As commercial offices begin to reopen and employees return to the workplace, many employers want to offer COVID-19 testing to their employees before returning to the workplace. Some employers may even want to take it a step further and require their employees to undergo COVID-19 testing to keep their employees safe and protect themselves from potential employee claims should someone become infected. How should a landlord deal with requests from commercial tenants to perform such testing for their employees on site?
The Real Estate Team at Levenfeld Pearlstein has been working with owners of downtown office buildings across the country to address how to handle these tenant requests to conduct onsite COVID-19 testing. For instance, one tenant wanted the right to have a mobile testing van park in the circular driveway or the parking lot of a building for one day to test employees of the tenant’s company as they return to work. Similarly, if such parking is not available, a tenant may be looking to use a lobby, conference room, or other common areas for such testing.
Although owners of office buildings and employers have been offering flu shots or other immunizations as an amenity to their tenants for years, undertaking COVID-19 testing prevents unique challenges. First, flu shot vaccines are offered to a population that is presumably healthy or, at least, not presumed to have a highly infectious illness. Some people attending immunization events may have the common cold, but presumably nothing more dangerous than what employees typically show up with for “a normal day” of work (if we can remember what that was). With the novel coronavirus, it is entirely possible that an employee may show up to the property to return to work with asymptomatic (or possibly, symptomatic) COVID-19.
While each situation is unique, we strongly encourage any landlord to require, as a condition of such use, that the tenant enters into a short-term license agreement to use a portion of the property for testing. It is also reasonable to charge such tenants a fee for such licensed use. Some of the critical issues to be addressed by a license would include:
The LP Real Estate Team has experience advising clients on these issues, including creating a form license for landlords to tailor to their needs, and we would be happy to work with you if you have a this type of situation.