These last few weeks have seen the COVID-19 pandemic escalate exponentially in Oregon, the US, and the world. While our highest concerns lie with the health and safety of our families, it's impossible to not recognize the impacts on the Structural Engineering community. In particular, we face unprecedented challenges as the vast majority of us learn to work from home. Firms and individuals are experiencing productivity losses, schedule impacts, potential increased exposure to liability, and uncertainty with respect to how to support construction observation efforts. While SEAO is explicitly not offering legal advice, we do want to provide some guidance to the Structural community as together we navigate these uncharted waters.
Oregon's Executive Order 20 12 and Site Observations
Oregon's Shelter in Place order does not specifically address construction. It does include verbiage like "…to the maximum extent possible, (it is essential that) individuals stay at home…" (paragraph 1) and "…all businesses…shall facilitate telework and work-at-home…to the maximum extent possible" (paragraph 9). The closest we get to addressing construction efforts is in paragraph 10, "When telework and work-from-home are not available, businesses must designate an employee or officer to establish, implement, and enforce social distancing policies…. Such policies also must address how the business will maintain social distancing protocols for business-critical visitors." One way to interpret this would be to treat the Structural Engineer making a site visit as a "business-critical visitor," who then falls under the social distancing policies that are required to be established by the contractor and/or owner. Based on published guidelines from AGC (see below) and reports of others, it appears that appointing Social Distancing Officers and developing these protocols may become the common practice in at least parts of Oregon and the US.
Standard of Care
Much of what we do as Structural Engineers is evaluated in comparison to the nebulous "applicable standard of care," which is often defined with language like "the standard of skill and care generally exercised by other similarly licensed Structural Engineers in the same or similar locale acting under the same or similar circumstances and conditions around the same time." With COVID-19, we're in uncharted territory…we have not yet established what we do in these new circumstances and conditions. There are many thoughts on how to approach this. Is it prudent to continue to make site visits to support construction, as long as physical-distancing guidelines are met? Do you have legal grounds to refuse to make site visits if you feel unsafe? Is it responsible to conduct your site observation remotely, with a contractor showing you field conditions via video? As a community, we're still wrestling with these questions. The answers we come up with as an industry may shape the new standard of care as it evolves to incorporate life in a COVID environment.
SEAO has connected with attorney Lee Wagner of the law firm Stewart Sokol & Larkin about some of the issues that the engineering community should consider during the COVID-19 pandemic. Lee has graciously provided the attached letter, "Risk Management for Engineering Firms in a COVID-19 Environment." He provides some excellent tips to help mitigate risks you may be facing in these challenging times. I encourage you to read his letter and reach out to your own legal counsel if you have further questions.
The Oregon chapter of the Associated General Contractors (AGC) have issued some specific guidelines to their members. See their general COVID page here: https://www.agc-oregon.org/industry-priorities/covid-safety-health/ and their specific recommendations for the construction industry in Oregon here: https://www.agc-oregon.org/wp-content/uploads/2020/03/COVID-19-Executiv…. The Oregon Home Builders Association (HBA) has published their guidelines here: https://oregonhba.com/wp-content/uploads/2020/03/COVID-19-Job-Site-Prac…. The Oregon American Institute of Architects has summarized a list of resources here: https://www.aiaoregon.org/covid-19. Finally, the professional liability insurance company Berkley Design Professionals has published a useful article, "Mitigating Claims from COVID-19 Affected Services". Click the link below.
These are indeed challenging times for us both personally and professionally. As the Pandemic continues and the situation evolves, we will continue to monitor the situation and provide updates as appropriate. We also invite you to share your own experiences and findings with our community, either by emailing me at email@example.com, or writing a letter to editor for the Connections Newsletter at firstname.lastname@example.org. Be safe out there, look after your family and co-workers, and as my wife likes to say, be Corona-Careful!
Steve Trautwein, PE, SE
President, Structural Engineers Association of Oregon
The information above is for general informational purposes only and should not be construed as legal advice in any form. Please consult with your attorney for legal advice for your specific situation.