As professionals, engineers face a high level of exposure to professional liability claims. As licensed design professionals, their responsibilities may go beyond simply designing projects to meet existing codes and standards. In some cases, registration laws clearly mandate the obligation of professional engineers to protect public health and safety—and this could be construed as designing beyond existing codes. Even in states that do not have expansive obligations under licensing laws, courts often recognize that professionals have to use their expertise and knowledge to design beyond compliance with the minimum requirements of codes and standards.
ASHRAE Offers Guidance
Often, increased risk exposure comes about because of guidance or recommendations to the professional by recognized professional societies or trade associations. On April 20, 2020, ASHRAE suggested a variety of COVID-19 related recommendations for companies in Guidance for Building Operations During the COVID-19 Pandemic. The recommendations include:
- lowering building populations to increase the effective dilution ventilation per person,
- disabling demand-controlled ventilation,
- increasing air filtration,
- opening outdoor air dampers fully to decrease recirculation during more temperate seasons, and
- using ultraviolet germicidal irradiation to protect people waiting in high-risk spaces, such as waiting rooms and lobbies.
Even though this is guidance for consideration by firms and not an actual published standard from ASHRAE—and it appears that no regulatory authority having jurisdiction over design requirements has adopted the ASHRAE guidance as a requirement—it could have an impact on claims brought against MEP firms and their subsequent liability.
One of the reasons for the possible increased exposure is a project owner’s reliance on the expertise of the engineer. The owner should be informed of this new guidance and make an informed decision as to whether to include the new recommendations in the design solution. It is up to the project owner to decide whether to include the recommendations or not. If the owner decides not to have the new guidance affect the project design, the engineer should document that the owner was advised about the new recommendations and decided not to incorporate them into the design.
Obviously, with the sensitivity around indoor air quality and the coronavirus, it is essential that an MEP firm affirmatively take steps to educate its staff about the new guidance and consult with their clients. If additional services are involved, firms should negotiate additional fees.
International Information Available
ASHRAE is not alone. The Federation of European Heating, Ventilation and Air Conditioning Associations (REHVA) has recently issued guidance on how to occupy commercial and public buildings, from offices to schools, “in order to prevent the spread of the coronavirus.” The REHVA guidance is based on World Health Organization documents, evidence, and knowledge from 27 European countries, focusing on HVAC systems in buildings to control the airborne transmission of COVID-19. In response to clear evidence of airborne transmission, REHVA provides practical recommendations for building operations through REHVA COVID-19 guidance document, April 3, 2020.
Important for every pandemic are the transmission routes of the infectious agent. In relation to COVID-19, the standard assumption is that there are two dominant transmission routes: from droplets emitted when sneezing, coughing, or talking and through contaminated surfaces and hand-to-hand contact. However, some European and Asian countries have also identified another key transmission route of concern: airborne transmission through small particles that may stay airborne for hours and can be transported long distances.
REHVA’s guidance goes beyond ASHRAE’s in that it recommends absolutely no use of recirculation even if recirculation air handling units are equipped with return air filters using HEPA level filtration and ultraviolet lights.
As knowledge about the spread characteristics of the coronavirus increases, engineers specifying HVAC systems will face increased risk because of their responsibility to refer to and incorporate developing knowledge.