We are in unchartered waters and the situation is rapidly changing.
The following are general guidelines for businesses in the wake of the corona virus pandemic.
For Business Open to the Public
- Communicate to patrons about restricted access, reduced hours of operation or suspension of services.
- If you are able to stay open for business, increase the frequency and scope of cleaning and provide appropriate materials for cleaning hands and commonly used surfaces. Post information in your place of business about cleaning protocols and reminders to patrons to protect their own health.
- Contact your insurance carrier to determine coverages for COVID-19 related claims, including business interruption coverage.
- Keep track of guidance from local, state and federal authorities that may impact your business, especially from the Centers for Disease Control and Prevention (CDC). Guidance, including for possible restrictions or closures, may be varied for different businesses and jurisdictions.
- Follow all government-imposed restrictions and recommendations. Failure to follow published recommendations and guidelines could expose your business to liability.
For Landlords and Tenants
- Increase the frequency and scope of common area cleaning and communicate this schedule to tenants. Post information in the premises about cleaning protocols and reminders to tenants to protect their own health.
- Advise tenants to avoid touching common surfaces in common areas – doorknobs, counter tops and the like.
- Determine what insurance coverages, including for business-interruption, is available for COVID-19 related claims.
- Determine whether leases contain “force majeure” clauses and see contract discussion below.
- In some jurisdictions, local governments have placed a temporary moratorium on evictions due to the pandemic; seek legal counsel before proceeding.
- Remember landlords need tenants just as much as tenants need business and living space; Communicate early and often if you believe financial hardship will prevent compliance with a lease; keeping lines of communication allows parties to work together through this crisis.
- Encourage employees to stay home if they are sick.
- Ensure that sick-leave policies are consistent with public health guidance, including permitting employees to stay home to care for sick family members.
- Employees should be encouraged to communicate with the employer as to whether they have interacted with anyone who has COVID-19.
- Communicate pay, benefit and leave available to employees, and stay apprised of federal relief laws and available funding.
- Determine if your business can support telecommuting or other flexible worksite arrangements.
- Plan for ways to minimize exposure between employees in the workplace and encourage employees to follow health guidelines (hand washing, avoid shaking hands, avoid unnecessary travel etc.)
- Remember HIPAA obligations apply to employers. If employers have questions on protecting employees’ confidentiality while effectively communicating health information in the workplace, seek legal counsel.
- Contract terms govern the contracting parties’ respective obligations.
- If the contract contains a force majeure (act of god) clause, either party may be excused from performance if the pandemic caused the contract breach.
- This inquiry is fact-specific, and applicability of the force majeure clause is analyzed in the context of each situation in which it is invoked.
- If your contract does not have a force majeure clause other “common law” doctrines may excuse performance, such as impossibility or frustration of purpose.
Communicate with contracting parties early and often if you anticipate missing a contract deadline or inability to perform. The parties have a better chance of negotiating a work-around if they communicate and share information.