Most landlords and property managers are now familiar with steps they should be taking to reduce the spread of COVID-19.  But what if a tenant or employee has tested positive with COVID-19?  Unfortunately, many landlords and property managers are grappling with this very question.  While there’s some clarity as it pertains to evictions in the landlord-tenant context, other considerations like disinfection, required notices, and maintenance, are evolving or unclear.  Here are steps landlords and property managers can take in response to an employee or tenant testing positive with COVID-19.

Measures Landlords Can Take for Employees

For workplaces, there is a large variety of guidelines and procedures that are generally available to review.  The Centers for Disease Control and Prevention (CDC) has valuable guidance available online here and here. The Occupational and Safety Health Administration (OSHA) has valuable guidance available online here. In short, if there is an incident where one employee may have exposed others to COVID-19, here are five steps employers should take:

1. Send the affected employee home and instruct them not to return to work until the criteria to discontinue home isolation are met in consultation with healthcare providers, and state and local health departments.  Make sure to maintain all information about employee illnesses as a confidential medical record.
2. Ask the affected employee whether they have had close contact with any other workers.
3. Disinfect the affected employee's workspace using the same methods outlined by the CDC here.  If employees are used to conduct sanitation, OSHA imposes requirements to protect such employees from exposure and provide training regarding sanitation procedures and the use of certain sanitation supplies.  As such, it may be more prudent to hire third-party hazmat companies to disinfect the work place.
4. Confirm with the affected worker if they have notified local authorities, if required, to identify a new case of COVID-19.
5. Inform fellow employees of their possible exposure to COVID-19 in the workplace and instruct them to self-monitor for COVID-19 symptoms while maintaining the affected employee’s confidentiality to comply with HIPAA and the Americans with Disabilities Act.  This can be done by speaking with affected employees or sending an email or other written communication stating: (1) The employer has learned that an employee that tested positive for the COVID-19 virus; (2) When the employee learned of the results; and (3) Notifying employees that they have potentially been exposed to COVID-19 and should contact their local public health department for guidance and any possible actions to take based on their individual circumstances.

Measures Landlords Can Take for Tenants

For residential properties, guidance is not as clear, and is potentially complicated since many cities and counties have passed legislation prohibiting eviction.  As such, an affected resident who is required to self-quarantine in a multi-family residential unit could create a scenario where the landlord might not be able to effectively perform certain maintenance obligations.

Ultimately, the best solution to this is a proactive one, preferably with an advance "crisis plan" in place.  While this may be impractical in the current situation, a relatively quick crisis plan can be implemented by:

1. Outlining the proactive measures being undertaken to disinfect common areas as specified by the CDC above;
2. Informing residents of changes in staffing, closure of certain common areas (i.e. pools), maintenance, or the payment of rent, if shifting to an online rent payment system.  Maintenance may be especially important, as some items, like emergency maintenance due to plumbing issues, may be unavoidable.  Creating guidelines, personal protective equipment, and procedures requiring disinfection upon entry and exit may be prudent for maintenance staff; and
3. Informing residents with appropriate CDC materials.  It is important to note to residents that property management is not an acceptable alternative for medical advice or information.  Any notice or statements from property management should mirror the language used within CDC materials as closely as possible, and provide links to CDC materials, or the materials themselves.

After learning about a resident testing positively with COVID-19, a residential property manager or owner may take the initiative to inform tenants of an increased need for self-observation and social distancing measures, however this should be done carefully.  Residents have a right to privacy, and under the ADA, it is not permitted to treat those with COVID-19 differently than any other tenant.  As such, a notice regarding a potential exposure, if any, to tenants, should be limited to: a notice of increased risk to promote self-observation and isolation, a reminder that disinfection measures will continue to ensure the essential use of common areas, and reminders of the measures a tenant can take to curtail spreading COVID-19.  Furthermore, a landlord should not inquire to residents about whether or not they have been tested for COVID-19.

For further inquiries or questions, you can consult with a Task Force attorney by emailing NDCovid19Response@ndlf.com or contact our office directly at 949-854-7000.