Return to Work Guidance for Commercial Landlords

Businesses around the country are returning to work amid a public health crisis. These reopenings arise in context of varying new and evolving governmental orders, rules, and directives aimed at slowing the COVID-19 contagion. Commercial landlords and property owners should re-evaluate potential liability concerns through fresh eyes. Here we will review the basic duties owed by commercial landlords and provide some best practices to minimize property owner liability resulting from COVID-19. 

A Landlord’s Duties

Generally speaking, a landlord’s duties toward tenants and visitors derive from three sources: (A) common law of negligence and premises liability, (B) contracts, and (C) statutes, ordinances, and rules (particularly applicable to residential leases). Each is discussed briefly below, followed by our recommended best practices to implement now as companies return to work.

A. Common Law Duties

Common law duties generally dictate the landlord’s obligations to persons occupying the landlord’s property, including tenants and visitors. Common law duties vary by jurisdiction, but, generally speaking, the landlord’s obligations are highest in the areas over which the landlord has exclusive possession and right to control—common areas open to the public or groups of tenants or visitors. In these common areas, the landlord principally is obliged to protect persons from reasonably foreseeable injuries and unsafe conditions. Although some jurisdictions might limit landlord liability to dangers of which the landlord had actual or constructive knowledge, that distinction may lack a difference with regard to COVID-19 because of the geographic range and the pervasiveness of infection. Bottom line: Act as if your property is at risk of infection.

For property where occupancy and control are given to the tenant, the landlord’s duties to protect persons within that space are reduced. The landlord’s responsibilities for activities within that space typically are set by the lease agreement. For the tenants in control and possession of that space, many of the same landlord obligations described above shift to the tenant to protect visitors to the tenant’s space.

B. Contractual Duties

For tenant-leased spaces, the landlord’s duties to the tenant are largely governed by the lease agreement. The lease agreement may require the landlord to perform certain functions within the tenant’s space, such as janitorial, maintenance, or cleaning services. The lease agreement also will spell out the rights and obligations relative to common areas. Separately, landlords may have contract obligations and rights with respect to contractors and vendors performing services on the landlord’s property. 

C. Government obligations

The statutes, orders, and regulations applying in context of the landlord-tenant relationship vary from one jurisdiction to the next. Landlords are advised to revisit the statutes, regulations, and ordinances that apply in their respective jurisdictions and seek counsel for further analysis.

Best Practices

Decisions a landlord makes now will be critical to defending against future allegations stemming from COVID-19. We recommend the following best practices: 
Important point: Be consistent and follow-through. Once you communicate you will begin or you actually begin to implement a step, a new reasonable expectation may arise that you in fact implemented that step and will consistently do so in the future, which in turn may give rise to a duty or standard of care, and a failure to follow-through consistently could create liability.
 

• Stay informed: Follow expert guidelines and notify visitors and tenants of the guidelines.
  
  Educate yourself with the most recent public health information about COVID-19 and returning to work. The CDC has released guidelines for keeping commercial establishments safe and has created sample signage, notices, and other communication resources that can be placed strategically around a landlord’s property regarding steps to minimize the presence of the virus. Your notices may include direction to limit the number of people permitted in a given space, to avoid congregating in certain areas, and may also include requests that your tenants and visitors be personally responsible to comply with the recommendations. Taking measures aligned with government regulations and guidelines can be significant evidence that you acted appropriately in this uncertain environment.
  
  Many state and local governments also provide guidelines, which should be taken into account. You can access Ice Miller’s 50-state summary of return-to-work guidelines here.


• Perform a risk assessment and redouble your cleaning regimen.
  
  Walk through your properties and identify the areas that are frequently touched—elevator buttons, door handles, window frames, mailboxes, railings, desks, chairs, telephones, staplers, etc. Given that COVID-19 is a respiratory disease and indications are that respiratory droplets from coughs, sneezes, and even casual speech may remain in the air for many minutes, consider what walls and elevated surfaces may be compromised. After identifying these areas, vigorously clean them. And set a regular (daily) cleaning schedule.
  
  Landlords may also want to provide on-site hand sanitizer and disinfectant wipes. If you do, however, follow-through—regularly re-stock the supplies to ensure they are not merely window-dressing.


• Consider physical barriers and instruction
  
  Depending on the nature of your common areas (hallways, lobbies, foyers, party rooms), you may consider physical guides to encourage physical distancing. For example, you might block off areas that would otherwise encourage congregation, install rope lines to guide crowds, or place arrows on the ground to guide one-way traffic. Consider signage on your elevators with a request that occupancy be limited to a certain number of people. Be consistent and request that visitors and tenants take personal responsibility for their actions. Avoid warnings that you will privately enforce non-compliance, unless you intend to do so consistently (and consult counsel about the limits of your ability to enforce compliance).


• What about temperature checks? Some property owners are considering whether to implement a fever-check at ingress points. For anyone considering that policy, be aware of the potential new duties and potential new liability risks that might accompany the policy. For example:
  • Do you consistently perform tests on all persons?
  • Do you appropriately and regularly test the thermometers/equipment to ensure operation, and do you have a plan to track what equipment is used and when?
  • How do you choose the person performing the temperature checks, how is that person trained, and how do you ensure that person is protected from infection?
  • Do you have a response plan when someone registers a fever and do you follow-through with the response?
  • Do you have a response plan if the person with a fever refuses to follow instructions and do you follow-through with the response?
  • What notification should you give to other tenants and visitors after you learn a person entered your property with a fever?
  These questions (and many others) regarding a temperature-check policy can be complicated. We recommend you discuss this policy with legal counsel before implementing it.


• Communicate often and effectively.
  
  Communicate with your tenants. Update them regularly regarding changes in governmental requirements and guidance, the status of your property, hours of service, building janitorial and maintenance services, and building access procedures.


• What if someone becomes infected?
  
  If an area of your property experiences an infection, consult reliable information from public health agencies regarding actions to take if someone in the building is sick. Appropriately quarantine the area until it is clean, and communicate to your tenants and visitors that the area is off-limits until further notice. Effective communication with your tenants and visitors will be instrumental to providing an effective, coordinated response. Promptly communicate the fact of infection, with direction to contact a physician or health professional with questions. Important point: Be vigilant about personal privacy and health privacy concerns—avoid publishing any notice that would identify the person with the illness or information that would enable someone to ascertain the identity of the person.

• Review your contracts.
  
  Review your lease agreements in perspective of COVID-19. Determine whether the landlord undertook responsibilities to mitigate unsafe conditions within the leased space. For example, the lease agreement might require the landlord to provide janitorial services, maintenance services, or cleaning services within the leased space, and those services may take on added meaning in this public health emergency. It is also critical to determine whether the lease agreement imposes any obligation to notify all tenants if the landlord learns that an infected person has visited the premises—the lease may not refer to pandemics or infectious diseases, but may refer to obligations in the event of an emergency. Also, determine whether the lease gives the landlord any right to insist that tenants implement protective measures within the leased space.
  
  Similarly, review your contracts with vendors and contractors in perspective of COVID-19. Ask what the vendors/contractors are doing to protect against bringing infection to the property and insist that vendors/contractors adhere to the landlord’s protective requirements. Refresh your memory about your rights and remedies if your tenants, contractors, and vendors are not performing up to their contract obligations. Conversely, landlords should analyze their contractor/vendor agreements to identify remedies the contractor/vendor might have if they become infected at the landlord’s property.
  
  Finally, reread your insurance policies to determine what liabilities may be covered and what steps you might need to take (or decline to take) in order to preserve coverage. Consult counsel with questions.


• Pay attention to the marketplace and the industry.
  
  As companies return to work, businesses and landlords will react differently. Over time, local market or industry practice may evolve into a new standard of care. Recall the sitcom staple where everyone in a line takes a step forward except one person—don’t be the one person who has not lived up to the new standard.

The only constant is change, and the law and standards undoubtedly will change as courts begin to grapple with these issues. Be vigilant and nimble to protect yourself from liability as businesses return to work. Please contact us with any questions: Steve Forry, Matthew DeLaruelle, Christina Fugate and Joe Guenther.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.