Updated CDC Guidelines Impact Business Districts, Office Buildings and Their Tenants, and Users

To support shifting from WFH back to the office, the CDC issued recently updated recommendations for office building settings aimed at limiting the spread of COVID-19. The guidelines impact every aspect of office life and plainly advise that it is time to “change the way people work.” These guidelines are intended to be used in conjunction with the continually evolving CDC Interim Guidance for Businesses and Employer.

Following these guidelines may require reshaping office life and layouts—and office building and business districts designs—and not just for the immediate future. For example, companies with open office layouts or hot desking may need to reevaluate their office layout, and landlords renting open spaces may be asked to make accommodations in buildouts (current and planned). And as the pendulum shifts, building owners and the office building employers will have to work together to address changes in air circulation and filtration systems and the cleaning of common spaces. Office building employers, building owners, lenders and building operation specialists should start planning together now, to take these factors into account.

The Guidelines in Brief

The guidelines are expansive, ranging from the prosaic to those that will be harder to implement. Office building employers and owners should review them in full, but key recommendations include:

Ensure the building is ready for occupancy.

• Improve ventilation by opening windows or using more outside air if environmental factors permit.
• Increase filtration for HVAC systems—even running the system when no one is in the building to encourage dilution.
• Consider using ultraviolet germicidal irradiation to inactivate the virus.
• Check for mold, rodents and stagnant water systems where the building may have experienced a prolonged shutdown.

Implement engineering controls in high-risk areas.

• Arrange for six feet of space between individuals.

– Move furniture or installing transparent shields or other physical barriers to separate individuals where social distancing is not an option.

– Install tape or other markers to help individuals stand six feet apart in high traffic or common areas such as reception, break rooms, and conference rooms, among others.

– To the extent feasible, these guidelines should be extended to elevators.

• Minimize high-touch surfaces. For example, consider using single-serve items for snacks, coffee and other pantry items.
• Increase cleanings and regularly disinfect surfaces and provide supplies to employees to wipe down frequently touched surfaces before use.

“Change the way people work.”

• Monitor employees for symptoms of COVID-19 with temperature screenings and daily health checks. Encourage employees who have symptoms not to come into the office and get tested.
• Implement “work phases” to limit the number of employees in the office or in certain areas at the same time.
• Employees should commute alone and by car, and where possible, refrain from using mass transit.
• Educate employees on limiting the spread of COVID-19, including the posting of signs encouraging employees and guests to maintain social distancing, wash their hands, and wear face coverings.
• Have employees wear a cloth face covering to cover their nose and mouth in all areas of the business.

Develop (or Refine) a Strategic Plan to Reopen.

The publication of these guidelines suggest that as a return to offices is contemplated (or is already underway) building owners and office building employers should not to rush toward a full return, but rather develop a strategic plan for reopening. This necessarily requires employers and building owners (along with lenders making or holding loans secured by office buildings) to consider the CDC guidelines in anticipation of the queries they will likely receive from office users or others. These queries may range from simple “taping” guidelines to those involving more costly changes to office layouts or ventilation systems—and even the cost-sharing of these changes. The plan should also include strategic responses to the inevitable queries about revisiting lease provisions (i.e., regarding HVAC, alterations and cleaning). Lenders should also be prepared to revisit or revise draft loan document provisions to address these new requirements. And as has already started to occur, building owners should be prepared to address requests for subleasing or lease surrenders. Thus, any reopening plan should include a comprehensive review of leases regarding requirements with compliance with applicable laws and rules and contractual obligations relating to the necessary changes to the workplace.  

Although these are guidelines that the CDC does not enforce, the Occupational Safety and Health Administration (OSHA) does have enforcement powers to protect employee health and safety. While OSHA has been reluctant to enforce its authority with respect to COVID-19 transmission risks and issued its first coronavirus citation only last week, this should not be taken as the long-term path as in-person work is ramping up while the pandemic persists. Indeed, OSHA’s enforcement powers can range from issuing fines to shutting down buildings. Accordingly, employers and building owners should continue to monitor changing CDC guidelines and OSHA guidance, and also pay close attention to binding and recommended state and local enforcement agencies and laws. As detailed in a prior alert, many of these changes and guidelines also implicate federal and state employment laws, including privacy laws and preventing discrimination relating to COVID-19 in the workplace. As part of the reopening plan, employers should have written policies in place addressing the steps being taken to comply with the applicable federal and state laws. 

To that end, building owners and office building employers should each be documenting the steps taken together and separately on their workplace safety and even detail the plan to comply with the CDC guidelines. Indeed, even as employers or building owners ponder reopening, liability concerns may urge postponement or delay full office building reopening in order to get a compliance program in place and minimize the risk of liability. A comprehensive, documented and well implemented plan can help mitigate some of those risks.

Consider Long-Term Implications Now.

The CDC guidelines have long-ranging implications to every aspect of dense urban living—from changing the way employees commute, how closely they sit next to each other and even the quality of the air they breathe. As a result, this will mean long-term changes to buildings and building operations. As offices reopen, these changes even have the ability to impact urban planning. For example, the leasing market for office space may have to adapt to two conflicting trends over the long term: increased need for space between employees to avoid the spread of contagion on the one hand, but a move away from the traditional office space on the other. The result is likely to see certain employers lease less space as their demand decreases and remote work increases. However, other employers may require more space or require their space to be reconfigured. For example, building owners of former industrial spaces may face an acute burden to make their spaces more usable in a world where closely packed employees and open offices are no longer in vogue. Even more traditional layouts may come under scrutiny as tenants interrogate core systems, including HVAC, and negotiate these provisions more heavily than they have in the past. This in turn may mean more difficult negotiations over tenant allowances. Other employers looking to renew may try to pre-negotiate extensive modifications to their space. Even lenders may be impacted as they conduct due diligence and determine which work is required to make an office building functional under pandemic and post-pandemic circumstances. As the pandemic “changes the way people work,” now is the time to consider the long-term implications for building owners, office building employers and even the lenders.

For more information, please reach out to your regular Pillsbury contact or the authors of this client alert.

Pillsbury’s experienced multidisciplinary COVID-19 Task Force is closely monitoring the global threat of COVID-19 and providing real-time advice across industry sectors, drawing on the firm’s capabilities in crisis management, employment law, insurance recovery, real estate, supply chain management, cybersecurity, corporate and contracts law and other areas to provide critical guidance to clients in an urgent and quickly evolving situation. For more thought leadership on this rapidly developing topic, please visit our COVID-19 (Coronavirus) Resource Center.