SAFE-ZONE: Considerations for Owners and Occupiers of Commercial Buildings

23^rd April 2020 _ Christine Traynor, Senior Associate, Coughlan White & Partners Solicitors written for Orbano Limited _  5 min Read

The implications of COVID-19 have been profound, and the path to business recovery is evolving and fluid. There are wide ranging implications for owners, managers and occupiers of commercial buildings. Other than the Safety, Health and Welfare at Work Act 2005 and the Occupier’s Liability Act 1995 (which impose duties on employers and occupiers of properties respectively), the Health Act 1947 imposes obligations in respect of the control of contagious disease. Here are some of the legal considerations.

Sweeping Lockdown Measures

It began on 12 March 2020 when the Taoiseach announced that from 6pm that evening that higher education facilities, schools, childcare facilities and cultural institutions would close. The government also advised that mass gatherings of any kind including conferences, sporting events and religious events should be curtailed to a maximum of 100 people indoors and 500 people outdoors, with implications for venues of all types including hotels, conference facilities, stadiums, theatres and cinemas. Owners, occupiers and managers.

Then the guidance to stay at home had been extended until Tuesday 5 May when everyone is being urged to stay in their home wherever possible bar from very exception circumstances. The full list of essential services is available here and The full list of essential shops, post offices and banks is available here

A lifting of the strict restrictions is expected to be announced in the coming days but it is without surprise that lifting of those restrictions will occur in stages. 

The financial impact of the closures for many businesses is uncertain but planning your business’ financial health is critical and as part of planning for re-opening businesses you should plan for the additional cost implications that may arise for managing people on your premises.

“We recommend a review of your

policies, risk assessments, safety statements,

and containment measures”

Who is responsible?

Clearly owners, occupiers and managers of all commercial type buildings need to be in a position to adapt in these uncertain times, you will need to monitor closely further announcements and the implications for each of them of any additional guidance, orders or directions of the government if and as they are made. Significantly, the State has strengthened its enforcement powers in respect of these emergency measures with the enactment on 20 March 2020 of the Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020.

Outside of the unprecedented COVID-19-specific measures as a matter of general law, there is a general duty of care to one another. We owe a duty to each other not to act (and not to fail to act) in a way that causes another harm. The closer the relationship and more foreseeable the harm, the greater the duty.  Aside from it being very much the socially responsible thing to do, it stands to reason that this legal duty of care may place a duty on owners and occupiers of buildings to prevent the harm associated with the spread of COVID-19.  There can be no hard and fast rule as to what fulfilment of that duty might look like. Unless a binding legal order is made, owners and occupiers of buildings must decide for themselves what containment measures might be appropriate to the relevant building, its use, its users and other occupiers in light of the relationship which that owner or occupier has to those other users and occupiers.

Those people in control of commercial buildings not the subject of a closure order may also have a general duty of care to take all reasonable and appropriate steps to contain the spread of COVID-19. It is up to the particular controller of that workplace to contain as much as possible against the spread of the COVID-19 virus. Remember the more foreseeable the risk the greater the duty of care on the person in control.

As an employer you are governed by The Safety, Health and Welfare at Work Act 2005 (as amended) (the “2005 Act”). It sets out particular obligations for those in control of a “work place”. Such obligations go beyond those an employer has towards his or her employees. A workplace includes not only offices but includes shops, hotels and other such similar workplaces. At a minimum those in control of a workplace or part of such need to ensure that the workplace is safe and without risk. To this end those in control of commercial buildings need to have carried out a risk assessment, identified any potential hazards and have prepared a safety statement in respect of the particular workplace. A party in “control” of a workplace does not necessarily have to have employees located in the space. In reality such obligations as are imposed by the 2005 Act are passed on to property managers, tenants or licensees as the case may be.

Containing the spread of the virus within the workplace:

There may be certain containment measures more appropriate for some commercial buildings over others. Those in control of workplaces that remain open might consider the following non exhaustive list of actions to undertake and maintain during the current crisis:

• prohibit or limit non-essential access to the workplace;
• introduce temperature control measures on entry;
• increase the regularity of cleaning in the workplace to include door handles, light switches and other commonly used touchpoints
• increase the display of information notices in the workplace and guidelines as to hand hygiene, social distancing and etiquette in terms of meetings, greetings, coughing and sneezing;
• reconfiguration of work spaces to comply with the social distancing;

CRITICAL POINT: The Safety, Health and Welfare at Work Act 2005 imposes general duties to have a safe place of work with appropriate training and equipment. Of particular note is that section 19 and 22 of the Act requires a risk assessment be performed and that if necessary on foot of that risk assessment, health surveillance measures be implemented. The Act also requires that an employer provide appropriate personal protective equipment if necessary and there is civil liability for an employer breaching its provisions.

“Arrange with your solicitor to review

your policies and procedure documents to ensure

compatibility with the legislative framework

in your industry.”

Is there a legal duty to act?

Aside from the legislative framework legal duties can also arise indirectly. Employers owe particular duties to their employees under the 2005 Act which also places certain duties on persons in control of a work place or any part of a work place to ensure the place of work is safe and without risk to health.

These duties apply beyond those owed directly to employees. Once they apply, they also extend to the requirements under the 2005 Act to undertake a hazard identification, risk assessment and the preparation of a safety statement in respect of the work place. Almost all commercial buildings will also be work places, so that these duties apply to all those in control of shopping centres, offices, hotels and all other places of work even if the persons in control of the work place do not themselves have employees in those buildings. The obligations may be, and are regularly, passed on to property managers, tenants and occupiers by lease, licence or other agreement.

It is worth repeating the closer the relationship and more foreseeable the harm, the greater the duty.  Aside from it being very much the socially responsible thing to do, it stands to reason that this legal duty of care may place a duty on owners and occupiers of buildings to prevent the harm associated with the spread of COVID-19.  There can be no hard and fast rule as to what fulfilment of that duty might look like. Unless a binding legal order is made, owners and occupiers of buildings must decide for themselves what containment measures might be appropriate to the relevant building, its use, its users and other occupiers in light of the relationship which that owner or occupier has to those other users and occupiers.

Infectious Diseases – Statutory Duties 

Common law principles have been supplemented by statute.

There are certain diseases declared to be infectious diseases subject to statutory control and the Infectious Diseases (Amendment) Regulations 2020 adds COVID-19 to this list from 28 February 2020.  As of the date of this article being published no such regulations have been made or promulgated, given the terms of section 43 of the 1947 Act it appears that damages in civil proceedings can indeed be brought for anyone who has been infected as a result of a breach of those provisions by another.

Section 30 of the Health Act 1947 imposes criminal liability but as a measure designed to protect people there is no reason in principle why it could not ground civil proceedings for breach of statutory duty.

Section 43 of the Health Act 1947 anticipates that civil proceedings for damages can be brought for breach of the precautions imposed under the Act providing for a civil presumption that the infection was caused from the failure to implement certain precautions

The Health (Preservation and Protection and other Emergency Measures in the Public Interest) Act 2020 inserts section 31A into the Health Act 1947 which gives the Minister for Health wide powers to make regulations to combat the spread of COVID19 with criminal consequences.

It should be noted that section 33 of the Health Act 1947 which requires a person selling or landlord letting a property in which an infectious person has been residing within 3 months of the sale or letting to give notice of the infectious to the purchaser or new tenant, does not apply in respect of COVID-19. This is because COVID-19 was added to the schedule of diseases in the Infectious Diseases Regulations 1981 which provide that section 31 does not apply to the diseases in that schedule 

What actions could be taken?

Appropriate action for all buildings that remain open and operational may include taking some or all of the following:

• increasing cleaning schedules and using more effective cleaning products;
• revising procedures to include routine cleaning of door handles and commonly used touchpoints;
• making liquid soap, hand sanitizer and/ or anti-viral wipes available for use in appropriate areas;
• re-arranging the lay-out of work spaces (seats, desks, tables etc.) to ensure that recommended social distancing parameters can be adhered to;
• restricting non-essential access; and
• placing notices and reminders to promote hand hygiene, social distancing and good personal etiquette when it comes to meeting, greeting and coughing or sneezing.

This list will now be familiar to most of us, but is not exhaustive. Following official guidance from the HSE should go a long way towards meeting the legal expectations.

Landlord and Tenant considerations

Rights and obligations as between landlords and tenants are governed by the terms of the lease agreed between them. There is no legislation that alters how the agreed terms should operate in times of crisis, whether that is a financial crisis, a public health crisis or any other. Unless the lease could be said to be “frustrated” (referred to again below) it is business as usual as between the parties. This means, unless the lease expressly says otherwise, that in respect of those parts of the building for which they each have responsibility under the lease:

• each party must comply with all applicable laws, including health and safety legislation and the government ordered closures and restrictions;
• except where closure is ordered by the government, keep open covenants (particularly relevant in retail leases) and obligations not to leave leased properties unoccupied for any prolonged period (more relevant in office and industrial leases and typically the period is 14 days) must be complied with and have the potential to create dispute if decisions to close, whether temporarily or not, are made unilaterally by tenants;
• the general duty to act to prevent the spread of COVID-19 as discussed above arises for each;
• the right to recover the costs of any actions taken will very much likely be recoverable by the landlord through the service charge (being taken for the benefit of the tenant, possibly among other tenants or occupiers who would share the liability), but the costs of any actions taken by the tenant would be the tenant’s own responsibility (being taken for its own benefit / without recourse to the landlord);
• rent must continue to be paid irrespective of any financial hardship, temporary or otherwise; and
• if the tenant business were to suffer irreparably, no legal right of termination would generally arise (although other avenues may be open  to the tenant including exercise of a contractual break option or subject to landlord’s consent, assignment or sub-letting).

It is possible that following a particular cluster of confirmed cases, a building may be the subject of a specific health closure order.  At that point, a tenant would likely find that there is an obligation in the lease requiring it to comply with the general law.  If it didn’t a landlord could also seek to enforce the tenant’s covenant to ensure compliance  We have not seen specific orders such as this in Ireland yet, but it could be that this set of circumstances would pose a question as to the obligation on both parties to continue to perform obligations where there is a fundamental change in overall circumstances affecting the building itself.  In exceptional cases the legal doctrine of “frustration” (whereby a truly fundamental matter going to the heart of the contract cannot be performed) or a “force majeure” clause in the lease (excusing non-performance of an obligation on grounds of a major intervening act) could be relevant to assist a tenant but neither of these would be widely available. The fact that any closure is likely to be temporary would hamper any argument for frustration, which is very difficult to prove generally and “force majeure” clauses are not typically agreed in Irish leases. For more information on these issues see contact our office and speak with one of our specialists.

While the terms of the lease govern the legal relationship, as with any relationship, when things get rocky communication is key to its survival. And the best outcomes for both parties may involve a little compromise on both sides. Consultation and co-operation on virus containment measures would seem to make best sense from everyone’s perspective.

 

Covid-19 Claims & Duty of Care for Employers

Common law and statutes with respect to the potential liability that could conceivably ensue for occupiers, owners and managers and even medical officers notwithstanding the unfolding and very recently introduced legislative measures in this context.

This briefing is for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed. For an online consultation book a 60-minute appointment with one of our specialist advisers for as little as €95.00 plus VAT at Coughlan & White Solicitors.