Alert July 31, 2020

Navigating Conflicts Between U.S. Workplace Reopening Guidelines and Building Sustainability Standards

As U.S. state governments reopen their communities for business, increased energy consumption and waste generation resulting from practices to prevent the spread of COVID-19 seem inevitable. As office employees reenter the workplace, a key question for commercial property owners, operators, and tenants is: to what extent will reopening procedures impact not only individual health but also the sustainability of their buildings and offices? This article reflects briefly on the ever-evolving concept of sustainability, how the concept is adapting to address recommended COVID-19 prevention practices in office buildings, and where we’re headed as we return to the office.

Preventing The Spread Of COVID-19

Implementing a cohesive plan for returning to work requires balancing competing demands. The governmental response to COVID-19 has created a patchwork of laws and recommendations. Recognizing the importance of slowing the spread of COVID-19, the Centers for Disease Control and Prevention (CDC) issued guidance for businesses and employers to promote healthy and safe workplaces.1 State and local officials have issued orders and directives that affect building owners, operators, and tenants. Government agencies are also responding, as exemplified by the New York State Energy Research and Development Authority’s modification of a recently adopted energy efficiency program to prioritize health and safety in light of COVID-19. Often the new requirements and guidance seem in direct conflict with longer-term goals associated with sustainability.

Building Sustainability Before COVID-19

In the wake of the environmental crisis of the 1960s and the energy crisis of the 1970s in the U.S., the environmental movement took root. It began with the intent to reduce pollution and conserve energy, and evolved and grew into today’s broader sustainability movement. The concept of sustainability is captured in laws, standards, and practices that guide the design, construction, and operation of commercial buildings. Green building codes and certification programs are among the most impactful policies in the reduction of energy consumption and emissions and the promotion of sustainability.

Worldwide, the most well-known standards for sustainable design are the Leadership in Energy and Environmental Design (LEED) certification standards and rating system launched by the U.S. Green Building Council in 1998. The success of the LEED program heightened awareness of the effects of buildings on the people who use them. New certification programs have emerged to further promote this focus on the health and productivity of building users. The WELL Building Standard established by the International WELL Building Institute and the Fitwel Standard and Certification Process operated by the Center for Active Design have become leading wellness certifications for built environments. Concepts of “well buildings” and “community health” and the like are becoming mainstream during this current crisis.  

Conflicts In Light Of COVID-19

Commercial building owners, operators, and tenants are grappling with issues that simply did not exist pre-pandemic. Owners are concerned about potential liability if a tenant or visitor attributes contracting COVID-19 to their building. They anticipate increased costs to own and operate their buildings. Meanwhile, they are also contending with significant and unexpected shifts in demand for office space. 

Operators are evaluating how to manage costs while keeping people safe. Many will run building HVAC systems on a 24-hour cycle to satisfy CDC recommendations, which incorporate American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) standards for building HVAC systems.2 Some will modify or replace HVAC systems to draw in more outside air, improve indoor air filtration, and reduce humidity levels, all in an effort to prevent the airborne spread of COVID-19. Operators are evaluating touchless systems for common areas, modifying operations including limiting the capacity of elevators to allow social distancing, and using ultraviolet germicidal irradiation to sanitize high-risk common spaces. These improvements come with significant costs.

Similarly, tenants are evaluating modifications to the physical configuration of their premises. Initially, many sought to reduce their premises as remote working took hold. Now, some employees want to return to the office provided the office is safe. Therefore, tenants will likely need the same or more office space to accommodate social distancing of the same or fewer employees. Use of disposable protective coverings and recommended hygiene and cleaning practices to limit interactions in shared spaces increase waste. All of these actions increase the building's carbon footprint.

Building owners, operators, and tenants are now tasked both with mitigating and managing their impacts to the environment and with implementing COVID-19-related practices that increase these impacts. Where actions are recommended but not required, they will have to undertake a difficult calculus. They must determine who should implement and pay for which measures to ensure the health and safety of building users and which to forego as too costly, not sufficiently beneficial, or not in line with corporate values.

Reconciling COVID-19 Preparedness With Building Sustainability And Wellness Standards

Early in the crisis, LEED, WELL, and Fitwel recognized the need for building owners, operators, and tenants to adapt to new challenges. They all encourage workplace and workspace planning that responds to a post-pandemic world. Both LEED and WELL modified their standards in response to recommendations from the CDC and ASHRAE. Fitwel (which emerged from a CDC project) has not revised its workplace scorecard, but it is monitoring which best practices might outlive COVID-19. The direction these cutting-edge organizations take not only shapes their certified projects, it also influences and informs regulators and the wider community.   

Conclusion

The issues now facing commercial building owners, operators, and tenants — from ensuring compliance with the ever-changing CDC directives and governmental regulations to developing strategies to ensure the health and safety of all building users and steadfastly protecting the environment through building sustainability — are matters of paramount concern that will resonate well beyond 2020. Please consult with your Goodwin team for timely advice as you navigate this unchartered territory.

****

Please visit Goodwin’s Coronavirus Knowledge Center, where firm lawyers from across the globe are issuing new guidance and insights to help clients fully understand and assess the ramifications of COVID-19 and navigate the potential effects of the outbreak on their businesses.


1 Centers for Disease Control and Prevention, COVID-19 from Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019 (COVID-19), dated May 2020, available at https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html, last visited July 20, 2020.

2  ANSI/ASHRAE/ACCA Standard 180-2018, Standard Practice for Inspection and Maintenance of Commercial Building HVAC Systems, dated June 11, 2018, available at https://www.ashrae.org/File%20Library/Technical%20Resources/Bookstore/previews_2016639_pre.pdf, last visited July 20, 2020.