A public health crisis can upend the way design professionals practice many of their responsibilities. You may need to rethink how to safely perform your work while still meeting the obligations of your professional services agreements.
In a public health crisis, many states and provinces might issue far-reaching orders that shut down construction projects except for those deemed “essential”—a term that might include everything from critical infrastructure and hospitals to low-income senior housing. Some municipalities might issue even more stringent restrictions.
In the midst of these many regulations, you may have to shift your strategies for conducting site visits, depending on whether the project is deemed essential, and taking into account your ability to staff a project with employees, travel restrictions, proper hygiene, social distancing and other precautions being implemented at the jobsite.
Adequate personal protective equipment and training
Regardless of whether a project is deemed essential or a shelter-in-place order has been lifted, design firms need to develop guidelines for keeping their employees healthy and safe. Before visiting the site, obtain any written criteria for site visits from the contractor as well as the most recent version of the project safety plan. If your guidelines are in general agreement with the contractor’s criteria, then the site visit can proceed. However, if the contractor isn’t enforcing its own site visit criteria or the procedures are inconsistent or lacking, then give your employee the option of refusing to visit until enforcement is in place or defects in the project safety plan are remedied; make sure to communicate this to your client.
Here are some recommendations on healthy and safe practices:
- Supply employees involved in site visits with the appropriate personal protective equipment (PPE), which may include, depending on the nature of the crisis, not only the customary hard hat, eye protection, gloves and boots, but also a face mask. Another PPE option is an extra layer of clothing to be removed and bagged following the visit. Employees conducting site visits must comply with all safety requirements in the contractor’s project safety plan, and use that plan as a starting point for the level of protection to use.
- Train employees in the proper use of PPE, how to correctly social distance— again, if appropriate to the crisis—and how to recognize obvious symptoms of illness, whether in themselves or other workers at the site.
- Implement a travel policy that defines which trips are essential and for which employees. You may need to instruct employees to travel to and from jobsites in separate vehicles and, if it’s recommended, to refrain from shaking hands with anyone.
Non-essential projects with ongoing construction
Your firm may be asked to provide construction observation services on active projects that are either nonessential (as defined by your firm and/or government authorities) or fall within a gray area. If you feel the conditions are unsafe or illegal or might place your firm in ethical peril, you should refrain from going. In other situations, your firm may want to help your client but may not know how to determine if a project is essential. Consider sending your client an email asking whether the project is deemed essential and put the burden on them to respond. Also try to obtain a letter or email in advance from your client that documents the client’s request for your firm’s site visits and travel.
Inform your client that your services will be contingent upon your ability to provide a safe working environment for your employees, and that if you’re ordered to leave the jobsite by any law enforcement or governmental authority, you’ll comply immediately. Consider amending your professional services agreement to reflect the fact that you may not be able to provide services as originally intended due to the crisis.
If you believe the project is non-essential and you’re unable to properly staff the site visit, but the client is demanding you do so anyway, let your client know your position both verbally and in writing. Increasing communication under these conditions is a key factor in managing client expectations and achieving a positive outcome. To the extent that you have any contractual protections, like a force majeure clause or a changed conditions clause, reference those sections when writing your client, as well as any applicable governmental orders that detail which construction is considered essential. You don’t need to necessarily terminate your agreement; you just need an extension of time and need your client to understand your concern for the health and safety of your employees and those working on the jobsite.
Documenting unsafe conditions
If an employee observes workers failing to follow proper safety protocols, either by violating the project safety plan or governmental health advice, the employee should first take prompt action to protect themselves by leaving the immediate area. The employee should objectively note in writing what was observed and refrain from offering any remedy, such as telling the contractor how its employees should practice social distancing or wear face masks.
The contractor should be made aware of the issue, and the unsafe practice should be documented in writing to the client along with reference to the design firm’s contract that disclaims jobsite safety and construction means and methods.
If the failure of a party to properly use PPE or to follow established safety protocols creates an unsafe condition that prevents the design professional from returning to the project to conduct site visits, then this, too, should be discussed first with the client and then put in writing. If the unsafe condition will impact the critical path or your scheduled services, inform the client and, if necessary, seek a written contract amendment allowing more time to complete your services. Let your client know whether there will be additional project costs or delays if you’re unable to observe an element of work that is subsequently covered by additional construction. If your contract offers any protections, like a changed condition or a delays clause, cite those as well.
Your firm may find an opportunity to provide construction observation services virtually, by using video conferencing applications like Microsoft Teams or Zoom, or even more cutting-edge tools like OpenSpace AI.
Virtual site visits
Your firm may find an opportunity to provide construction observation services virtually, by using video conferencing applications like Microsoft Teams or Zoom, or even more cutting-edge tools like OpenSpace AI. Under this approach, a contractor or other authorized individual would video conference with the design professional, who would tell the contractor where to walk and what to observe. If conducted properly, this could be an excellent way to accommodate a client while protecting your firm against any kind of jobsite health risk.
Before you go the video conference route, ask yourself whether having a contractor on the other end walking the site will enable you to properly focus on the items you need to observe. You wouldn’t have the same control as being there in person. Your analysis should also consider time constraints—will the work you need to observe be concealed if you delay your visit or do you need to confirm that a portion of the work was completed in order to approve a payment application?
If your firm feels comfortable performing virtual site visits, we recommend taking the following actions:
- Discuss with your client the justification for virtual site visits, as well as any concerns you might have conducting such visits.
- Consider how a virtual site visit might prevent you from observing aspects of construction that would have been apparent if you were physically present. What’s acceptable in terms of providing professional services may change in response to a public health crisis.
- Obtain verbal consent from the client and document it in writing.
- Update any project management plan you might be using.
- Amend your professional services agreement in writing to reflect this change. If there is a deductive change order, this could certainly bolster an argument that there was adequate legal consideration for the change.
- Consider a waiver and indemnity for any errors or omissions that might arise out of this accommodation to your client, specifically noting that your observations were limited to only those areas that you directed the site representative to show you and excluded any other areas inadvertently included on the video.
- Obtain consent from the contractor walking the site to record the visit on the video conferencing application. Some jurisdictions require the consent of both parties. Even though some applications indicate that a recording is being made, make sure you first discuss your intent to record before beginning and then verbalize consent once the recording starts.
- Confirm that your video conference connection is secure and that you have the latest software version that addresses any prior security concerns.
- Your field reports should contain a disclaimer indicating that your visits were conducted virtually and that you cannot verify conditions that you might otherwise have observed in person.
- Consider altering or modifying any certification language on payment applications to indicate your limited observations were done virtually.
Potential liability exposure
While the U.S. Department of Labor, Centers for Disease Control and Prevention (CDC), the Occupational Safety and Health Administration (OSHA), and the Canadian Centre for Occupational Health and Safety may promulgate rules, guidelines and advice for staying safe during a public health crisis, these should be considered starting points for developing your firm’s internal protocols for conducting site visits. As a general rule, if your firm cannot supply employees with adequate PPE, then you should not send them into the field.
Consider the potential liability exposure for your firm if one of your employees is ill and infects others on a jobsite. While this type of third-party bodily injury claim might ultimately fail due to a lack of provable causation, it still presents an exposure for design firms if a contractor’s employee files a lawsuit to recover more than just workers compensation benefits, based on the theory that the illness was caused by the negligence of others. Such a claim might allege that your firm should have known it was sending a sick employee to a jobsite and failed to take appropriate precautions, and that this employee was likely to infect others at the site.
You should also consider your own workers compensation exposure if you send your employees to jobsites where they contract an illness. We recommend you discuss these issues with your broker, especially as some jurisdictions have introduced legislation to eliminate or diminish the employer’s ability to claim that the employee contracted an illness outside of work.
As we begin to understand the impact of public health crises, design firms will be forced to reconsider how they provide their professional services, including site visits. With adequate foresight and planning, along with a continued effort to promote clear and effective communication and documentation, design firms should be able to adapt to the changing times.
