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What does the presence of COVID-19 mean for owners and occupiers of commercial properties?

23 March, 2020

The arrival of COVID-19 has wide ranging implications for owners, managers and occupiers of commercial buildings. We set out below some of the considerations in the current environment.

The closure order announced by the Government on the 12th March last imposed obligations on colleges, schools and leisure outlets to close their doors to at least the 29th March next. Similarly, pubs have been forced to close to limit the spread of the virus and reinforce generally the importance of “social distancing” in society. In addition to educational and leisure facilities there are restrictions on mass gatherings such as sporting events, concerts and religious ceremonies to no more than 100 inside and no more than 500 outside any one venue. As a consequence the future financial health for many businesses is uncertain and the order issued on the 12th March last may not be the last closure order the government directs before we see a reduction in the amount of COVID-19 cases reported. Clearly the owners and occupiers of commercial buildings need to be in a position to adapt to any further closure orders the Government may impose.

The Safety, Health and Welfare at Work Act 2005 (as amended) 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 Safety, Health and Welfare at Work Act 2005 are passed on to property managers, tenants or licensees as the case may be.

Aside from the legislative framework governing the duty of those in control of commercial buildings there is a general duty of care on one another. Those people in control of commercial buildings not the subject of a closure order may have a general duty of care to take all reasonable and appropriate steps to contain the spread of COVID-19. In circumstances where there are certain commercial buildings which are not subject to a closure order by government it is up to the particular controller of that workplace to contain as much as possible against the spread of the COVID-19 virus. The more foreseeable the risk the greater the duty of care on the person in control.

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:

1) prohibit or limit non-essential access to the workplace;

2) increase the regularity of cleaning in the workplace to include door handles, light switches and other commonly used touchpoints

3) 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;

4) reconfiguration of work spaces to comply with the social distancing;

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Julian was admitted as a solicitor in 2002 and joined Flynn O’Driscoll as a Partner with responsibility for Litigation and Property related matters in December 2011. Prior to joining Flynn O’Driscoll, Julian established and operated his own legal firm for many years….

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Majella joined the firm in June 2018 and works in the Property Department. Majella has considerable experience in both commercial and residential conveyancing transactions….

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