Construction sites close down for emergencies—whether or not everyone involved is ready. The COVID-19 lockdown adds new forms of operational and legal uncertainty. Yet a shutdown needn’t be a disaster: it’s time to plan, anticipate potential problems, and upgrade procedures.
Written by Bill Millard
The coronavirus pandemic has thrown a spanner in the works throughout New York’s construction sites, shutting some down and imposing rigorous precautions on others. Dismay and delays may be inevitable in this situation, say informed commentators, but there are ways to mitigate costs. Timely procedural adaptations, close attention to contractual details, and flexibility toward new ways of working can be silver linings for both projects and organizations. In some respects, the interruption may even serve as a productive reboot.
When Governor Andrew Cuomo designated project categories as essential or nonessential through an Empire State Development (ESD) guidance document on March 27 — after initially deeming all construction essential in Executive Order 202.6 on March 18—the message to the design and building professions was clear: the risk of onsite COVID-19 transmission is too high for business as usual. No worker should catch a potentially fatal disease for the sake of a luxury tower. Work continues on health-care facilities, infrastructure, schools, projects that would be unsafe if interrupted, and other essential categories, including affordable housing. (The common 80/20 residential hybrid falls on the active side of the line: ESD includes buildings with at least 20% affordable units in the essential group.)
The industry is partially paused, not paralyzed. The city’s Department of Buildings (DOB) has posted a citywide map of Essential Active Construction Sites, numbering nearly 5,000 at this writing, and maintains a procedure for requests for certificates of authorization, with appeals if denied. For projects remaining open, ESD’s guidance document calls for the familiar six-foot social distance plus cleaning and disinfection. Inconveniences and inefficiencies involving entrances, hoists, onsite meetings, and meals are not excuses for corner-cutting; enforcement includes $10,000 fines per violation.
New York City’s combination of a severe outbreak, uniquely close-packed jobsites, and tightly adjacent properties calls for not only personal protective equipment (PPE), rigorous hygiene, and employee health monitoring, as the Centers for Disease Control and Prevention (CDC) recommend, but flexibility in scheduling—staggered shifts, entry/exit procedures, and lunches—to make distancing feasible. For suspended projects, attention to contractual details can prevent contractors from absorbing delay-related losses; once the COVID pause is lifted, adapting familiar precautions to today’s conditions makes the difference between orderly resumption of work and chaos.
Precedents from previous hazards
Stop-work orders are hardly unfamiliar, notes structural engineer Elisabeth Malsch, senior principal and forensics practice co-leader at Thornton Tomasetti, but previous shutdowns have been limited spatially and temporally, caused by weather events or isolated incidents like the 9/11 attack. “We’re definitely used to shutting down job sites when the wind speeds are high; there’s always a question about what to do with cranes,” she notes. This year’s open-ended pause is different, though some best practices from prior shutdowns are transferable. “Job sites that button up properly,” she continues, “don’t just expect that they’re going to be closed for a short period of time, but they prepare for the design winds that might occur if they’re closed longer than anticipated.” DOB issued detailed guidelines on March 30 on procedures for securing a suspended site.
The COVID pause wasn’t a total surprise. The New York Building Congress kept in contact with state officials before the March 27 order and “seemed to anticipate some of the site closings pretty well,” Malsch notes. “While there was a hope that the job sites wouldn’t close, and certainly… a period of time where construction was continuing, the rule that if one person tests positive for this virus the job site would have to shut down anyway for two weeks had put a lot of the contractors on notice.” For her own team of 50 engineers, and for the industry at large, COVID has created commuting challenges, increased burdens of caring for people at home, and changed the threshold for staying home from work. “Finding the people to do the work got more challenging in that in-between period of time, not just the actual shutdowns.”
With many shut-down sites in incomplete, unenclosed conditions, periodic inspections are a high priority, requiring PPE and temperature checks for involved personnel. “Probably the most important thing,” Malsch comments, is erring on the side of caution and protection, “not requiring anybody to go who doesn’t feel comfortable…. Give people the ability to say that something feels like it’s too close. If you’re together on a hanging rig, for example, you may not be able to stay six feet apart, but that inspection needs to be reconfigured another way or handled less efficiently.”
On either closed-site inspections or open-site work, it’s logical to accept tradeoffs between staffing and time, taking longer to perform a task with fewer people, wider interpersonal spacing, and cumbersome PPE. Malsch recalls working on the Deutsche Bank (130 Liberty Street) demolition, where “there were different parts of that building that required full gear: full half-mask respirator, eye protection, and the bunny suit, [with] changing rooms before going into the areas where the dangerous work was going on. People can do heavy labor while wearing the full masks and the rest, and it takes a little longer on the in and out, and you have to have all the air systems set up for negative pressure… but it’s certainly something we know how to do from asbestos work, lead containment, and other hazards that have come up in the construction industry before.”
To bounce back smoothly from a shutdown, Malsch recommends rigorous documentation, “figuring out what belongs to whom and where things are.” Resilient sites follow principles such as “plan for the worst, hope for the best”: secure equipment against a 10-year wind or design wind, not an expected minimum. Observe local standards: in New York City, sidewalk sheds and other temporary structures must be “considerably more robust than anywhere else,” and a professional engineer must “sign off and stamp their designs even for these temporary items” (codes in other jurisdictions are less stringent). A Tampa site she is familiar with benefits from local officials’ allowing video-assisted inspections; “that kind of acceptance of technology would be a small thing that might change the industry a lot.”
On returning to a reopened site, she says, “it’s never quite the same site as what you left. I spend a fair amount of time dealing with catastrophes and emergency responses, and oddly enough, the procedure is a bit the same, where you take a walk around the outside and get an overview of your structure again, and make sure that there isn’t water in your electrical room and that the important pieces are still where you thought they were.” A corollary of Murphy’s Law applies to these situations: “The timing of unusual events is never convenient.” Prudent construction managers use the downtime to develop detailed snapshots of paused site conditions and plans for reopening. “The more facts you have, and the fewer things that are people’s foggy memory,” Malsch summarizes, “the easier it is to come to the right answer.”
Precautions on paper
Construction attorney Tara B. Mulrooney, Esq., a partner at Zetlin & De Chiara, cites the American Institute of Architects (AIA)’s standard contractual forms, particularly their change- order procedures and notice provisions, as vital safeguards when conditions beyond any party’s control (force majeure) cause delays. “Section 8.3 of the A201 general conditions is really the main provision that provides—assuming it hasn’t been modified—force majeure language that would be applicable for COVID-19 delays and suspensions,” she notes. “Even when AIA forms are used,” she adds, “they often are negotiated and modified and changed by the parties… so it’s really important to make sure that you’re paying attention to specific modifications that are made for a particular project.”
Problems can arise when notice of a change order, a delay, or a claim for additional time and cost falls outside specified time frames. In the current situation, “where you’re going to be well over a month of a delay, you’re going to need to get it approved to have the project extended by that time period,” Mulrooney cautions. “If somehow your claim is considered waived and therefore you can’t make a claim for the additional time and expense, that could be a devastating situation for a contractor to be in.”
The pandemic may create unfamiliar scenarios legally as well as operationally. The definition of force majeure could be a potential sticking point, Mulrooney notes, if a contractor is incapacitated by the disease. “Courts will generally enforce what you have included in your force majeure provision, and if something is not listed, generally they’re looking for something to be listed, or at least to be of a like kind to a specific event that is listed…. Under the AIA provision there isn’t anything relating to sickness; it includes things like labor disputes or fires, unusual delays in deliveries, unavoidable casualties, certain adverse weather conditions, but it doesn’t specifically include anything related to a pandemic or sickness. The AIA and a lot of times other contracts will have language saying ‘other causes beyond a contractor’s reasonable control.’ So if you’re working or operating within that type of language, you can make an argument. I would think that you’d also have to make an argument that there aren’t other people on your workforce that could fulfill those obligations or perform the work.”
Questions of COVID-related site safety have not produced labor disputes to date, Mulrooney reports, but “there definitely have been reports of certain trades not feeling particular sites were able to provide a safe environment with respect to being able to follow CDC guidelines and New York regulations relating to how far apart you should be from people, or how many people can be in a particular area.” Reasonable-person standards for safety or negligence, Mulrooney notes, depend on specific contexts. “When we look at reasonableness for this outbreak, it’s much harder to say what that is; it’s developing as people are experiencing it… I think if you are able to say that you’re following New York regulations, or guidance put out by the DOB or ESD, and if you’re following those recommendations, I think you have a strong argument that you’re acting reasonably…. In some particular areas, the DOB’s guidance might be more specific.” Although COVID has thrown us all onto terra incognita, this territory has enough resemblances to familiar ground that civic institutions can guide prudent decisions.
Making the most of virtual officing
Ultimately, the COVID pause may change the design and construction industries, as firms discover unexpected value in certain procedures. Working from distributed locations via internet and video, some firms have found, has been surprisingly easy, often drawing on the digital expertise of younger staffers. Some studies have even found that remote work is more productive, by multiple metrics, than office work.
Challenges in site conditions raise questions about which meetings really need to occur onsite, or which operations require people and which could rely on camera-equipped drones. If the pandemic has required “the economic equivalent of a medically induced coma,” traditional centralized offices may never be the same after the economy reawakens. Construction, however, will always need live workers in a real place. Today’s emergency underscores how irreplaceable they are, and how critical it is to plan for their well-being.