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A Breath of Fresh Air

When energy-efficiency standards meet the risk of COVID-19

March 03, 2021 Photo

When it comes to providing valuable guidance on the evolving standard of care for a safer approach to occupying and maintaining buildings in response to the COVID-19 pandemic, the the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) has an important voice at the table. It is the professional association for the heating, ventilation, and air conditioning (HVAC) industry; and its standards for ventilation-system design and acceptable indoor air quality—Standards 62.1(commercial ventilation rates) and 62.2 (residential)—are adopted, in part, into most building codes throughout the U.S. 

For decades, the overarching goal of these standards and the building codes has been to “build tight, ventilate right,” an approach that favors energy efficiency by, in part, recirculating and filtering air within buildings, as opposed to taking in fresh air. The reasoning is that cooling and heating fresh air consumes a lot of energy.

However, following the onset of the COVID-19 pandemic, ASHRAE published its Position Document on Infectious Aerosols, acknowledging that the risk of pathogen spread can be affected by the airflow patterns in a space. Among the various solutions proposed in the position document: Ventilation with effective airflow patterns is “a primary infectious disease control strategy through dilution of room air around a source and removal of infectious agents.”

This means, add fresh air. The other solutions proposed involve filtration, ultraviolet irradiation, and improved maintenance of existing systems. However, the addition of fresh air rubs against code requirements, the cost of operating HVAC equipment, and the capacity of existing equipment to accommodate changing needs.

More Focused Solutions

In contrast, the Federation of European Heating, Ventilation and Air Conditioning Associations (REHVA), the European counterpart to ASHRAE, came out with a much bolder position in its COVID-19 guidance document, April 3, 2020, which proclaims: “No use of recirculation.” REHVA simply recommends avoiding the use of  recirculating air within buildings during COVID-19 episodes.

The National Education Association (NEA) picked up on the fresh-air theme in its Oct. 28, 2020 publication, Designing and Implementing a COVID-19 Indoor Air Quality Plan in Schools. Among its recommendations is for teachers’ unions to advocate for and require management to ensure that indoor air is appropriately replaced, recirculated, or exhausted; and specifically to ensure that air changes happen frequently enough. Nonetheless, even the NEA acknowledges that some ventilation-related actions may be prohibited by state or local building codes.  

The ASHRAE COVID-19 Epidemic Task Force has been criticized for not acting decisively to suspend its standards 62.1 and 62.2 on the use of recirculated air, and for failing to provide more definitive guidance on filtering out viruses. In the meantime, mechanical engineers, contractors, property managers, maintenance vendors, and building owners are stuck with the untenable choices of complying with existing building codes, which mandate low energy use; or taking bold steps to add fresh air to improve the overall air quality in buildings.

The Legal Cases Are Bubbling Up

The word “COVID” shows up in over 10,000 cases in a LexisNexis search, which is pretty remarkable for something most of us had no idea existed just one year ago. The claims for monetary and injunctive relief related to COVID-19 and building occupancy that are currently within the pipeline appear to be focused in three general areas: incarcerated persons, job site safety, and private habitational settings.

Incarceration—Incarceration cases have been at the forefront of COVID-19 litigation, with Valentine v. Collier, 208 L. Ed. 2d 415, 416, __ S.Ct. __, (2020) having reached the United States Supreme Court. In Valentine, after a weeks-long trial, a federal district court enjoined the Texas Department of Criminal Justice from continuing to engage in unhygienic practices at a geriatric prison, granting a permanent injunction requiring prison officials to implement basic safety procedures. 

The 5th Circuit Court of Appeals stayed the trial court’s injunction pending the state’s appeal. In a one-sentence decision, Supreme Court Justice Samuel Alito then denied the prisoners’ application to vacate the stay. That denial was met with a dissenting opinion by Justice Sonia Sotomayor, who concluded that the prisoners had met their heavy burden to justify injunctive relief against the state. Justice Sotomayor observed that the dangers of COVID-19 to these especially vulnerable inmates was indisputable, and noted that in just 116 days, nearly 500 inmates contracted COVID-19, leading to 74 hospitalizations and 19 deaths. In some of the other reported incarceration cases, the prisoner plaintiffs specifically allege spread of COVID-19 through HVAC systems.

Job Site Safety—Another category of claims working its way through the courts involves class action employee-safety claims by warehouse and factory (e.g., meat packing industry) workers against their employers, including Palmer v. Amazon.com, Inc., 2020 U.S. Dist. LEXIS 203683 (11-2-20). The courts in these cases have generally dismissed the claims without prejudice under the “primary jurisdiction doctrine,” deferring their resolution to the specialized competence of the state occupational safety and health authorities (OSHA).

Some consider this approach to be wholly inadequate as state OSHA authorities are late to enact rules, and the rules that are adopted may not go far enough to protect worker safety. For example, OSHA authorities in my home state of Oregon released their final COVID-19 temporary rule effective Nov. 16, 2020, eight months after our governor declared a state of emergency due to the COVID-19 outbreak. Even then, while requiring employers to optimize the amount of outside air circulated through existing HVAC systems “to the extent the system can do so when operating as designed,” Oregon OSHA does not require installation of new ventilation equipment. Further, the temporary rule states that compliance with ASHRAE Standards 62.1 and 62.2 (the standards calling for recirculation of air) qualifies as compliance with the rule.

Unlike REHVA or the NEA, Oregon OSHA does not make a bold demand of the employers within its jurisdiction.
Private Sector Habitational Claims—Although prisoners and employees face hurdles in pursuing money damages, the shoe will likely drop in private-sector claims, especially claims involving nursing homes and other convalescence facilities. For example, The Estate of Judith Joy Jones, etal v St Jude Operating Company, LLC, et. al, U.S. District Court, District of Oregon, Case No. 3:20-cv-01088, involves a nursing home in Portland, Oregon that now faces $12.6 million in claims for the COVID-19-related deaths of seven residents. There were 119 people associated with Foster Creek who were infected with COVID-19, 30 of whom have died.

An NPR news article reported that residents and staff of long-term care facilities account for at least 40 percent of U.S. deaths from the coronavirus. It adds that at least 21 states have taken actions as of June 5, 2020 to limit the liability of health care providers, with nine states expressly including nursing homes.

On Feb. 10, 2021, in Garcia v. Welltower OpCo Grp. LLC, 2021 U.S. Dist. LEXIS 25738, the 9th Circuit Court of Appeals dismissed a COVID-19-related death claim against a nursing home facility, holding that the facility is immune from liability under the Public Readiness and Emergency Preparedness Act (PREP Act), 42 U.S.C. §§ 247d-6d, et seq.  The Garcia holding is based on guidance from the Office of General Counsel of the Department of Health and Human Services stating that senior living communities are covered persons under the PREP Act because they are “program planners”:

"[A] senior living community meets the definition of a ‘program planner’ to the extent that it supervises or administers a program with respect to the administration, dispensing, distribution, provision, or use of a security countermeasure or a qualified pandemic or epidemic product, including by ‘provid[ing] a facility to administer or use a Covered Countermeasure in accordance with’ the declaration)." Id. at 5.

With federal immunity potentially available to care facilities, it can be expected that plaintiff’s lawyers will expand their claims to other potentially responsible parties, such as facilities’ management, and design and construction firms.
Causation

An Aug. 15, 2020 NPR article reports on one study (available online as a pre-print and which had not undergone scientific review) in which Oregon researchers collected samples from various places inside a hospital’s HVAC system and found COVID-19 material, demonstrating that it may be possible for the virus to be transmitted through HVAC systems. This point was also illustrated by the ASHRAE Task Force when discussing an example of a COVID-19 outbreak in a call center in South Korea:

A single infected employee came to work on the 11th floor of a building, which was the workspace for 216 employees. Over the period of a week, 94 of those employees became infected, and 92 of those 94 employees became sick. Noting how one side of the office was primarily infected, while very few people were infected on the other side, ASHRAE highlights that being in an enclosed space and sharing the same air for a prolonged period increases the chances of exposure and infection. ASHRAE also noted that, even though there was considerable interaction among employees on different floors of the building in elevators and in the lobby, the outbreak was mostly limited to the 11th floor.

What to Do?

In counseling clients on risk-mitigation techniques, and on how to improve sales, I have long advocated for the written “good-better-best” approach to conveying customer choices. Example: a document (a memo, chart, email, whatever) demonstrating that building a house out of brick is much better than building it out of wood or straw, and outlining the front-end material costs versus the expected future repair and maintenance expenses.

If the customer goes with the straw house, there is at least a record of the customer having been presented with all options and of the customer having made the ultimate decision to go with a straw house. On the other hand, if the customer is moved to upgrade from wood to brick, everyone wins: The contractor’s profit has increased, and the project benefits from a more robust façade.

Similarly, design professionals, contractors, property managers, and maintenance vendors would profit from closely studying the ASHRAE Task Force recommendations for the various types of properties addressed (school and university, health care, commercial, residential, multifamily) and presenting their customers with written good-better-best options on how to address the needs of the existing or returning workforce. There is a lot of valuable information in those documents, for example, the COVID-19 Guidance for Multifamily Building Owners/Managers advises:

"Assist residents with covering or sealing heating/cooling air vents in rooms in dwelling units with infected or higher-risk occupants. Ensure that any forced-air heating or cooling system that serves more than one dwelling unit is blocked off from any dwelling unit occupied by either an infected or at-risk resident"

If the building owner, property manager, or maintenance vendor fails to follow this guideline, and if a tenant in another unit in the building gets sick because the virus was transmitted through a common forced-air HVAC system, there will likely be claims and arguments about what could have or should have been done to prevent the spread of infection.

In the end, while we struggle to make sense of the pandemic and what the future holds for all of us, it’s a safe bet that some will look to litigate their grievances, either to effect positive social change or to monetize their pain and suffering. As restrictions on congregate settings begin to ease, those who toil in creating, maintaining and managing the built environment should proceed carefully with eyes open to the risk of being criticized for conducting business as usual.

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About The Authors
Jack Levy

Jack Levy is an attorney with Gilbert Levy Bennett.  jack@theGLB.com

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