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The COVID-19 pandemic has impacted every workplace, shutting down many businesses and transforming the rest.  Since the crisis upended daily life, landlords have had to cope with widespread business closures, a drastic reduction in day-to-day workforce occupancy and an uncertain legal landscape. 

Now that communities are moving toward a phased return to daily life amidst the ongoing threat from the pandemic, landlords face the challenge of reopening the workplace.  CGS3 has developed the following guiding principles to aid landlords in preparing to meet this new challenge.

Communicate. 

  • Act now to involve tenants in a health and safety strategy for the project.  Tenants, their employees and visitors will have questions and concerns.  This is an opportunity for landlords to inform tenants of what actions they are taking to provide a safe environment for all, as well as what tenants can – and should – do to help protect their employees and other people in the project.
  • Designate a single point of contact for distributing information to tenants, and request that each tenant identify a single point of contract to distribute information to employees and visitors. 
  • Use multiple channels to communicate with tenants, service providers and visitors.  If laws, rules or regulations impose entry requirements or recommendations (e.g., requiring face coverings or prohibiting entry by anyone that has a cough or fever), post prominent signs at all entrances and also alert tenants by email and any other regular channels of communication. 
  • Post all signage required by applicable laws.  Keep up-to-date on any local, state and federal notice requirements, which may continue to change on a regular basis.

Update Entry and Reception Protocols.

  • Social distancing, face coverings and other protective measures will be a fact of life for the foreseeable future.  Landlords should review entry and reception protocols and consider what changes can be made to promote social distancing and reduce the number of people touching common surfaces.  Possible improvements include:
    • Install markings on floors and walkways to indicate safe distances for any queues or waiting areas.
    • Install plexiglass barriers to help separate reception, security and other onsite personnel from visitors.
    • For buildings that require visitor registration, investigate touchless registration options.
    • Establish maximum occupancy limits for lobbies and entry areas and remove furniture to discourage people from congregating in common areas.
  • Some tenants may want to conduct health screenings of employees and visitors.  Ideally, tenants would conduct such screenings in their own premises, but some may request permission to do so in the building lobby or other common area, with the goal of preventing potentially infected people from entering their suite.  If a landlord agrees to allow tenants to conduct screenings in common areas, then the landlord should require the tenant to release and indemnify landlord from claims arising from such screenings, including claims of wrongfully denying entry into the building
  • Consider providing face coverings and other personal protective equipment (PPE) to reception, service and security personnel. 
  • While landlords or their property managers may want to conduct health screenings or testing for personnel whose duties require interaction with tenants and visitors, we do not recommend that landlords independently screen tenants or their visitors as a condition to entering the project.  Without a clear understanding of liability that landlords may incur, the potential risk could significantly outweigh the potential benefits.

Examine Use of Shared Spaces and Amenities.

  • While many amenities may remain closed for the foreseeable future, landlords should monitor health and safety guidelines to determine best practices for phased reopening of shared spaces and amenities.  For example:
    • To what extent can outdoor common areas be reopened subject to new social distancing requirements and restrictions on group gatherings?
    • Consider reduced occupancy limits for meeting spaces and indoor common areas, and removing any shared equipment.
    • Furniture and equipment in all areas should be removed or rearranged to accommodate social distancing requirements.
    • Consider extending closures of fitness facilities.  If health officials advise that fitness facilities may be used safely, then consider reducing maximum occupancy limits, removing or rearranging equipment, closing common changing areas and imposing time limits to promote lower density and social distance.  Also consider obtaining updated waivers from any person electing to use the facilities, expressly assuming the risk of infection or other harm.
  • Consider posting signage and installing floor markings to identify queuing areas and route foot traffic to promote social distancing.
  • Consider providing hand-sanitizer stations at entry points and near common touch surfaces (e.g., elevator lobbies) and dedicated waste receptacles for disposable PPE.
  • Provide social distancing queue management in areas where people congregate (e.g., elevator lobbies) and post signage instructing passengers in best practices for elevator use.  Consider providing elevator attendants to promote compliance with rules and regulations.
  • Review and modify, as necessary, cleaning processes for all common areas, and monitor guidelines to assure that the project is employing best practices.

Review Building Services and Delivery Protocols. 

  • Many landlords have updated cleaning and janitorial protocols for common areas and workspaces, as well as the frequency and method of providing building services.  As buildings reopen to non-essential workers and businesses and daily occupancy increases, landlords should monitor guidelines to assure that the project is employing best practices.  For example, it may be appropriate to modify HVAC systems designed to maximize efficiency to provide better air filtration and outside air intake, or to adjust cleaning and janitorial schedules to increase the frequency of cleaning and minimize interaction between janitorial personnel and building occupants or visitors. 
  • Consider revising delivery protocols to minimize interaction between delivery personnel and building occupants.  Can shipping and receiving areas be separated from common areas used by building occupants and visitors?  Consider requiring personnel handling deliveries to wear PPE.

Be Practical.

  • Best practices for confronting the COVID-19 threat are constantly evolving.  Landlords should keep apprised of the latest CDC guidance and develop common-sense approaches based on the most recent guidance and feedback from property managers, tenants and other commercial real estate owners.
  • Visit the CDC’s Interim Guidance for Businesses and Employers:  //www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html
  • Review and refer tenants to OSHA guidance on preparing workplaces for COVID-19:  //www.osha.gov/Publications/OSHA3990.pdf
  • Always balance actions designed to promote safety and welfare with landlord’s other obligations under applicable laws, including accessibility and confidentiality requirements under the ADA.

As always, please reach out to your legal partners at CGS3 to discuss any questions and concerns you have as you chart your path forward.  Our COVID-19 Legal Task Force – comprised of multi-disciplined attorneys with expertise in real estate, finance, litigation, construction, tax, and creditor’s rights – is ready to assist you.

CGS3 Insight Alerts are curated with you in mind.  They deliver focused, relevant, and timely information on trending topics to our clients, colleagues, and others in the industry.  Please note that they are intended for general informational purposes only, and should not be construed as legal advice for any specific situation.  Always remember to contact an attorney to obtain advice with respect to a particular issue or problem