For landlords and tenants who are either healthcare service providers or lease space to healthcare service providers, the COVID-19 pandemic has amplified the need for cleanliness and sanitization and the enactment of protocols to help stifle the spread of the virus.
As the visitors to such healthcare spaces are likely there to seek healthcare treatment, it is reasonable to assume that such visitors are more likely to be infected by the virus than those visitors to other types of space. Such visitors will be touching surfaces, sitting on chairs and otherwise interacting with the same general areas (e.g., patient check-in counters, exam tables, etc.) or supplies (e.g., clipboards/pens, thermometers, stethoscopes, communal reading materials, etc.). As a result, the risk of further contamination is increased.
The Centers for Disease Control and Prevention (CDC) has released recommended guidelines for healthcare clinical space that should be implemented by landlords and tenants to aid in stopping or slowing the spread of COVID-19. Some of the recommended CDC guidelines are set forth below with commentary; however, the CDC website provides a fulsome list and will be updated as new information or recommendations are available.
Assess and restock supplies on a regular schedule. Provide certain supplies—tissues, alcohol-based hand rub, soap at sinks, and trash cans.
Regardless of whether the landlord or tenant is responsible for providing supplies to the clinical space and/or common area, the parties should implement ongoing communication to ensure that the necessary amount of supplies to operate the healthcare clinic do not run out before being restocked.
Post signs at entrances and in waiting areas about prevention actions.
While this recommendation should be easy to implement, most leases will not allow a tenant to unilaterally post signage throughout a building. A tenant can usually display appropriate signs in its designated exclusive space; however, either the landlord or tenant, with the landlord’s consent, will usually need to post signage within the common areas or on the outside of the building itself.
Place chairs six feet apart, when possible. Use barriers (like screens), if possible. Create separate spaces in waiting areas for sick and well patients.
Landlords and tenants for any space open to the public, including restaurants and grocery and retail stores, but especially healthcare facilities, should place chairs six feet apart and use barriers as effective strategies to combat the spread of COVID-19. However, there are unique aspects about healthcare clinical space since the patients are moving from one location to another, often one after another, for periods of time. There may be multiple physicians serviced by a single waiting room and there may be a mix of patients who are currently COVID-19 positive and those who are negative. As such, the parties should think about patient flow and schematics to configure the waiting area, hallways, restrooms and other common areas in the most efficient way to allow COVID-19 negative patients to remain separate from COVID-19 positive patients. Also, if the barriers or other space reconfigurations are anticipated to be anything beyond temporary or involve physical alterations to the space, landlord consent or notice could be required.
If the office has toys, reading materials, or other communal objects, remove them or clean them regularly.
Whoever is responsible for providing janitorial services should increase the frequency and intensity of the cleaning and janitorial services. Some leases may state that landlord is responsible for “normal cleaning and janitorial services,” so the parties would need to discuss how to handle these more rigorous cleaning requirements, including how the cost for such additional services will be allocated.
Place staff at the entrance to ask patients about their symptoms.
To place staff throughout the building (whether at the main building entrance or the main suite entrance), landlords and tenants will need to coordinate the location and the setup for such staff. For example, will the staff member be seated at a table with paperwork asking preliminary questions or will the staff member be standing at the door acting more as a “gatekeeper” and merely taking the temperature of the patients before entry? A tenant may not have the right to have staff members outside of its leased space under its lease, but a landlord should try to make reasonable accommodations. Depending on the extent and location of such check-in areas, a landlord may want to enter into a letter agreement with a tenant to cover additional indemnification or insurance concerns.
Allow patients to wait outside or in the car if they are medically able.
While more of an administrative matter for the tenant, it is still a good idea for a tenant to keep the landlord apprised of this practice for the landlord to be aware that there could be patients waiting outside the building or in the parking lot. The landlord would want to be aware of this fact for both liability and security purposes and, as mentioned above, may want to enter into a letter agreement with the tenant to address some of these concerns.
Place sick patients in a private room as quickly as possible.
Another administrative item for the tenant, this practice would help reduce the risk of spreading COVID-19 as a result of person-to-person contact. Having private rooms may require some alterations to the space and could require the landlord’s involvement and agreement.
The threat of COVID-19 is likely not going anywhere in the immediate future, so the more proactive both landlords and tenants are on the front end the safer the premises can be for the patients. Landlords and tenants should review their existing lease documentation and work together to ensure that appropriate safeguards are implemented by and at the expense of, the appropriate party.
If you have any questions about your lease agreement in light of COVID-19, please contact the authors.