Commercial Landlord Guidance: Should You Take the Temperature of Your Tenants?

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The coronavirus (COVID-19) pandemic has given rise to a bevy of questions for commercial landlords. As today’s workplaces have rapidly changed over the last several weeks, many landlords have been left wondering how they should operate and maintain their assets during a pandemic crisis. In that regard, commercial landlords are asking the following questions:

• Are landlords required to determine whether its tenants are essential businesses permitted to operate during city/state shutdown orders?
• Does a landlord have an obligation to restrict entry to tenants and visitors in an effort to curb the spread of the virus?
• Should a landlord set up temperature checkpoints in building lobbies or require tenants and visitors to answer a health and travel questionnaire?
• Should landlords clean common areas differently?

This guidance will provide a brief summary of what a landlord should avoid and the best practices landlords should consider adopting. This guidance is only intended to cover commercial properties and does not deal with the different standards and obligations which may apply to a residential property. Landlords should consult with their attorneys about any specific situation.

Enforcement of City/State Shutdowns

Governors and mayors throughout the United States have issued orders and advisories drastically impacting who is permitted to go to work. These include shutdowns, “stay at home” orders and similar directives which often permit only essential businesses to continue operating. While landlords are advised to be aware of these governmental actions to determine their impact and application to the landlord’s own business operations, none of these business closure and workforce reduction orders have placed the obligation squarely on a landlord or its property manager to enforce against tenants at commercial properties.

Instead, it is the responsibility of each tenant to comply with these orders. A landlord may not have a complete understanding of a tenant’s business to determine if the business or any aspect of it may be considered essential. In acting on incomplete information, a landlord may incorrectly close down a business that is in fact essential. Ultimately, the businesses themselves (and not the landlord) would be subjected to penalties by governmental authorities for not complying. For these reasons, a landlord should avoid attempting to actually enforce these government regulations.

Landlord Implementation of Screening Protocols - More Risk than Reward?

Landlords are surely considering whether they should attempt to implement heightened screening techniques, such as questionnaires or lobby temperature checks, to potentially exclude tenants and other visitors who may be infected with COVID-19 from their buildings. These measures may subject landlords to undesirable risks by creating a duty to care when such a duty did not previously exist. It is important to remember that a duty of investigation had not been imposed on landlords for annual influenza strains or past pandemics (e.g. H1N1 “swine flu” in 2009).

If a landlord implements heightened screening methods for visitors who may potentially be infected with COVID-19, then a landlord may find itself liable for taking additional actions (or failing to do so). Does this now create a landlord obligation to notify other tenants or exclude the infected tenant employee or visitor? What happens if the infected individual refuses to comply with the landlord’s attempt to deny entry? Instead, in order to avoid these thorny liability issues, landlords should consider advising tenants to comply with governmental directives as well as CDC guidelines.

General Best Practices are also Best Practices for Landlords

Landlords should still be proactive about curbing the spread of the coronavirus within common areas of a commercial building under the Landlord’s control such as entrances, lobbies, common bathrooms, stairwells, hallways, etc. Best practices include:

• Communication. Landlords should communicate and recommend best practices to their tenants. This includes sending tenants information regarding the need for enhanced cleaning of tenant spaces based on the Center for Disease Control’s guidelines. (https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html) In addition, landlords would be well advised to post signs throughout the building including publically available restrooms, setting forth the CDC’s recommendations for reducing the spread of the virus, such as washing hands for at least 20 seconds and social distancing. Additionally, if a landlord is responsible for the janitorial services in the tenant spaces within the building, the landlord should establish a protocol by which a tenant can notify the landlord and janitorial service of a potential coronavirus contamination so that the janitorial service and landlord can safely and effectively clean the area of the potential contamination.
• Extra Cleaning. As to common spaces, a landlord has a responsibility to ensure that it is not creating a hazard, especially a latent hazard, not immediately obvious to visitors to the common spaces. The landlord should adhere to the CDC’s recommendations on enhanced cleaning. Landlords should routinely clean all frequently touched surfaces in common areas, such as workstations, keyboards, telephones, handrails, and doorknobs. Landlords may also want to make disinfectant wipes or hand sanitizer stations available in their common spaces to help discourage the spread of the virus throughout their buildings. However, as a note of caution, any landlord that undertakes this service should be prepared to continue to restock the wipes and hand sanitizer indefinitely because by providing these items to tenants, tenants may then develop an expectation of and reliance on these items being provided.