DC Real Estate and Construction Committee Issues Recommendations as DC Prepares for Phased Reopening

The District of Columbia has taken a community approach to reopening not seen in many states and cities. DC established a ReOpen DC Advisory Group, which is responsible for advising Mayor Bowser regarding potential guidelines and regulations for reopening the District. DC has hosted virtual focus groups, considered responses to online surveys from over 17,000 residents, and established committees for key sectors to research and provide recommendations related to reopening.

On May 21, 2020, DC’s Real Estate and Construction Committee (Committee) issued a 65-page set of recommendations to the ReOpen DC Advisory Group Steering Committee, which the advisory group then incorporated into its recommendations to the Mayor. Committee members include construction industry leaders and public health officials, and the Committee’s recommendations attempt to strike a balance between necessary safety guidelines and the practical realities of construction work—in the words of the report, “one size does not fit all.” Although the Committee’s report applies to both real estate and construction, this article focuses on the recommendations that apply to construction.

The Committees’ recommendations are, of course, only recommendations, which may or may not be accepted by DC government decisionmakers. Thus, the committee’s recommendations described in this alert are not currently in force, but they do provide insight into what the future may hold for the District’s construction industry.

Notably, the Committee recommends that DC government officials enact “guidelines, not regulations,” to avoid compounding the already substantial “challenges, risks, and potential liabilities” that businesses face as the District reopens. With regard to construction, specifically, the construction sub-group of the Committee believes that the “permissive approach [so far] taken by DC Health in its guidance to the construction industry, rather than a prescriptive approach, is the right one”—not only because public understanding of the virus is rapidly changing, but also because a permissive approach permits “the industry to use its human capital and thought leadership to adapt and improve.”

The report includes multiple recommended guidelines for the construction industry, which are similar to guidelines in other cities and states. But the Committee recommendations also include some unique “Big Ideas” put forth for consideration, which were incorporated into the Recommendations to the Mayor.

Proactive Planning
The Committee recommends that contractors develop a comprehensive COVID-19 job safety plan, with provisions for training, symptom-checking, decontamination procedures, PPE utilization, and exposure control, among other things. Where possible, the Committee recommends that contractors divide their work force into two groups, so that if one group has to be quarantined, the other group can continue to work.

The Committee also recommends there be a dedicated “COVID-19 Supervisor” at every job site where 10 or more workers will be present at a given time. This supervisor would be required to “always be present for construction activities” and would be responsible for ensuring compliance with the contractor’s COVID-19 job safety plan.

Physical Separation
The Committee recommends that workers remain six feet apart except where safety demands closer proximity (e.g., drywalling or team lifting). Supervisors should identify “choke points” where workers tend to congregate and take measures to ensure proper distancing. Lunch and other breaks should be staggered to discourage group gatherings.

“Harnessing Virtual, Paperless Technologies”
The Committee noted that the stay-at-home restrictions forced industries to adapt to virtual interaction and suggests that there is an opportunity to embrace a virtual transition for construction-related processes that often suffer unnecessary delays. To minimize human presence at the sites, the Committee recommends that site inspections, permitting and plan reviews be transitioned to “virtual assessments” to the greatest extent possible, including by utilizing video conference software. The Committee also recommends that contractors utilize 3D-imaging of sites for use by architects, engineers and surveyors.

Work Site Signage
The Committee recommends that signage about mandatory hygienic practices be conspicuously displayed at every job site, in both English and Spanish, with information about required handwashing, use of hand sanitizer, covering the mouth and nose when sneezing or coughing, etc.

Other “Big Ideas”
The Committee identified additional initiatives for consideration, including:

• Implement onsite testing facilities for construction sites with over 150 workers;
• Consider regulatory changes, including adoption of virtual inspections and permitting processes, and resolution of indemnification concerns for employers, landlords and building managers;
• Facilitate adoption of physically distant transportation options for construction and office workers who cannot work from home, including free memberships to Capital Bikeshare, subsidies for taxis and additional bicycle parking; and
• Develop creative incentive structures for the conversion of existing vacant or under-utilized office or parking garages into facilities for light manufacturing, storage or distribution

Again, the Committee’s recommendations are just that until officially adopted by Order of the DC Mayor.

For more information, please reach out to your regular Pillsbury contact or the author of this alert.

Pillsbury’s experienced multidisciplinary COVID-19 Task Force is closely monitoring the global threat of COVID-19 and providing real-time advice across industry sectors, drawing on the firm’s capabilities in crisis management, employment law, insurance recovery, real estate, supply chain management, cybersecurity, corporate and contracts law and other areas to provide critical guidance to clients in an urgent and quickly evolving situation. For more thought leadership on this rapidly developing topic, please visit our COVID-19 (Coronavirus) Resource Center.