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May 11, 2020

Stroock Special Bulletin

By: Trevor T. Adler, Brian Diamond, Jeffrey R. Keitelman, Kim Pagotto

Overview

As public officials in many states and localities look to reopen the economy, commercial landlords should be planning for tenants to begin bringing employees and invitees back into their buildings.

Prudent landlords are seeking to prepare detailed “reentry” plans for office buildings that will not only provide guidance for the landlords’ personnel and invitees – as well as their tenants’ employees, contractors and guests – but will also minimize the likelihood of exposure to claims, liability and disputes.

It is essential to monitor federal, state and local guidelines, including those from the Centers for Disease Control and Prevention (CDC) and state and local authorities, when implementing reentry plans. Although uniform practices across property portfolios or asset classes are often desired, there will be regional differences to consider.

Stroock recently released a client alert titled “Some Practical Building Reentry Concerns for Landlords and Tenants,” describing myriad questions to consider upon reentering commercial buildings. This article further explores various approaches to a few specific reentry practices and procedures that have become major discussion points for large commercial buildings in major cities across the country.

General Considerations

At the outset, landlords should consider the level of additional liability they may be assuming as they implement reopening procedures. Risk will not only flow from what obligations a landlord voluntarily undertakes, but also from how it undertakes the exercise of that obligation.

For example, well-intentioned landlords may find themselves susceptible to claims if reopening procedures that exceed governmental guidance are too onerous, or if tenants believe they are being deprived of the rights they have under their leases with respect to access, use of their space, building services and/or building amenities. Landlords should review their leases to confirm the degree of discretion that the landlord is afforded to impose additional obligations or changes to building services and amenities (including, (i) the landlord’s right to implement new building rules and regulations, (ii) the landlord’s obligations to furnish services, and (iii) each party’s obligations with respect to compliance with applicable laws).

Landlords should also be mindful of tenants’ responsibilities with respect to their employees in connection with welcoming back tenants, and the interplay of a landlord’s actions with those responsibilities. For example, tenants must comply with employment law considerations relating to health and disability.[1]

There has been some suggestion in the industry that tenants and their individual employees should be asked to sign waivers releasing the landlord from liability in connection with the spread of the virus in the building. However, there are legal and optical issues surrounding such a waiver request. From the legal perspective, tenants may be unwilling to sign such waivers and many leases will not lend the landlord support in requiring them. Such waivers may send a message to tenants that the landlord is not taking reasonable measures to help individuals in its building protect themselves from the spread of COVID-19 and the enforceability of such waivers is unclear – particularly if there is negligence on the part of a landlord.

It also remains to be seen how courts will interpret insurance-based claims (e.g., “slip-and-fall” actions) if they allege that a person contracted COVID-19 in the building. Landlords may want to contact their insurers to understand coverage under any applicable policies and to comply with any obligations the insurer may require. Courts will likely focus on whether causality has been established (e.g., being in the building and contracting the virus as opposed to contracting the virus elsewhere), and whether the landlord implemented reasonable safeguards to help individuals in its building protect themselves from the spread of COVID-19.

Another consideration is enforcement. With any policy or procedure, landlords need to balance what the ramifications for non-compliance will be, and what potential liability such ramifications will raise. For example, if a landlord is going to require the use of Personal Protective Equipment (PPE) in the public areas of the building like the lobby and the elevators, does it have the ability to monitor and manage compliance? Is the building employee staffing sufficient to address these new needs? Are the building employees adequately trained to manage non-cooperative tenants and visitors? How will the landlord handle complaints between tenants? Further, if removal of a non-compliant person from the building is the proposed remedy, how far is a landlord prepared to go? Landlords who are taking these steps to try to protect the health and welfare of occupants and visitors will not want to be in a position where authorities need to be called in or where a hard-earned building or brand reputation has to be repaired because enforcement is perceived as either too stringent or too lax.

Specific Practices and Procedures

Temperature Screening

Many employers are considering the need for temperature screenings as part of their resumption of increased activities in their respective office spaces. The Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing the ADA, has released guidance broadly permitting temperature screenings by employers, provided that, among other things, certain rules are followed and data is kept confidential and properly segregated from other employee records, particularly personnel files.[2] Landlords are likewise considering whether temperature screenings beyond their own personnel are appropriate and legal for reopening.

Who should perform tests?

• In order to avoid liability for mistakes and to reduce contact between employees and the personnel administering the test, the employee would ideally administer the temperature screening themselves and share the results with the administrating personnel.

• To the extent the landlord, and not the tenant, performs temperature screenings or monitors non-invasive temperature screening equipment (such as thermal cameras that can measure temperatures from a greater distance than some other testing methods), the individuals doing so should have appropriate training given that temperature screenings are considered a medical examination by the EEOC.

• Furthermore, if the individuals administering the temperature screenings will be making close contact with others, those individuals should wear PPE in compliance with best practices promulgated by the Occupational Safety and Health Administration (OSHA) and receive PPE training.[3]

• Hiring a third-party company to perform the checks could alleviate or eliminate some of the foregoing concerns.

Where will testing take place?

• Tests should be performed before reaching traditional building security measures, such as turnstiles and visitor desks, to limit the exposure of building personnel to individuals entering the building.

• If thermal cameras are utilized for the initial screening and an individual registers a higher-than-normal temperature, consider administering a secondary temperature screening using a different method in another area, and if the individual refuses the secondary screening, he/she should be denied entry into the building.

• In the absence of definitive governmental guidelines for landlords, and for the privacy reasons evident in the EEOC guidelines, landlords should consider following the EEOC rules by establishing a private screening area in the building’s lobby to the extent feasible, and keeping all records strictly confidential (or, if feasible, anonymous). Were a tenant to perform a screening of its employees, those screenings would need to be performed in private and the results would need to be maintained on a confidential basis consistent with EEOC requirements.

Will only tenants’ employees be screened?

• All individuals entering the building on the landlord’s behalf, including its employees, contractors and materialmen, should also be screened in order to avoid any actual or perceived favoritism, and because those individuals are likely to have contact with – or exposure to – tenants through public corridors, elevators, ventilation systems, etc.

Personal Protective Equipment

Landlords should consider mandating the use of PPE, including masks, in the building’s elevators and common areas. The scope of PPE required and its length of use should be determined in accordance with governmental guidelines. For example, Governor Cuomo ordered all people to wear a face covering while in public to help combat COVID-19. This Executive Order requires any individual over age two who is medically able to tolerate a face covering to cover his or her nose and mouth with a mask or cloth face covering when in a public place and unable to maintain, or when not maintaining, social distancing. Landlords should remain in communication with their tenants about the scope of PPE requirements, and should attempt to match the PPE rules to meet the expectations of their tenants.

Landlords must also be mindful of constraints in the availability of PPE (if it is requiring usage without itself providing PPE).

Policies to Address Active COVID-19 Cases

If a tenant’s employee or guest in the building is determined to have contracted COVID-19, there must be a mechanism in place that – in coordination with the tenant who employs or invited them into the building – traces the contacts that the individual had to people and surfaces in the building as best as can be practically determined by non-professional tracers.

In furtherance of the foregoing recommendation, landlords should consider working with tenants to survey their employees (while maintaining appropriate confidentiality and anonymity) to inform the employer and landlord of suspected and diagnosed COVID-19 cases. Landlords should be especially mindful of tenants’ confidentiality obligations with respect to employees’ medical information, and need only have tenants confirm their implementation of such a survey rather than demand specific data on employees’ health that may not be able to be shared.

If a person in the building is diagnosed with COVID-19, the landlord should notify its cleaning vendor, building personnel with whom the person was in contact, and other tenants in the building – as well as any other vendors, contractors, subcontractors, materialmen and other invitees – of any possible exposure and the date that the person who contracted the virus was last in the building, without disclosing the identity of that person.

The cleaning vendor and/or building employees should then be directed to follow the landlord’s appropriate cleaning procedures of the areas and touchpoints where the person who contracted the virus had traveled. Landlords should consider informing public health officials of the case even if the particular jurisdiction does not require landlords to do so.

Elevators and Crowding

To minimize the risks of transmission when using elevators, landlords should consider implementing procedures to maintain social distancing in elevator lobbies and in the elevators themselves, which may include staggered entry/exit schedules, the use of PPE, identifying appropriate physical distances using visible markers, and regular disinfecting of elevator buttons and other touchpoints. Landlords may also consider staffing elevators with attendants equipped with PPE during high traffic hours who can press elevator buttons.

Such procedures will result in reduced elevator service capacity and longer wait times, and – especially if coupled with temperature screening – may result in bottlenecking and overcrowding. Traffic flow patterns should be planned accordingly, and landlords should consider working with tenants to implement gradual or staggered re-staffing of tenant spaces and conducting outreach to tenants to ascertain their current operating status and plans to re-staff offices. Elevator lobbies, like any other area where employees, tenants and guests queue, should be clearly marked for appropriate physical distancing.

Heating, Ventilation and Air-Conditioning (HVAC)

The American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE), the trade association of HVAC professionals, has released specific HVAC statements with respect to the impact of HVAC systems on coronavirus transmission, and guidance on best practices for same.[4]

HVAC filters, air return grills and condenser coils should be replaced, cleaned and/or disinfected in consultation with the maintenance engineers for those systems. Consider including an industrial hygienist as part of your building team. Fresh air intake should be increased in consultation with maintenance engineers.

Common Areas

Common areas (including messenger centers, mailrooms and loading docks) and amenity spaces (such as rooftop areas, lounges, fitness centers, conference centers, plazas and valet garages) will need to be assessed for exposure risk and – if being made available to tenants at this time – included in the landlord’s plan to address appropriate social distancing, contact tracing capabilities and cleaning procedures. Landlords should consider modifying the layouts of amenity spaces to ensure appropriate physical distancing of tables, chairs, exercise equipment and other movable items. Landlords should also limit the number of people who can be in a common area at a single time. Where feasible and safe (subject to fire and access codes), landlords may prop open frequently used doors.  Cleaning and sanitizing should be increased in all public spaces, especially frequent-contact surfaces, on a daily basis. Procedures for mail, package, food and freight deliveries should be created in accordance with federal, state and local guidelines, including those from the CDC and state and local health authorities.

Alterations

As prohibitions on non-essential construction are lifted across the country, landlords should prepare for a safe and orderly resumption of construction activities in their buildings. Landlords should be aware of the potential for tenants to request landlord assistance in, or approval of, the reconfiguration of their spaces to accommodate social distancing. As part of their preparations for resumption of construction activities in their buildings, landlords should anticipate tenant reconfiguration requests that will need to take place alongside new tenant buildouts and other construction activities.

Conclusion

There are many resources available to assist landlords with thinking through and developing  reentry plans. Landlords should work with their senior management, human resources, employment and legal teams to create the plan tailored for each of their commercial buildings and the tenants and personnel who work there.

______________________________

For More Information:

Trevor T. Adler

Brian Diamond

Jeff Keitelman

Kim Pagotto

[1] Please see “Employment Law Risks Related to Reopening Businesses” from Howard Lavin and Elizabeth DiMichele (http://stroocknew.oo/publication/employment-law-risks-related-to-reopening-businesses/).

[2] See summary of the EEOC’s guidance at  https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm.

[3] More details are available at https://www.osha.gov/SLTC/covid-19/.

[4] See the following embedded link to a whitepaper from ASHRAE at on these topics at https://www.ashrae.org/about/news/2020/ashrae-issues-statements-on-relationship-between-covid-19-and-hvac-in-buildings.

This Stroock publication offers general information and should not be taken or used as legal advice for specific situations, which depend on the evaluation of precise factual circumstances. Please note that Stroock does not undertake to update its publications after their publication date to reflect subsequent developments. This Stroock publication may contain attorney advertising. Prior results do not guarantee a similar outcome.