The novel coronavirus disease (COVID-19) is creating fear and disruption in the real estate industry. According to the Centers for Disease Control and Prevention (CDC), the best way to prevent the spread of COVID-19 is to avoid being exposed. The CDC emphasizes that employers are responsible for providing a safe and healthy workplace. What does this mean for commercial landlords? What steps should commercial landlords take to mitigate risks?
Landlords should err on the side of caution and implement “best practices” suggested by the CDC and their state and local health officials to lower the risk of spreading COVID-19 on or at their premises.
For businesses that are resuming operations, a new set of protocols must be enforced to ensure the safety of their employees and the general public. Generally, premises liability law requires landlords to exercise reasonable care with respect to operating their property. Examples of exercising reasonable care include: (a) inspecting the property for obvious and latent defects/hazards; (b) warning tenants against latent defects; and (c) maintaining their property in a safe manner.
Although the COVID-19 pandemic is unprecedented, a landlord may be held liable for a number of issues as it relates to the COVID-19 pandemic such as: (i) failure to mitigate risks associated with potential exposure; (ii) failure to disclose potential exposure to COVID-19; (iii) failure to use best practices and guidelines set forth by the CDC and related agencies; and (iv) failure to communicate and encourage tenants to use best practices. Note, however, that a duty to investigate may not apply to COVID-19 because (1) the virus is airborne and (2) the CDC can offer only educated assumptions as to how it is transmitted.
A landlord can mitigate risks associated with operating during the COVID-19 pandemic by following all suggested best practices set forth by the CDC and related health agencies, which include:
- Follow all guidelines and recommendations set forth by the CDC and your state and local health officials, and instruct tenants to do the same;
- Conduct daily health checks while maintaining social distancing;
- Conduct periodic hazard assessments of the building to identify new or reoccurring hazards, especially for potential exposure to COVID-19, in accord with Occupational Safety and Health Administration (OSHA) guidelines;
- Implement policies and practices for social distancing in the building, including new procedures for using the elevator(s);
- Improve the ventilation system to reduce airborne exposures;
- Encourage tenants to require all sick employees to stay home;
- Place signs throughout the building to display CDC guidelines and recommendations; and
- Conduct enhanced daily cleaning of the building.