Sharing the Burden, Sharing the Risk

Offices are opening back up.

Let’s hope that our society has mellowed through the events of the pandemic in such a way that we can ease our way back into the workplaces with reasonable expectations for our health safety. For many companies, large and small, Landlords and Tenants will share responsibility for creating and maintaining a healthy environment to which the workforce and visitors will return.

In order to unpack this further, we must look at the typical levels of responsibility that exist between a landlord and a tenant in a multi-tenanted building. Using the more complicated scenario first, consider an office building with a lobby, common restrooms, elevators and possibly a connected parking structure. The landlord collects rent from the tenant which includes a Common Area & Maintenance (CAM) Charge. The rent is fixed per the lease but the CAM charge is a bit more nebulous. The landlord becomes the manager of those fees collected and contracting services that provide the right level of customer experience for that type of building. Sometimes the landlord can pass through the actual cost of the services and adjust the CAM accordingly while other times it is relatively capped by the lease agreement. The key is that the tenant is getting what they are paying for based upon usual and customary facility expectations.

We are emerging from a situation that has adjusted most peoples’ expectations; including sense of cleanliness, social distance and how they anticipate another person to behave (i.e. wearing a mask). How does this translate to the multi-tenanted work place described above? It means that a person entering their workplace now has a number of new expectations and will demand new standards from their workplace. You might say, they are not the least bit concerned about who is responsible for what but the risk of getting sick is likely to drive fear and emotions like our society has not seen before.

It is important to understand that:

  • Not every building/situation has the technology to make a building touchless and sensors to determine/manage space utilization immediately
  • Not every workplace has the collective budget between the Landlord and the Tenant to provide the same standards of risk mitigation so more of the burden will fall on the tenant/employer to stagger a work schedule reducing the population until technology can safely manage a larger census in the building. 
  • Contact Tracing at any level is being debated heavily from a privacy standpoint, and yet, it is a powerful tool for risk mitigation. An employer can compel an employee to reveal the consumption of illicit drugs but we don’t know if knowledge about a person carrying a contagious disease can be managed the same way.
  • Every person in the workplace will have differing levels of concern & vigilance about passing and receiving a disease. This will tip the scale at any given moment and we already know that an enforcement strategy will be extremely difficult to manage. This will require proactive thinking and patience on the part of everyone.

Employers occupying space, especially in a multi-tenanted building of any sort, will need to work with their employees to manage a comfort level that cannot be anticipated and do so without judgement or restriction. Even that robust worker who ignored the rules and committed many pandemic spreading infractions might encounter an epiphany that will change their behavior instantly and require accommodation for their new way of thinking.

So let’s all reset our expectation, abandon litigious inclinations and work together as landlords do their best to keep things clean, thermal screen us when we enter our building and limit the number of people who can ride an elevator. We must remember that the landlord is trying to reasonably accommodate the most risk averse tenant in the building as best they can with the budget provided to them by rent paying tenants. Some employee standards will not be met and the employer will need to accommodate that person in other ways.  Per the boring lesson on CAM Charges offered above, some employers will need to work with building owners to provide resources ($$$) for the technology and maintenance changes required to meet expectations.