person and cannot be delivered remotely. It does not include administrative and other support for such services unless these are specified as an essential service and the physical presence of a worker is required. The full list of essential services for the purposes of Level 5 restrictions is available here.
The following construction and development activities are listed as essential:
(a) construction or development work and the provision of support services relating to construction and development work;
(b) the repair, maintenance and construction of road, rail and utility infrastructure; and
(c) the supply and delivery of maintenance and repair services to businesses and places of residence (including electrical, gas, plumbing, glazing and roofing services).
It is relevant to note that the changes introduced by the Act allowing the Minister to introduce Regulations are time limited. Accordingly, the powers granted to the Minister under the Act will remain in operation until 9 November 2020. Saying that, it is expected that the Government will seek to extend the powers by order passed in both Houses of the Oireachtas before that date to coincide with the duration of Level 5 restrictions and possibly beyond that period as we continue to deal with the effects of the COVID-19 pandemic.
There is comprehensive guidance from both the CIF and Royal Institute of Architects of Ireland (the "RIAI") in relation to COVID-19 practices, which have been embraced by the construction industry in Ireland. The Health and Safety Authority (the "HSA") have also published guidance to support employers and workers to put measures in place that will prevent the spread of COVID-19 in the workplace. The CIF have stated that the Government's decision to allow construction to remain operating at Level 5 "is testament to the incredible efforts over the past five months in keeping the incidence of COVID-19 to a minimum on construction sites".
Clearly, whether or not there is a relaxation or further escalation of Regulations to tackle COVID-19 is highly contingent on how the rate of infection progresses in the coming weeks under Level 5 of the framework.
For ease, the Regulations are available to download here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
