As the United States continues to struggle with the severe toll of the coronavirus pandemic, the commercial real estate sector is playing a vital role in reopening and recovery efforts. During this crisis, BOMA International and its members have remained steadfast in their commitment to tenants, employees and the public. The vast majority of buildings have never closed, and property owners and managers have continued operations during these uncertain times to maintain safe buildings and assure the continuation of essential services.
Property professionals already are implementing new protocols to protect the safety of returning workers. BOMA International has coordinated with member companies and experts, created task forces, identified best practices and protocols for safety procedures and published a series of comprehensive reopening guidance documents based on government health and safety rules, directives and guidelines to assist in those efforts. In fact, one of BOMA’s guides, Getting Back to Work: Preparing Buildings for Re-Entry Amid COVID-19, is referenced by the U.S. Centers for Disease Control and Prevention as a resource for all commercial real estate buildings.
However, despite these efforts, the threat of legal liability persists, and much remains unknown about the novel coronavirus. Federal, state and local rules and directives about how to mitigate its spread are continuously evolving, sometimes in contradictory ways, creating even more legal uncertainty. The very real threat of lawsuits alleging, for example, negligence for reopening prematurely or using "inadequate virus mitigation measures" is a serious concern. This is true even for the many property professionals following government guidelines and acting in good faith.
TOWARD A SAFE HARBOR
BOMA is a leading voice in congressional conversations, arguing that facility liability protections are needed to provide some legal certainty as property professionals continue to do their part to support reopening businesses around the country. A tailored, specific and limited legal safe harbor is essential for those commercial real estate businesses that are following public health rules, directives and guidelines; developing plans; and implementing protective measures.
Certainly, if a business is willfully violating these laws or guidelines, then they should not be able to avail themselves of liability protections. But, for those who are acting in good faith, protections are prudent and will provide certainty and reassurance at a time when it is needed most. BOMA is hopeful that some form of liability protections will be included in the next round of COVID-19 recovery efforts.
The good news is that, absent federal actions, several states already have enacted legislation to deliver these types of liability protections. Utah provides all persons and premises with blanket protection through its Senate Bill 3007, giving immunity to all from liability for injury resulting from exposure to COVID-19, unless there has been willful misconduct or reckless or intentional infliction of harm. Oklahoma passed a similar bill, Senate Bill 1946, which grants everyone immunity from liability for any claim by a person who was exposed to COVID-19, as long as no laws were violated and the person or business accused followed official safety guidance.
This kind of broad liability protection is much less common than, for instance, that offered by the state of North Carolina. As part of North Carolina’s Senate Bill 704 COVID-19 relief package, immunity is provided only to a swath of "essential businesses," such as grocery stores and restaurants, from liability for any harm caused by the coronavirus. The liability protections also have an expiration date, something that is becoming commonplace in liability bills throughout the country.
For now, many states are hesitant about granting general businesses immunity from liability, choosing rather to allow immunity from civil or criminal liability during a declared emergency only to certain healthcare workers and occupations.
ONGOING ACTIONS
BOMA International’s advocacy team continues to press the need for these liability protections at all levels of government. Directly engaging congressional leadership and providing resources, letters and talking points to BOMA local associations are just a few of the ways BOMA International is working with members to keep this issue center stage.
Businesses and employers are relying on BOMA members to provide them safe, secure and healthy environments. Without important liability safeguards in place, it will be even harder to facilitate recovery efforts and to move the economy forward.
For more information on legislative actions, contact BOMA International Vice President of Advocacy & Building Codes John Bryant at jbryant@boma.org.
This article was originally published in the July/August 2020 issue of BOMA Magazine.