Oregon OSHA recently fined Lowe’s Companies Inc. more than $35,000 for failing to protect workers at two stores from the COVID-19 virus.

The Lowe’s stores in Albany (on Southeast Ninth Avenue) and Redmond (on Southwest Canal Boulevard) were cited for potentially exposing employees to the coronavirus disease by allowing customers inside to not wear any form of mask or face covering, according to Oregon OHSA.

The inspections determined that supervisors at the stores were “fully aware” of the requirement to ensure customers use facial coverings and “yet intentionally decided against carrying out their responsibilities,” the agency stated.

“It is not enough to leave the protection of employees in the hands of cooperative customers,” stated Michael Wood, administrator for Oregon OSHA. “As most employers recognize, they must take appropriate steps to ensure that the rules in place are actually followed. When an employer is not prepared to take such steps, we can and will use our enforcement tools to address the issue.”

After both stores received multiple complaints, an inspection occurred and recorded three violations: a $17,500 penalty for each store for disregarding the Oregon Health Authority requirement to ensure customers inside the buildings wear facial coverings and a $600 fine for the Redmond store because it did not develop and implement both a risk assessment to identify potential employee exposure to the virus and an infection control plan.

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At the height of the permit backlog at Portland’s Bureau of Development Services this past summer, customers were waiting eight weeks for an appointment with staff after submitting an application. At that point, 1,200 building permits were in the queue and BDS staffers were processing about 35 per day.

BDS is whittling away at the backlog and hopes to eliminate it by early February, bureau Director Rebecca Esau said.

The backlog was caused by a “convergence of situations that happened over the last year,” she said.

“I would promise that it will get better in 2021,” she added.

Developers have complained that the backlog has led to costly and frustrating monthslong delays on building projects.

City officials shut offices in mid-March 2020 in response to the COVID-19 pandemic, leaving employees to work from home. Permit processing was suspended for a week. The bureau was unprepared for employees to work remotely en masse, Esau said.

“We didn’t have the hundreds of laptops we needed for staff to work remotely,” Esau said. “BDS wasn’t a high priority. It took several months for us to get the laptops we needed to work remotely, and we got them incrementally.”

The city also suffered from inadequate network capacity for the crush of remote work, Esau said.

BDS, like other city bureaus, is now engaged in its budget process. Mayor Ted Wheeler has asked bureaus that draw on the general fund to propose 5 percent cuts. BDS is largely funded by fees, so it’s less impacted by Wheeler’s proposed cuts. However, pandemic-related slowdowns in the building industry have directly impacted operations.

On Friday, BDS will submit a budget request for a one-time general fund bailout of about $10.4 million.

“The majority of our funding comes from these large commercial projects with high valuations,” Esau said. “The decrease in these projects has significantly impacted our bureau financially.”

Recently, 13 nonunion employees were notified that they will be laid off effective March 1, BDS spokesman Ken Ray said. Further layoffs are possible in May or June, he added. Employees represented by unions make up about 75 percent of BDS’ workforce.

Also, 53 vacant positions have been eliminated, reducing BDS’ workforce to about 400 full-time equivalent employees. The bureau has also reduced employees’ schedules and encouraged voluntary furloughs.

With BDS operating at less than full capacity, permit applications stacked up. Construction – designated an essential business by Gov. Kate Brown – continued, though it was slowed by supply disruptions and scattered COVID outbreaks.

Permit delays began to impact projects.

Noel Johnson, a principal with developer Cairn Pacific, said he has grown frustrated with delays at BDS.

“I’m three years into trying to build a 14-home subdivision in Northwest Portland, and I still can’t get building permits,” he said. “Our city’s systems are so broken. It makes me very sad.”

Johnson is trying to build relatively affordable, detached family-size homes that are in line with the city’s goals, he said.

For developers, the permit delays come amid a raft of other challenges, including labor and materials shortages and COVID-induced dips in rents.

“With everything else, the last thing we need is permit challenges on top of that,” said Tom DiChiara, also a principal at Cairn Pacific.

The delays may give an advantage to projects that were permitted before March. Under construction in Goose Hollow, for example, is an eight-story mixed-use building at Southwest 18th Avenue and Salmon Street for Greystar. The project has proceeded smoothly, with minor permit adjustments made with little hassle, said Doug Burges, Greystar’s director of development in Portland.

“It’s actually gone pretty well,” he said.

Some developers were reluctant to publicly discuss permit delays out of fear of damaging their relationships with BDS officials.

Permit delays are a rising concern in Portland, said Laurie Kendall, president and CEO of Associated Builders and Contractors’ Pacific Northwest chapter. The city has not responded quickly enough to the pandemic, she said.

“Everybody else seems to be able to adapt to the new business model,” she said.

BDS officials said the bureau is trying. Esau noted that BDS staffers have conducted 130,583 commercial and residential inspections at more than 1,000 construction sites since the pandemic began. Many inspections are now conducted remotely via video calls. Esau shifted bureau staff to focus on incoming work. With a dearth of large commercial projects, some plans examiners shifted to residential.

The bureau has moved more capabilities online, so permitting can be done entirely remotely. On Dec. 14, BDS launched a permanent permitting system to replace a makeshift temporary one put in place after the mid-March closure.

“We’ll continue to expand and improve our digital review capabilities and make those processes more efficient internally,” Esau said.

Meanwhile, the bureau will continue to accept paper plans because not all applicants use computers, Esau said.

As BDS faces the city’s budgeting deadlines, the bureau faces a delicate balance: It must be fiscally responsible without hollowing out the workforce. The bureau is drawing on lessons from the previous recession in striking that balance.

“The development community is very nervous about whether we are going to cut too much and be in a situation similar to 2008-2009,” Esau said. “We were unable to respond at the same pace as the recovery and the demand for services.”

Cuts that go too deep would risk leaving the bureau unable to respond to increased economic activity later this year and next year, as many analysts expect to happen as the pandemic recedes.

“A priority is to hang on to as much of our workforce as we can – particularly in permitting and inspections – so we’re well positioned when the economy does recover,” Esau said.

Portland Commissioner Dan Ryan, who oversees BDS, provided assurance that the bureau would indeed be prepared for the years ahead.

“We will not allow the mistakes of 2008’s layoffs to decimate BDS, which is the community-facing service bureau, at this time of urgent need,” he stated via email. “It is imperative that BDS is resourced appropriately to keep the economy moving and to be poised for expansion in ’21-22 and beyond.”

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The long-awaited COVID-19 vaccine has cleared its final hurdle and on Monday morning the first Americans were administered the injection.

The director of the U.S. Centers for Disease Control and Prevention (CDC) on Saturday accepted recommendations that the vaccine may be given to people age 16 and older. That concluded the approval process.

“This is the next step in our efforts to protect Americans, reduce the impact of the COVID-19 pandemic and help restore some normalcy to our lives and our country,” CDC Director Robert Redfield stated on Sunday.

But as businesses plan for the coming year, news of immunizations raises a host of questions. For instance, should employers require workers to receive vaccinations?

“It’s a tough question to mandate that somebody does something to themselves,” said Brian Pearce, executive vice president of real estate services for Unico Properties. The company owns U.S. Bancorp Tower in Portland and has more than 300 employees covering its western U.S. portfolio.

For now, officials are focused on prioritizing groups considered exceptionally high risk: workers in health care and long-term care facilities. Experts say the vaccine will probably not become widely available in the U.S. until spring 2021.

There has yet to be a decision directly stipulating whether employers can mandate that workers get a COVID-19 vaccination. However, there are already in place Equal Employment Opportunity Commission (EEOC) guidelines regarding flu shots.

Businesses are allowed to mandate flu shots, according to the EEOC. However, employees can seek an exemption based on medical or religious reasons as part of the Americans with Disabilities Act (ADA).

The EEOC also advises employers to encourage but not require employees to get flu shots.

“Hoffman will not require anyone to get a (COVID-19) vaccine,” Hoffman Construction Vice President Dan Drinkward said. “When a vaccine becomes available, if we can, we will help any employee that wants one to get it. We will not have a specific plan until the timing and distribution process becomes clear.”

Currently, Hoffman is continuing to work with its safety precautions in place.

“We want to make sure now that there’s a light at the end of the tunnel, not to let our guard down,” Drinkward said.

Once more doses of the COVID-19 vaccine are released to the general public, employees’ returns to workplaces will likely be a gradual shift rather than an abrupt switch. The Pfizer–BioNTech vaccine requires two doses, given 21 days apart.

“I don’t anticipate that we would mandate a vaccine,” Pearce said. “But I think we will also follow the lead of what the business world does.”

If public opinion shifts, and a majority of businesses begin requiring vaccinations, employers should be prepared to accommodate employees with approved exemptions. Accommodations might include allowing the employee to work on-site while wearing a face covering, moving the employee’s workstation, or allowing the employee to work remotely.

However, employers may be concerned that exempt employees pose a health risk to co-workers. If an exempt employee tests positive for COVID-19 and infects others, the employer could face legal risk.

“Outside an act by the Legislature providing employers with some type of immunity, the liability is unlikely to be ever zero,” Fisher Phillips attorney Stephen Scott said. “That is why employers should stay vigilant in enforcing social distancing, proper sanitation, mask usage, etcetera.”

Depending on vaccine production, increasing numbers of employees could gradually return to workplaces throughout 2021.

The post With coronavirus vaccine approved, questions arise appeared first on Daily Journal of Commerce.

By Mae Anderson

The Associated Press

NEW YORK – Bergmeyer, a design firm in Boston, has erected higher cubicles, told employees to wear masks when not at their desks and set up in the office one-way aisles that force people to walk the long way around to get to the kitchen or the bathroom.

“The one-way paths take me a little out of the way, but it was easy to get used to,” said Stephanie Jones, an interior designer with the company. “It actually gives me the opportunity to see more people and say a quick hello when I might have just walked directly to my desk before.”

Around the U.S., office workers sent home when the coronavirus took hold in March are returning to the world of cubicles and conference rooms. They’re facing certain adjustments: mask requirements, staggered shifts, desks with greater separation, daily questions about their health, closed break rooms and abundant availability of hand sanitizer.

For some of these workers, at least, there are also advantages: the opportunity to again engage in chitchat with colleagues or inhabit an atmosphere conducive to productivity.

Employers in some cases are requiring workers to come back to the office. But most, like Bergmeyer, are letting the employees decide what to do, at least for now. Some firms say the risks and precautions are worth it to boost productivity and move closer to normal.

The trend is only meager so far: Real estate trade group NAIOP Massachusetts estimated the occupancy rate for many office towers in downtown Boston at around 5 percent, and 10 percent to 20 percent in the suburbs. That echoes what is happening in other cities. In New York, real estate firm CBRE said the offices it manages have a 7 percent occupancy rate in Manhattan and nearly 30 percent in the suburbs.

Bergmeyer began bringing people back in June in stages. It is now in phase three, with 60 percent of the staff back in the office but split into two groups: Half come in on Mondays, Wednesdays and Fridays, the other half on Tuesdays and Thursdays.

Employees are asked to report any COVID-19 symptoms to a human resources director who can work with them on getting tested and quarantining themselves.

Jones elected to come back in the second wave, in late June.

“I found that I was surprisingly more productive than I thought I would be working from home, but ultimately decided to come back,” she said. “I live alone, and I was missing the social interaction.”

She also missed her double computer monitors and other advantages.

“I’m an interior designer, and I’m used to picking finishes and materials with a whole resource library here I didn’t have access to,” she said. “Suddenly I had to be ordering everything to my home, and it was taking over.”

At first, the one-way aisles meant that people who sat just past the restrooms had to walk all the way around the office to reach them. So Bergmeyer added another path down the middle. But to reach the kitchen, Jones said, one has to keep walking around the circle to get back to his or her desk.

The natural light in the office was too bright for some Zoom calls, so the company has experimented with audio, lighting, acoustics and backdrops in several new dedicated “Zoom rooms.”

All in all, Jones said, “it’s great to come back in on a part-time basis on my own terms.”

Stephan Meier, a business professor at Columbia University, expressed skepticism about bringing workers back in the midst of the outbreak, which has been blamed for over 5 million confirmed infections and nearly 170,000 deaths in the U.S. Most firms have discovered that people can work effectively remotely, he said.

“The safety of your workers has to be top priority,” he said.

As virus cases surge in many states, some companies have found that reopening has led to reclosing.

The Blue Sky advertising agency in Atlanta began reopening in May in stages, reconfiguring its open-plan workspace by spreading out tables, installing plastic partitions and establishing a limit of 10 people in the office at any one time out of a workforce of 25, and caps on how many could be in certain rooms.

But a surge in cases in Georgia led to another shutdown at the end of June. Now employees come in only if they absolutely need to, said Dawn Evans, the company’s human resources manager.

Kippy Castillo, an account manager at Blue Sky, was working at the office once a week before it closed again. She drove in and brought her lunch. She said the precautions around the office made her feel safe.

“I really didn’t feel like we’ve missed a beat working from home,” she said. “But it’s nice to get back in the routine of being in the office.” Being there, she said, “helps if you need to focus on getting work done or a certain meeting.”

Steve Spinner, an accountant in Chicago, went back in June when his office started letting people return. He takes a commuter train into work and has to ride the elevator to the 27th floor. But he said for him it’s the best option.

“One, I’m 51 years old, and I’m not very good at working from home; I’m not used to it,” he said. “We’re more productive when we are all here together, and there have been no issues or incidents, knock on wood.”

Only a quarter of the 200 employees at Spinner’s office are allowed back. The desks have been reconfigured so that no one sits next to anyone else, and common areas like the kitchen are closed. There are hand sanitizer stations and mask requirements.

Up to only four people are allowed in the elevator at a time, and building workers push buttons for them.

Spinner said the riskiest part of his day is the commute.

“Frankly when I come to the office, I’m not worried once I’m here; everything is safe,” he said. “The trains are a little more sketchy, not everyone following rules for masks and whatnot.”

The post For some office workers, it’s a different world appeared first on Daily Journal of Commerce.

In the midst of the global pandemic, nothing is certain … except endless Zoom calls, taxes and the fear of what to do if an employee tests positive for COVID-19. That last exception is likely on the minds of many business owners while numbers of COVID-19 cases continue to increase in Oregon and elsewhere. It is my hope that this seven-step guide will provide employers some stress reduction in the event of a worker testing positive.

1. Isolate/quarantine the infected employee

Instruct the infected employee to remain at home until released by a physician or public health official. If a doctor’s note releasing the employee is unavailable, follow the CDC guidelines on when an employee may discontinue self-isolation. The guidelines contain specific requirements dependent upon whether the employee tests positive for COVID-19 and/or exhibits symptoms.

2. Conduct contact tracing to identify individuals in “6-15-48” zone

After learning that one employee (or more) has been diagnosed with COVID-19, act quickly to have the person(s) identify all other employees and/or third parties who might have been exposed during the infectious period. Ask the infected employee to identify all individuals who fall in the “6-15-48” zone: those who worked with him or her in “close proximity” (within six feet) for a prolonged period of time (15 minutes or more) during the 48-hour period before the onset of symptoms.

3. Address employees who were in close proximity to the infected employee

As per CDC guidance, notify all noncritical infrastructure workers who were in close proximity to the infected employee that they may have been exposed and send them home for 14 days to ensure the infection does not spread. While these employees are quarantined, instruct them to self-monitor for symptoms, avoid contact with high-risk individuals, and seek medical attention if symptoms develop. As noted below, these employees may qualify for Families First Coronavirus Response Act leave.

The CDC has developed alternative guidelines for critical infrastructure workers. An essential business’ asymptomatic employees who have been directly exposed to a confirmed case of COVID-19 can continue to work if certain guidelines are met.

4. Recording, reporting and investigating the work-relatedness of COVID-19

OSHA recently unveiled new requirements for covered employers to make an increased effort to determine whether they need to record and report confirmed coronavirus cases in the workplace. To ensure compliance, document efforts to determine if the positive COVID-19 case was work-related. In most situations, after learning of an employee’s COVID-19 illness:

1, ask the infected employee how he or she believes the illness was contracted;

2, while respecting employee privacy, discuss with the infected employee his or her work and out-of-work activities that may have resulted in contraction of the illness; and

3, review the employee’s work environment for potential COVID-19 exposure.

Look to the surrounding evidence to aid these efforts. OSHA’s guidance highlights that certain types of evidence weigh in favor of or against work-relatedness. When there is no alternative explanation, a case is likely work-related. Examples include:

• when several cases develop among workers who work closely together;
• if it is contracted after lengthy, close exposure to a customer or co-worker who has a confirmed case of COVID-19; or
• if an employee’s job duties include having frequent, close exposure to the general public in a locality with widespread transmission.

If a reasonable and good faith inquiry is made but cannot determine whether it is more likely than not that exposure in the workplace played a role in the confirmed case of COVID-19, the agency says the illness does not need to be recorded. Since Oregon OSHA announced that it intends to develop separate emergency temporary standards to address the ongoing COVID-19 pandemic, also always check if there is new local and state guidance to determine if there are other investigation, reporting or recording obligations triggered by a positive COVID-19 case.

5. Clean and disinfect the workplace

In the wake of a confirmed COVID-19 case, follow the CDC guidelines for cleaning and disinfecting the workplace. The cleaning staff or a third-party sanitation contractor should clean and disinfect all areas (e.g., offices, bathrooms and common areas) used by the ill person, with focus especially on frequently touched surfaces.

If using cleaners other than household ones with more frequency than an employee would use at home, ensure workers are trained on the hazards of the cleaning chemicals used in the workplace and maintain a written program in accordance with OSHA’s Hazard Communication Standard. Simply download the manufacturer’s Safety Data Sheet (SDS) and share with employees as needed, and make sure the cleaners used are on the company’s list of workplace chemicals used as part of a Hazard Communication program.

6. Determine if other employees and third parties should be notified

Following confirmation of a COVID-19 case, and as recommended by the CDC, notify all employees (access sample forms at www.fisherphillips.com/data-bank-templates-forms) who work in the location or area where the employee works. Notification should be done without revealing any confidential medical information such as the name of the employee. An employer may obtain the employee’s signed authorization to disclose his or her diagnosis. Also notify any third parties who may have been exposed by the infected employee.

Inform employees and third parties of actions taken, including requiring employees who worked closely to the infected worker to go home (if a nonessential business), and sanitizing and cleaning. Include a reminder about seeking medical attention if they exhibit symptoms. The failure of an employer to notify employees at its location of a confirmed COVID-19 case may be a violation of OSHA’s general duty clause, which requires all employers to provide employees with a safe work environment.

7. Determine if the infected employee/others are eligible for paid time off

Finally, determine if the employee is eligible for paid time off under company policy, local, state or federal guidelines. If an employer is covered under the Families First Coronavirus Response Act (FFCRA), the infected employee may be eligible for emergency paid sick leave. Other potentially exposed employees may also be eligible for emergency paid sick leave or other leave as provided in a company handbook. Be sure to maintain appropriate documentation for employees on leave.

Stephen Scott is an associate in the Portland office of Fisher Phillips, a national firm dedicated to representing employers’ interests in all aspects of workplace law. Contact him at 503-205-8094 or smscott@fisherphillips.com.

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not necessarily reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the 91��Ƶ guarantees the accuracy or completeness of any information published herein.

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When the coronavirus outbreak hit the U.S. earlier this year, health care providers had to move quickly to alter their operational practices to prevent the spread of COVID-19 while adapting spaces to accommodate a massive influx of patients.

Now, with months’ worth of perspective, architects and health care providers are looking at how medical spaces can be designed to allow maximum operational efficiency and prevent the spread of infectious diseases.

Over the past decade, Ebola, SARS and H1N1 (swine flu) pandemics spurred an evolution of health care design, said Ali Sadri, director of planning, design and construction with Legacy Health. But the arrival of COVID-19 was a wake-up call that accelerated discussions about functional programming, and the relationship between building occupants and their physical environment.

“Most of our providers started paying more attention to environment of care in general,” Sadri said. “What do they need to be more effective and efficient, and care for their patients better so that space would not become an obstacle for them?”

One major step involves removal of some patients from buildings altogether. While business owners, school officials and others weigh strategies for returning to in-person operations, the health care industry is doing the opposite by adopting new methods for keeping some patients off-site.

“We’re going to rely a lot more on care within your own home, because that’s where you’re safest,” said Erin Couch, the Portland-based architectural standards and design director for Providence St. Joseph Health.

Health care providers in recent months have increasingly relied on “telehealth” as a means of seeing patients while reducing the number of people in their buildings. Rather than coming to a hospital or clinic for preventive care appointments, patients connect with providers via video conferencing or over the phone, minimizing the risk of virus exposure for both staff and other patients.

Couch, who works within Providence’s Real Estate Strategy and Operations pillar, sets design standards across a seven-state system that includes 51 hospitals, over 1,000 clinics and 100,000 caregivers. Moving forward, she is going to recommend that Providence convert a quarter of its existing examination rooms to telehealth rooms.

Monty Hill, a Mackenzie design director and associate principal whose specialties include health care design, said his firm anticipates telehealth remaining prevalent after the pandemic, due in large part to changes in how providers are compensated.

“Some of the things that we use as cues for changes in health care are Medicare and what the government is willing to reimburse,” he said.

The Centers for Medicare & Medicaid Services in April announced a temporary expansion of telehealth benefits for Medicare patients, allowing hospitals to bill the system for services rendered remotely. A bill introduced to the U.S. House of Representatives on July 16 would make the expansion permanent, as would a bill introduced to the U.S. Senate on July 20 by Sen. Ron Wyden.

Designers and providers are also giving considerable thought to the flexibility of spaces. For years, the nature of health care building design was to create silos of specialties. While a shift in thinking was taking place before the pandemic, providers are increasingly looking at creating universal rooms.

Solvei Neiger, a ZGF Architects partner who specializes in health care spaces, says an ongoing consideration among her clients is the design of nursing units, including those in emergency departments, to allow for compartmentalization of spaces and creation of flexible groupings of rooms for cluster care.

Clients are planning lobbies with some of the infrastructure necessary to convert them to triage space, Neiger said. Rooms are being rethought as well.

“Maybe it’s an exam room one day, a triage room or treatment room another day,” she said. “Being able to not have barriers allows for different types of uses to happen, which gives them maximum flexibility.”

Especially important will be a shift toward rooms that can be adapted to intensive care units in the event of a surge, Hill said. With COVID-19, demand exceeded supply for ICU rooms, which differ from typical rooms because of their life-sustaining equipment available, level of monitoring for the nursing staff, and either positive or negative air pressure.

“I think we’re going to see government rules change to have a plan in order to deal with any major catastrophe,” Hill said, “not just for coronavirus, but any future virus that we may need to be prepared for.”

Also on the horizon is a shift away from using return air to a 100 percent outside air system in all areas in order to reduce the likelihood of contagions spreading through a building’s HVAC system. The Emanuel West core-and-shell project nearing completion in North Portland will not use recirculated air, Sadri said. Energy models show that the full outside air system offers better control of the environment without wasting energy.

“We can actually capture more energy from our exhaust than reintroducing that air back into the building,” Sadri said. “And, of course, fresh air and not recycled air is what everybody in infections control is advising. You will see single-pass air become much more common.”

Providence is also considering a move to a 100 percent outside air system, and is using simpler ways to keep contaminants out of the air. According to Couch, they have already turned off all hand blowers in restrooms, and are considering a return to use of toilet lids.

Reducing surface contamination is an equally important consideration. Touchless devices will also become even more commonplace than they already are, as will handwashing sinks. Some materials like carpet may be completely eschewed for surfaces that are more conducive to disinfection. Cove base flooring and countertop backsplashes, already common in many areas, could become even more prevalent in any areas that patients go.

“It really just eliminates any place for a virus to hide,” Hill said. “The cleanability of surfaces is going to increase.”

Waiting rooms are likely to shrink to allow for improved social distancing among patients and visitors. Large groups of chairs will give way to small clusters or individual seating. Modern communications technology makes it possible for medical staff to be in full contact with patients and to stay updated without being on hospital grounds.

Also, after the widespread shortage of personal protective equipment that caught many hospitals off-guard early in the COVID-19 pandemic, some may begin storing supplies in bulk in warehouse space.

Designers are also beginning to rethink how providers are typically clustered, such as at nursing stations, in order to allow for greater distancing between medical staff members.

The pandemic has accelerated thinking on how to make medical spaces function as safely and efficiently as possible. For Couch – busier than she’s ever been with Providence – it’s a time that has begotten industry-wide ingenuity and a fresh approach to provision of community health care.

“I’m sorry it took a pandemic to do that, but it’s certainly improved the way we do business,” she said. “We will look back at 2020 and say, ‘That’s when it all changed.’”

The post New design considerations for health care appeared first on Daily Journal of Commerce.

The Portland City Council is poised to approve a package of deadline extensions that would give developers and construction firms more time to break ground on projects.

The move comes amid recognition that the pandemic has significantly slowed development review and permit processing at the Bureau of Development Services. Social-distancing rules and market conditions have also contributed to slowing projects, city officials said.

“As we all know, the COVID-19 pandemic has had a widespread impact on our city, including on the construction and development sectors of our economy, and on the development review process here at the city of Portland,” Mayor Ted Wheeler said during a meeting on Wednesday.

Commissioners considered eight amendments to Title 33, the city’s zoning code. The amendments would extend the expiration of land-use approvals to Jan. 1, 2024, for developments approved from July 1, 2017 to Dec. 31, 2020. Typically, approvals expire three years after a final land-use decision.

“Due to the pandemic, the processing of permits has slowed down, construction timelines have slowed, financing is harder to obtain, and there is just a generally uncertain market condition happening now,” said J.P. McNeil, a planner with the Bureau of Planning and Sustainability.

Commissioner Jo Ann Hardesty questioned whether the extension would lock Portland into decisions that didn’t take racial and climate justice into account.

“Are we tying ourselves into old plans that are not going to be adaptable to the new visions and the new priorities that the city of Portland is trying to move forward?” she asked.

Wheeler replied that the city should work to accommodate good-faith development plans that have been waylaid by the pandemic and resulting economic downturn.

“My guess is that even with the extension of these deadlines, some of these projects still aren’t going to happen as a result of the economic consequences of COVID,” he said. “But this is really to focus on our piece of this and making good on the partnership and the efforts that already have been made by these development projects under the rules as they existed at the time.”

Commissioners are also considering the extension of lower rates of required inclusionary housing outside the Central City and Gateway plan districts. The current rates for those outside areas are 8 percent of multifamily units capped for renters at 60 percent of median family income, or 15 percent at 80 percent of MFI. In the Central City and Gateway areas, those rates are 10 percent at 60 percent of MFI, and 20 percent at 80 percent of MFI.

The lower rates were originally set to expire at the end of 2018, and were previously extended to the end of this year. The proposed amendment would extend the lower rates three more years, until 2024, but Wheeler proposed a shorter timeline of one year. That aligns with an ongoing review of inclusionary housing policy, Wheeler said.

Another amendment would delay the effective date of new, higher system development charges to Aug. 1, as developers rushed to get projects in before the original July 1 deadline.

Commissioners are tentatively scheduled to vote on the proposed amendments on July 22.

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The U.S. Bancorp Tower, a 1.2-million-square-foot monument to capitalist dynamism, stands eerily quiet in downtown Portland. Nearly all of the thousands of office workers who give the building purpose are at home.

On the ground-floor plaza, custodians wearing masks and gloves clean again and again, outnumbering the few office workers striding briskly through the lobby.

Furniture has been removed. Signs urge visitors and tenants to “KEEP CALM AND MOVE ALONG,” lest they create a plume of disease.

For office tenants and property managers in Portland and around the nation, the COVID-19 pandemic has raised fundamental questions about the modern workplace: Should we be together, or apart? If we can work effectively from home, should we? Is there still meaning and value in meeting face to face?

As Oregon, in fits and starts, slowly revives its stunned economy, office tenants are reconsidering the basics. They’re coming to different conclusions and watching their competitors, government authorities and news of the virus’ rise and fall for cues.

It’s an open question of whether the pandemic will subside quickly and the workplace will snap back to what, before March, was considered normal. It’s also unclear whether, like disasters and wars throughout American history, change will be good.

In interviews, property managers, tenants and architects expressed a new and humble sentiment: They don’t know.

“This is unprecedented times,” said John Wix, managing director of Gensler‘s office in Portland.

At the U.S. Bancorp Tower, better known as Big Pink, offices are operating at about 10 percent capacity, Unico Properties‘ representatives said. On a typical weekday before the pandemic, 4,000 to 5,000 workers filled the 42-story building.

“When the tenants are ready to come back, the building will be ready for them,” said Keren Eichen, Unico Properties’ director of real estate services.

Unico, the real estate giant that owns and manages the downtown tower, is preparing for tenants’ returns. The company has placed a hand sanitizer station in the lobby. Elevators are restricted to four people at a time, with their standing places marked on the floor. The parking garage has been reprogrammed for contactless entry. An app will call an elevator, as another measure to avoid touching buttons.

Big Pink entered the pandemic with 94 percent occupancy, and Unico has had no unplanned tenant exits, said Brian Pearce, Unico’s executive vice president.

Clackamas and Washington counties are reopening, and Multnomah County is likely to do so at some point in June, if certain benchmarks can be reached.

As offices prepare to reopen, managers are considering measures to ensure distancing. They include installing physical barriers between desks, staggering employees’ start times and asking only a quarter to half of office workers to return at first.

“The new normal is highly individualized by each business and what they can do to protect people,” said Stuart Colby, a principal at SERA Architects and director of its workplace studio.

It may make more sense to keep office density low, and have some employees continue to work from home, rather than undergo costly tenant improvement projects, some experts said.

“Tenants are not looking to spend a whole bunch of money right now, especially with the economy so poor,” Pearce said. “They’re looking at what they can do for little or no cost.”

In Unico’s conversations with tenants, Pearce said, the “vast majority of tenants said, ‘Look, we’re going to take it slow.’”

In other states, employers have reopened offices slowly. In Unico’s markets that have already reopened, including Salt Lake City, Denver, Nashville, Tennessee, and Austin, Texas, office use has grown gradually to about 50 percent, Pearce said.

“I don’t expect to see a line out the door the day the (Oregon) governor loosens restrictions,” Pearce said.

In early May, CBRE conducted an international survey of office tenants. Of 203 respondents, 59 percent said they would provide masks, but only 28 percent said employees would be required to wear them at all times at work.

Only 20 percent of companies plan to reopen as soon as government restrictions are lifted, according to the CBRE survey. More than twice as many – 42 percent – plan to reopen after their internal standards are met.

Most companies plan a phased reopening, with 72 percent taking that approach, according to CBRE.

Wade Lange, vice president and regional manager of American Assets Trust, said the company is preparing to welcome back in the Lloyd District workers with employers including WeWork, Genentech and PacifiCorp. AAT employees will have their temperature taken when they return to work, he said.

Tenants’ employees will be asked to wear masks.

“We ask that they please wear face masks from their cars or buses up to their suites,” Lange said.

Building owners will need to prepare the physical systems as well. The Portland Water Bureau and Bureau of Development Services issued a bulletin May 1 cautioning that deadly bacteria can grow in stagnant water pipes while buildings are vacant. The agencies advised running fresh water through commercial buildings at least weekly.

Commercial real-estate professionals are watching closely to see whether tenants’ needs change emerging from the pandemic. Office space could face competing imperatives, with the need for social distance prompting desire for more space, but a greater number of employees working from home on some or most days leading to a need for less space.

“It’s also possible once there’s a vaccine that everybody will go back to the way things were,” Pearce said.

Gensler’s Wix said that with more employees working remotely, offices could have more conference rooms and fewer desks.

“We’re seeing the workplace becoming this place where the office possibly is more geared toward the community and cultural activities – the collaborative activities,” he said. “Individuals don’t need to be there to do their work.”

Most office tenants have signed yearslong leases, which has cushioned the commercial real estate market from shock and given tenants and building owners time to adjust. Still, more than $1 billion in transaction volume disappeared because of the pandemic, Jones Lang LaSalle Managing Director Eric Turner said during a recent 91��Ƶ Builder Breakfast event.

The modern office environment did not materialize by accident, but is a highly evolved, specific model that works for many tenants, SERA’s Colby said.

“Business leaders have been making this very conscious choice for housing their workers for decades,” he said. “It seems like unwinding it to deal with one potential resilience model is highly unlikely.”

Colby said he’s cautioning clients not to lose sight of the workplace’s function as an employee recruitment and retention asset.

“Do we really want to go backwards?” he said. “(With) a command and control mindset, you’re going to lose a competitive advantage with the workforce. Maybe not today, but tomorrow.”

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Most construction contracts contain a liquidated damages provision, which provides that if the contractor does not finish the project on time, the owner will assess a certain monetary amount per day as damages. A contractor can potentially avoid the assessment of liquidated damages if the cause of the delay is outside of its control – what is known as “excusable delay.”

It seems fairly straightforward that the coronavirus pandemic is outside of the control of any contractor, but it does not necessarily follow that contractors will not be assessed liquidated damages for pandemic-related delays.

Like so many questions in the law of construction contracting, the question of whether a contractor may avoid liquidated damages for delays caused by the pandemic is answered with a question: What does the contract say? Most contracts contain what is known as a force majeure provision, which defines what events can constitute excusable delay.

The typical force majeure provision will state that a contractor will not be charged contract time or assessed liquidated damages when a delay is caused by “an act, event or occurrence caused by fire, riot, war, acts of God, nature, sovereign, or public enemy, strikes, freight embargoes or any other act, event or occurrence that is beyond the control of the party to this contract who is asserting force majeure” (Oregon general conditions for public improvement contracts, 2012). As you can see, the list of events in this particular contract constituting excusable delay does not include “pandemic” or “epidemic.”

However, some contracts do include those events in their force majeure provisions. For example, the typical force majeure provision for a federal construction project states that a contractor will not be charged contract time for: “(1) acts of God or of the public enemy, (2) acts of the government in either its sovereign or contractual capacity, (3) fires, (4) floods, (5) epidemics, (6) quarantine restrictions, (7) strikes, (8) freight embargoes, and (9) unusually severe weather.” If the force majeure provision specifically lists “epidemic” or “pandemic,” then a contractor has a stronger base from which to make an argument for excusable delay than if the provision does not mention those events.

However, even when the force majeure provision does mention “epidemic,” the occurrence of an epidemic does not, in and of itself, result in excusable delay. Instead, courts have held that a contractor will need to prove that its delay in performance was actually caused by the epidemic.

For example, a contractor alleged that a flu epidemic had spread among its staff, resulting in delay, which the contractor argued was excusable. The court denied the contractor’s claim, citing the contractor’s failure to provide evidence of when the epidemic occurred, how long it lasted, the names of the affected personnel, the dates of absence of the personnel, proof that their absences caused the delay, or any efforts by the contractor to carry on with the work in spite of the absences. See Ace Electronics Associates Inc. (July 18, 1967).

Thus, while it is beneficial to the contractor if the force majeure provision lists “epidemic” or “pandemic” as a cause of excusable delay, the mere occurrence of a pandemic will not be enough for the contractor to avoid liquidated damages. Instead, the contractor must rigorously document all pandemic-related delays and be able to show precisely how a delay was caused by the pandemic.

In the case of a force majeure provision similar to the first provision quoted above, which does not mention epidemics as a cause of excusable delay, the contractor faces even more of a challenge. That is, the contractor must rely on the force majeure provision’s catchall phrase: “any other act, event or occurrence that is beyond the control” of the contractor. Thus, the contractor will first need to prove that the pandemic was an unforeseeable event beyond its control and not a result of its own fault or negligence, and then prove with specificity that the event actually caused the delay.

In summary, any contractor that is experiencing pandemic-related delays should review its contract’s force majeure provision to determine whether “epidemic” or “pandemic” is one of the listed excusable delay events. If it is not, then the contractor must rely on the “catchall” provision and be prepared to show that the pandemic was an unforeseeable event beyond its control and not a result of its own fault or negligence. In either case, a contractor should rigorously document the causes of any delay caused by the pandemic, as a court will likely require very specific proof that the pandemic caused the delay in order for a contractor to avoid liquidated damages. In this way, even though the coronavirus pandemic is an unprecedented event, the guidance is similar to claims related to other causes of delay – review the contract carefully and thoroughly document the claim.

Brent Carpenter is a shareholder at Jordan Ramis PC. He focuses his practice on construction law. Contact him at 503-598-7070 or brent.carpenter@jordanramis.com. Note: This article is intended to provide readers with general information and not legal advice. For specific situations, consult with competent counsel.

The opinions, beliefs and viewpoints expressed in the preceding commentary are those of the author and do not reflect the opinions, beliefs and viewpoints of the Daily Journal of Commerce or its editors. Neither the author nor the 91��Ƶ guarantees the accuracy or completeness of any information published herein.

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April saw a marked downturn in residential real estate activity, with pending sales and listings down more than 30 percent from 12 months previous, as the coronavirus pandemic took its toll.

Closed sales fared somewhat better, but were still 16.4 percent lower than a year ago. The data came from RMLS, a regional listing service.

Leading indicators were worst off as activity declined amid Oregon Gov. Kate Brown’s stay-at-home executive order. Transactions appeared to dry up as many buyers and sellers decided to wait out the coronavirus crisis. Pending sales dropped 34.2 percent compared to April 2019, and 13 percent compared to a month ago.

New listings also dropped precipitously as many homeowners pulled back. New listings fell 32.4 percent compared to April 2019, and 17.9 percent from March 2020.

Real estate agents are preparing for a delay to the usually busy spring season of March and April.

“The unfortunate part is those are two peak months of sales, but it feels like that’s going to pop back really fast,” said Eric Hagstette, principal broker and owner of Inhabit Real Estate in Portland.

Sale prices slipped by 0.2 percent from March, suggesting the upward climb in home values might be on pause. The median sale price dropped to $424,000, from $425,000. Prices remained 4.7 percent above levels from 12 months previous.

Inventory grew to 2.4 months, up from 1.8 months in March.

Lake Oswego-West Linn remained the priciest area, with homes there selling for a median price of $652,500.

Hagstette said there will be some distressed sellers in the market. He’s also watching for the expansion of institutional buyers – essentially real estate investment trusts for residential properties – to increase their presence in the Portland market.

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