Back to the Office

Legal Considerations

By Luis Estrada on Aug 25, 2020 in News

One of the most significant factors hindering a smooth return to work has been the legal uncertainties surrounding COVID-19. The main concern is the lack of uniformity in the laws between jurisdictions, and the tightening and loosening of restrictions as cases rise or fall.

Therefore, employees, tenants and landlords all need to understand what can and cannot be enforced. Contract clauses, deferrals and concession negotiations have been ongoing since March, and the ramifications of these changes will carry on for months to come.

Compliance for reopening

If a manager cannot ensure the safety and wellbeing of workers, then an office simply cannot reopen. On a recent Realcomm webinar, Evandro Gigante, partner at Proskauer law firm, explained that compliance for reopening varies by jurisdiction, but New York, where their main office is located, has a thorough set of rules laid out for businesses to reopen. “There is a very robust set of guidelines that include, among other things, the development of a comprehensive health and safety plan which requires a close look at screening, testing, contact tracing, signage and social distancing procedures to be put into action,” he said.

The guidelines require a written document detailing expectations for landlords and employers. Administering questionnaires regarding self-health is going to be a key, and there will be many questions about the legality or requirements involved with temperature taking. “Under Equal Employment Opportunity Commission (EEOC) guidelines, you can diagnostically test your employees,” Gigante explained. “But the EEOC has not sanctioned antibody testing for the purpose of making employment decisions.”

You can legally collect medical information on individuals, according to the EEOC, including their temperature or their symptoms, as long as you maintain it confidentially and separately from personal files. But here is where different jurisdictions and different guidelines come into play. In New York, according to Gigante, businesses should not maintain specific health information on individuals, but instead maintain records of screening at the door for liability purposes.

Contact tracing is important in order to know who is coming in and out of your building and to provide that information to authorities should a visitor test positive for coronavirus. This issue is gaining prominence among workers due to privacy concerns, but many employers believe it is a key to maintaining proper distancing in the office, especially in areas where people may stop and congregate. Mobile apps, key fobs, Bluetooth tracking and other emerging technology are providing tracing analytics for managers to view motion throughout the floor plan of an office in real time or in high-speed playback.

Sue Bunnell, senior vice president and managing counsel at Wells Fargo, said that differing jurisdictions are causing the most angst among building owners and managers. “Anomalous or ad hoc requirements are so difficult because different states could all have differences in filing, posting notices, training, occupancy levels, ways to screen and report, so it’s quite a flow of data but it’s a continual challenge,” she stated.

“The biggest issue in regard to temperature screening from a landlord perspective is whether or not you should assume that liability,” said Theresa Terrell, senior corporate counsel at Hines. “Most orders are falling on employers, not building managers or owners, so if a landlord undertakes that right, they are effectively inserting themselves into the liability equation.”

Can face mask usage be enforced? “There is such a wide variety of orders from local, county and state jurisdictions and most of them aren’t quite clear,” Terrell said. But in Washington, D.C., for example, building managers are obligated to deny entry to anyone not wearing a face mask. Her advice when rules aren’t so cut and dry: “Update your rules and regulations to require a mask so it gives you a leg to stand on if you’re looking to enforce that.”

Changes as simple as trash cans with step lids, extra space between seats, desk partitions and hand sanitizer will go a long way in ensuring compliance. (Read more about these updates in our recent blog post.) Even visual reminders such as signs showing six feet of distance or directional walkways are a significant step forward.

Lease renegotiations

“A pre-negotiation agreement is a pretty wise idea in general,” said Marc Gurell, partner at Seyfarth Shaw LLP. It may not be as formal as a written agreement, but you want to reach an understanding with a landlord to ensure honest exchange of information. As Gurell explained, many tenants seeking concessions or deferrals may not be totally forthcoming about their circumstances.

It’s important to note which businesses are in need of assistance to survive the pandemic, and which ones aren’t able to use their office space but are able to conduct normal business remotely, as discussed in a recent panel at the CRETech virtual conference. Paul Gaines, managing director of asset management at Accesso Partners, described a similar strategy. He stated that one of the vital first steps when discussing rent relief is for the tenant to send complete and thorough financial documentation to Accesso so they could work on a plan together. It can be cumbersome to track each individual tenant’s standing as a portfolio continues to grow, especially during the pandemic.

Try to understand each party’s position. “People generally get entrenched in their own positions, landlords of course want to insist on full payment and they have obligations of their own like mortgages and taxes,” Gurell stated.

Tech drivers such as sensors, screening devices, contact tracing and others office health and safety monitors are now an extremely valuable commodity. It’s a unique challenge because the rise in demand was so sudden, and because tenants have to balance the ability to pay rent with the finances necessary to implement new tech, especially to eliminate touchpoints with mobile or virtual enhancements. Landlords are also adapting to change. “We have never had this volume of leases being modified at one time, to have had a need for tech advances ourselves.” Terrel stated. “Much of our leasing work has been done on a regionalized basis but it’s been a challenge to modify hundreds of lease negotiations at one time.”

Liability associated with COVID-19

It is extremely difficult to ascertain that someone contracted the coronavirus while at a workplace specifically. While COVID-19 can easily spread in an office, it can also easily spread on mass transit, in malls, grocery stores or within gatherings at home. “You may have been at work for 8 hours, but you were somewhere else for 16 hours,” Bunnel said. She added that the most concerning aspect is that the virus can spread with asymptomatic carriers.

Proving that someone contracted the illness due to landlord or employer failure would be a monumental task considering the prevalence of the illness throughout society. Worker’s compensation itself wouldn’t cover many COVID-19 instances, because most states follow an approach where the illness is “borne of a particular hazard associated to that profession” according to Gigante.

Liability releases are commonplace even when we don’t realize we’re signing them. Whether obvious or not, outlining accountability takes place everywhere, from the ski resort to the concert hall to the valet parking lot. Now the topic of these releases will enter the workplace because of the pandemic. Case law can apply to force liability waivers in some employment contexts, but they can be waived when they are thought to infringe upon employer/employee privacy, as Gigante explained. These may not be enforceable between tenant and landlord either, with possible exceptions for allowing visitors into a building. “If there is clearly unequal bargaining strength, like the employer telling the worker they cannot come to work unless you sign this waiver, it would be a challenge to enforce these releases,” he said.

One of the main takeaways is that tenants and landlords will both attempt to spell out new and intricate details in contracts going forward. It has been difficult for all parties to adapt to a pandemic with varying degrees of guidelines from multiple jurisdictions and without the necessary language in contracts to cover such an unprecedented event. Erring on the side of caution seems to be the prudent approach on all health and safety legal concerns regarding a return to work.