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April 29, 2020

Stroock Special Bulletin

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

Whether it’s because the jurisdiction where you live or work is activating a “reopening” plan (even though many commercial buildings have not actually been “closed”), or just wishful thinking and careful planning, many entities are starting to consider what exactly reentry into their office building will entail. Every solution needs to be considered practically and with building specifics in mind. What is going to work in a major metropolitan high rise may not work in a suburban industrial park. Below is a practical list of questions and concerns to consider as you begin to work through what a return to the workplace means for your company.

Above all, this will need to be a joint effort between landlords and tenants, and the success of the programs and policies of each is dependent on the other. The health and safety of every person entering the building – including tenant employees, visitors, delivery vendors, engineers, janitorial personnel and construction workers – is of the utmost importance, and so is a shared goal to be able to conduct business. Parties also need to continue to balance all of the other factors that need to be maintained in a commercial space, such as security and access control, building code and ADA compliance, environmental considerations and operating costs.[1]

It is also important to keep in mind that there will be an evolution of the etiquette, psychological comfort, available technology and “market” within each building and within each jurisdiction. Some of the considerations below may seem too granular to one party or not specific enough to another – usually depending on the size of the workforce in question, the size of the workspace, and the culture that has been established in your company. Parties will need to consider what is “essential” versus what is “preferred,” along with what is commercially available and cost effective on Day 1 of return to work, Day 30, Day 300 and Day 3,000.

Finally, this bulletin is intended to address concerns with respect to the operations at a commercial building only. Closely linked – but separate – are the many issues that an entity needs to review and plan for as an employer, such as continued teleworking issues, management training, employee benefits and compensation, leave and sick policies, health and wellness reporting, employee morale and OSHA compliance. These have been addressed in other Stroock bulletins from our multidisciplinary coronavirus task force, available at this link.

Communication

For Landlords For Tenants
What is Tenant’s current operating status and when does it anticipate the first phase of return to work? What has Landlord done at the Building during any “stay home” or public health emergency time period?
What does Tenant anticipate will be its operating status initially (e.g., 25% of workforce, employees in different teams, voluntary return to work, staging of arrival and departure times, etc.)?  How many people does Tenant estimate that policy translates to? What does Landlord anticipate will be the overall operating status of the building based on its communications with tenants?
Who is the official point of contact for Tenant and communications on return to work? Is there a place where Landlord can view updates? Who is the official point of contact for the Landlord and communications on return to work? Is there a place where Tenant can view updates?
Consider holding a virtual “town hall” or issuing FAQs Consider holding a virtual “town hall” or issuing FAQs
Consider doing a gift for tenants (e.g., disposable pens, reusable water bottles, etc.) Consider doing a gift for employees’ return (e.g., hand sanitizer, “emergency chocolate,” etc.)
What is Tenant’s plan for reporting suspected and confirmed cases after return to work? What is Landlord’s plan for reporting suspected and confirmed cases after return to work?
What is Tenant’s plan for the implementation of social distancing within its space? What details can Landlord provide with respect to enhanced cleaning (frequency and materials), and implementation of social distancing in common areas?
Are you requiring PPE for your employees?  Are you providing it? Are you requiring PPE for your employees?  Are you providing it?
Do you have a plan in place (which may include management, HR, an EAP program, etc.) to answer Tenant’s employee questions and concerns? Do you have a plan in place (which may include management, HR, an EAP program, etc.) to answer employee questions and concerns?
Are there any specific baselines or practices that you are trying to keep constant across various locations? Are there any specific baselines or practices that you are trying to keep constant across various locations?
Raise any other questions with Tenant that arise based on reviewing the below additional items. Raise any other questions with Landlord that arise based on reviewing the below additional items.
Each party should be monitoring federal, state and local mandates, orders and recommendations. Each party should be monitoring federal, state and local mandates, orders and recommendations.

 

Parking

For Landlords For Tenants
If valet parking has been utilized historically, is self-park a viable solution given the size and configuration of the parking facility? Is parking available if more Tenant employees want to drive rather than utilize public transportation?
Consider elimination of any daily parking programs. How will Tenant’s parking allocation be impacted by its anticipated return to work schedule (e.g., underutilization because of reduced workforce or increased utilization because more employees are driving?)
Signage and sanitization for parking payment machines, elevators and elevator lobbies will need to be addressed. Consider monthly payments or automatic payments with Landlord or vendor to eliminate daily paid parking.

 

Entrances/Exits

For Landlords For Tenants
Can doors be propped, automated or manually operated by an employee?  

Can doors be propped, automated or manually operated by an employee? Consider placing paper dispenser or hand sanitizer outside frequently touched doors.

Are there separate building entrances that can be designated for limited groups to eliminate density in one location? Alternatively, would utilizing a single building entrance in order to monitor daily numbers, visitor and employee counts be preferable? Can you create “zones” within your premises for smaller groups of employees?
If there are shared or public entrances (e.g., to public transportation, open retail, art or community spaces), consider closing or separating them from building tenant access. Consider creating a sanitization station in main areas and/or locations for PPE drop off/disposal.
Are staggered start times an effective way to manage personnel flow? Stagger arrival times of groups of employees that have designated start times.
Consider placing sanitization areas at the main building entrances. Consider placing sanitization areas in heavily trafficked areas or providing each employee with a personal supply.
Electronic Building Directory: Is there a way to make this “touchless” (e.g., voice activated, employee assisted, etc.) Deliver instructions on parking, security and building protocols to anticipated visitors in advance.
Security or Reception Desk: Using signage, social distancing floor markings, ropes, physical barriers (e.g., Plexiglas), etc., is there a way to make these areas safer and more efficient? Rearrange furniture for social distancing or eliminate furniture and create standing areas. Consider delivering a list of anticipated visitors to Landlord/security each day in advance.  Stagger arrival times. Limit the number of visitors daily and advise employees that “drop ins” of family, friends and other non-employees is discouraged.
Can building staircases and walkways be designated (subject to code and emergencies) as one way to eliminate congestion? Can building staircases between Tenant’s floors and walkways be designated (subject to code and emergencies) as one way to eliminate congestion?
 

Consider keeping access limited during building hours to monitor occupancy and “traffic patterns.” Consider data and make adjustments (e.g., if most tenants are accessing the space between 10 a.m. and 4 p.m., perhaps initially hours should be limited).

Consider data and make adjustments (e.g., if most employees from one group are coming in regularly, consider reworking work spaces to keep them in certain areas).

 

Third Parties:  Visitors, Vendors, Deliveries, Contractors

For Landlords For Tenants
Visitor, Tenant and Employee Screening: Each party needs to consider who it should have responsibility for “screening” such as questionnaires or thermal scanning, etc. These have privacy and qualification implications, equipment needs to be calibrated, records must be protected, and what happens if someone does not “pass” a test must be considered. Visitor and Employee Screening: Each party needs to consider who it should have responsibility for “screening” such as questionnaires or thermal scanning, etc. These have privacy and qualification implications, equipment needs to be calibrated, records must be protected, and what happens if someone does not “pass” a test must be considered.
If work is being conducted in the building, what are the policies and procedures for the contractor? If work is being conducted in your space, what are the policies and procedures for the contractor?
Discuss with vendors their policies and procedures for deliveries, including PPE changes and sanitization between deliveries. Discuss with vendors their policies and procedures for deliveries, including PPE changes and sanitization between deliveries.
Consider whether messengers and other deliveries should use the loading dock or another entrance (i.e., not the same as the tenant population). All non-business related deliveries should be sent to alternative locations (e.g., employee personal deliveries should be sent to homes).
Consider restricting certain areas for deliveries only and cleaning those areas on an increased basis. If there is a common mailroom for building tenants, consider designated mailroom hours (with cleanings in between), or if there should be an internal building delivery service. Consider limiting access to the premises (e.g., messengers should be met in the building lobby, food deliveries for individual employees should be met outside the building by employees).
Consider whether deliveries can be held in a separate area and delivered by a limited number of personnel (e.g., tenants come to one area at designated times to pick up overnight delivery packages rather than the vendor delivering throughout the building). Consider whether deliveries can be held in a separate area and delivered by a limited number of personnel (e.g., employees come to one area at designated times to pick up overnight delivery packages).

 

Operational Issues

For Landlords For Tenants
Elevators: Consider if elevators can be specifically designated for use by groups of tenants that already have overlapping traffic patterns (e.g., a shared floor or floors, shared restrooms, etc.). Consider voice activation or employee destination control. Is lock off or destination dispatch appropriate? Eliminate general tenant use of freight elevator (so that use can be traced). Consider limiting capacity of elevators (e.g., 4 passengers) with floor designations. Consider if masks are recommended in elevators. Evaluate workstations’ physical proximity, layouts, traffic flows and heights of partitions.  Consider shared rooms, phone rooms, landing areas being “checked out” for a day to one person with cleaning in between.
Loading Dock: More formal tracking of traffic and access in this area may be necessary for purposes of contact tracing and access to this area for non-deliveries may need to be limited. Printer/Copier Areas/Supply Areas/Filing Areas/Shared Closets: The goal with respect to all of these areas is to reduce the number of personnel coming into contact with the common element, to be able to track which personnel share such areas, and to frequently clean the most commonly used ones. This can be done by assigning employees to certain areas, designating times/splitting schedules/and making cleaning supplies available.
Amenity Areas:  Evaluate all amenity spaces for whether they can be safely reopened, traffic monitored, cleaned and have social distancing apply (e.g., bike rooms, conference areas, fitness facility, cafeteria, rooftop deck). Some may need to remain closed in the near term. Conference Rooms: Need to be evaluated and reconfigured not just for social distancing, but office supplies, catering materials (e.g., water pitchers, ice buckets) and AV equipment, need to be cleaned (or eliminated) more frequently.
Cleaning frequency and products need to be detailed and communicated. “Disinfection” is a higher standard than “enhanced cleaning” and may be the desired goal in the near term. Discuss with Tenant its preferences for additional cleaning or for Tenant to take over its own cleaning. Consider high-traffic areas and procedures for each, e.g., hallway flows one way, cafeteria and break rooms, restrooms and internal staircases, and increase cleaning and signage in these areas. “Disinfection” is a higher standard than “enhanced cleaning” and may be the desired goal in the near term. Consider what to do with common-touch appliances, condiments, silverware, etc.
Communicate maintenance protocols for entry into tenant premises and utilization of personal protective equipment by building engineers and janitorial staff. Tenants may prefer to perform or contract for their own. Make sure that your employees have the technology needed for mobile conferencing even from offices (e.g., hardware equipped with cameras and microphones, software for mobile meeting that includes IT security) and training for it.
Air Quality: Consider air filter type, frequency of changes, frequency of air coil cleaning, maximizing exterior air, indoor air quality standards and inspections. Are there filters, equipment, etc. that Tenant can install within the premises to assist with combatting the virus (e.g., UV lights, freestanding HEPA filters, etc.)?
Other Building Systems:  Check on other building systems in advance to make sure that all is ready for a return to work (e.g., automatic flush toilets may not have been flushed in several weeks). Employee Equipment:  Make sure that each employee has a designated laptop, keyboard, mouse, headset, etc. if they were previously using general purpose equipment.

 

 

While the above list may not be exhaustive, it will help get you started. Collect resources and talk to your internal team to find the right combination of physical changes, communication and individual habits that will work best for you and your workforce. Keep in mind that whatever is in place Day 1 will be dynamic, and landlords and tenants will need to continuously communicate with each other, monitor what is working and what is not, analyze feedback from each other and refine the approach.

______________________________

For More Information

Jeff Keitelman

Kim Pagotto

Brian Diamond

Trevor T. Adler

[1] All of the below considerations need to be reviewed in light of all applicable laws.

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.