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How the Design Professional Standard of Care Is Affected by COVID-19

Should a new standard of care apply to design professionals' work on construction projects?
By Gary Strong
April 26, 2022
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Everyone was impacted by the COVID-19 pandemic. The pandemic not only caused economic turmoil in addition to the direct health effects of the virus, but it also caused architects and engineers—as well as building owners, building tenants, and maintenance personnel—to rethink the design criteria for existing and new spaces. While a design professional’s work product needs to be performed with skill and diligence, of greater importance is the actual standard of care and if this standard of care has changed due to the new way of life living with COVID-19, which does not appear to be going away anytime soon. Does a new standard of care now apply to the work that design professionals are performing on public, private, large or small construction projects?

The traditional "standard of care" is defined as what a reasonably prudent design professional in the same or similar locale would do under same or similar circumstances. The standard of care also is reflected in the design professional’s contract for services. One wonders how a judge, arbitrator or jury would look back at all of the unusual circumstances occurring during a pandemic and determine how a design professional managed to reasonably fulfill all of the necessary obligations. At the onset of the pandemic, everyone was scrambling to simply survive and live to see tomorrow. Project owner, general contractors, and design professionals were patient to allow construction projects to be completed and they worked with each other to complete the projects in a safe and timely manner. Now, almost two years later, the patience of people involved in construction project have changed. Project owners want their work completed in a timely manner and care far more about timely completion than a contractor with a workforce that may be severely limited due to a COVID-19 outbreak or a design professional who cannot complete drawings in a timely manner or approve payment applications as submitted. Now the standard of care can be defined as what would a reasonable and prudent design professional do and/or perform services during the COVID-19 pandemic with the pandemic becoming a way of life.

In the new COVID-19 world, the best course of action is to openly communicate with the other project participants (owner, contractor, subs, etc.) about the situation, identify the challenges presented, and work toward a mutually acceptable resolution, such as putting a limit on the number of people onsite during observations and adopting methods for virtual observation. In their discussions, the parties may consider how social distancing, the Centers for Disease Control and Prevention (CDC) guidelines, and other requirements or recommendations by applicable public authorities or officials will be addressed to allow for safe and approved site visits by the architect and its consultants.

The standard not only goes to handling active construction projects but also applies to the types of design that need to be contemplated to provide safe buildings moving forward. For many years, old school design professionals balked at the time and expense of designing “green buildings.” Designers of green buildings had a goal to reduce or eliminate negative impacts and, at the same time, create positive impacts on our climate and natural environment. Now green buildings have become the norm rather than the exception.

Some of the initial pandemic-inspired design adaptations involve a building’s HVAC system. To address the need for improved air filtration, technologies that were once considered state of the art, such as high efficiency particulate air filtration and ultraviolet germicidal irradiation (UVGI), are now more commonplace. In fact, the CDC has created its own set of recommendations for making these and other improvements to new and existing HVAC systems.

Space needs are likewise changing. Workspaces are now being designed to account for more permanent social distancing using physical separation, directional signage and staggered shift patterns. Dedensification strategies are being used to account for workers who are now more comfortable working from home. Use of wider corridors, reconfigurable partitions and keyless/touchless entries are being integrated into designs that previously were only seen on Star Trek.

It remains to be seen whether the standard of care will be understood to include addressing these types of risks in the future. For example, could a design professional be found to have acted negligently by failing to advise an owner to incorporate UVGI equipment into its HVAC system? Does it make a difference that prominent organizations like the CDC and World Health Organization are urging caution and adaptation? These issues and undoubtedly others will be reviewed when determining the standard of care in the future.

by Gary Strong
Gary Strong is a partner with the law firm of Gfeller Laurie LLP. He focuses his practice in the defense of contractors and design professionals during construction defect litigation. Gary may be reached at gstrong@gllawgroup.com.

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