Best in Law: Three Steps Commercial Landlords Should Take to Avoid COVID-19 Liability
Safe Spaces are a Priority
By Nancy Park, Damian Moos and Kara L. Coronado
The federal Occupational Health and Safety Administration recently released new guidelines for employers to implement best practices in protecting workplaces during the COVID-19 pandemic. While these guidelines are written for employers, commercial landlords should consider following them, too, to promote safety in their buildings.
Additionally, commercial landlords are responsible for maintaining common spaces such as lobbies, communal bathrooms, gyms, elevators and hallways.
By providing a safe workplace, employees will be encouraged to return to the office and tenants will have the necessary tools to promote safety in their workplaces. There are three lenses under which to examine the issue for landlords: landlord’s employer liability, landlord’s contractual liability, and best practices in building ownership and management.
Under the Occupational Health and Safety Act, employers are required to comply with safety and health regulations enforced both by OSHA and OSHA-approved state plans.
Specifically, the General Duty Clause of the Act imposes liability on employers to provide a safe and hazard-free workplace. This includes infectious viruses, such as COVID-19. In January, OSHA released guidelines titled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” to provide best practices to employers for ensuring the safety of their employees.
The guidelines provide a broad overview of actions employers can take to maintain safe and hazard-free workplaces through increased ventilation, reconfiguration of tenant spaces, sanitation and other miscellaneous practices.
Please note the guidelines released by OSHA and the discussion here are applicable for low- to medium-risk workplaces, such as typical office and administration workspaces. High-risk workplaces, such as health care facilities, laboratories, public health and paramedic and emergency response services should adhere to industry-specific guidelines provided by OSHA.
California OSHA Regulations
In addition to the OSHA guidelines, California’s Division of Occupational Safety and Health implemented new regulations for preventing the spread of COVID-19 in the workplace through its Emergency Temporary Standards. Cal/OSHA’s regulations require employers to develop a written prevention program to include the following:
- establishing a system for communication
- identifying and evaluating workplace hazards
- correcting COVID-19 hazards
- providing training and instruction
- creating methods for physical distancing
- requiring face coverings
- providing proper engineering controls, administrative controls and personal protective equipment
- requiring reporting, recordkeeping and access to records (being mindful that the HIPPA regulations regarding medical records will be triggered)
- limiting transmission and exposure to COVID-19 and
- establishing “return to work” criteria.
Cal/OSHA’s regulations are inapplicable for workplaces covered by Cal/OSHA’s Aerosol Transmissible Diseases standard as well as remote workplaces and workplaces with one employee who does not have contact with the public.
What Does This Mean For Landlord Liability?
First, commercial landlords as employers are responsible for providing a safe and hazard-free workplace for their employees. Thus, to the extent a landlord’s employees work at the landlord’s property, the landlord must comply with OSHA guidelines and Cal/OSHA regulations. In contrast, if a landlord uses a third-party management company, the landlord’s liability is limited to its contractual obligations.
Second, although OSHA guidelines and Cal/OSHA regulations do not require landlords to take any actions with respect to their tenants, the terms of a lease agreement may indirectly bring the guidelines and regulations into play.
To the extent tenants are employers, they have a duty to provide safe workplaces. Yet, tenants do not control certain spaces that are operated by landlords, such as ventilation, physical barriers for physical distancing and sanitation of common spaces. Hence, for tenants who are employers, it is critical to a safe workplace that the building operations support the safe workplace.
Failure to do so might cause some tenants to delay return to the office, or review lease terms to see what duties their landlords have to contractually comply with laws, regulations or other lease obligations that might be enforced against the landlord for creation of the safe workspace.
Even if landlords have agreed to maintain buildings in first-class standards, many leases do not include a duty to operate in compliance with laws. If not, then failure to follow the guidelines and regulations may not be used as a breach of contractual lease obligation; though, it may be a breach of the landlord’s duties as an employer or a bad management practice.
From a practical standpoint, while a landlord might not offer or assume direct responsibility for maintaining a safe workplace, it behooves the landlord to do so to maintain tenant satisfaction and retention.
This article first appeared in The OC Register and other Southern California Newspaper Group publications online on March 28, 2021. Republished with permission.