Blogs

By Emily M. Martin and Michael C. Kelley of Shutts & Bowen LLP
Published October 27, 2020

Complicated by an unprecedented global pandemic, businesses in Florida’s construction industry have been further burdened by the anticipated challenges of an active 2020 hurricane season. Since June 1^st, the industry has been braced for threats to construction sites and businesses while responding to the health and safety requirements necessary to manage COVID-19. Now facing the final stretch of hurricane season and a looming threat from Tropical Storm Zeta, Florida construction businesses should remain vigilant in their storm preparations with protocols ready to implement in the event of a hurricane. The following four phases detail the steps and timing of necessary hurricane preparations for construction businesses to consider:

Florida construction firms are acutely aware of the hazards that hurricanes pose to project sites, particularly, incomplete structures, unincorporated materials and finishes, expensive machinery, and just about anything else that you can think of associated with an active construction site. Many businesses are required to have an Emergency Action Plan that meets requirements set forth under 29 CFR 1910.38.

• Consult OSHA guidelines and those listed in 29 CFR 1910.38to ensure your plan complies with minimal federal guidelines. Also, Federal Emergency Management Agency (FEMA) has additional information on evacuation plans, as well as suggestions for precautions to take if personnel are unable to evacuate and do not have a safe room. It is important to be familiar with the warning terms used for hurricanes, as well as your local community's emergency plans, warning signals, and shelters. And of course, an effective plan must be reviewed and discussed with each member of the project team, in advance, in order to be effective. 

A thorough emergency and evacuation plan should include the following:  

• Specific conditions triggering activation of the plan, including procedures for reporting a fire or other emergency.
• Chain of command – designated person(s) in charge of plan implementation, including name, job title, and contact information for all key personnel, contractors, subcontractors and suppliers that need to be easily reached in the event of an emergency.
• Designation of emergency functions – identification of team members assigned particular roles and responsibilities, including monitoring the weather and tracking named storms.
• Procedures for emergency evacuation, including type of evacuation and exit route assignments and procedures to account for all personnel (employees, customers and visitors) during and after an evacuation.
• Procedures to be followed by employees performing rescue or medical duties, as well as for those employees who will remain to operate critical plant operations before they evacuate.
• Inspection and testing protocols for emergency equipment.
• Directions and protocols concerning inventory of materials, site and equipment security, and salvage and cleanup operations and teams.

When possible, contractors should endeavor to negotiate contracts and purchase orders prior to hurricane season with pre-negotiated rates and/or delivery schedules that take potential storm activity into consideration. And it is always a good idea to provide local authorities (police and fire departments) with copies of your emergency evacuation plan. Finally, if it appears that the project site might be shut down for an extended period of time, see our other blogposts on avoiding a construction site abandonment situation.

• Employers whose workers will be involved in emergency response operations for releases of, or substantial threats of releases of, hazardous substances (regardless of the location of the hazard) must comply with OSHA’s Hazardous Waste Operations and Emergency Response(HAZWOPER) standard, 29 CFR 1910.120. And the U.S. Environmental Protection Agency (EPA) has promulgated a standard applying OSHA’s HAZWOPER standard to state and local government workers in states where there is no OSHA-approved State Plan. See 40 CFR Part 311.

2. Phase II – Potential Hurricane in Area

During this phase, the general recommendations are as follows:

• Review the emergency plan and update as required.
• Conduct a meeting to review and confirm action items with the responsible team members.
• Examine material deliveries and anticipate the potential impact to material deliveries and whether they should cease in the interim.
• Ascertain whether additional material is required to protect the jobsite.
• Properly secure the jobsite, including appropriate cleanup of non-essential activities.
• Update the project’s critical path in order to assist in establishing the delays which may be caused by the emergency, damages and/or repairs.

3. Phase III – Hurricane Watch in Effect (usually, 48 hours before landfall)

During this phase, the general recommendations are as follows:

• All material deliveries should cease.
• Instruct contractors, subcontractors or suppliers to move any uninstalled materials to a safe location.
• Halt project work in areas that would be vulnerable to damage and protect materials or equipment that cannot be moved.
• Complete work if it would minimize the impact of a hurricane.
• Cover exterior openings (e.g., doors, windows, roof openings).
• Remove loose jobsite materials and/or debris.
• Finish work on partially completed structures to minimize damages and secure the structure if completion is not possible.  Additionally, remove scaffolding if possible.
• Prepare structures to prevent water damage.
• Contact the appropriate project design professional to examine and advise how to minimize potential damage to the structures and existing work in place.

4. Phase IV – Hurricane Warning in Effect (usually, 24 to 36 hours before landfall)

During this phase, the general recommendations are as follows:

• Fortify all exterior building openings, doors and windows.
• Diminish the infiltration of water into the building and excavations (e.g., install protective measures such as grading, berms, sandbags, pipe caps).
• Turn off power at the circuit breakers, shut down all gas and water lines not used for emergency protection.
• Implement building code requirements governing hurricane preparations for cranes and hoisting equipment.
• Remove portable equipment from jobsites, or store it in appropriate containers.
• Remove fence screening, signs, and banners.
• Take photographs and videos of the condition of the jobsite prior to the hurricane.
• After securing the construction site, inform contractors, subcontractors, suppliers and employees to vacate the jobsite and return after the hurricane warning has ended.

Emily M. Martin is a senior associate in the Orlando office of Shutts & Bowen, where she is a member of the Construction Practice Group. Emily concentrates her practice in construction litigation in both state and federal courts as well as in alternative dispute resolution settings. She represents general contractors, subcontractors, design professionals, material suppliers and other parties in disputes involving construction and design defects, contract and change order disputes, liens, delays, unforeseen conditions, and out-of-scope work claims on public and private projects. Active in the legal and construction communities, Emily serves as Committee Co-Chair for the Young Lawyers Division of the Orange County Bar Association and is also involved in the Central Florida Chapter of Associated Builders and Contractors (ABC). She can be reached at EMartin@shutts.com or (407) 835-6977.

Michael C. Kelley is an attorney in the Orlando office of Shutts & Bowen LLP, where he is a member of the Construction Litigation Practice Group. Michael’s practice focuses on construction, commercial and real property litigation, as well as transactional matters involving construction projects and the acquisition, development, financing, operation, and disposition of real estate. He counsels businesses that develop, own, build, occupy and invest in real estate or construction projects, helping them to make better, more profitable decisions and preserve longstanding relationships and economic value. Michael helps his clients anticipate, prepare for and defend against litigation proactively, or when a dispute must be resolved, utilize litigation efficiently and effectively. He represents clients in the construction and real estate industries, including corporations, builders, developers, designers and high-end investors in a broad range of litigation and transactional matters. He can be reached at MKelley@shutts.com or at (407) 832-6792. For more insight on issues affecting the construction and real estate industries, visit Michael’s YouTube Channel.